EN BANC where the person confined is an enemy charged with the most heinous atrocities committed

G.R. No. L-129              December 19, 1945 against the American and Filipino peoples.
TOMOYUKI YAMASHITA, petitioner, True that the rule was made applicable in time of war, and there is a conflict of opinion as to
vs. whether war has already terminated. War is not ended simply because hostilities have
WILHELM D. STYER, Commanding General, United States Army Forces, Western Pacific, ceased. After cessation of armed hostilities, incident of war may remain pending which should
respondent. be disposed of as in time of war. "An important incident to a conduct of a war is the adoption
Col. Harry E. Clarke and Lt. Col. Walter C. Hendrix for petitioner. of measure by the military command not only to repel and defeat the enemies but to seize
Maj. Robert M. Kerr for respondent. and subject to disciplinary measures those enemies who in their attempt to thwart or impede
Delgado, Dizon, Flores and Rodrigo appeared as amici curiae. 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
MORAN, C.J.: criminals is an aspect of waging war. And, in the language of a writer, a Military Commission
Tomoyuki Yamashita, erstwhile commanding general of the 14th army group of the Japanese "has jurisdiction so long as a technical state of war continues. This includes the period of an
Imperial Army in the Philippines, and now charged before an American Military Commission armistice, or military occupation, up to the effective date of a treaty agreement." (Cowles,
with the most monstrous crimes ever committed against the American and Filipino peoples, Trial of War Criminals by Military Tribunals, American Bar Association Journal, June, 1944.)
comes to this Court with a petition for habeas corpus and prohibition against Lt. Gen. Wilhelm Upon the other hand, we have once said (Payomo vs. Floyd, 42 Phil., 788), — and this
D. Styer, Commanding General of the United States Army Forces, Western Pacific. It is alleged applicable in time of war as well as the time of peace — that this Court has no power to
therein that petitioner after his surrender became a prisoner of war of the United States of review upon habeas corpus the proceedings of a military or naval tribunal, an that, in such
America but was later removed from such status and placed in confinement as an accused case, "the single inquiry, the test, is jurisdiction. That being established, the habeas corpus
war criminal charged before an American Military Commission constituted by respondent must be denied and the petitioner discharged." (In re Grimley, 137 U.S., 147; 11 Sup. Ct., 54;
Lieutenant General Styer; and he now asks that he be reinstated to his former status as 34 La. ed., 636.) Following this rule in the instant case, we find that the Military Commission
prisoner of war, and that the Military Commission be prohibited from further trying him, has been validly constituted and it has jurisdiction both over the person of the petitioner and
upon the following grounds: over the offenses with which he is charged.
(1) That the Military Commission was not duly constituted, and, therefore, it is without The Commission has been validly constituted by Lieutenant General Styer duly issued by
jurisdiction; General Douglas MacArthur, Commander in Chief, United States Army Force Pacific, in
(2) That the Philippines cannot be considered as an occupied territory, and the Military accordance in authority vested in him and with radio communication from the Joint Chiefs of
Commission cannot exercise jurisdiction therein; Staff, as shown by Exhibits C, E, G, and H, attached by petition. Under paragraph 356 of the
(3) That Spain, the "protecting power" of Japan, has not been given notice of the Rules of the Land Welfare a Military Commission for the trial and punishment of the war
implementing trial against petitioner, contrary to the provisions of the Geneva Convention of criminals must be designated by the belligerent. And the belligerent's representative in the
July 27, 1892, and therefore, the Military Commission has no jurisdiction to try the petitioner; present case is none other than the Commander in Chief of the United States Army in the
(4) That there is against the petitioner no charge of an offense against the laws of war; and Pacific. According to the Regulations Governing the Trial of the War Criminals in the Pacific,
(5) That the rules of procedure and evidence under which the Military Commission purports attached as Exhibit F to the petition, the "trial of persons, units and organizations accused as a
to be acting denied the petitioner a fair trial. war criminals will be the Military Commissions to be convened by or under the authority of
We believe and so hold that the petition for habeas corpus is untenable. It seeks no discharge the Commander in Chief, United States Army Forces, Pacific." Articles of War Nos. 12 and 15
of petitioner from confinement but merely his restoration to his former status as a prisoner of recognized the "Military Commission" appointed by military command as an appropriate
war, to be interned, not confined. The relative difference as to the degree of confinement in tribunal for the trial and punishment of offenses against the law of the war not ordinarily
such cases is a matter of military measure, disciplinary in character, beyond the jurisdiction of tried by court martial. (Ex parte Quirin, supra.) And this has always been the United States
civil courts. military practice at since the Mexican War of 1847 when General Winfield Scott took the
Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The position that, under the laws of war, a military commander has an implied power to appoint
military Commission is not made party respondent in this case, and although it may be acting, and convene a Military Commission. This is upon the theory that since the power to create a
as alleged, without jurisdiction, no order may be issued in these case proceedings requiring it Military Commission is an aspect of waging war, Military Commanders have that power unless
to refrain from trying the petitioner. expressly withdrawn from them.
Furthermore, this Court has no jurisdiction to entertain the petition even if the commission The Military Commission thus duly constituted has jurisdiction both over the person of the
be joined as respondent. As we have said in Raquiza vs. Bradford (pp. 50, 61, ante), ". . . an petitioner and over the offenses with which he is charged. It has jurisdiction over the person
attempt of our civil courts to exercise jurisdiction over the United States Army before such of the petitioner by reason of his having fallen into the hands of the United States Army
period (state of war) expires, would be considered as a violation of this country's faith, which Forces. Under paragraph 347 of the Rules of the Land Warfare, "the commanders ordering
this Court should not be the last to keep and uphold." (Emphasis supplied) We have said this the commission of such acts, or under whose authority they are committed by their troops,
in a case where Filipino citizens were under confinement, and we can say no less in a case may be punished by the belligerent into whose hands they may fall."

1
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. EN BANC
G.R. No. L-1812             August 27, 1948

2
EREMES KOOKOORITCHKIN, petitioner, The applicant is shop superintendent of A. L. Ammen Transportation Company, with about
vs. eighty Filipino employees working under him. He receives an annual salary of P13,200 with
THE SOLICITOR GENERAL, oppositor. free quarters and house allowance. He also owns stocks and bonds of this and other
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Florencio Villamor for companies.
appellant. The applicant speaks and writes English and the Bicol dialect. Socially he intermingles with the
L. D. Lockwood and Manuel O. Chan for appellee. Filipinos, attending parties, dances and other social functions with his wife. He has a good
PERFECTO, J.: moral character and believes in the principles underlying the Philippine Constitution. He has
In August, 1941, appellee filed with the lower court a petition for naturalization, accompanied never been accused of any crime. On the other hand, he has always conducted himself in a
with supporting affidavits of two citizens, copy of a declaration of intention sworn in July, proper and irreproachable manner during his entire period of residence in Camarines Sur, in
1940, and proper notice of the hearing. The petition was finally set for hearing on December his relations with the constituted authorities as well as with the community.
18, 1941, but it was held on that date because the province was invaded by the Japanese Although he could have lived in ease by maintaining good relations with the enemy by reason
forces on December 14, and the case remained pending until the records were destroyed of his being Russian-born during the years preceding the declaration of war by Russia against
during the military operations for liberation in March, 1945. The case was declared Japan, the applicant of his own volition chose to cast his lot with the guerrilla movement and
reconstituted on May 10, 1947, and the evidence was presented on August 28 and September fought the enemy in several encounters in the Province of Camarines Sur. He belonged to the
30, 1947. On the same day resolution was issued granting the petition. guerrilla outfit of Colonel Padua with rank of major. Upon the arrival of the forces of
Although appellant was represented at the hearing and cross-examined the witnesses for the liberation he was attached to the American Army from April to June, 1945.
petitioner, he did not file an opposition or presented any evidence. Although a Russian by birth he is not a citizen of Soviet Russia. He disclaims allegiance to the
The lower court made the findings of fact in the following paragraphs of its resolution: present Communist Government of Russia. He is, therefore, a stateless refugee in this
Eremes Kookooritchkin applies for Philippine citizenship naturalization under the provisions of country, belonging to no State, much less to the present Government of the land of his birth
Commonwealth Act 473, as amended by Act 535. to which he is uncompromisingly opposed. He is not against organized government or
The records shows that in August, 1941, he filed his petition for naturalization supported by affiliated with any association which upholds and teaches doctrine opposing all organized
the affidavits of ex-Judge Jaime M. Reyes and Dr. Salvador Mariano, both residents of governments. He does not believe in the necessity or propriety of violence, personal assault
Camarines Sur. In the preceding year, in July, 1940 to be precise, he filed his declaration of or assassination for the success or predominance of his ideas. Neither is he a polygamist or a
intention to become a citizen of this country. Notice of the hearing was published as required believer in the practice of polygamy. He is not suffering from any mental alienation or
by law. incurable contagious disease.
It was established at the hearing that the petitioner is a native-born Russian, having first seen Appellant assigns four errors in the appealed resolution. We will consider them separately.
the light of day on November 4, 1897 in the old City of St. Petersburg, Russia. He grew up as a I
citizen of the defunct Imperial Russian Government under the Czars. World War I found him Appellant claims that the lower court erred in not finding that the declaration of intention to
in the military service of this Government. In 1915 he volunteered for the Imperial Russian become a Filipino citizen filed by appellee is invalid and insufficient as a basis for the petition
navy and was sent to the Navy Aviation School. He fought with the Allies in the Baltic Sea, was of naturalization. The question calls for the application of the following provision of section 5
later transferred to the eastern front in Poland, and much later was sent as a navy flier to Asia of the Revised Naturalization Law:
Minor. In the latter part of the war, but before the Russian capitulation, he was transferred to No declaration shall be valid until entry for permanent residence has been established and a
the British Air Force under which he served for fourteen months. When the revolution broke certificate showing the date, place and manner of his arrival has been issued.
out in Russia in 1917, he joined the White Russian Army at Vladivostok and fought against the Appellant alleges that no documentary or testimonial evidence was introduced to establish
Bolsheviks until 1922 when the White Russian Army was overwhelmed by the Bolsheviks. As the fact that appellee had lawfully been admitted into the Philippines for permanent
he refused to join the Bolshevik regime, he fled by sea from Vladivostok to Shanghai and from residence.
this Chinese port he found his way to Manila, arriving at this port as a member of a group of In the reconstituted declaration (page 11, record on appeal) the following can be read:
White Russians under Admiral Stark in March, 1923. He stayed in Manila for about seven I arrived at the Port of Manila on or about the first day of March, 1923, as shown by the
months, then moved to Olongapo, Zambales, where he resided for about a year, and from attached certificate of arrival or landing certificate of residence.
this place he went to Iriga, Camarines Sur, where he established his permanent residence The records of the Bureau of Justice, where the declarations of intention to become a Filipino
since May, 1925. He has remained a resident of this municipality, except for a brief period citizen were filed, had been lost or destroyed during the battle for the liberation of Manila,
from 1942 to July, 1945, when by reason of his underground activities he roamed mountains and the certificate alluded to has not been reconstituted.
of Caramoan as a guerrilla officer. After liberation he returned to Iriga where again he resides Appellant's contention that attachment of the certificate of arrival is essential to the validity
up to the present time. of a declaration finds no support in the wordings of the law, as the above-quoted section 5 of
The applicant is married to a Filipino by the name of Concepcion Segovia, with whom he has Commonwealth Act no. 473 uses the words "has been issued.
one son named Ronald Kookooritchkin. He is at present studying in Saint Agnes Academy, at Appellee suggests that we would not consider the question here raised by appellant, the
Legaspi, Albay, a school duly recognized by the Government. 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

3
residence, and the testimony of petitioner has not been refuted. Appellee's alleges that the basic English to a few hundred words. Perhaps less than one hundred well selected words will
office of the President has certified that it is a matter of record that petitioner was one of the be enough for the ordinary purposes of daily life.
Russian refugees who entered the Philippines under the command of Admiral Stark, the facts There is a reason to believe that the lower court's pronouncement is well taken considering
regarding arrival of the latter fleet being a matter of common knowledge, widely publicized in the fact that, after he was liberated in 1942 from the Japanese in the Naga prison, petitioner
the newspapers at the time, of which this Court may properly take judicial notice under joined the guerrilla in the Bicol region, took part in encounters and skirmishes against the
section 5 of Rule 123. When the fleet entered the Philippine waters, it was met by a Governor Japanese, and remained with the guerrilla until the Americans liberated the Bicol provinces. If
General Wood who, later, took the matter up with the authorities in Washington in lengthy appellee with his smattering of Bicol was able to get along with his Bicol comrades in the
correspondence, and the 1,200 persons manning the fleet were allowed to land and to hazardous life of the resistance movement, we believe that his knowledge of the language
remain in the Philippines or proceed to other countries, except about 800 who were allowed satisfies the requirement of the law.
to go to the United States and given free transportation on the naval transport "Merritt." The But appellant contends that there is no piece of positive evidence to support petitioner's
ships of the fleet were sold in the Philippines. allegation that he can write too in the Bicol language. There, is, however, on record
The undisputed fact that the petitioner has been continuously residing in the Philippines for circumstantial evidence from which it can be concluded that petitioner ought to know also
about 25 years, without having been molested by the authorities, who are presumed to have how to write Bicol. We know that Bicol, as all the important Philippine languages, uses the
been regularly performing their duties and would have arrested petitioner if his residence is same alphabet used in English, and it is much easier to write Bicol than English, because it is
illegal, as rightly contended by appellee, can be taken as evidence that he is enjoying phonetic. Vowels and consonants have in them single and not interchangeable phonetic
permanent residence legally. That a certificate of arrival has been issued is a fact that should values, while English words deviate very often from the basic sounds of the alphabet. The
be accepted upon the petitioner's undisputed statement in his declaration of July, 1940, that ability to write cannot be denied to a person like petitioner, who has undergone the exacting
the certificate cannot be supposed that the receiving official would have accepted the technical training to be able to render services as flier in the Russian Naval Squadron in the
declaration without the certificate mentioned therein as attached thereto. Baltic Sea and in the British Air Forces during the first World War. The difference between the
We conclude that petitioner's declaration is valid under section 5 of the Naturalization Law, Cyrillic alphabet, as now used by Russians, and our Roman alphabet, cannot weigh much to
failure to reconstitute the certificate of arrival notwithstanding. What an unreconstituted deny petitioner the ability to use the latter. A person who has shown the command of English
document intended to prove may be shown by other competent evidence. which can be seen in his testimony on record can easily make use of an alphabet of twenty or
II more letters universally used in this country where he has been residing continuously for 25
The second assignment of error touches upon two questions, that the lower court erred (1) in years.
not finding that appellee has not established a legal residence in the Philippines, and (2) in III
not finding that he cannot speak and write any of the principal Philippine languages. Appellant contends that the lower court erred in finding appellee stateless and not a Russian
The first question has already been disposed of in the above discussion. Perusal of the citizen and in not finding that he has failed to establish that he is not disqualified for
testimonies on record leads to the conclusion that petitioner has shown legal residence in the Philippine citizenship under section 4 (h) of the Revised Naturalization Law.
Philippines for a continuous period of not less than ten years as required by section 2 of It is contended that petitioner failed to show that under the laws of Russia, appellee has lost
Commonwealth Act No. 473. his Russian citizenship and failed to show that Russia grants to Filipinos the right to become a
As to the next question, appellant alleges that in the oral test at the hearing, it was naturalized citizens or subjects thereof. The controversy centers on the question as to
demonstrated that petitioner has only a smattering of Bicol, the Filipino language that whether petitioner is a Russian citizen or is stateless.
petitioner alleges to know, and he cannot speak it as he was not able to translate from English Petitioner testified categorically that he is not a Russian citizen and that he has no citizenship.
to Bicol questions asked by the court and the provincial fiscal, although, in the continuation of His testimony supports the lower court's pronouncement that petitioner is a stateless refugee
the hearing on September 30, 1947, "surprisingly enough, he succeeded answering correctly in this country.
in Bicol the questions propounded by his counsel, however, he fumbled and failed to give the Appellant points out that petitioner stated in his petition for naturalization that he is citizen or
translation of such a common word as 'love' which the fiscal asked of him. subject of the Empire of Russia, but the Empire of Russia has ceased to exist since the Czars
The lower court made the finding of fact that applicant speaks and writes English and Bicol were overthrown in 1917 by the Bolshevists, and the petitioner disclaims allegiance or
and there seems to be no question about the competency of the judge who made the connection with the Soviet Government established after the overthrow of the Czarist
pronouncement, because he has shown by the appealed resolution and by his questions Government.
propounded to appellee, that he has command of both English and Bicol. We do not believe that the lower court erred in pronouncing appellee stateless. Appellee's
The law has not set a specific standard of the principal Philippine languages. A great number testimony, besides being uncontradicted, is supported by the well-known fact that the
of standards can be set. There are experts in English who say that Shakespeare has used in his ruthlessness of modern dictatorship has scattered throughout the world a large number of
works 15,000 different English words, and the King's Bible about 10,000, while about 5,000 stateless refugees or displaced persons, without country and without flag. The tyrannical
are used by the better educated persons and about 3,000 by the average individual. While intolerance of said dictatorships toward all opposition induced them to resort to beastly
there may be persons ambitious enough to have a command of the about 600,000 words oppression, concentration camps and blood purges, and it is only natural that the not-so-
recorded in the Webster's International Dictionary, there are authorities who would reduce fortunate ones who were able to escape to foreign countries should feel the loss of all bonds

4
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.

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.

5
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner. The promulgation of said executive order is an exercise by the President of his power as
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey Commander in chief of all our armed forces as upheld by this Court in the case of Yamashita
for respondents. vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said —
MORAN, C.J.: War is not ended simply because hostilities have ceased. After cessation of armed hostilities
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and incident of war may remain pending which should be disposed of as in time of war. An
Commanding General of the Japanese Imperial Forces in The Philippines during a period importance incident to a conduct of war is the adoption of measure by the military command
covering 19433 and 19444 who is now charged before a military Commission convened by the not only to repel and defeat the enemies but to seize and subject to disciplinary measure
Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and those enemies who in their attempt to thwart or impede our military effort have violated the
failed "to discharge his duties as such command, permitting them to commit brutal atrocities law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a military
and other high crimes against noncombatant civilians and prisoners of the Imperial Japanese commission for the trial and punishment of war criminals is an aspect of waging war. And in
Forces in violation of the laws and customs of war" — comes before this Court seeking to the language of a writer a military commission has jurisdiction so long as a technical state of
establish the illegality of Executive Order No. 68 of the President of the Philippines: to enjoin war continues. This includes the period of an armistice or military occupation up to the
and prohibit respondents Melville S. Hussey and Robert Port from participating in the effective of a treaty of peace and may extend beyond by treaty agreement. (Cowles Trial of
prosecution of petitioner's case before the Military Commission and to permanently prohibit War Criminals by Military Tribunals, America Bar Association Journal June, 1944.)
respondents from proceeding with the case of petitioners. Consequently, the President as Commander in Chief is fully empowered to consummate this
In support of his case petitioner tenders the following principal arguments. unfinished aspect of war namely the trial and punishment of war criminal through the
First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the issuance and enforcement of Executive Order No. 68.
provision of our constitutional law but also our local laws to say nothing of the fact (that) the Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for
Philippines is not a signatory nor an adherent to the Hague Convention on Rules and acts committed in violation of the Hague Convention and the Geneva Convention because the
Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not based Philippines is not a signatory to the first and signed the second only in 1947. It cannot be
on law, national and international." Hence petitioner argues — "That in view off the fact that denied that the rules and regulation of the Hague and Geneva conventions form, part of and
this commission has been empanelled by virtue of an unconstitutional law an illegal order this are wholly based on the generally accepted principals of international law. In facts these rules
commission is without jurisdiction to try herein petitioner." and principles were accepted by the two belligerent nation the United State and Japan who
Second. — That the participation in the prosecution of the case against petitioner before the were signatories to the two Convention, Such rule and principles therefore form part of the
Commission in behalf of the United State of America of attorneys Melville Hussey and Robert law of our nation even if the Philippines was not a signatory to the conventions embodying
Port who are not attorneys authorized by the Supreme Court to practice law in the Philippines them for our Constitution has been deliberately general and extensive in its scope and is not
is a diminution of our personality as an independent state and their appointment as confined to the recognition of rule and principle of international law as continued inn treaties
prosecutor are a violation of our Constitution for the reason that they are not qualified to to which our government may have been or shall be a signatory.
practice law in the Philippines. Furthermore when the crimes charged against petitioner were allegedly committed the
Third. — That Attorneys Hussey and Port have no personality as prosecution the United State Philippines was under the sovereignty of United States and thus we were equally bound
not being a party in interest in the case. together with the United States and with Japan to the right and obligation contained in the
Executive Order No. 68, establishing a National War Crimes Office prescribing rule and treaties between the belligerent countries. These rights and obligation were not erased by
regulation governing the trial of accused war criminals, was issued by the President of the our assumption of full sovereignty. If at all our emergency as a free state entitles us to
Philippines on the 29th days of July, 1947 This Court holds that this order is valid and enforce the right on our own of trying and punishing those who committed crimes against
constitutional. Article 2 of our Constitution provides in its section 3, that — crimes against our people. In this connection it is well to remember what we have said in the
The Philippines renounces war as an instrument of national policy and adopts the generally case of Laurel vs. Misa (76 Phil., 372):
accepted principles of international law as part of the of the nation. . . . The change of our form government from Commonwealth to Republic does not affect the
In accordance with the generally accepted principle of international law of the present day prosecution of those charged with the crime of treason committed during then
including the Hague Convention the Geneva Convention and significant precedents of Commonwealth because it is an offense against the same sovereign people. . . .
international jurisprudence established by the United Nation all those person military or By the same token war crimes committed against our people and our government while we
civilian who have been guilty of planning preparing or waging a war of aggression and of the were a Commonwealth are triable and punishable by our present Republic.
commission of crimes and offenses consequential and incidental thereto in violation of the Petitioner challenges the participation of two American attorneys namely Melville S. Hussey
laws and customs of war, of humanity and civilization are held accountable therefor. and Robert Port in the prosecution of his case on the ground that said attorney's are not
Consequently in the promulgation and enforcement of Execution Order No. 68 the President qualified to practice law in Philippines in accordance with our Rules of court and the
of the Philippines has acted in conformity with the generally accepted and policies of appointment of said attorneys as prosecutors is violative of our national sovereignty.
international law which are part of the our Constitution. 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

6
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.

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.

7
x - - - - - - - - - - - - - - - - - - - - - - -x Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and
G.R. No. 176051               February 11, 2009 the United States, entered into on February 10, 1998, the United States, at its request, was
JOVITO R. SALONGA, WIGBERTO E. TAÑADA, JOSE DE LA RAMA, EMILIO C. CAPULONG, H. granted custody of defendant Smith pending the proceedings.
HARRY L. ROQUE, JR., FLORIN HILBAY, and BENJAMIN POZON, Petitioners, During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the
vs. RTC of Makati for security reasons, the United States Government faithfully complied with its
DANIEL SMITH, SECRETARY RAUL GONZALEZ, PRESIDENTIAL LEGAL COUNSEL SERGIO undertaking to bring defendant Smith to the trial court every time his presence was required.
APOSTOL, SECRETARY RONALDO PUNO, SECRETARY ALBERTO ROMULO, The Special 16th On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision,
Division of the COURT OF APPEALS, and all persons acting in their capacity, Respondents. finding defendant Smith guilty, thus:
x - - - - - - - - - - - - - - - - - - - - - - -x WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient
G.R. No. 176222               February 11, 2009 evidence against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND
BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by Dr. Carol Araullo; GABRIELA, L/CPL. DOMINIC DUPLANTIS, all of the US Marine Corps assigned at the USS Essex, are hereby
represented by Emerenciana de Jesus; BAYAN MUNA, represented by Rep. Satur Ocampo; ACQUITTED to the crime charged.
GABRIELA WOMEN'S PARTY, represented by Rep. Liza Maza; KILUSANG MAYO UNO (KMU), The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J.
represented by Elmer Labog; KILUSANG MAGBUBUKID NG PILIPINAS (KMP), represented by SMITH, also of the US Marine Corps at the USS Essex, this Court hereby finds him GUILTY
Willy Marbella; LEAGUE OF FILIPINO STUDENTS (LFS), represented by Vencer Crisostomo; BEYOND REASONABLE DOUBT of the crime of RAPE defined under Article 266-A, paragraph 1
and THE PUBLIC INTEREST LAW CENTER, represented by Atty. Rachel Pastores, Petitioners, (a) of the Revised Penal Code, as amended by R.A. 8353, and, in accordance with Article 266-
vs. B, first paragraph thereof, hereby sentences him to suffer the penalty of reclusion perpetua
PRESIDENT GLORIA MACAPAGAL-ARROYO, in her capacity as concurrent Defense Secretary, together with the accessory penalties provided for under Article 41 of the same Code.
EXECUTIVE SECRETARY EDUARDO ERMITA, FOREIGN AFFAIRS SECRETARY ALBERTO Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the
ROMULO, JUSTICE SECRETARY RAUL GONZALEZ, AND INTERIOR AND LOCAL GOVERNMENT Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in
SECRETARY RONALDO PUNO, Respondents. the facilities that shall, thereafter, be agreed upon by appropriate Philippine and United
DECISION States authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J. SMITH is
AZCUNA, J.: hereby temporarily committed to the Makati City Jail.
These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S.
of the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in NICOLAS in the amount of ₱50,000.00 as compensatory damages plus ₱50,000.00 as moral
CA-G.R. SP No. 97212, dated January 2, 2007. damages.
The facts are not disputed. SO ORDERED.2
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed As a result, the Makati court ordered Smith detained at the Makati jail until further orders.
Forces. He was charged with the crime of rape committed against a Filipina, petitioner herein, On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a
sometime on November 1, 2005, as follows: contingent of Philippine law enforcement agents, purportedly acting under orders of the
The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis, Department of the Interior and Local Government, and brought to a facility for detention
Keith Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the under the control of the United States government, provided for under new agreements
Revised Penal Code, as amended by Republic Act 8353, upon a complaint under oath filed by between the Philippines and the United States, referred to as the Romulo-Kenney Agreement
Suzette S. Nicolas, which is attached hereto and made an integral part hereof as Annex "A," of December 19, 2006 which states:
committed as follows: The Government of the Republic of the Philippines and the Government of the United States
"That on or about the First (1st) day of November 2005, inside the Subic Bay Freeport Zone, of America agree that, in accordance with the Visiting Forces Agreement signed between our
Olongapo City and within the jurisdiction of this Honorable Court, the above-named accused’s two nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to U.S.
(sic), being then members of the United States Marine Corps, except Timoteo L. Soriano, Jr., military custody at the U.S. Embassy in Manila.
conspiring, confederating together and mutually helping one another, with lewd design and (Sgd.) Kristie A. Kenney (Sgd.) Alberto G. Romulo
by means of force, threat and intimidation, with abuse of superior strength and taking Representative of the United States Representative of the Republic
advantage of the intoxication of the victim, did then and there willfully, unlawfully and of America of the Philippines
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- DATE: 12-19-06 DATE: December 19, 2006
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 and the Romulo-Kenney Agreement of December 22, 2006 which states:
consent of the said Suzette S. Nicolas, to her damage and prejudice. The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the
CONTRARY TO LAW."1 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

8
Marine Corps, from the Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG) The provision is thus designed to ensure that any agreement allowing the presence of foreign
Building, U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be military bases, troops or facilities in Philippine territory shall be equally binding on the
guarded round the clock by U.S. military personnel. The Philippine police and jail authorities, Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of
under the direct supervision of the Philippine Department of Interior and Local Government the situation in which the terms and conditions governing the presence of foreign armed
(DILG) will have access to the place of detention to ensure the United States is in compliance forces in our territory were binding upon us but not upon the foreign State.
with the terms of the VFA. Applying the provision to the situation involved in these cases, the question is whether or not
The matter was brought before the Court of Appeals which decided on January 2, 2007, as the presence of US Armed Forces in Philippine territory pursuant to the VFA is allowed "under
follows: a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other
WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having contracting State."
become moot.3 This Court finds that it is, for two reasons.
Hence, the present actions. First, as held in Bayan v. Zamora,5 the VFA was duly concurred in by the Philippine Senate and
The petitions were heard on oral arguments on September 19, 2008, after which the parties has been recognized as a treaty by the United States as attested and certified by the duly
submitted their memoranda. authorized representative of the United States government.
Petitioners contend that the Philippines should have custody of defendant L/CPL Smith The fact that the VFA was not submitted for advice and consent of the United States Senate
because, first of all, the VFA is void and unconstitutional. does not detract from its status as a binding international agreement or treaty recognized by
This issue had been raised before, and this Court resolved in favor of the constitutionality of the said State. For this is a matter of internal United States law. Notice can be taken of the
the VFA. This was in Bayan v. Zamora,4 brought by Bayan, one of petitioners in the present internationally known practice by the United States of submitting to its Senate for advice and
cases. consent agreements that are policymaking in nature, whereas those that carry out or further
Against the barriers of res judicata vis-à-vis Bayan, and stare decisis vis-à-vis all the parties, implement these policymaking agreements are merely submitted to Congress, under the
the reversal of the previous ruling is sought on the ground that the issue is of primordial provisions of the so-called Case–Zablocki Act, within sixty days from ratification. 6
importance, involving the sovereignty of the Republic, as well as a specific mandate of the The second reason has to do with the relation between the VFA and the RP-US Mutual
Constitution. Defense Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with
The provision of the Constitution is Art. XVIII, Sec. 25 which states: the concurrence of both the Philippine Senate and the United States Senate.
Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the The RP-US Mutual Defense Treaty states:7
United States of America concerning Military Bases, foreign military bases, troops, or facilities MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED
shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate STATES OF AMERICA. Signed at Washington, August 30, 1951.
and, when the Congress so requires, ratified by a majority of the votes cast by the people in a The Parties of this Treaty
national referendum held for that purpose, and recognized as a treaty by the other Reaffirming their faith in the purposes and principles of the Charter of the United Nations and
contracting State. their desire to live in peace with all peoples and all governments, and desiring to strengthen
The reason for this provision lies in history and the Philippine experience in regard to the the fabric of peace in the Pacific area.
United States military bases in the country. Recalling with mutual pride the historic relationship which brought their two peoples
It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine together in a common bond of sympathy and mutual ideals to fight side-by-side against
Commonwealth and, eventually, for the recognition of independence, the United States imperialist aggression during the last war.
agreed to cede to the Philippines all the territory it acquired from Spain under the Treaty of Desiring to declare publicly and formally their sense of unity and their common determination
Paris, plus a few islands later added to its realm, except certain naval ports and/or military to defend themselves against external armed attack, so that no potential aggressor could be
bases and facilities, which the United States retained for itself. under the illusion that either of them stands alone in the Pacific area.
This is noteworthy, because what this means is that Clark and Subic and the other places in Desiring further to strengthen their present efforts for collective defense for the preservation
the Philippines covered by the RP-US Military Bases Agreement of 1947 were not Philippine of peace and security pending the development of a more comprehensive system of regional
territory, as they were excluded from the cession and retained by the US. security in the Pacific area.
Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed Agreeing that nothing in this present instrument shall be considered or interpreted as in any
by the United States. Furthermore, the RP-US Military Bases Agreement was never advised way or sense altering or diminishing any existing agreements or understandings between the
for ratification by the United States Senate, a disparity in treatment, because the Philippines Republic of the Philippines and the United States of America.
regarded it as a treaty and had it concurred in by our Senate. Have agreed as follows:
Subsequently, the United States agreed to turn over these bases to the Philippines; and with Article I. The parties undertake, as set forth in the Charter of the United Nations, to settle any
the expiration of the RP-US Military Bases Agreement in 1991, the territory covered by these international disputes in which they may be involved by peaceful means in such a manner
bases were finally ceded to the Philippines. that international peace and security and justice are not endangered and to refrain in their
To prevent a recurrence of this experience, the provision in question was adopted in the 1987 international relation from the threat or use of force in any manner inconsistent with the
Constitution. purposes of the United Nations.

9
Article II. In order more effectively to achieve the objective of this Treaty, the Parties Noting that from time to time elements of the United States armed forces may visit the
separately and jointly by self-help and mutual aid will maintain and develop their individual Republic of the Philippines;
and collective capacity to resist armed attack. Considering that cooperation between the United States and the Republic of the Philippines
Article III. The Parties, through their Foreign Ministers or their deputies, will consult together promotes their common security interests;
from time to time regarding the implementation of this Treaty and whenever in the opinion Recognizing the desirability of defining the treatment of United States personnel visiting the
of either of them the territorial integrity, political independence or security of either of the Republic of the Philippines;
Parties is threatened by external armed attack in the Pacific. Have agreed as follows:9
Article IV. Each Party recognizes that an armed attack in the Pacific area on either of the Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not
parties would be dangerous to its own peace and safety and declares that it would act to necessary to submit the VFA to the US Senate for advice and consent, but merely to the US
meet the common dangers in accordance with its constitutional processes. Congress under the Case–Zablocki Act within 60 days of its ratification. It is for this reason
Any such armed attack and all measures taken as a result thereof shall be immediately that the US has certified that it recognizes the VFA as a binding international agreement, i.e.,
reported to the Security Council of the United Nations. Such measures shall be terminated a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our
when the Security Council has taken the measures necessary to restore and maintain Constitution.10
international peace and security. The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact
Article V. For the purpose of Article IV, an armed attack on either of the Parties is deemed to that the presence of the US Armed Forces through the VFA is a presence "allowed under" the
include an armed attack on the metropolitan territory of either of the Parties, or on the island RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified
territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft and concurred in by both the Philippine Senate and the US Senate, there is no violation of the
in the Pacific. Constitutional provision resulting from such presence.
Article VI. This Treaty does not affect and shall not be interpreted as affecting in any way the The VFA being a valid and binding agreement, the parties are required as a matter of
rights and obligations of the Parties under the Charter of the United Nations or the international law to abide by its terms and provisions.
responsibility of the United Nations for the maintenance of international peace and security. The VFA provides that in cases of offenses committed by the members of the US Armed
Article VII. This Treaty shall be ratified by the Republic of the Philippines and the United Forces in the Philippines, the following rules apply:
Nations of America in accordance with their respective constitutional processes and will come Article V
into force when instruments of ratification thereof have been exchanged by them at Manila. Criminal Jurisdiction
Article VIII. This Treaty shall remain in force indefinitely. Either Party may terminate it one xxx
year after notice has been given to the other party. 6. The custody of any United States personnel over whom the Philippines is to exercise
In withness whereof the undersigned Plenipotentiaries have signed this Treaty. jurisdiction shall immediately reside with United States military authorities, if they so request,
Done in duplicate at Washington this thirtieth day of August, 1951. from the commission of the offense until completion of all judicial proceedings. United States
For the Republic of the Philippines: military authorities shall, upon formal notification by the Philippine authorities and without
(Sgd.) Carlos P. Romulo delay, make such personnel available to those authorities in time for any investigative or
(Sgd.) Joaquin M. Elizalde judicial proceedings relating to the offense with which the person has been charged. In
(Sgd.) Vicente J. Francisco extraordinary cases, the Philippine Government shall present its position to the United States
(Sgd.) Diosdado Macapagal Government regarding custody, which the United States Government shall take into full
For the United States of America: account. In the event Philippine judicial proceedings are not completed within one year, the
(Sgd.) Dean Acheson United States shall be relieved of any obligations under this paragraph. The one year period
(Sgd.) John Foster Dulles will not include the time necessary to appeal. Also, the one year period will not include any
(Sgd.) Tom Connally time during which scheduled trial procedures are delayed because United States authorities,
(Sgd.) Alexander Wiley8 after timely notification by Philippine authorities to arrange for the presence of the accused,
Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability fail to do so.
to resist an armed attack fall squarely under the provisions of the RP-US Mutual Defense Petitioners contend that these undertakings violate another provision of the Constitution,
Treaty. The VFA, which is the instrument agreed upon to provide for the joint RP-US military namely, that providing for the exclusive power of this Court to adopt rules of procedure for all
exercises, is simply an implementing agreement to the main RP-US Military Defense Treaty. courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer of custody
The Preamble of the VFA states: of an accused to a foreign power is to provide for a different rule of procedure for that
The Government of the United States of America and the Government of the Republic of the accused, which also violates the equal protection clause of the Constitution (Art. III, Sec. 1.).
Philippines, Again, this Court finds no violation of the Constitution.
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and The equal protection clause is not violated, because there is a substantial basis for a different
their desire to strengthen international and regional security in the Pacific area; treatment of a member of a foreign military armed forces allowed to enter our territory and
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951; all other accused.11

10
The rule in international law is that a foreign armed forces allowed to enter one’s territory is 1. What is the implication on the RP-US Visiting Forces Agreement of the recent US Supreme
immune from local jurisdiction, except to the extent agreed upon. The Status of Forces Court decision in Jose Ernesto Medellin v. Texas, dated March 25, 2008, to the effect that
Agreements involving foreign military units around the world vary in terms and conditions, treaty stipulations that are not self-executory can only be enforced pursuant to legislation to
according to the situation of the parties involved, and reflect their bargaining power. But the carry them into effect; and that, while treaties may comprise international commitments,
principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the they are not domestic law unless Congress has enacted implementing statutes or the treaty
sending State only to the extent agreed upon by the parties.12 itself conveys an intention that it be "self-executory" and is ratified on these terms?
As a result, the situation involved is not one in which the power of this Court to adopt rules of 2. Whether the VFA is enforceable in the US as domestic law, either because it is self-
procedure is curtailed or violated, but rather one in which, as is normally encountered around executory or because there exists legislation to implement it.
the world, the laws (including rules of procedure) of one State do not extend or apply – 3. Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in by the US
except to the extent agreed upon – to subjects of another State due to the recognition of Senate and, if so, is there proof of the US Senate advice and consent resolution? Peralta, J., no
extraterritorial immunity given to such bodies as visiting foreign armed forces. part."
Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction After deliberation, the Court holds, on these points, as follows:
or some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because
such immunity like Heads of State, diplomats and members of the armed forces contingents the parties intend its provisions to be enforceable, precisely because the Agreement is
of a foreign State allowed to enter another State’s territory. On the contrary, the Constitution intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty.
states that the Philippines adopts the generally accepted principles of international law as As a matter of fact, the VFA has been implemented and executed, with the US faithfully
part of the law of the land. (Art. II, Sec. 2). complying with its obligation to produce L/CPL Smith before the court during the trial.
Applying, however, the provisions of VFA, the Court finds that there is a different treatment Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC
when it comes to detention as against custody. The moment the accused has to be detained, Sec. 112(b), inasmuch as it is the very purpose and intent of the US Congress that executive
e.g., after conviction, the rule that governs is the following provision of the VFA: agreements registered under this Act within 60 days from their ratification be immediately
Article V implemented. The parties to these present cases do not question the fact that the VFA has
Criminal Jurisdiction been registered under the Case-Zablocki Act.1avvphi1
xxx In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the
Sec. 10. The confinement or detention by Philippine authorities of United States personnel Avena decision of the International Court of Justice (ICJ), subject matter of the Medellin
shall be carried out in facilities agreed on by appropriate Philippines and United States decision. The Convention and the ICJ decision are not self-executing and are not registrable
authorities. United States personnel serving sentences in the Philippines shall have the right under the Case-Zablocki Act, and thus lack legislative implementing authority.
to visits and material assistance. Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on
It is clear that the parties to the VFA recognized the difference between custody during the March 20, 1952, as reflected in the US Congressional Record, 82nd Congress, Second Session,
trial and detention after conviction, because they provided for a specific arrangement to Vol. 98 – Part 2, pp. 2594-2595.
cover detention. And this specific arrangement clearly states not only that the detention shall The framers of the Constitution were aware that the application of international law in
be carried out in facilities agreed on by authorities of both parties, but also that the detention domestic courts varies from country to country.
shall be "by Philippine authorities." Therefore, the Romulo-Kenney Agreements of December As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF INTERNATIONAL
19 and 22, 2006, which are agreements on the detention of the accused in the United States CRIMINAL LAW IN NATIONAL COURTS, some countries require legislation whereas others do
Embassy, are not in accord with the VFA itself because such detention is not "by Philippine not.
authorities." It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec.
Respondents should therefore comply with the VFA and negotiate with representatives of the 25, to require the other contracting State to convert their system to achieve alignment and
United States towards an agreement on detention facilities under Philippine authorities as parity with ours. It was simply required that the treaty be recognized as a treaty by the other
mandated by Art. V, Sec. 10 of the VFA. contracting State. With that, it becomes for both parties a binding international obligation
Next, the Court addresses the recent decision of the United States Supreme Court in Medellin and the enforcement of that obligation is left to the normal recourse and processes under
v. Texas ( 552 US ___ No. 06-984, March 25, 2008), which held that treaties entered into by international law.
the United States are not automatically part of their domestic law unless these treaties are Furthermore, as held by the US Supreme Court in Weinberger v. Rossi, 13 an executive
self-executing or there is an implementing legislation to make them enforceable.1avvphi1 agreement is a "treaty" within the meaning of that word in international law and constitutes
On February 3, 2009, the Court issued a Resolution, thus: enforceable domestic law vis-à-vis the United States. Thus, the US Supreme Court in
"G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No. 176051 Weinberger enforced the provisions of the executive agreement granting preferential
(Jovito R. Salonga, et al. v. Daniel Smith, et al.); and G.R. No. 176222 (Bagong Alyansang employment to Filipinos in the US Bases here.
Makabayan [BAYAN], et al. v. President Gloria Macapagal-Arroyo, et al.). Accordingly, there are three types of treaties in the American system:
The parties, including the Solicitor General, are required to submit within three (3) days a 1. Art. II, Sec. 2 treaties – These are advised and consented to by the US Senate in accordance
Comment/Manifestation on the following points: with Art. II, Sec. 2 of the US Constitution.

11
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.

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

12
consists of the improvement/rehabilitation of the San Andres (Codon)-Virac-Jct. Bago-Viga that such purchases are made in such eligible source countries for products produced in
road, with the length of 79.818 kilometers, in the island province of Catanduanes. and/or services supplied from those countries.
The CP I project is one of the four packages comprising the project for the (2) The scope of eligible source countries mentioned in sub-paragraph (1) above will be
improvement/rehabilitation of the Catanduanes Circumferential Road, covering a total length agreed upon between the authorities concerned of the two Governments.
of about 204.515 kilometers, which is the main highway in Catanduanes Province. The road (3) A part of the Loan I may be used to cover eligible local currency requirements for the
section (Catanduanes Circumferential Road) is part of the Arterial Road Links Development implementation of the projects enumerated in the List A.
Project (Phase IV) funded under Loan Agreement No. PH-P204 dated December 28, 1999 4. With regard to the shipping and marine insurance of the products purchased under the
between the Japan Bank for International Cooperation (JBIC) and the Government of the Loan I, the Government of the Republic of the Philippines will refrain from imposing any
Republic of the Philippines. restrictions that may hinder fair and free competition among the shipping and marine
Background insurance companies.
Based on the Exchange of Notes dated December 27, 1999,1 the Government of Japan and x x x x2 1awphi1.net
the Government of the Philippines, through their respective representatives, namely, Mr. Pertinently, List A, which specified the projects to be financed under the Loan I, includes the
Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Republic of the Arterial Road Links Development Project (Phase IV), to wit:
Philippines, and then Secretary of Foreign Affairs Domingo L. Siazon, have reached an LIST A
understanding concerning Japanese loans to be extended to the Philippines. These loans were Maximum amount in million yen)
aimed at promoting our country’s economic stabilization and development efforts. 1. Secondary Education Development and Improvement Project 7,210
The Exchange of Notes consisted of two documents: (1) a Letter from the Government of 2. Rural Water Supply Project (Phase V) 951
Japan, signed by Ambassador Ara, addressed to then Secretary of Foreign Affairs Siazon, 3. Bohol Irrigation Project (Phase II) 6,078
confirming the understanding reached between the two governments concerning the loans to 4. Agrarian Reform Infrastructure Support Project (Phase II) 16,990
be extended by the Government of Japan to the Philippines; and (2) a document 5. Arterial Road Links Development Project (Phase IV) 15,384
denominated as Records of Discussion where the salient terms of the loans as set forth by the 6. Cordillera Road Improvement Project 5,852
Government of Japan, through the Japanese delegation, were reiterated and the said terms 7. Philippines-Japan Friendship Highway Mindanao Section Rehabilitation Project (Phase II)
were accepted by the Philippine delegation. Both Ambassador Ara and then Secretary Siazon 7,434
signed the Records of Discussion as representatives of the Government of Japan and 8. Rehabilitation and Maintenance of Bridges Along Arterial Roads Project (Phase IV) 5,068
Philippine Government, respectively. 9. Maritime Safety Improvement Project (Phase C) 4,714
The Exchange of Notes provided that the loans to be extended by the Government of Japan to 10. Pinatubo Hazard Urgent Mitigation Project (Phase II) 9,013
the Philippines consisted of two loans: Loan I and Loan II. The Exchange of Notes stated in 11. Pasig-Marikina River Channel Improvement Project (Phase I) 1,167
part: Total 79,8613
I The Exchange of Notes further provided that:
1. A loan in Japanese yen up to the amount of seventy-nine billion eight hundred and sixty- III
one million yen (Y79,861,000,000) (hereinafter referred to as "the Loan I") will be extended, xxxx
in accordance with the relevant laws and regulations of Japan, to the Government of the 3. The Government of the Republic of the Philippines will ensure that the products and/or
Republic of the Philippines (hereinafter referred to as "the Borrower I") by the Japan Bank for services mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of
International Cooperation (hereinafter referred to as "the Bank") to implement the projects paragraph 4 of Part II are procured in accordance with the guidelines for procurement of the
enumerated in the List A attached hereto (hereinafter referred to as "the List A") according to Bank, which set forth, inter alia, the procedures of international tendering to be followed
the allocation for each project as specified in the List A. except where such procedures are inapplicable or inappropriate.
2. (1) The Loan I will be made available by loan agreements to be concluded between the x x x x4
Borrower I and the Bank. The terms and conditions of the Loan I as well as the procedure for The Records of Discussion, which formed part of the Exchange of Notes, also stated in part,
its utilization will be governed by said loan agreements which will contain, inter alia, the thus:
following principles: xxxx
... 1. With reference to sub-paragraph (3) of paragraph 3 of Part I of the Exchange of Notes
(2) Each of the loan agreements mentioned in sub-paragraph (1) above will be concluded concerning the financing of eligible local currency requirements for the implementation of the
after the Bank is satisfied of the feasibility, including environmental consideration, of the projects mentioned in the said sub-paragraph, the representative of the Japanese delegation
project to which such loan agreement relates. stated that:
3. (1) The Loan I will be made available to cover payments to be made by the Philippine (1) such requirement of local currency as general administrative expenses, interest during
executing agencies to suppliers, contractors and/or consultants of eligible source countries construction, taxes and duties, expenses concerning office, remuneration to employees of the
under such contracts as may be entered into between them for purchases of products and/or executing agencies and housing, not directly related to the implementation of the said
services required for the implementation of the projects enumerated in the List A, provided

13
projects, as well as purchase of land properties, compensation and the like, however, will not project in two leading national newspapers, namely, the Manila Times and Manila Standard
be considered as eligible for financing under the Loan I; and on November 22 and 29, and December 5, 2002.
(2) the procurement of products and/or services will be made in accordance with the A total of twenty-three (23) foreign and local contractors responded to the invitation by
procedures of international competitive tendering except where such procedures are submitting their accomplished prequalification documents on January 23, 2003. In accordance
inapplicable and inappropriate. with the established prequalification criteria, eight contractors were evaluated or considered
x x x x5 eligible to bid as concurred by the JBIC. One of them, however, withdrew; thus, only seven
Thus, in accordance with the agreement reached by the Government of Japan and the contractors submitted their bid proposals.
Philippine Government, as expressed in the Exchange of Notes between the representatives The bid documents submitted by the prequalified contractors/bidders were examined to
of the two governments, the Philippines obtained from and was granted a loan by the JBIC. determine their compliance with the requirements as
Loan Agreement No. PH-P204 dated December 28, 1999, in particular, stated as follows: stipulated in Article 6 of the Instruction to Bidders.12 After the lapse of the deadline for the
Loan Agreement No. PH-P204, dated December 28, 1999, between JAPAN BANK FOR submission of bid proposals, the opening of the bids commenced immediately. Prior to the
INTERNATIONAL COOPERATION and the GOVERNMENT OF THE REPUBLIC OF THE opening of the respective bid proposals, it was announced that the Approved Budget for the
PHILIPPINES. Contract (ABC) was in the amount of ₱738,710,563.67.
In the light of the contents of the Exchange of Notes between the Government of Japan and The result of the bidding revealed the following three lowest bidders and their respective bids
the Government of the Republic of the Philippines dated December 27, 1999, concerning vis-à-vis the ABC:13
Japanese loans to be extended with a view to promoting the economic stabilization and
Name of Bidder Original Bid As Read (Pesos) As-Corrected Bid Am
development efforts of the Republic of the Philippines.
JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the BANK") and
1) China Road And Bridge Corporation ₱ 993,183,904.98 ₱952,564,821.71
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 2) Cavite Ideal Int’l Const. Devt. Corp. ₱1,099,926,598.11 ₱1,099,926,598.11
Loan Agreement", which includes all agreements supplemental hereto).
x x x x6 3) Italian Thai Dev’t. Public Company, Ltd. ₱1,125,022,075.34 ₱1,125,392,475.36
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- The bid of private respondent China Road & Bridge Corporation was corrected from the
FOUR MILLION Japanese Yen (Y 15,384,000,000) as principal for the implementation of the original ₱993,183,904.98 (with variance of 34.45% from the ABC) to ₱952,564,821.71 (with
Arterial Road Links Development Project (Phase IV) on the terms and conditions set forth in variance of 28.95% from the ABC) based on their letter clarification dated April 21, 2004.14
the Loan Agreement and in accordance with the relevant laws and regulations of Japan. 7 The After further evaluation of the bids, particularly those of the lowest three bidders, Mr.
said amount shall be used for the purchase of eligible goods and services necessary for the Hedifume Ezawa, Project Manager of the Catanduanes Circumferential Road Improvement
implementation of the above-mentioned project from suppliers, contractors or consultants. 8 Project (CCRIP), in his Contractor’s Bid Evaluation Report dated April 2004, recommended the
Further, it was provided under the said loan agreement that other terms and conditions award of the contract to private respondent China Road & Bridge Corporation:
generally applicable thereto shall be set forth in the General Terms and Conditions, dated In accordance with the Guidelines for the Procurements under ODA [Official Development
November 1987, issued by the Overseas Economic Cooperation Fund (OECF) and for the Assistance] Loans, the Consultant hereby recommends the award of the contract for the
purpose, reference to "the OECF" and "Fund" therein (General Terms and Conditions) shall be construction of CP I, San Andres (Codon) – Virac – Jct. Bato – Viga Section under the Arterial
substituted by "the JBIC" and "Bank," respectively.9 Specifically, the guidelines for Road Links Development Projects, Phase IV, JBIC Loan No. PH-P204 to the Lowest Complying
procurement of all goods and services to be financed out of the proceeds of the said loan Bidder, China Road and Bridge Corporation, at its total corrected bid amount of Nine Hundred
shall be as stipulated in the Guidelines for Procurement under OECF Loans dated December Fifty-Two Million Five Hundred Sixty-Four Thousand Eight Hundred Twenty-One & 71/100
1997 (herein referred to as JBIC Procurement Guidelines). 10 Pesos.15
As mentioned earlier, the proceeds of Loan Agreement No. PH-P204 was to be used to The BAC of the DPWH, with the approval of then Acting Secretary Soriquez, issued the
finance the Arterial Road Links Development Project (Phase IV), of which the Catanduanes assailed Resolution No. PJHL-A-04-012 dated May 7, 2004 recommending the award in favor
Circumferential Road was a part. This road section, in turn, was divided into four contract of private respondent China Road & Bridge Corporation of the contract for the
packages (CP): implementation of civil works for CP I, San Andres (Codon) – Virac – Jct. Bato – Viga Road
CP I: San Andres (Codon)-Virac-Jct. Bato- Viga Road - 79.818 kms (Catanduanes Circumferential Road Improvement Project) of the Arterial Roads Links
CP II: Viga-Bagamanoc Road - 10.40 kms. Development Project, Phase IV, located in Catanduanes Province, under JBIC Loan Agreement
CP III: Bagamanoc-Pandan Road - 47.50 kms. No. PH-P204.16 On September 29, 2004, a Contract of Agreement was entered into by and
CP IV: Pandan-Caramoran-Codon Road - 66.40 kms.11 between the DPWH and private respondent China Road & Bridge Corporation for the
Subsequently, the DPWH, as the government agency tasked to implement the project, caused implementation of the CP I project.
the publication of the "Invitation to Prequalify and to Bid" for the implementation of the CP I The Parties

14
Petitioner Plaridel M. Abaya claims that he filed the instant petition as a taxpayer, former Corporation, and the disbursement of public funds by the Department of Budget and
lawmaker, and a Filipino citizen. Petitioner Plaridel C. Garcia likewise claims that he filed the Management for such purpose, during the pendency of this case. 17
suit as a taxpayer, former military officer, and a Filipino citizen. Petitioner PMA ’59 Preliminarily, the petitioners assert that they have standing or locus standi to file the instant
Foundation, Inc., on the other hand, is a non-stock, non-profit corporation organized under petition. They claim that as taxpayers and concerned citizens, they have the right and duty to
the existing Philippine laws. It claims that its members are all taxpayers and alumni of the question the expenditure of public funds on illegal acts. They point out that the Philippine
Philippine Military Academy. It is represented by its President, Carlos L. Agustin. Government allocates a peso-counterpart for CP I, which amount is appropriated by Congress
Named as public respondents are the DPWH, as the government agency tasked with the in the General Appropriations Act; hence, funds that are being utilized in the implementation
implementation of government infrastructure projects; the Department of Budget and of the questioned project also partake of taxpayers’ money. The present action, as a
Management (DBM) as the government agency that authorizes the release and disbursement taxpayers’ suit, is thus allegedly proper.
of public funds for the implementation of government infrastructure projects; and the They likewise characterize the instant petition as one of transcendental importance that
Department of Finance (DOF) as the government agency that acts as the custodian and warrants the Court’s adoption of a liberal stance on the issue of standing. It cited several
manager of all financial resources of the government. Also named as individual public cases where the Court brushed aside procedural technicalities in order to resolve issues
respondents are Hermogenes E. Ebdane, Jr., Emilia T. Boncodin and Cesar V. Purisima in their involving paramount public interest and transcendental importance.18 Further, petitioner
capacities as former Secretaries of the DPWH, DBM and DOF, respectively. On the other hand, Abaya asserts that he possesses the requisite standing as a former member of the House of
public respondent Norma L. Lasala was impleaded in her capacity as Treasurer of the Bureau Representatives and one of the principal authors of Republic Act No. 9184 (RA 9184)19 known
of Treasury. as the Government Procurement Reform Act, the law allegedly violated by the public
Private respondent China Road & Bridge Corporation is a duly organized corporation engaged respondents.
in the business of construction. On the substantive issues, the petitioners anchor the instant petition on the contention that
The Petitioners’ Case the award of the contract to private respondent China Road & Bridge Corporation violates RA
The petitioners mainly seek to nullify DPWH Resolution No. PJHL-A-04-012 dated May 7, 9184, particularly Section 31 thereof which reads:
2004, which recommended the award to private respondent China Road & Bridge SEC. 31. Ceiling for Bid Prices. – The ABC shall be the upper limit or ceiling for the Bid prices.
Corporation of the contract for the implementation of the civil works of CP I. They also seek Bid prices that exceed this ceiling shall be disqualified outright from further participating in
to annul the contract of agreement subsequently entered into by and between the DPWH and the bidding. There shall be no lower limit to the amount of the award.
private respondent China Road & Bridge Corporation pursuant to the said resolution. In relation thereto, the petitioners cite the definition of the ABC, thus:
They pose the following issues for the Court’s resolution: SEC. 5. Definition of Terms. –
I. Whether or not Petitioners have standing to file the instant Petition. xxx
II. Whether or not Petitioners are entitled to the issuance of a Writ of Certiorari reversing and (a) Approved Budget for the Contract (ABC). – refers to the budget for the contract duly
setting aside DPWH Resolution No. PJHL-A-04-012, recommending the award of the Contract approved by the Head of the Procuring Entity, as provided for in the General Appropriations
Agreement for the implementation of civil works for CPI, San Andres (CODON)-VIRAC-JCT Act and/or continuing appropriations, in the case of National Government Agencies; the
BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD IMPROVEMENT PROJECT) of the Corporate Budget for the contract approved by the governing Boards, pursuant to E.O. No.
Arterial Road Links Development Project, Phase IV, located in Catanduanes Province, under 518, series of 1979, in the case of Government-Owned and/or Controlled Corporations,
JBIC L/A No. PH-P204, to China Road & Bridge Corporation. Government Financial Institutions and State Universities and Colleges; and the Budget for the
III. Whether or not the Contract Agreement executed by and between the Republic of the contract approved by the respective Sanggunian, in the case of Local Government Units.
Philippines, through the Department of Public Works and Highways, and the China Road & xxx
Bridge Corporation, for the implementation of civil works for CPI, San Andres (CODON)-VIRAC- The petitioners theorize that the foregoing provisions show the mandatory character of
JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD IMPROVEMENT PROJECT) of ceilings or upper limits of every bid. Under the above-quoted provisions of RA 9184, all bids or
the Arterial Road Links Development Project, Phase IV, located in Catanduanes Province, awards should not exceed the ceilings or upper limits; otherwise, the contract is deemed void
under JBIC L/A No. PH-P204, is void ab initio. and inexistent.
IV. Whether or not Petitioners are entitled to the issuance of a Writ of Prohibition Resolution No. PJHL-A-04-012 was allegedly issued with grave abuse of discretion because it
permanently prohibiting the implementation of DPWH Resolution No. PJHL-A-04-012 and the recommended the award of the contract to private respondent China Road & Bridge
Contract Agreement executed by and between the Republic of the Philippines (through the Corporation whose bid was more than ₱200 million overpriced based on the ABC. As such, the
Department of Public Works and Highways) and the China Road & Bridge Corporation, and award is allegedly illegal and unconscionable.
the disbursement of public funds by the [D]epartment of [B]udget and [M]anagement for In this connection, the petitioners opine that the contract subsequently entered into by and
such purpose. between the DPWH and private respondent China Road & Bridge Corporation is void ab initio
V. Whether or not Petitioners are entitled to a Preliminary Injunction and/or a Temporary for being prohibited by RA 9184. They stress that Section 31 thereof expressly provides that
Restraining Order immediately enjoining the implementation of DPWH Resolution No. PJHL-A- "bid prices that exceed this ceiling shall be disqualified outright from participating in the
04-012 and the Contract Agreement executed by and between the Republic of the Philippines bidding." The upper limit or ceiling is called the ABC and since the bid of private respondent
(through the Department of Public Works and Highways) and the China Road & Bridge China Road & Bridge Corporation exceeded the ABC for the CP I project, it should have been

15
allegedly disqualified from the bidding process and should not, by law, have been awarded Loan Agreement No. PH-P204, the parties are the Philippine Government and the JBIC, a
the said contract. They invoke Article 1409 of the Civil Code: banking agency of Japan, which has a separate juridical personality from the Japanese
ART. 1409. The following contracts are inexistent and void from the beginning: Government.
(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public They further insist on the applicability of RA 9184 contending that while it took effect on
order or public policy; January 26, 200323 and Loan Agreement No. PH-P204 was executed prior thereto or on
(2) Those which are absolutely simulated or fictitious; December 28, 1999, the actual procurement or award of the contract to private respondent
(3) Those whose cause or object did not exist at the time of the transaction; China Road & Bridge Corporation was done after the effectivity of RA 9184. The said law is
(4) Those whose object is outside the commerce of men; allegedly specific as to its application, which is on the actual procurement of infrastructure
(5) Those which contemplate an impossible service; and other projects only, and not on the loan agreements attached to such projects. Thus, the
(6) Those where the intention of the parties relative to the principal object of the contract petition only prays for the annulment of Resolution No. PJHL-A-04-012 as well as the contract
cannot be ascertained; between the DPWH and private respondent China Road & Bridge Corporation. The petitioners
(7) Those expressly prohibited or declared void by law. clarify that they do not pray for the annulment of Loan Agreement No. PH-P204. Since the
For violating the above provision, the contract between the DPWH and private respondent subject procurement and award of the contract were done after the effectivity of RA 9184,
China Road & Bridge Corporation is allegedly inexistent and void ab initio and can produce no necessarily, the procurement rules established by that law allegedly apply, and not
effects whatsoever. Presidential Decree No. 1594 (PD 1594)24 and Executive Order No. 40 (EO 40), series of 2001,
25
It is the contention of the petitioners that RA 9184 is applicable to both local- and foreign- as contended by the respondents. The latter laws, including their implementing rules, have
funded procurement contracts. They cite the following excerpt of the deliberations of the allegedly been repealed by RA 9184. Even RA 4860, as amended, known as the Foreign
Bicameral Conference Committee on the Disagreeing Provisions of Senate Bill No. 2248 and Borrowings Act, the petitioners posit, may have also been repealed or modified by RA 9184
House Bill No. 4809:20 insofar as its provisions are inconsistent with the latter.
REP. ABAYA. Mr. Chairman, can we just propose additional amendments? Can we go back to The petitioners also argue that the "Implementing Rules and Regulations (IRR) of RA 9184,
Section 4, Mr. Chairman? Otherwise Known as the Government Procurement Reform Act, Part A" (IRR-A) cited by the
THE CHAIRMAN (SEN. ANGARA). Section? Section ano, Del, 4? Definition – definition of terms. respondents is not applicable as these rules only govern domestically-funded procurement
REP. ABAYA. Sa House bill, it is sa scope and application. contracts. They aver that the implementing rules to govern foreign-funded procurement, as in
THE CHAIRMAN (SEN. ANGARA). Okay. the present case, have yet to be drafted and in fact, there are concurrent resolutions drafted
REP. ABAYA. It should read as follows: "This Act shall apply to the procurement of goods, by both houses of Congress for the Reconvening of the Joint Congressional Oversight
supplies and materials, infrastructure projects and consulting services regardless of funding Committee for the formulation of the IRR for foreign-funded procurements under RA 9184.
source whether local or foreign by the government." The petitioners maintain that disbursement of public funds to implement a patently void and
THE CHAIRMAN (SEN. ANGARA). Okay, accepted. We accept. The Senate accepts it. 21 illegal contract is itself illegal and must be enjoined. They bring to the Court’s attention the
xxx xxx xxx fact that the works on the CP I project have already commenced as early as October 2004.
THE CHAIRMAN (SEN ANGARA). Just take note of that ano. Medyo nga problematic ‘yan eh. They thus urge the Court to issue a writ of certiorari to set aside Resolution No. PJHL-A-04-
Now, just for the record Del, can you repeat again the justification for including foreign 012 as well as to declare null and void the contract entered into between the DPWH and
funded contracts within the scope para malinaw because the World Bank daw might raise private respondent China Road & Bridge Corporation. They also pray for the issuance of a
some objection to it. temporary restraining order and, eventually, a writ of prohibition to permanently enjoin the
REP. ABAYA. Well, Mr. Chairman, we should include foreign funded projects kasi these are the DPWH from implementing Resolution No. PJHL-A-04-012 and its contract with private
big projects. To give an example, if you allow bids above government estimate, let’s say take respondent China Road & Bridge Corporation as well as the DBM from disbursing funds for
the case of 500 million project, included in that 500 million is the 20 percent profit. If you the said purpose.
allow them to bid above government estimate, they will add another say 28 percent of (sic) The Respondents’ Counter-Arguments
30 percent, 30 percent of 500 million is another 150 million. Ito, this is a rich source of graft The public respondents, namely the DPWH, DBM and DOF, and their respective named
money, aregluhan na lang, 150 million, five contractors will gather, "O eto 20 million, 20 officials, through the Office of the Solicitor General, urge the Court to dismiss the petition on
million, 20 million." So, it is rigged. ‘Yun ang practice na nangyayari. If we eliminate that, if we grounds that the petitioners have no locus standi and, in any case, Resolution No. PJHL-A-04-
have a ceiling then, it will not be very tempting kasi walang extra money na pwedeng ibigay sa 012 and the contract between the DPWH and private respondent China Road & Bridge
ibang contractor. So this promote (sic) collusion among bidders, of course, with the Corporation are valid.
cooperation of irresponsible officials of some agencies. So we should have a ceiling to include According to the public respondents, a taxpayer’s locus standi was recognized in the following
foreign funded projects.22 cases: (a) where a tax measure is assailed as unconstitutional; 26 (b) where there is a question
The petitioners insist that Loan Agreement No. PH-P204 between the JBIC and the Philippine of validity of election laws;27 (c) where legislators questioned the validity of any official action
Government is neither a treaty, an international nor an executive agreement that would bar upon the claim that it infringes on their prerogatives as legislators; 28 (d) where there is a claim
the application of RA 9184. They point out that to be considered a treaty, an international or of illegal disbursement or wastage of public funds through the enforcement of an invalid or
an executive agreement, the parties must be two sovereigns or States whereas in the case of unconstitutional law;29 (e) where it involves the right of members of the Senate or House of

16
Representatives to question the validity of a presidential veto or condition imposed on an of qualified domestic firms in the prosecution of projects financed under this Act shall be
item in an appropriation bill;30 or (f) where it involves an invalid law, which when enforced will encouraged: Provided, further, That in case where international competitive bidding shall be
put the petitioner in imminent danger of sustaining some direct injury as a result thereof, or conducted preference of at least fifteen per centum shall be granted in favor of articles,
that he has been or is about to be denied some right or privilege to which he is lawfully materials or supplies of the growth, production or manufacture of the Philippines: Provided,
entitled or that he is about to be subjected to some burdens or penalties by reason of the finally, That the method and procedure in comparison of bids shall be the subject of
statute complained of.31 None of the above considerations allegedly obtains in the present agreement between the Philippine Government and the lending institution.
case. DOJ Opinion No. 46, Series of 1987, is relied upon by the public respondents as it opined that
It is also the view of the public respondents that the fact that petitioner Abaya was a former an agreement for the exclusion of foreign assisted projects from the coverage of local bidding
lawmaker would not suffice to confer locus standi on himself. Members of Congress may regulations does not contravene existing legislations because the statutory basis for foreign
properly challenge the validity of an official act of any department of the government only loan agreements is RA 4860, as amended, and under Section 4 thereof, the President is
upon showing that the assailed official act affects or impairs their rights and prerogatives as empowered to waive the application of any law imposing restrictions on the procurement of
legislators. goods and services pursuant to such loans.
The public respondents further assail the standing of the petitioners to file the instant suit Memorandum Circular Nos. 104 and 108, issued by the President, to clarify RA 4860, as
claiming that they failed to allege any specific injury suffered nor an interest that is direct and amended, and PD 1594, relative to the award of foreign-assisted projects, are also invoked by
personal to them. If at all, the interest or injuries claimed by the petitioners are allegedly the public respondents, to wit:
merely of a general interest common to all members of the public. Their interest is allegedly Memorandum Circular No. 104:
too vague, highly speculative and uncertain to satisfy the requirements of locus standi. In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known
The public respondents find it noteworthy that the petitioners do not raise issues of as the "Foreign Borrowings Act"
constitutionality but only of contract law, which the petitioners not being privies to the xxx
agreement cannot raise. This is following the principle that a stranger to a contract cannot It is hereby clarified that foreign-assisted infrastructure projects may be exempted from the
sue either or both the contracting parties to annul and set aside the same except when he is application for the pertinent provisions of the Implementing Rules and Regulations (IRR) of
prejudiced on his rights and can show detriment which would positively result to him from Presidential Decree (P.D.) No. 1594 relative to the method and procedure in the comparison
the implementation of the contract in which he has no intervention. There being no of bids, which matter may be the subject of agreement between the infrastructure agency
particularized interest or elemental substantial injury necessary to confer locus standi, the concerned and the lending institution. It should be made clear however that public bidding is
public respondents implore the Court to dismiss the petition. still required and can only be waived pursuant to existing laws.
On the merits, the public respondents maintain that the imposition of ceilings or upper limits Memorandum Circular No. 108:
on bid prices in RA 9184 does not apply because the CP I project and the entire Catanduanes In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known
Circumferential Road Improvement Project, financed by Loan Agreement No. PH-P204 as the "Foreign Borrowings Act", it is hereby clarified that, for projects supported in whole or
executed between the Philippine Government and the JBIC, is governed by the latter’s in part by foreign assistance awarded through international or local competitive bidding, the
Procurement Guidelines which precludes the imposition of ceilings on bid prices. Section 5.06 government agency concerned may award the contract to the lowest evaluated bidder at his
of the JBIC Procurement Guidelines reads: bid price consistent with the provisions of the applicable loan/grant agreement.
Section 5.06. Evaluation and Comparison of Bids. Specifically, when the loan/grant agreement so stipulates, the government agency concerned
xxx may award the contract to the lowest bidder even if his/its bid exceeds the approved agency
(e) Any procedure under which bids above or below a predetermined bid value assessment estimate.
are automatically disqualified is not permitted. It is understood that the concerned government agency shall, as far as practicable, adhere
It was explained that other foreign banks such as the Asian Development Bank (ADB) and the closely to the implementing rules and regulations of Presidential Decree No. 1594 during
World Bank (WB) similarly prohibit the bracketing or imposition of a ceiling on bid prices. loan/grant negotiation and the implementation of the projects.32
The public respondents stress that it was pursuant to Loan Agreement No. PH-P204 that the The public respondents characterize foreign loan agreements, including Loan Agreement No.
assailed Resolution No. PJHL-A-04-012 and the subsequent contract between the DPWH and PH-P204, as executive agreements and, as such, should be observed pursuant to the
private respondent China Road & Bridge Corporation materialized. They likewise aver that fundamental principle in international law of pacta sunt servanda.33 They cite Section 20 of
Loan Agreement No. PH-P204 is governed by RA 4860, as amended, or the Foreign Article VII of the Constitution as giving the President the authority to contract foreign loans:
Borrowings Act. Section 4 thereof states: SEC. 20. The President may contract or guarantee foreign loans on behalf of the Republic of
SEC. 4. In the contracting of any loan, credit or indebtedness under this Act, the President of the Philippines with the prior concurrence of the Monetary Board, and subject to such
the Philippines may, when necessary, agree to waive or modify, the application of any law limitations as may be provided by law. The Monetary Board shall, within thirty days from the
granting preferences or imposing restrictions on international competitive bidding, including end of every quarter of the calendar year, submit to the Congress a complete report of its
among others [Act No. 4239, Commonwealth Act No. 138], the provisions of [CA 541], insofar decisions on applications for loans to be contracted or guaranteed by the Government or
as such provisions do not pertain to constructions primarily for national defense or security Government-owned and Controlled Corporations which would have the effect of increasing
purposes, [RA 5183]; Provided, however, That as far as practicable, utilization of the services the foreign debt, and containing other matters as may be provided by law.

17
The Constitution, the public respondents emphasize, recognizes the enforceability of naturally follows that any subsequent law passed contrary to the letters of the said contract
executive agreements in the same way that it recognizes generally accepted principles of would have no effect with respect to the parties’ rights and obligations arising therefrom.
international law as forming part of the law of the land.34 This recognition allegedly buttresses To insist on the application of RA 9184 on the bidding for the CP I project would,
the binding effect of executive agreements to which the Philippine Government is a signatory. notwithstanding the terms and conditions of Loan Agreement No. PH-P204, allegedly violate
It is pointed out by the public respondents that executive agreements are essentially the constitutional provision on non-impairment of obligations and contracts, and destroy
contracts governing the rights and obligations of the parties. A contract, being the law vested rights duly acquired under the said loan agreement.
between the parties, must be faithfully adhered to by them. Guided by the fundamental rule Lastly, the public respondents deny that there was illegal disbursement of public funds by the
of pacta sunt servanda, the Philippine Government bound itself to perform in good faith its DBM. They asseverate that all the releases made by the DBM for the implementation of the
duties and obligations under Loan Agreement No. PH-P204. entire Arterial Road Links Project – Phase IV, which includes the Catanduanes Circumferential
The public respondents further argue against the applicability of RA 9184 stating that it was Road Improvement Project, were covered by the necessary appropriations made by law,
signed into law on January 10, 2003.35 On the other hand, Loan Agreement No. PH-P204 was specifically the General Appropriations Act (GAA). Further, the requirements and procedures
executed on December 28, 1999, where the laws then in force on government procurements prescribed for the release of the said funds were duly complied with.
were PD 1594 and EO 40. The latter law (EO 40), in particular, excluded from its application For its part, private respondent China Road & Bridge Corporation similarly assails the standing
"any existing and future government commitments with respect to the bidding and award of of the petitioners, either as taxpayers or, in the case of petitioner Abaya, as a former
contracts financed partly or wholly with funds from international financing institutions as well lawmaker, to file the present suit. In addition, it is also alleged that, by filing the petition
as from bilateral and other similar foreign sources." directly to this Court, the petitioners failed to observe the hierarchy of courts.
The applicability of EO 40, not RA 9184, is allegedly bolstered by the fact that the "Invitation On the merits, private respondent China Road & Bridge Corporation asserts that the
to Prequalify and to Bid" for the implementation of the CP I project was published in two applicable law to govern the bidding of the CP I project was EO 40, not RA 9184, because the
leading national newspapers, namely, the Manila Times and Manila Standard on November former was the law governing the procurement of government projects at the time that it
22, 29 and December 5, 2002, or before the signing into law of RA 9184 on January 10, 2003. was bidded out. EO 40 was issued by the Office of the President on October 8, 2001 and
In this connection, the public respondents point to Section 77 of IRR-A, which reads: Section 1 thereof states that:
SEC. 77. Transitory Clause. – SEC. 1. Scope and Application. This Executive Order shall apply to the procurement of: (a)
In all procurement activities, if the advertisement or invitation for bids was issued prior to the goods, supplies, materials and related services; (b) civil works; and (c) consulting services, by
effectivity of the Act, the provisions of EO 40 and its IRR, PD 1594 and its IRR, RA 7160 and its all National Government agencies, including State Universities and Colleges (SUCs),
IRR, or other applicable laws as the case may be, shall govern. Government-Owned or Controlled Corporations (GOCCs) and Government Financial
In cases where the advertisements or invitations for bids were issued after the effectivity of Institutions (GFIs), hereby referred to as the ‘Agencies.’ This Executive Order shall cover the
the Act but before the effectivity of this IRR-A, procuring entities may continue adopting the procurement process from the pre-procurement conference up to the award of contract.
procurement procedures, rules and regulations provided in EO 40 and its IRR, or other xxx
applicable laws, as the case may be. The Invitation to Prequalify and to Bid was first published on November 22, 2002. On the
Section 4 of RA 9184 is also invoked by the public respondents as it provides: other hand, RA 9184 was signed into law only on January 10, 2003. Since the law in effect at
SEC. 4. Scope and Applications. – This Act shall apply to the Procurement of Infrastructure the time the procurement process was initiated was EO 40, private respondent China Road &
Projects, Goods and Consulting Services, regardless of source of funds, whether local or Bridge Corporation submits that it should be the said law which should govern the entire
foreign, by all branches and instrumentalities of government, its departments, offices and procurement process relative to the CP I project.
agencies, including government-owned and/or –controlled corporations and local EO 40 expressly recognizes as an exception from the application of the provisions thereof on
government units, subject to the provisions of Commonwealth Act No. 138. Any treaty or approved budget ceilings, those projects financed by international financing institutions (IFIs)
international or executive agreement affecting the subject matter of this Act to which the and foreign bilateral sources. Section 1 thereof, quoted in part earlier, further states:
Philippine government is a signatory shall be observed. SEC. 1. Scope and Application. x x x
It is also the position of the public respondents that even granting arguendo that Loan Nothing in this Order shall negate any existing and future government commitments with
Agreement No. PH-P204 were an ordinary loan contract, still, RA 9184 is inapplicable under respect to the bidding and award of contracts financed partly or wholly with funds from
the non-impairment clause36 of the Constitution. The said loan agreement expressly provided international financing institutions as well as from bilateral and other similar foreign sources.
that the procurement of goods and services for the project financed by the same shall be Section 1.2 of the Implementing Rules and Regulations of EO 40 is likewise invoked as it
governed by the Guidelines for Procurement under OECF Loans dated December 1997. provides:
Further, Section 5.06 of the JBIC Procurement Guidelines categorically provides that "[a]ny For procurement financed wholly or partly from Official Development Assistance (ODA) funds
procedure under which bids above or below a predetermined bid value assessment are from International Financing Institutions (IFIs), as well as from bilateral and other similar
automatically disqualified is not permitted." foreign sources, the corresponding loan/grant agreement governing said funds as negotiated
The public respondents explain that since the contract is the law between the parties and and agreed upon by and between the Government and the concerned IFI shall be observed.
Loan Agreement No. PH-P204 states that the JBIC Procurement Guidelines shall govern the Private respondent China Road & Bridge Corporation thus postulates that following EO 40,
parties’ relationship and further dictates that there be no ceiling price for the bidding, it the procurement of goods and services for the CP I project should be governed by the terms

18
and conditions of Loan Agreement No. PH-P204 entered into between the JBIC and the Briefly stated, locus standi is "a right of appearance in a court of justice on a given question."38
Philippine Government. Pertinently, Section 5.06 of the JBIC Procurement Guidelines More particularly, it is a party’s personal and substantial interest in a case such that he has
prohibits the setting of ceilings on bid prices. sustained or will sustain direct injury as a result of the governmental act being challenged. It
Private respondent China Road & Bridge Corporation claims that when it submitted its bid for calls for more than just a generalized grievance. The term "interest" means a material
the CP I project, it relied in good faith on the provisions of EO 40. It was allegedly on the basis interest, an interest in issue affected by the decree, as distinguished from mere interest in the
of the said law that the DPWH awarded the project to private respondent China Road & question involved, or a mere incidental interest.39 Standing or locus standi is a peculiar
Bridge Coporation even if its bid was higher than the ABC. Under the circumstances, RA 9184 concept in constitutional law40 and the rationale for requiring a party who challenges the
could not be applied retroactively for to do so would allegedly impair the vested rights of constitutionality of a statute to allege such a personal stake in the outcome of the
private respondent China Road & Bridge Corporation arising from its contract with the DPWH. controversy is "to assure that concrete adverseness which sharpens the presentation of issues
It is also contended by private respondent China Road & Bridge Corporation that even upon which the court so largely depends for illumination of difficult constitutional
assuming arguendo that RA 9184 could be applied retroactively, it is still the terms of Loan questions."41
Agreement No. PH-P204 which should govern the procurement of goods and services for the Locus standi, however, is merely a matter of procedure42 and it has been recognized that in
CP I project. It supports its theory by characterizing the said loan agreement, executed some cases, suits are not brought by parties who have been personally injured by the
pursuant to the Exchange of Notes between the Government of Japan and the Philippine operation of a law or any other government act but by concerned citizens, taxpayers or voters
Government, as an executive agreement. who actually sue in the public interest.43 Consequently, the Court, in a catena of cases,44 has
Private respondent China Road & Bridge Corporation, like the public respondents, cites RA invariably adopted a liberal stance on locus standi, including those cases involving taxpayers.
4860 as the basis for the Exchange of Notes and Loan Agreement No. PH-P204. As an The prevailing doctrine in taxpayer’s suits is to allow taxpayers to question contracts entered
international or executive agreement, the Exchange of Notes and Loan Agreement No. PH- into by the national government or government- owned or controlled corporations allegedly
P204 allegedly created a legally binding obligation on the parties. in contravention of law.45 A taxpayer is allowed to sue where there is a claim that public funds
The following excerpt of the deliberations of the Bicameral Conference Committee on the are illegally disbursed, or that public money is being deflected to any improper purpose, or
Disagreeing Provision of Senate Bill No. 2248 and House Bill No. 4809 is cited by private that there is a wastage of public funds through the enforcement of an invalid or
respondent China Road & Bridge Corporation to support its contention that it is the intent of unconstitutional law.46 Significantly, a taxpayer need not be a party to the contract to
the lawmakers to exclude from the application of RA 9184 those foreign-funded projects: challenge its validity.47
xxx In the present case, the petitioners are suing as taxpayers. They have sufficiently
REP. MARCOS. Yes, Mr. Chairman, to respond and to put into the record, a justification for the demonstrated that, notwithstanding the fact that the CP I project is primarily financed from
inclusion of foreign contracts, may we just state that foreign contracts have, of course, been loans obtained by the government from the JBIC, nonetheless, taxpayers’ money would be or
brought into the ambit of the law because of the Filipino counterpart for this foreign projects, is being spent on the project considering that the Philippine Government is required to
they are no longer strictly foreign in nature but fall under the laws of the Philippine allocate a peso-counterpart therefor. The public respondents themselves admit that
government. appropriations for these foreign-assisted projects in the GAA are composed of the loan
THE CHAIRMAN (SEN. ANGARA). Okay. I think that’s pretty clear. I think the possible concern proceeds and the peso-counterpart. The counterpart funds, the Solicitor General explains,
is that some ODA are with strings attached especially the Japanese. The Japanese are quite refer to the component of the project cost to be financed from government-appropriated
strict about that, that they are (sic) even provide the architect and the design, etcetera, plus, funds, as part of the government’s commitment in the implementation of the project.48
of course, the goods that will be supplied. Hence, the petitioners correctly asserted their standing since a part of the funds being utilized
Now, I think we’ve already provided that this is open to all and we will recognize our in the implementation of the CP I project partakes of taxpayers’ money.
international agreements so that this bill will not also restrict the flow of foreign funding, Further, the serious legal questions raised by the petitioners, e.g., whether RA 9184 applies to
because some countries now make it a condition that they supply both services and goods the CP I project, in particular, and to foreign-funded government projects, in general, and the
especially the Japanese. fact that public interest is indubitably involved considering the public expenditure of millions
So I think we can put a sentence that we continue to honor our international obligations, di of pesos, warrant the Court to adopt in the present case its liberal policy on locus standi.
ba Laura? In any case, for reasons which will be discussed shortly, the substantive arguments raised by
MR. ENCARNACION. Actually, subject to any treaty. the petitioners fail to persuade the Court as it holds that Resolution No. PJHL-A-04-012 is
THE CHAIRMAN (SEN. ANGARA). ‘Yun pala eh. That should allay their anxiety and concern. valid. As a corollary, the subsequent contract entered into by and between the DPWH and
Okay, buti na lang for the record para malaman nila na we are conscious sa ODA. 37 private respondent China Road & Bridge Corporation is likewise valid.
Private respondent China Road & Bridge Corporation submits that based on the provisions of History of Philippine Procurement Laws
the Exchange of Notes and Loan Agreement No. PH-P204, it was rightfully and legally awarded It is necessary, at this point, to give a brief history of Philippine laws pertaining to
the CP I project. It urges the Court to dismiss the petition for lack of merit. procurement through public bidding. The United States Philippine Commission introduced the
The Court’s Rulings American practice of public bidding through Act No. 22, enacted on October 15, 1900, by
Petitioners, as taxpayers, possess locus standi to file the present suit 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

19
call for a competitive bidding for the purchase of the necessary materials and lands to be used and Requiring the Use of the Government Electronic Procurement System"; Executive Order
for the construction of highways and bridges in the Philippine Islands. 49 Act No. 74, enacted No. 262, series of 1996, entitled "Amending Executive Order No. 302, series of 1996, entitled
on January 21, 1901 by the Philippine Commission, required the General Superintendent of Providing Policies, Guidelines, Rules and Regulations for the Procurement of Goods/Supplies
Public Instruction to purchase office supplies through competitive public bidding. 50 Act No. 82, by the National Government" and Section 3 of Executive Order No. 201, series of 2000,
approved on January 31, 1901, and Act No. 83, approved on February 6, 1901, required the entitled "Providing Additional Policies and Guidelines in the Procurement of Goods/Supplies
municipal and provincial governments, respectively, to hold competitive public biddings in the by the National Government"; Executive Order No. 302, series of 1996, entitled "Providing
making of contracts for public works and the purchase of office supplies. 51 Policies, Guidelines, Rules and Regulations for the Procurement of Goods/Supplies by the
On June 21, 1901, the Philippine Commission, through Act No. 146, created the Bureau of National Government" and Presidential Decree No. 1594 dated June 11, 1978, entitled
Supply and with its creation, public bidding became a popular policy in the purchase of "Prescribing Policies, Guidelines, Rules and Regulations for Government Infrastructure
supplies, materials and equipment for the use of the national government, its subdivisions Contracts." This law amends Title Six, Book Two of Republic Act No. 7160, otherwise known as
and instrumentalities.52 On February 3, 1936, then President Manuel L. Quezon issued the "Local Government Code of 1991"; the relevant provisions of Executive Order No. 164,
Executive Order No. 16 declaring as a matter of general policy that government contracts for series of 1987, entitled "Providing Additional Guidelines in the Processing and Approval of
public service or for furnishing supplies, materials and equipment to the government should Contracts of the National Government"; and the relevant provisions of Republic Act No. 7898
be subjected to public bidding.53 The requirement of public bidding was likewise imposed for dated February 23, 1995, entitled "An Act Providing for the Modernization of the Armed
public works of construction or repair pursuant to the Revised Administrative Code of 1917. Forces of the Philippines and for Other Purposes." Any other law, presidential decree or
Then President Diosdado Macapagal, in Executive Order No. 40 dated June 1, 1963, reiterated issuance, executive order, letter of instruction, administrative order, proclamation, charter,
the directive that no government contract for public service or for furnishing supplies, rule or regulation and/or parts thereof contrary to or inconsistent with the provisions of this
materials and equipment to the government or any of its branches, agencies or Act is hereby repealed, modified or amended accordingly.
instrumentalities, should be entered into without public bidding except for very extraordinary In addition to these laws, RA 4860, as amended, must be mentioned as Section 4 thereof
reasons to be determined by a Committee constituted thereunder. Then President Ferdinand provides that "[i]n the contracting of any loan, credit or indebtedness under this Act, the
Marcos issued PD 1594 prescribing guidelines for government infrastructure projects and President of the Philippines may, when necessary, agree to waive or modify the application of
Section 454 thereof stated that they should generally be undertaken by contract after any law granting preferences or imposing restrictions on international competitive bidding x x
competitive public bidding. x Provided, finally, That the method and procedure in the comparison of bids shall be the
Then President Corazon Aquino issued Executive Order No. 301 (1987) prescribing guidelines subject of agreement between the Philippine Government and the lending institution."
for government negotiated contracts. Pertinently, Section 62 of the Administrative Code of EO 40, not RA 9184, is applicable to the procurement
1987 reiterated the requirement of competitive public bidding in government projects. In process undertaken for the CP I project. RA 9184
1990, Congress passed RA 6957,55 which authorized the financing, construction, operation and cannot be given retroactive application.
maintenance of infrastructure by the private sector. RA 7160 was likewise enacted by It is not disputed that with respect to the CP I project, the Invitation to Prequalify and to Bid
Congress in 1991 and it contains provisions governing the procurement of goods and locally- for its implementation was published in two leading national newspapers, namely, the Manila
funded civil works by the local government units. Times and Manila Standard on November 22, 29 and December 5, 2002. At the time, the law
Then President Fidel Ramos issued Executive Order No. 302 (1996), providing guidelines for in effect was EO 40. On the other hand, RA 9184 took effect two months later or on January
the procurement of goods and supplies by the national government. Then President Joseph 26, 2003. Further, its full implementation was even delayed as IRR-A was only approved by
Ejercito Estrada issued Executive Order No. 201 (2000), providing additional guidelines in the President Arroyo on September 18, 2003 and subsequently published on September 23, 2003
procurement of goods and supplies by the national government. Thereafter, he issued in the Manila Times and Malaya newspapers.58
Executive Order No. 262 (2000) amending EO 302 (1996) and EO 201 (2000). The provisions of EO 40 apply to the procurement process pertaining to the CP I project as it is
On October 8, 2001, President Gloria Macapagal-Arroyo issued EO 40, the law mainly relied explicitly provided in Section 1 thereof that:
upon by the respondents, entitled Consolidating Procurement Rules and Procedures for All SEC. 1. Scope and Application. – This Executive Order shall apply to see procurement of (a)
National Government Agencies, Government-Owned or Controlled Corporations and goods, supplies, materials and related service; (b) civil works; and (c) consulting services, by
Government Financial Institutions, and Requiring the Use of the Government Procurement all National Government agencies, including State Universities and Colleges (SUCs),
System. It accordingly repealed, amended or modified all executive issuances, orders, rules Government-Owned or –Controlled Corporations (GOCCs) and Government Financial
and regulations or parts thereof inconsistent therewith.56 Institutions (GFIs), hereby referred to as "Agencies." This Executive Order shall cover the
On January 10, 2003, President Arroyo signed into law RA 9184. It took effect on January 26, procurement process from the pre-procurement conference up to the award of the contract.
2004, or fifteen days after its publication in two newspapers of general circulation.57 It Nothing in this Order shall negate any existing and future government commitments with
expressly repealed, among others, EO 40, EO 262 (2000), EO 302(1996) and PD 1594, as respect to the bidding and award of contracts financed partly or wholly with funds from
amended: international financing institutions as well as from bilateral and similar foreign sources.
SEC. 76. Repealing Clause. —This law repeals Executive Order No. 40, series of 2001, entitled The procurement process basically involves the following steps: (1) pre-procurement
"Consolidating Procurement Rules and Procedures for All National Government Agencies, conference; (2) advertisement of the invitation to bid; (3) pre-bid conference; (4) eligibility
Government Owned or Controlled Corporations and/or Government Financial Institutions, check of prospective bidders; (5) submission and receipt of bids; (6) modification and

20
withdrawal of bids; (7) bid opening and examination; (8) bid evaluation; (9) post qualification; Section 25 of EO 40 provides that "[t]he approved budget of the contract shall be the upper
(10) award of contract and notice to proceed.59 Clearly then, when the Invitation to Prequalify limit or ceiling of the bid price. Bid prices which exceed this ceiling shall be disqualified
and to Bid for the implementation of the CP I project was published on November 22, 29 and outright from further participating in the bidding. There shall be no lower limit to the amount
December 5, 2002, the procurement process thereof had already commenced and the of the award. x x x" It should be observed that this text is almost similar to the wording of
application of EO 40 to the procurement process for the CP I project had already attached. Section 31 of RA 9184, relied upon by the petitioners in contending that since the bid price of
RA 9184 cannot be applied retroactively to govern the procurement process relative to the CP private respondent China Road & Bridge Corporation exceeded the ABC, then it should not
I project because it is well settled that a law or regulation has no retroactive application have been awarded the contract for the CP I project.
unless it expressly provides for retroactivity.60 Indeed, Article 4 of the Civil Code is clear on the Nonetheless, EO 40 expressly recognizes as an exception to its scope and application those
matter: "[l]aws shall have no retroactive effect, unless the contrary is provided." In the government commitments with respect to bidding and award of contracts financed partly or
absence of such categorical provision, RA 9184 will not be applied retroactively to the CP I wholly with funds from international financing institutions as well as from bilateral and other
project whose procurement process commenced even before the said law took effect. similar foreign sources. The pertinent portion of Section 1 of EO 40 is quoted anew:
That the legislators did not intend RA 9184 to have retroactive effect could be gleaned from SEC. 1. Scope and Application. – x x x
the IRR-A formulated by the Joint Congressional Oversight Committee (composed of the Nothing in this Order shall negate any existing and future government commitments with
Chairman of the Senate Committee on Constitutional Amendments and Revision of Laws, and respect to the bidding and award of contracts financed partly or wholly with funds from
two members thereof appointed by the Senate President and the Chairman of the House international financing institutions as well as from bilateral and similar foreign sources.
Committee on Appropriations, and two members thereof appointed by the Speaker of the In relation thereto, Section 4 of RA 4860, as amended, was correctly cited by the respondents
House of Representatives) and the Government Procurement Policy Board (GPPB). Section 77 as likewise authorizing the President, in the contracting of any loan, credit or indebtedness
of the IRR-A states, thus: thereunder, "when necessary, agree to waive or modify the application of any law granting
SEC. 77. Transitory Clause preferences or imposing restrictions on international competitive bidding x x x." The said
In all procurement activities, if the advertisement or invitation for bids was issued prior to the provision of law further provides that "the method and procedure in the comparison of bids
effectivity of the Act, the provisions of E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7160 and shall be the subject of agreement between the Philippine Government and the lending
its IRR, or other applicable laws, as the case may be, shall govern. institution."
In cases where the advertisements or invitations for bids were issued after the effectivity of Consequently, in accordance with these applicable laws, the procurement of goods and
the Act but before the effectivity of this IRR-A, procuring entities may continue adopting the services for the CP I project is governed by the corresponding loan agreement entered into by
procurement procedures, rules and regulations provided in E.O. 40 and its IRR, P.D. 1594 and the government and the JBIC, i.e., Loan Agreement No. PH-P204. The said loan agreement
its IRR, R.A. 7160 and its IRR, or other applicable laws, as the case may be. stipulated that the procurement of goods and services for the Arterial Road Links
In other words, under IRR-A, if the advertisement of the invitation for bids was issued prior to Development Project (Phase IV), of which CP I is a component, is to be governed by the JBIC
the effectivity of RA 9184, such as in the case of the CP I project, the provisions of EO 40 and Procurement Guidelines. Section 5.06, Part II (International Competitive Bidding) thereof
its IRR, and PD 1594 and its IRR in the case of national government agencies, and RA 7160 and quoted earlier reads:
its IRR in the case of local government units, shall govern. Section 5.06. Evaluation and Comparison of Bids
Admittedly, IRR-A covers only fully domestically-funded procurement activities from xxx
procurement planning up to contract implementation and that it is expressly stated that IRR-B (e) Any procedure under which bids above or below a predetermined bid value assessment
for foreign-funded procurement activities shall be subject of a subsequent issuance. 61 are automatically disqualified is not permitted.62
Nonetheless, there is no reason why the policy behind Section 77 of IRR-A cannot be applied It is clear that the JBIC Procurement Guidelines proscribe the imposition of ceilings on bid
to foreign-funded procurement projects like the CP I project. Stated differently, the policy on prices. On the other hand, it enjoins the award of the contract to the bidder whose bid has
the prospective or non-retroactive application of RA 9184 with respect to domestically- been determined to be the lowest evaluated bid. The pertinent provision, quoted earlier, is
funded procurement projects cannot be any different with respect to foreign-funded reiterated, thus:
procurement projects like the CP I project. It would be incongruous, even absurd, to provide Section 5.09. Award of Contract
for the prospective application of RA 9184 with respect to domestically-funded procurement The contract is to be awarded to the bidder whose bid has been determined to be the lowest
projects and, on the other hand, as urged by the petitioners, apply RA 9184 retroactively with evaluated bid and who meets the appropriate standards of capability and financial resources.
respect to foreign- funded procurement projects. To be sure, the lawmakers could not have A bidder shall not be required as a condition of award to undertake responsibilities or work
intended such an absurdity. not stipulated in the specifications or to modify the bid.63
Thus, in the light of Section 1 of EO 40, Section 77 of IRR-A, as well as the fundamental rule Since these terms and conditions are made part of Loan Agreement No. PH-P204, the
embodied in Article 4 of the Civil Code on prospectivity of laws, the Court holds that the government is obliged to observe and enforce the same in the procurement of goods and
procurement process for the implementation of the CP I project is governed by EO 40 and its services for the CP I project. As shown earlier, private respondent China Road & Bridge
IRR, not RA 9184. Corporation’s bid was the lowest evaluated bid, albeit 28.95% higher than the ABC. In
Under EO 40, the award of the contract to private accordance with the JBIC Procurement Guidelines, therefore, it was correctly awarded the
respondent China Road & Bridge Corporation is valid contract for the CP I project.

21
Even if RA 9184 were to be applied retroactively, the terms of the Exchange of Notes dated In this connection, it is well to understand the definition of an "exchange of notes" under
December 27, 1999 and Loan Agreement No. PH-P204 would still govern the procurement for international law. The term is defined in the United Nations Treaty Collection in this wise:
the CP I project An "exchange of notes" is a record of a routine agreement that has many similarities with the
For clarity, Section 4 of RA 9184 is quoted anew, thus: private law contract. The agreement consists of the exchange of two documents, each of the
SEC. 4. Scope and Applications. – This Act shall apply to the Procurement of Infrastructure parties being in the possession of the one signed by the representative of the other. Under
Projects, Goods and Consulting Services, regardless of source of funds, whether local or the usual procedure, the accepting State repeats the text of the offering State to record its
foreign, by all branches and instrumentalities of government, its departments, offices and assent. The signatories of the letters may be government Ministers, diplomats or
agencies, including government-owned and/or –controlled corporations and local departmental heads. The technique of exchange of notes is frequently resorted to, either
government units, subject to the provisions of Commonwealth Act No. 138. Any treaty or because of its speedy procedure, or, sometimes, to avoid the process of legislative approval. 66
international or executive agreement affecting the subject matter of this Act to which the It is stated that "treaties, agreements, conventions, charters, protocols, declarations,
Philippine government is a signatory shall be observed. memoranda of understanding, modus vivendi and exchange of notes" all refer to
The petitioners, in order to place the procurement process undertaken for the CP I project "international instruments binding at international law."67 It is further explained that-
within the ambit of RA 9184, vigorously assert that Loan Agreement No. PH-P204 is neither a Although these instruments differ from each other by title, they all have common features
treaty, an international agreement nor an executive agreement. They cite Executive Order and international law has applied basically the same rules to all these instruments. These
No. 459 dated November 25, 1997 where the three agreements are defined in this wise: rules are the result of long practice among the States, which have accepted them as binding
a) International agreement – shall refer to a contract or understanding, regardless of norms in their mutual relations. Therefore, they are regarded as international customary law.
nomenclature, entered into between the Philippines and another government in written form Since there was a general desire to codify these customary rules, two international
and governed by international law, whether embodied in a single instrument or in two or conventions were negotiated. The 1969 Vienna Convention on the Law of Treaties ("1969
more related instruments. Vienna Convention"), which entered into force on 27 January 1980, contains rules for treaties
b) Treaties – international agreements entered into by the Philippines which require concluded between States. The 1986 Vienna Convention on the Law of Treaties between
legislative concurrence after executive ratification. This term may include compacts like States and International Organizations ("1986 Vienna Convention"), which has still not
conventions, declarations, covenants and acts. entered into force, added rules for treaties with international organizations as parties. Both
c) Executive agreements – similar to treaties except that they do not require legislative the 1969 Vienna Convention and the 1986 Vienna Convention do not distinguish between the
concurrence.64 different designations of these instruments. Instead, their rules apply to all of those
The petitioners mainly argue that Loan Agreement No. PH-P204 does not fall under any of the instruments as long as they meet the common requirements.68
three categories because to be any of the three, an agreement had to be one where the Significantly, an exchange of notes is considered a form of an executive agreement, which
parties are the Philippines as a State and another State. The JBIC, the petitioners maintain, is a becomes binding through executive action without the need of a vote by the Senate or
Japanese banking agency, which presumably has a separate juridical personality from the Congress. The following disquisition by Francis B. Sayre, former United States High
Japanese Government. Commissioner to the Philippines, entitled "The Constitutionality of Trade Agreement Acts,"
The petitioners’ arguments fail to persuade. The Court holds that Loan Agreement No. PH- quoted in Commissioner of Customs v. Eastern Sea Trading,69 is apropos:
P204 taken in conjunction with the Exchange of Notes dated December 27, 1999 between the Agreements concluded by the President which fall short of treaties are commonly referred to
Japanese Government and the Philippine Government is an executive agreement. as executive agreements and are no less common in our scheme of government than are the
To recall, Loan Agreement No. PH-P204 was executed by and between the JBIC and the more formal instruments – treaties and conventions. They sometimes take the form of
Philippine Government pursuant to the Exchange of Notes executed by and between Mr. exchange of notes and at other times that of more formal documents denominated
Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and "agreements" or "protocols". The point where ordinary correspondence between this and
then Foreign Affairs Secretary Siazon, in behalf of their respective governments. The Exchange other governments ends and agreements – whether denominated executive agreements or
of Notes expressed that the two governments have reached an understanding concerning exchange of notes or otherwise – begin, may sometimes be difficult of ready ascertainment. It
Japanese loans to be extended to the Philippines and that these loans were aimed at would be useless to undertake to discuss here the large variety of executive agreements as
promoting our country’s economic stabilization and development efforts. such, concluded from time to time. Hundreds of executive agreements, other than those
Loan Agreement No. PH-P204 was subsequently executed and it declared that it was so entered into under the trade-agreements act, have been negotiated with foreign
entered by the parties "[i]n the light of the contents of the Exchange of Notes between the governments. x x x70
Government of Japan and the Government of the Republic of the Philippines dated December The Exchange of Notes dated December 27, 1999, stated, inter alia, that the Government of
27, 1999, concerning Japanese loans to be extended with a view to promoting the economic Japan would extend loans to the Philippines with a view to promoting its economic
stabilization and development efforts of the Republic of the Philippines." 65 Under the stabilization and development efforts; Loan I in the amount of Y79,8651,000,000 would be
circumstances, the JBIC may well be considered an adjunct of the Japanese Government. extended by the JBIC to the Philippine Government to implement the projects in the List A
Further, Loan Agreement No. PH-P204 is indubitably an integral part of the Exchange of (including the Arterial Road Links Development Project - Phase IV); and that such loan (Loan I)
Notes. It forms part of the Exchange of Notes such that it cannot be properly taken would be used to cover payments to be made by the Philippine executing agencies to
independent thereof. suppliers, contractors and/or consultants of eligible source countries under such contracts as

22
may be entered into between them for purchases of products and/or services required for EN BANC
the implementation of the projects enumerated in the List A.71 With respect to the G.R. No. 175608              June 8, 2007
procurement of the goods and services for the projects, it bears reiterating that as stipulated: DEPARTMENT of BUDGET and MANAGEMENT PROCUREMENT SERVICE (DBM-PS) and the
3. The Government of the Republic of the Philippines will ensure that the products and/or Inter-Agency Bids and Awards Committee (IABAC), petitioners,
services mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of vs.
paragraph 4 of Part II are procured in accordance with the guidelines for procurement of the KOLONWEL TRADING, respondent.
Bank, which set forth, inter alia, the procedures of international tendering to be followed x --------------------------------------------------x
except where such procedures are inapplicable or inappropriate. 72 G.R. No. 175616              June 8, 2007
The JBIC Procurements Guidelines, as quoted earlier, forbids any procedure under which bids VIBAL PUBLISHING HOUSE, INC., LG & M CORPORATION and SD PUBLICATIONS, INC.,
above or below a predetermined bid value assessment are automatically disqualified. petitioners,
Succinctly put, it absolutely prohibits the imposition of ceilings on bids. vs.
Under the fundamental principle of international law of pacta sunt servanda,73 which is, in KOLONWEL TRADING, respondent.
fact, embodied in Section 4 of RA 9184 as it provides that "[a]ny treaty or international or x --------------------------------------------------x
executive agreement affecting the subject matter of this Act to which the Philippine G.R. No. 175659              June 8, 2007
government is a signatory shall be observed," the DPWH, as the executing agency of the DEPARTMENT OF EDUCATION, petitioner,
projects financed by Loan Agreement No. PH-P204, rightfully awarded the contract for the vs.
implementation of civil works for the CP I project to private respondent China Road & Bridge KOLONWEL TRADING, respondent.
Corporation. DECISION
WHEREFORE, premises considered, the petition is DISMISSED. GARCIA, J.:
SO ORDERED. 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.,

23
(Vibal, hereinafter), Daewoo International Corporation of South Korea (Daewoo, for brevity) contracts. In the original order, the court set the preliminary conference and hearing for the
and respondent Kolonwel. Kolonwel’s tender appeared to cover all three (3) lots. 5 applied preliminary injunction on November 7, and 8, 2006, respectively.
Following the bid and the book content/body evaluation process, the IABAC, via Resolution In the meantime, Vibal filed an urgent motion to dismiss19 Kolonwel’s petition on several
(Res.) No. 001-20066 dated March 9, 2006, resolved "to recommend to the [WB] and the grounds, among them want of jurisdiction and lack of cause of action, inter alia alleging that
[ADB] failure of bids for all lots in view of the abovementioned disqualifications, non- the latter had pursued judicial relief without first complying with the protest procedure
compliance and reservations of [DepEd]." Issues of "Conflict of interest" with respect to prescribed by Republic Act (R.A.) No. 9184, otherwise known as the "Government
Watana and Vibal, "failure in cover stock testing" for Kolonwel and DepEd’s "reservation" Procurement Reform Act." The DepEd later followed with its own motion to dismiss, partly
were among the disqualifying reasons stated in the resolution. based on the same protest provision. As records show, the trial court did not conduct a
On March 15, 2006, the IABAC submitted to WB for its review and information Res. No. 001- hearing on either dismissal motions, albeit it heard the parties on their opposing claims
2006. Appended to the covering letter was a document entitled "Bid Evaluation Report and respecting the propriety of issuing a writ of preliminary injunction.
Recommendation for Award of Contract."7 On December 4, 2006, the Manila RTC issued its assailed Order 20 finding for Kolonwel, as
The following events, as recited in the assailed Manila RTC order and as borne out by the petitioner a quo, disposing as follows:
records, then transpired: WHEREFORE, the court grants the petition for certiorari and prohibition. The IABAC
1. In a letter8 dated April 24, 2006 to the DepEd and the DBM-PS IABAC Chairman, the WB, Resolution No. 001-2006-A dated May 30, 2006 is annulled and set aside. IABAC Resolution
through its Regional Senior Economist, Ms. Rekha Menon, disagreed, for stated reasons, with No. 001-2006 is declared validly and regularly issued in the absence of a showing of grave
the IABAC’s finding of conflict of interest on the part of Vibal and Watana and the rejection of abuse of discretion or excess of jurisdiction. All subsequent actions of the respondents
their bids. Ms. Menon, however, upheld the disqualification of all the other bidders. She thus resulting from the issuance of IABAC Resolution No. 001-2006-A are consequently nullified
asked the IABAC to review its evaluation and to provide the WB with the revised Bid and set aside. This court grants a final injunction pursuant to Sec. 9 of Rule 58 of the Rules of
Evaluation Report (BER), taking into account the December 31, 2006 RP-IBRD Loan closing Court as amended, restraining respondents Department of Education and Culture (sic), [DBM-
date. PS], [IABAC], Vibal Publishing House, Inc., LG & M Corporation and SD Publications from the
2. On May 11, 2006, the IABAC informed Kolonwel of its or its bid’s failure to post qualify and commission or continuance of acts, contracts or transactions proceeding from the issuance of
of the grounds for the failure.9 IABAC Resolution No. 001-2006-A.
In its reply-letter of May 18, 2006,10 Kolonwel raised several issues and requested that its SO ORDERED. (Emphasis and words in brackets supplied)
disqualification be reconsidered and set aside. In reaction, IABAC apprised WB of Kolonwel’s Hence, these three (3) petitions which the Court, per its Resolution 21 of January 16, 2007,
concerns stated in its letter-reply. ordered consolidated. Earlier, the Court issued, in G. R. No. 175616, a TRO 22 enjoining the
3) Subsequently, the IABAC, agreeing with WB’s position articulated in Ms. Menon, issued presiding judge23 of the RTC of Manila, Branch 18, from proceeding with SP Civil Case No. 06-
Res. No. 001-2006-A effectively recommending to WB the contract award to Vibal of Sibika 1 116010 or implementing its assailed order.
& 3 and HekaSi 5; to Watana of Sibika 2 and HeKaSi 4 & 5 and to Daewoo of Sibika 3. Upon Petitioners urge the annulment of the assailed RTC Order dated December 4, 2006, on
review, WB offered "no objection" to the recommended award. 11 jurisdictional ground, among others. It is their parallel posture that the Manila RTC erred in
4) The issuance of notices of award and the execution on September 12, 2006 of the assuming jurisdiction over the case despite respondent Kolonwel’s failure to observe the
corresponding Purchaser-Supplier contracts followed. 12 protest mechanism provided under Sec. 55 in relation to Secs. 57 and 58 of R.A. No. 9184,
5. On June 23, 2006, the DBM-PS IABAC chairman informed Kolonwel of the denial of its respectively reading as follows:
request for reconsideration and of the WB’s concurrence with the denial. 13 The IABAC denied, Sec. 55. Protest on Decision of the BAC.- Decisions of the BAC [Bids and Awards Committee] in
on September 8, 2006, a second request for reconsideration of Kolonwel 14 after WB found the all stages of procurement may be protested to the head of the procuring entity…. Decisions of
reasons therefor, as detailed in PS IABAC Res. No. 001-2006-B15 dated July 18, 2006, the BAC may be protested by filing a verified position paper and paying a non-refundable
unmeritorious, particularly on the aspect of cover stock testing. protest fee. The amount of the protest fee and the periods during which the protest may be
Such was the state of things when on, October 12, 2006, Kolonwel filed with the RTC of filed and resolved shall be specific in the IRR.
Manila a special civil action for certiorari and prohibition with a prayer for a temporary Sec. 57. Non-interruption of the Bidding Process. In no case shall any process taken from any
restraining order (TRO) and/or writ of preliminary injunction. Docketed as SP Civil Case No. decision treated in this Article stay or delay the bidding process. Protests must first be
06-116010, and raffled to Branch 18 of the court,16 the petition sought to nullify IABAC Res. resolved before any award is made.
Nos. 001-2006 and 001-2006-A and to set aside the contract awards in favor of Vibal and Sec. 58. Report to Regular Courts; Certiorari.- Court action may be resorted to only after the
Watana. In support of its TRO application, Kolonwel alleged, among other things, that the protests contemplated in this Article shall have been completed. Cases that are filed in
supply-awardees were rushing with the implementation of the void supply contracts to beat violation of the process specified in this article shall be dismissed for lack of jurisdiction. The
the loan closing-date deadline. [RTC] shall have jurisdiction over final decisions of the head of the procuring entity. (Emphasis
A week after, the Manila RTC scheduled - and eventually conducted - a summary hearing on and words in bracket added.)
the TRO application. In an order17 of October 31, 2006, as amended in another order18 dated As a counterpoint, the respondent draws attention to its having twice asked, and having been
November 20, 2006, the court granted a 20-day TRO enjoining the IABAC, et al, starting twice spurned by, the IABAC to reconsider its disqualification, obviously agreeing with the
November 6, 2006, from proceeding with the subject September 12, 2006 purchase- supply Manila RTC that the judicial window was already opened under the exhaustion of available

24
administrative remedies principle. In the same breath, however, the respondent would argue, Neither is it necessary that the amount of protest fee be prescribed first. Respondent could
again following the RTC’s line, that it was prevented from filing a protest inasmuch as the very well have proceeded with its protest without paying the required protest fee, remitting
government had not issued the Implementing Rules and Regulations (IRR) of R.A. No. 9184 to the proper amount once the appropriate IRR fixed the protest fee.
render the protest mechanism of the law operative for foreign-funded projects. There may perhaps be room for relaxing the prescription on protest if a bona fide attempt to
The Court is unable to lend concurrence to the trial court’s and respondent’s positions on the comply with legal requirements had been made. But the fact alone that the respondent did
interplay of the protest and jurisdictional issues. As may be noted, the aforequoted Section 55 not even submit a verified position paper by way of protest argues against such plausibility.
of R.A. No. 9184 sets three (3) requirements that must be met by the party desiring to protest Significantly, none of the reconsideration-seeking letters of the respondent advert to the
the decision of the Bids and Awards Committee (BAC). These are: 1) the protest must be in protest procedure under Section 55 of R.A. No. 9184, even by way of noting that it was at a
writing, in the form of a verified position paper; 2) the protest must be submitted to the head loss as to the inoperativeness of such provision in the light of the absence of an IRR.
of the procuring entity; and 3) the payment of a non-refundable protest fee. The jurisdictional In its petition before the Manila RTC, the respondent veritably admitted to not complying
caveat that authorizes courts to assume or, inversely, precludes courts from assuming, with the protest requirement, albeit with the lame excuse that it was effectively barred from
jurisdiction over suits assailing the BAC’s decisions is in turn found in the succeeding Section complying with the required administrative remedies of protest. Neither did the respondent
58 which provides that the courts would have jurisdiction over such suits only if the protest then argue that it was not able to comply due to the absence of an IRR for foreign- funded
procedure has already been completed. projects.
Respondent’s letters of May 18, 200624 and June 28, 200625 in which it requested At any rate, there is, in fact a set of implementing rules and regulations, denominated as "IRR-
reconsideration of its disqualification cannot plausibly be given the status of a protest in the A," issued on July 11, 2003 by the GPPB and the Joint Congressional Oversight Committee,
context of the aforequoted provisions of R.A. No. 9184. For one, neither of the letter-request Section 55.126 of which provides that prior to a resort to protest, the aggrieved party must
was addressed to the head of the procuring entity, in this case the DepEd Secretary or the first file a motion for reconsideration of the decision of the BAC. It is only after the BAC itself
head of the DBM Procurement Service, as required by law. For another, the same letters were denies reconsideration that the protest, accompanied by a fixed protest fee, shall be filed
unverified. And not to be overlooked of course is the fact that the third protest-completing within the period defined in the IRR.
requirement, i.e., payment of protest fee, was not complied with. It may be that IRR-A specifically defines its coverage to "all fully domestically-funded
Given the above perspective, it cannot really be said that the respondent availed itself of the procurement activities," it being also provided that "foreign-funded procurement activities
protest procedure prescribed under Section 55 of R.A. No. 9184 before going to the RTC of shall be the subject of a subsequent issuance." 27 However, a similarly drawn argument
Manila via a petition for certiorari. Stated a bit differently, respondent sought judicial involving IRR-A was set aside in Abaya v. Ebdane,28 a case involving Loan Agreement No. PH-
intervention even before duly completing the protest process. Hence, its filing of SP Civil Case P204 entered into by and between the RP and the Japan Bank for International Cooperation
No. 06-116010 was precipitate. Or, as the law itself would put it, cases that are filed in (JBIC) for the implementation DPWH Contract Package No. I (CP I). Wrote the Court in Abaya:
violation of the protest process "shall be dismissed for lack of jurisdiction." Admittedly, IRR-A covers only fully domestically-funded procurement activities from
Considering that the respondent’s petition in RTC Manila was actually filed in violation of the procurement planning up to contract implementation and that it is expressly stated that IRR-B
protest process set forth in Section 55 of R.A. No. 9184, that court could not have lawfully for foreign-funded procurement activities shall be subject of a subsequent issuance.
acquired jurisdiction over the subject matter of this case. In fact, Section 58, supra, of R.A. No. Nonetheless, there is no reason why the policy behind Section 77 of IRR-A cannot be applied
9184 emphatically states that cases filed in violation of the protest process therein provided to foreign-funded procurement projects like the CP I project. Stated differently, the policy on
"shall be dismissed for lack of jurisdiction." the prospective or non-retroactive application of RA 9184 with respect to domestically-
It is to be stressed that the protest mechanism adverted to is a built-in administrative remedy funded procurement projects cannot be any different with respect to foreign-funded
embodied in the law itself. It was not prescribed by an administrative agency tasked with procurement projects …. It would be incongruous, even absurd, to provide for the prospective
implementing a statute through the medium of interpretative circulars or bulletins. Ignoring application of RA 9184 with respect to domestically-funded procurement projects and, on the
thus this administrative remedy would be to defy the law itself. other hand, as urged by the petitioners, apply RA 9184 retroactively with respect to foreign-
It will not avail the respondent any to argue that the absence of an IRR to make the protest funded procurement projects. To be sure, the lawmakers could not have intended such an
mechanism under R.A. No. 9184 become operative for foreign-funded projects was what absurdity.
prevented it from complying with the protest procedure. As the last sentence of the afore- As in Abaya, there really should be no reason why the policy behind Section 55.l of IRR-A on
quoted Section 55 of R.A. No. 9184 is couched, the specific office of an IRR for foreign-funded the procedure for protest cannot be applied, even analogously, to foreign-funded
project, vis-à-vis the matter of protest, is limited to fixing "the amount of the protest fee and procurement projects, such as those in this case. Indeed, there is no discernable justification
the periods during which the protest may be filed and resolved." Surely, the absence of why a different procedure should obtain with respect to foreign-funded procurement
provisions on protest fee and reglementary period does not signify the deferment of the undertakings as opposed to a locally funded project, and certainly there is no concrete
implementation of the protest mechanism as a condition sine qua non to resort to judicial foundation in R.A. 9184 to indicate that Congress intended such a variance in the protest
relief. As applied to the present case, the respondent had to file a protest and pursue it until procedure.
its completion before going to court. There was hardly any need to wait for the specific filing The Manila RTC, in granting the petition for certiorari and prohibition, stated the observation
period to be prescribed by the IRR because the protest, as a matter of necessity, has to be that there was "substantial compliance of the requirement of protest."29 Yet, it is not even
lodged before court action. clear that respondent Kolonwel, in its dealings with the IABAC, particularly in seeking

25
reconsideration of its decision, was even aware of the protest requirements. What is beyond Sec. 4. Scope and application. - This Act shall apply to the Procurement of … Goods and
dispute, however, is that courts are precluded by express legislative command from Consulting Services, regardless of source of funds, whether local or foreign by all branches
entertaining protests from decisions of the BAC. What Congress contextually intended under and instrumentalities of government …. Any treaty or international or executive agreement
the premises was that not only would there be a distinct administrative grievance mechanism affecting the subject matter of this Act to which the Philippine government is a signatory shall
to be observed in assailing decisions of the BAC, but that courts would be without jurisdiction be observed. (Emphasis added.)
over actions impugning decisions of the BACs, unless, in the meantime, the protest procedure The question as to whether or not foreign loan agreements with international financial
mandated under Section 55 of R.A. No. 9184 is brought to its logical completion. institutions, such as Loan No. 7118-PH, partake of an executive or international agreement
It is Congress by law, not the courts by discretion, which defines the court’s jurisdiction not within the purview of the Section 4 of R.A. No. 9184, has been answered by the Court in the
otherwise conferred by the Constitution. Through the same medium, Congress also draws the affirmative in Abaya, supra. Significantly, Abaya declared that the RP-JBIC loan agreement was
parameters in the exercise of the functions of administrative agencies. Section 55 of R.A. No. to be of governing application over the CP I project and that the JBIC Procurement Guidelines,
9184 could not be any clearer when it mandates the manner of protesting the decision of bids as stipulated in the loan agreement, shall primarily govern the procurement of goods
and awards committees. Similarly, there can be no quibbling that, under Section 58 of the necessary to implement the main project.
same law, courts do not have jurisdiction over decisions of the BACs unless the appropriate Under the fundamental international law principle of pacta sunt servanda, 36 which is in fact
protest has been made and completed. The absence of the IRR does not detract from the embodied in the afore-quoted Section 4 of R.A. No. 9184, the RP, as borrower, bound itself to
reality that R.A. No. 9184 requires a protest to be filed under the form therein prescribed. perform in good faith its duties and obligation under Loan No. 7118- PH. Applying this
Given the above perspective, the Manila RTC had no jurisdiction over respondent Kolonwel’s postulate in the concrete to this case, the IABAC was legally obliged to comply with, or accord
petition for certiorari and prohibition. Accordingly, it ought to have granted herein primacy to, the WB Guidelines on the conduct and implementation of the
petitioners’ motion to dismiss, but it did not. Worse, the court even added another layer to its bidding/procurement process in question.
grievous error when it granted the respondent’s basic petition for certiorari and prohibition WHEREFORE, the instant consolidated petitions are GRANTED and the assailed Order dated
itself. December 4, 2006 of the Regional Trial Court of Manila in its SP Case No. 06-116010 is
Compounding the Manila RTC’s error is its having proceeded with SP Civil Case No. 06-116010 NULLIFIED and SET ASIDE.
even without acquiring jurisdiction over Watana. As may be recalled, the respondent, in its No cost.
petition before the RTC, impleaded Watana as one of the defendants, the latter having been SO ORDERED.
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:
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:

26
 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 attachment 2). 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:
EN BANC 66. Aside from the fact that the Notes of the Meeting Between President Gloria Macapagal-
G.R. No. 178830               July 14, 2008 Arroyo and Chinese President Hu Jintao held 2 October 2007 were not attached to the 26
ROLEX SUPLICO, Petitioner, October 2007 Manifestation and Motion – thus depriving petitioners of the opportunity to
vs. comment thereon – a mere verbally requested 1st Indorsement is not sufficient basis for the
NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY, represented by NEDA SECRETARY conclusion that the ZTE-DOTC NBN deal has been permanently scrapped.
ROMULO L. NERI, and the NEDA-INVESTMENT COORDINATION COMMITTEE, DEPARTMENT 67. Suffice to state, said 1st Indorsement is glaringly self-serving, especially without the Notes
OF TRANSPORTATION AND COMMUNICATIONS (DOTC), represented by DOTC SECRETARY of the Meeting Between President Gloria Macapagal-Arroyo and Chinese President Hu Jintao
LEANDRO MENDOZA, including the COMMISSION ON INFORMATION AND to support its allegations or other proof of the supposed decision to cancel the ZTE-DOTC NBN
COMMUNICATIONS TECHNOLOGY, headed by its Chairman, RAMON P. SALES, THE deal. Public respondents can certainly do better than that.4

27
Petitioner Suplico further argues that: Firstly, the Court notes the triple petitions to be for certiorari, prohibition and mandamus,
79. Assuming arguendo that some aspects of the present Petition have been rendered moot with application for the issuance of a Temporary Restraining Order (TRO) and/or Preliminary
(which is vehemently denied), this Honorable Court, consistent with well-entrenched Injunction. The individual prayers in each of the three (3) consolidated petitions are:
jurisprudence, may still take cognizance thereof. 5 G.R. No. 178830
Petitioner Suplico cites this Court’s rulings in Gonzales v. Chavez,6 Rufino v. Endriga,7 and WHEREFORE, it is respectfully prayed of this Honorable Court:
Alunan III v. Mirasol8 that despite their mootness, the Court nevertheless took cognizance of 1. Upon the filing of this Petition, pursuant to the second paragraph of Rule 58, Section 5 of
these cases and ruled on the merits due to the Court’s symbolic function of educating the the Rules of Court, issue forthwith an ex parte temporary restraining order enjoining
bench and the bar by formulating guiding and controlling principles, precepts, doctrines, and respondents, their subordinates, agents, representatives and any and all persons acting on
rules. their behalf from pursuing, entering into indebtedness, disbursing funds, and implementing
On January 31, 2008, Amsterdam Holdings, Inc. (AHI) and Nathaniel Sauz, petitioners in G.R. the ZTE-DOTC Broadband Deal;
No. 179317, also filed their comment expressing their sentiments, thus: 2. Compel respondents, upon Writ of Mandamus, to forthwith produce and furnish petitioner
3. First of all, the present administration has never been known for candor. The present or his undersigned counsel a certified true copy of the contract or agreement covering the
administration has a very nasty habit of not keeping its word. It says one thing, but does NBN project as agreed upon with ZTE Corporation;
another. 3. Schedule Oral Arguments in the present case pursuant to Rule 49 in relation to Section 2,
4. This being the case, herein petitioners are unable to bring themselves to feel even a bit Rule 56 of the revised Rules of Court; and,
reassured that the government, in the event that the above-captioned cases are dismissed, 4. Annul and set aside the award of the ZTE-DOTC Broadband Deal, and compel public
will not backtrack, re-transact, or even resurrect the now infamous NBN-ZTE transaction. This respondents to forthwith comply with pertinent provisions of law regarding procurement of
is especially relevant since what was attached to the OSG’s Manifestation and Motion was a government ICT contracts and public bidding for the NBN contract.11 (Emphasis supplied)
mere one (1) page written communication sent by the Department of Transportation and G.R. No. 179317
Communications (DOTC) to the OSG, allegedly relaying that the Philippine Government has WHEREFORE, petitioners Amsterdam Holdings, Inc., and Nathaniel Sauz respectfully pray as
decided not to continue with the NBN project "x x x due to several reasons and constraints." follows:
Petitioners AHI and Sauz further contend that because of the transcendental importance of A. upon the filing of this Petition for Mandamus and conditioned upon the posting of a bond
the issues raised in the petition, which among others, included the President’s use of the in such amount as the Honorable Court may fix, a temporary restraining order and/or writ of
power to borrow, i.e., to enter into foreign loan agreements, this Court should take preliminary injunction be issued directing the Department of Transportation and
cognizance of this case despite its apparent mootness. Communication, the Commission on Information and Communications Technology, all other
On January 15, 2008, the Court required the OSG to file respondents’ reply to petitioners’ government agencies and instrumentalities, their officers, employees, and/or other persons
comments on its manifestation and motion. acting for and on their behalf to desist during the pendency of the instant Petition for
On April 18, 2008, the OSG filed respondents’ reply, reiterating their position that for a court Mandamus from entering into any other agreements and from commencing with any kind,
to exercise its power of adjudication, there must be an actual case or controversy – one which sort, or specie of activity in connection with the National Broadband Network Project;
involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial B. the instant Petition for Mandamus be given due course; and,
resolution; the case must not be moot or academic or based on extra-legal or other similar C. after due consideration of all relevant issues, judgment be rendered directing respondents
considerations not cognizable by a court of justice.9 to allow herein petitioners access to all agreements entered into with the Government of
Respondents also insist that there is no perfected contract in this case that would prejudice China, the ZTE Corporation, and/or other entities, government instrumentalities, and/or
the government or public interest. Explaining the nature of the NBN Project as an executive individuals with regard to the National Broadband Network Project. 12 (Emphasis supplied)
agreement, respondents stress that it remained in the negotiation stage. The conditions G.R. No. 179613
precedent10 for the agreement to become effective have not yet been complied with. WHEREFORE, it is respectfully prayed of this Honorable Court to:
Respondents further oppose petitioners’ claim of the right to information, which they 1. Compel respondents, upon Writ of Mandamus, to forthwith produce and furnish petitioner
contend is not an absolute right. They contend that the matters raised concern executive or his undersigned counsel a certified true copy of the contract or agreement covering the
policy, a political question which the judicial branch of government would generally hesitate NBN project as agreed upon with ZTE Corporation;
to pass upon. 2. Schedule Oral Arguments in the present case pursuant to Rule 49 in relation to Section 2,
On July 2, 2008, the OSG filed a Supplemental Manifestation and Motion. Appended to it is Rule 56 of the Revised Rules of Court;
the Highlights from the Notes of Meeting between President Gloria Macapagal-Arroyo and 3. Annul and set aside the award of the contract for the national broadband network to
Chinese President Hu Jintao, held in XI Jiao Guesthouse, Shanghai, China, on October 2, 2007. respondent ZTE Corporation, upon the ground that said contract, as well as the procedures
In the Notes of Meeting, the Philippine Government conveyed its decision not to continue resorted to preparatory to the execution thereof, is contrary to the Constitution, to law and
with the ZTE National Broadband Network Project due to several constraints. The same Notes to public policy;
likewise contained President Hu Jintao’s expression of understanding of the Philippine 4. Compel public respondent to forthwith comply with pertinent provisions of law regarding
Government decision. procurement of government infrastructure projects, including public bidding for said contract
We resolve to grant the motion. to undertake the construction of the national broadband network.13 (Emphasis supplied)

28
On September 11, 2007, the Court issued a TRO14 in G.R. No. 178830, enjoining the parties principal prayers in the three petitions (to annul, set aside, and enjoin the implementation of
from "pursuing, entering into indebtedness, disbursing funds, and implementing the ZTE- the ZTE-NBN Project) had also become moot.
DOTC Broadband Deal and Project" as prayed for. Pertinent parts of the said Order read: Contrary to petitioners’ contentions that these declarations made by officials belonging to the
WHEREAS, the Supreme Court, on 11 September 2007, adopted a resolution in the above- executive branch on the Philippine Government’s decision not to continue with the ZTE-NBN
entitled case, to wit: Project are self-serving, hence, inadmissible, the Court has no alternative but to take judicial
"G.R. No. 178830 (Rolex Suplico vs. National Economic and Development Authority, notice of this official act of the President of the Philippines.
represented by NEDA Secretary Romulo L. Neri, and the NEDA Investment Coordination Section 1, Rule 129 of the Rules of Court provides:
Committee, Department of Transportation and Communications (DOTC), represented by SECTION 1. Judicial Notice, when mandatory. – A court shall take judicial notice, without
DOTC Secretary Leandro Mendoza, including the Commission on Information and introduction of evidence, of the existence and territorial extent of states, their political
Communications Technology, headed by its Chairman, Ramon P. Sales, The history, forms of government and symbols of nationality, the law of nations, the admiralty
Telecommunications Office, Bids and Awards for Information and Communications and maritime courts of the world and their seals, the political constitution and history of the
Technology Committee (ICT), headed by DOTC Assistant Secretary Elmer A. Soneja as Philippines, the official acts of the legislative, executive and judicial departments of the
Chairman, and The Technical Working Group for ICT, and DOTC Assistant Secretary Lorenzo Philippines, the laws of nature, the measure of time, and the geographical divisions.
Formoso, and All Other Operating Units of the DOTC for Information and Communications (Emphasis supplied)
Technology, and ZTE Corporation, Amsterdam Holdings, Inc., and ARESCOM, Inc.—Acting on Under the rules, it is mandatory and the Court has no alternative but to take judicial notice of
the instant petition with prayer for temporary restraining order and/or writ of preliminary the official acts of the President of the Philippines, who heads the executive branch of our
injunction, the Court Resolved, without giving due course to the petition, to government. It is further provided in the above-quoted rule that the court shall take judicial
xxxx notice of the foregoing facts without introduction of evidence. Since we consider the act of
(d) Issue a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until cancellation by President Macapagal-Arroyo of the proposed ZTE-NBN Project during the
further orders from this Court, enjoining the (i) National Economic and Development meeting of October 2, 2007 with the Chinese President in China as an official act of the
Authority, (ii) NEDA-Investment Coordination Committee, (iii) Department of Transportation executive department, the Court must take judicial notice of such official act without need of
and Communications, Commission on Information and Communications Technology, (iv) evidence.
Telecommunications Office, Bids and Awards for Information and Communications In David v. Macapagal-Arroyo,18 We took judicial notice of the announcement by the Office of
Technology Committee (ICT), (v) Technical Working Group for ICT, and all other Operating the President banning all rallies and canceling all permits for public assemblies following the
Units of the DOTC for Information and Communications Technology, (vi) ZTE Corporation; (vii) issuance of Presidential Proclamation No. 1017 and General Order No. 5.
Amsterdam Holdings, Inc., and (viii) ARESCOM, Inc., and any and all persons acting on their In Estrada v. Desierto,19 the Court also resorted to judicial notice in resolving the factual
behalf from ‘pursuing, entering into indebtedness, disbursing funds, and implementing the ingredient of the petition.
ZTE-DOTC Broadband Deal and Project’ as prayed for." Moreover, under Section 2, paragraph (m) of Rule 131 of the Rules of Court, the official duty
NOW THEREFORE, effective immediately and continuing until further orders from this Court, of the executive officials20 of informing this Court of the government’s decision not to
You, Respondents (i) National Economic and Development Authority, (ii) NEDA-Investment continue with the ZTE-NBN Project is also presumed to have been regularly performed,
Coordination Committee, (iii) Department of Transportation and Communications, absent proof to the contrary. Other than petitioner AHI’s unsavory insinuation in its
Commission on Information and Communications Technology, (iv) Telecommunications comment, the Court finds no factual or legal basis to disregard this disputable presumption in
Office, Bids and Awards for Information and Communications Technology Committee (ICT), (v) the present instance.
Technical Working Group for ICT, and all other Operating Units of the DOTC for Information Concomitant to its fundamental task as the ultimate citadel of justice and legitimacy is the
and Communications Technology, (vi) ZTE Corporation; (vii) Amsterdam Holdings, Inc., and judiciary’s role of strengthening political stability indispensable to progress and national
(viii) ARESCOM, Inc., and any and all persons acting on their behalf are hereby ENJOINED from development. Pontificating on issues which no longer legitimately constitute an actual case or
"pursuing, entering into indebtedness, disbursing funds, and implementing the ZTE-DOTC controversy will do more harm than good to the nation as a whole. Wise exercise of judicial
Broadband Deal and Project" as prayed for.15 (Emphasis supplied.) discretion militates against resolving the academic issues, as petitioners want this Court to do.
Petitioners in G.R. Nos. 178830 and 179613 pray that they be furnished certified true copies This is especially true where, as will be further discussed, the legal issues raised cannot be
of the "contract or agreement covering the NBN project as agreed upon with ZTE resolved without previously establishing the factual basis or antecedents.
Corporation." It appears that during one of the Senate hearings on the NBN project, copies of Judicial power presupposes actual controversies, the very antithesis of mootness. In the
the supply contract16 were readily made available to petitioners.17 Evidently, the said prayer absence of actual justiciable controversies or disputes, the Court generally opts to refrain
has been complied with and is, thus, mooted. from deciding moot issues. Where there is no more live subject of controversy, the Court
When President Gloria Macapagal-Arroyo, acting in her official capacity during the meeting ceases to have a reason to render any ruling or make any pronouncement.
held on October 2, 2007 in China, informed China’s President Hu Jintao that the Philippine Kapag wala nang buhay na kaso, wala nang dahilan para magdesisyon ang Husgado.
Government had decided not to continue with the ZTE-National Broadband Network (ZTE- In Republic Telecommunications Holdings, Inc. v. Santiago,21 the lone issue tackled by the
NBN) Project due to several reasons and constraints, there is no doubt that all the other 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

29
issuing and upholding, respectively, the writ of preliminary injunction. The writ enjoined the Secondly, even assuming that the Court will choose to disregard the foregoing considerations
execution of the questioned agreements between Qualcomm, Inc. and Republic and brush aside mootness, the Court cannot completely rule on the merits of the case
Telecommunications Holdings, Inc. (RETELCOM). The implementation of the agreements was because the resolution of the three petitions involves settling factual issues which definitely
restrained through the assailed orders of the SICD and the SEC en banc which, however, were requires reception of evidence. There is not an iota of doubt that this may not be done by this
nullified by the CA decision. Thus, RETELCOM elevated the matter to this Court praying for the Court in the first instance because, as has been stated often enough, this Court is not a trier of
reinstatement of the writ of preliminary injunction of the SICD and the SEC en banc. However, facts.
before the matter was finally resolved, Qualcomm, Inc. withdrew from the negotiating table. Ang pagpapasiya sa tatlong petisyon ay nangangailangan ng paglilitis na hindi gawain ng
Its withdrawal had thwarted the execution and enforcement of the contracts. Thus, the Hukumang ito.
resolution of whether the implementation of said agreements should be enjoined became no Respondent ZTE, in its Comment in G.R. No. 178830,23 correctly pointed out that since
longer necessary. petitioner Suplico filed his petition directly with this Court, without prior factual findings
Equally applicable to the present case is the Court ruling in the above-cited Republic made by any lower court, a determination of pertinent and relevant facts is needed. ZTE
Telecommunications. There We held, thus: enumerated some of these factual issues, to wit:
Indeed, the instant petition, insofar as it assails the Court of Appeals’ Decision nullifying the (1) Whether an executive agreement has been reached between the Philippine and Chinese
orders of the SEC en banc and the SICD, has been rendered moot and academic. To rule, one governments over the NBN Project;
way or the other, on the correctness of the questioned orders of the SEC en banc and the (2) Whether the ZTE Supply Contract was entered into by the Republic of the Philippines,
SICD will be indulging in a theoretical exercise that has no practical worth in view of the through the DOTC, and ZTE International pursuant to, and as an integral part of, the executive
supervening event. agreement;
The rule is well-settled that for a court to exercise its power of adjudication, there must be an (3) Whether a loan agreement for the NBN Project has actually been executed;
actual case or controversy – one which involves a conflict of legal rights, an assertion of (4) Whether the Philippine government required that the NBN Project be completed under a
opposite legal claims susceptible of judicial resolution; the case must not be moot or Build-Operate-and-Transfer Scheme;
academic or based on extra-legal or other similar considerations not cognizable by a court of (5) Whether the AHI proposal complied with the requirements for an unsolicited proposal
justice. Where the issue has become moot and academic, there is no justiciable controversy, under the BOT Law;
and an adjudication thereon would be of no practical use or value as courts do not sit to (6) Whether the Philippine government has actually earmarked public finds for disbursement
adjudicate mere academic questions to satisfy scholarly interest, however intellectually under the ZTE Supply Contract; and
challenging. (7) Whether the coverage of the NBN Project to be supplied under the ZTE Supply Contract is
In the ultimate analysis, petitioners are seeking the reinstatement of the writ of injunction to more extensive than that under the AHI proposal or such other proposal submitted therefor.24
prevent the concerned parties from pushing through with transactions with Qualcomm, Inc. Definitely, some very specific reliefs prayed for in both G.R. Nos. 178830 and 179613 require
Given that Qualcomm, Inc. is no longer interested in pursuing the contracts, there is no actual prior determination of facts before pertinent legal issues could be resolved and specific reliefs
substantial relief to which petitioners would be entitled and which would be negated by the granted.
dismissal of the petition. In G.R. No. 178830, petitioner seeks to annul and set aside the award of the ZTE-DOTC
The Court likewise finds it unnecessary to rule whether the assailed Court of Appeals’ Broadband Deal and compel public respondents to forthwith comply with pertinent
Decision had the effect of overruling the Court’s Resolution dated 29 January 1999, which set provisions of law regarding procurement of government ICT contracts and public bidding for
aside the TRO issued by the appellate court. the NBN contract.
A ruling on the matter practically partakes of a mere advisory opinion, which falls beyond the In G.R. No. 179613, petitioners also pray that the Court annul and set aside the award of the
realm of judicial review. The exercise of the power of judicial review is limited to actual cases contract for the national broadband network to respondent ZTE Corporation, upon the
and controversies. Courts have no authority to pass upon issues through advisory opinions or ground that said contract, as well as the procedures resorted to preparatory to the execution
to resolve hypothetical or feigned problems. thereof, is contrary to the Constitution, to law and to public policy. They also ask the Court to
While there were occasions when the Court passed upon issues although supervening events compel public respondent to forthwith comply with pertinent provisions of law regarding
had rendered those petitions moot and academic, the instant case does not fall under the procurement of government infrastructure projects, including public bidding for said contract
exceptional cases. In those cases, the Court was persuaded to resolve moot and academic to undertake the construction of the national broadband network.
issues to formulate guiding and controlling constitutional principles, precepts, doctrines or It is simply impossible for this Court "to annul and set aside the award of the ZTE-DOTC
rules for future guidance of both bench and bar. Broadband Deal" without any evidence to support a prior factual finding pointing to any
In the case at bar, the resolution of whether a writ of preliminary injunction may be issued to violation of law that could lead to such annulment order. For sure, the Supreme Court is not
prevent the implementation of the assailed contracts calls for an appraisal of factual the proper venue for this factual matter to be threshed out.
considerations which are peculiar only to the transactions and parties involved in this Thirdly, petitioner Suplico in G.R. No. 178830 prayed that this Court order "public
controversy. Except for the determination of whether petitioners are entitled to a writ of respondents to forthwith comply with pertinent provisions of law regarding procurement of
preliminary injunction which is now moot, the issues raised in this petition do not call for a government ICT contracts and public bidding for the NBN contract."25 It would be too
clarification of any constitutional principle or the interpretation of any statutory provision. 22 presumptuous on the part of the Court to summarily compel public respondents to comply

30
with pertinent provisions of law regarding procurement of government infrastructure projects On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the Department of
without any factual basis or prior determination of very particular violations committed by Finance of the Philippines (DOF) entered into a Memorandum of Understanding (Aug 30
specific government officials of the executive branch. For the Court to do so would amount to MOU), wherein China agreed to extend Preferential Buyer’s Credit to the Philippine
a breach of the norms of comity among co-equal branches of government. A perceived error government to finance the Northrail Project.3 The Chinese government designated EXIM
cannot be corrected by committing another error. Without proper evidence, the Court cannot Bank as the lender, while the Philippine government named the DOF as the borrower.4 Under
just presume that the executive did not comply with procurement laws. Should the Court the Aug 30 MOU, EXIM Bank agreed to extend an amount not exceeding USD 400,000,000 in
allow itself to fall into this trap, it would plainly commit grave error itself. favor of the DOF, payable in 20 years, with a 5-year grace period, and at the rate of 3% per
Magiging kapangahasan sa Hukumang ito na pilitin ang mga pinipetisyon na tumalima sa annum.5
batas sa pangongontrata ng pamahalaan kung wala pang pagtitiyak o angkop na ebidensiya On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui (Amb. Wang),
ng nagawang paglabag dito. wrote a letter to DOF Secretary Jose Isidro Camacho (Sec. Camacho) informing him of
Let it be clarified that the Senate investigation in aid of legislation cannot be the basis of Our CNMEG’s designation as the Prime Contractor for the Northrail Project.6
decision which requires a judicial finding of facts. On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for the
Justice Antonio T. Carpio takes the view that the National Broadband Network Project should construction of Section I, Phase I of the North Luzon Railway System from Caloocan to
be declared null and void. The foregoing threefold reasons would suffice to address the Malolos on a turnkey basis (the Contract Agreement).7 The contract price for the Northrail
concern of Our esteemed colleague. Project was pegged at USD 421,050,000.8
The Court is, therefore, constrained to dismiss the petitions and deny them due course On 26 February 2004, the Philippine government and EXIM Bank entered into a counterpart
because of mootness and because their resolution requires reception of evidence which financial agreement – Buyer Credit Loan Agreement No. BLA 04055 (the Loan Agreement).9 In
cannot be done in an original petition brought before the Supreme Court. the Loan Agreement, EXIM Bank agreed to extend Preferential Buyer’s Credit in the amount
WHEREFORE, the petitions are DISMISSED. The Temporary Restraining Order issued on of USD 400,000,000 in favor of the Philippine government in order to finance the construction
September 11, 2007 is DISSOLVED. of Phase I of the Northrail Project.10
SO ORDERED. 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
EN BANC Department of Budget and Management, the National Economic Development Authority and
G.R. No. 185572               February 7, 2012 Northrail.11 The case was docketed as Civil Case No. 06-203 before the Regional Trial Court,
CHINA NATIONAL MACHINERY & EQUIPMENT CORP. (GROUP), Petitioner, National Capital Judicial Region, Makati City, Branch 145 (RTC Br. 145). In the Complaint,
vs. respondents alleged that the Contract Agreement and the Loan Agreement were void for
HON. CESAR D. SANTAMARIA, in his official capacity as Presiding Judge of Branch 145, being contrary to (a) the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184), otherwise
Regional Trial Court of Makati City, HERMINIO HARRY L. ROQUE, JR., JOEL R. BUTUYAN, known as the Government Procurement Reform Act; (c) Presidential Decree No. 1445,
ROGER R. RAYEL, ROMEL R. BAGARES, CHRISTOPHER FRANCISCO C. BOLASTIG, LEAGUE OF otherwise known as the Government Auditing Code; and (d) Executive Order No. 292,
URBAN POOR FOR ACTION (LUPA), KILUSAN NG MARALITA SA MEYCAUAYAN (KMM-LUPA otherwise known as the Administrative Code.12
CHAPTER), DANILO M. CALDERON, VICENTE C. ALBAN, MERLYN M. VAAL, LOLITA S. RTC Br. 145 issued an Order dated 17 March 2006 setting the case for hearing on the issuance
QUINONES, RICARDO D. LANOZO, JR., CONCHITA G. GOZO, MA. TERESA D. ZEPEDA, of injunctive reliefs.13 On 29 March 2006, CNMEG filed an Urgent Motion for Reconsideration
JOSEFINA A. LANOZO, and SERGIO C. LEGASPI, JR., KALIPUNAN NG DAMAYANG MAHIHIRAP of this Order.14 Before RTC Br. 145 could rule thereon, CNMEG filed a Motion to Dismiss
(KADAMAY), EDY CLERIGO, RAMMIL DINGAL, NELSON B. TERRADO, CARMEN DEUNIDA, and dated 12 April 2006, arguing that the trial court did not have jurisdiction over (a) its person, as
EDUARDO LEGSON, Respondents. it was an agent of the Chinese government, making it immune from suit, and (b) the subject
DECISION matter, as the Northrail Project was a product of an executive agreement.15
SERENO, J.: On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEG’s Motion to Dismiss
This is a Petition for Review on Certiorari with Prayer for the Issuance of a Temporary and setting the case for summary hearing to determine whether the injunctive reliefs prayed
Restraining Order (TRO) and/or Preliminary Injunction assailing the 30 September 2008 for should be issued.16 CNMEG then filed a Motion for Reconsideration,17 which was denied
Decision and 5 December 2008 Resolution of the Court of Appeals (CA) in CA–G.R. SP No. by the trial court in an Order dated 10 March 2008.18 Thus, CNMEG filed before the CA a
103351.1 Petition for Certiorari with Prayer for the Issuance of TRO and/or Writ of Preliminary
On 14 September 2002, petitioner China National Machinery & Equipment Corp. (Group) Injunction dated 4 April 2008.19
(CNMEG), represented by its chairperson, Ren Hongbin, entered into a Memorandum of In the assailed Decision dated 30 September 2008, the appellate court dismissed the Petition
Understanding with the North Luzon Railways Corporation (Northrail), represented by its for Certiorari.20 Subsequently, CNMEG filed a Motion for Reconsideration,21 which was
president, Jose L. Cortes, Jr. for the conduct of a feasibility study on a possible railway line denied by the CA in a Resolution dated 5 December 2008.22 Thus, CNMEG filed the instant
from Manila to San Fernando, La Union (the Northrail Project).2 Petition for Review on Certiorari dated 21 January 2009, raising the following issues: 23

31
Whether or not petitioner CNMEG is an agent of the sovereign People’s Republic of China. and can thus be deemed to have tacitly given its consent to be sued only when it enters into
Whether or not the Northrail contracts are products of an executive agreement between two business contracts. It does not apply where the contract relates to the exercise of its
sovereign states. sovereign functions.28
Whether or not the certification from the Department of Foreign Affairs is necessary under A. CNMEG is engaged in a proprietary activity.
the foregoing circumstances. A threshold question that must be answered is whether CNMEG performs governmental or
Whether or not the act being undertaken by petitioner CNMEG is an act jure imperii. proprietary functions. A thorough examination of the basic facts of the case would show that
Whether or not the Court of Appeals failed to avoid a procedural limbo in the lower court. CNMEG is engaged in a proprietary activity.
Whether or not the Northrail Project is subject to competitive public bidding. The parties executed the Contract Agreement for the purpose of constructing the Luzon
Whether or not the Court of Appeals ignored the ruling of this Honorable Court in the Neri Railways, viz:29
case. WHEREAS the Employer (Northrail) desired to construct the railways form Caloocan to
CNMEG prays for the dismissal of Civil Case No. 06-203 before RTC Br. 145 for lack of Malolos, section I, Phase I of Philippine North Luzon Railways Project (hereinafter referred to
jurisdiction. It likewise requests this Court for the issuance of a TRO and, later on, a writ of as THE PROJECT);
preliminary injunction to restrain public respondent from proceeding with the disposition of AND WHEREAS the Contractor has offered to provide the Project on Turnkey basis, including
Civil Case No. 06-203. design, manufacturing, supply, construction, commissioning, and training of the Employer’s
The crux of this case boils down to two main issues, namely: personnel;
1. Whether CNMEG is entitled to immunity, precluding it from being sued before a local court. AND WHEREAS the Loan Agreement of the Preferential Buyer’s Credit between Export-Import
2. Whether the Contract Agreement is an executive agreement, such that it cannot be Bank of China and Department of Finance of Republic of the Philippines;
questioned by or before a local court. NOW, THEREFORE, the parties agree to sign this Contract for the Implementation of the
First issue: Whether CNMEG is entitled to immunity Project.
This Court explained the doctrine of sovereign immunity in Holy See v. Rosario,24 to wit: The above-cited portion of the Contract Agreement, however, does not on its own reveal
There are two conflicting concepts of sovereign immunity, each widely held and firmly whether the construction of the Luzon railways was meant to be a proprietary endeavor. In
established. According to the classical or absolute theory, a sovereign cannot, without its order to fully understand the intention behind and the purpose of the entire undertaking, the
consent, be made a respondent in the courts of another sovereign. According to the newer Contract Agreement must not be read in isolation. Instead, it must be construed in
or restrictive theory, the immunity of the sovereign is recognized only with regard to public conjunction with three other documents executed in relation to the Northrail Project, namely:
acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis. (a) the Memorandum of Understanding dated 14 September 2002 between Northrail and
(Emphasis supplied; citations omitted.) CNMEG;30 (b) the letter of Amb. Wang dated 1 October 2003 addressed to Sec. Camacho;31
x x x           x x x          x x x and (c) the Loan Agreement.32
The restrictive theory came about because of the entry of sovereign states into purely 1. Memorandum of Understanding dated 14 September 2002
commercial activities remotely connected with the discharge of governmental functions. This The Memorandum of Understanding dated 14 September 2002 shows that CNMEG sought
is particularly true with respect to the Communist states which took control of nationalized the construction of the Luzon Railways as a proprietary venture. The relevant parts thereof
business activities and international trading. read:
In JUSMAG v. National Labor Relations Commission,25 this Court affirmed the Philippines’ WHEREAS, CNMEG has the financial capability, professional competence and technical
adherence to the restrictive theory as follows: expertise to assess the state of the [Main Line North (MLN)] and recommend implementation
The doctrine of state immunity from suit has undergone further metamorphosis. The view plans as well as undertake its rehabilitation and/or modernization;
evolved that the existence of a contract does not, per se, mean that sovereign states may, at WHEREAS, CNMEG has expressed interest in the rehabilitation and/or modernization of the
all times, be sued in local courts. The complexity of relationships between sovereign states, MLN from Metro Manila to San Fernando, La Union passing through the provinces of Bulacan,
brought about by their increasing commercial activities, mothered a more restrictive Pampanga, Tarlac, Pangasinan and La Union (the ‘Project’);
application of the doctrine. WHEREAS, the NORTHRAIL CORP. welcomes CNMEG’s proposal to undertake a Feasibility
x x x           x x x          x x x Study (the "Study") at no cost to NORTHRAIL CORP.;
As it stands now, the application of the doctrine of immunity from suit has been restricted to WHEREAS, the NORTHRAIL CORP. also welcomes CNMEG’s interest in undertaking the Project
sovereign or governmental activities (jure imperii). The mantle of state immunity cannot be with Supplier’s Credit and intends to employ CNMEG as the Contractor for the Project subject
extended to commercial, private and proprietary acts (jure gestionis).26 (Emphasis supplied.) to compliance with Philippine and Chinese laws, rules and regulations for the selection of a
Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature contractor;
of the act involved – whether the entity claiming immunity performs governmental, as WHEREAS, the NORTHRAIL CORP. considers CNMEG’s proposal advantageous to the
opposed to proprietary, functions. As held in United States of America v. Ruiz –27 Government of the Republic of the Philippines and has therefore agreed to assist CNMEG in
The restrictive application of State immunity is proper only when the proceedings arise out of the conduct of the aforesaid Study;
commercial transactions of the foreign sovereign, its commercial activities or economic x x x           x x x          x x x
affairs. Stated differently, a State may be said to have descended to the level of an individual II. APPROVAL PROCESS

32
2.1 As soon as possible after completion and presentation of the Study in accordance with otherwise) from suit, execution or any other legal process with respect to its obligations
Paragraphs 1.3 and 1.4 above and in compliance with necessary governmental laws, rules, under this Agreement, as the case may be, in any jurisdiction. Notwithstanding the
regulations and procedures required from both parties, the parties shall commence the foregoing, the Borrower does not waive any immunity with respect of its assets which are (i)
preparation and negotiation of the terms and conditions of the Contract (the "Contract") to used by a diplomatic or consular mission of the Borrower and (ii) assets of a military character
be entered into between them on the implementation of the Project. The parties shall use and under control of a military authority or defense agency and (iii) located in the Philippines
their best endeavors to formulate and finalize a Contract with a view to signing the Contract and dedicated to public or governmental use (as distinguished from patrimonial assets or
within one hundred twenty (120) days from CNMEG’s presentation of the Study.33 (Emphasis assets dedicated to commercial use). (Emphasis supplied.)
supplied) (k) Proceedings to Enforce Agreement In any proceeding in the Republic of the Philippines to
Clearly, it was CNMEG that initiated the undertaking, and not the Chinese government. The enforce this Agreement, the choice of the laws of the People’s Republic of China as the
Feasibility Study was conducted not because of any diplomatic gratuity from or exercise of governing law hereof will be recognized and such law will be applied. The waiver of immunity
sovereign functions by the Chinese government, but was plainly a business strategy employed by the Borrower, the irrevocable submissions of the Borrower to the non-exclusive
by CNMEG with a view to securing this commercial enterprise. jurisdiction of the courts of the People’s Republic of China and the appointment of the
2. Letter dated 1 October 2003 Borrower’s Chinese Process Agent is legal, valid, binding and enforceable and any judgment
That CNMEG, and not the Chinese government, initiated the Northrail Project was confirmed obtained in the People’s Republic of China will be if introduced, evidence for enforcement in
by Amb. Wang in his letter dated 1 October 2003, thus: any proceedings against the Borrower and its assets in the Republic of the Philippines
1. CNMEG has the proven competence and capability to undertake the Project as evidenced provided that (a) the court rendering judgment had jurisdiction over the subject matter of the
by the ranking of 42 given by the ENR among 225 global construction companies. action in accordance with its jurisdictional rules, (b) the Republic had notice of the
2. CNMEG already signed an MOU with the North Luzon Railways Corporation last September proceedings, (c) the judgment of the court was not obtained through collusion or fraud, and
14, 2000 during the visit of Chairman Li Peng. Such being the case, they have already (d) such judgment was not based on a clear mistake of fact or law.36
established an initial working relationship with your North Luzon Railways Corporation. This Further, the Loan Agreement likewise contains this express waiver of immunity:
would categorize CNMEG as the state corporation within the People’s Republic of China 15.5 Waiver of Immunity The Borrower irrevocably and unconditionally waives, any immunity
which initiated our Government’s involvement in the Project. to which it or its property may at any time be or become entitled, whether characterized as
3. Among the various state corporations of the People’s Republic of China, only CNMEG has sovereign immunity or otherwise, from any suit, judgment, service of process upon it or any
the advantage of being fully familiar with the current requirements of the Northrail Project agent, execution on judgment, set-off, attachment prior to judgment, attachment in aid of
having already accomplished a Feasibility Study which was used as inputs by the North Luzon execution to which it or its assets may be entitled in any legal action or proceedings with
Railways Corporation in the approvals (sic) process required by the Republic of the respect to this Agreement or any of the transactions contemplated hereby or hereunder.
Philippines.34 (Emphasis supplied.) Notwithstanding the foregoing, the Borrower does not waive any immunity in respect of its
Thus, the desire of CNMEG to secure the Northrail Project was in the ordinary or regular assets which are (i) used by a diplomatic or consular mission of the Borrower, (ii) assets of a
course of its business as a global construction company. The implementation of the Northrail military character and under control of a military authority or defense agency and (iii) located
Project was intended to generate profit for CNMEG, with the Contract Agreement placing a in the Philippines and dedicated to a public or governmental use (as distinguished from
contract price of USD 421,050,000 for the venture.35 The use of the term "state corporation" patrimonial assets or assets dedicated to commercial use).37
to refer to CNMEG was only descriptive of its nature as a government-owned and/or Thus, despite petitioner’s claim that the EXIM Bank extended financial assistance to Northrail
-controlled corporation, and its assignment as the Primary Contractor did not imply that it because the bank was mandated by the Chinese government, and not because of any
was acting on behalf of China in the performance of the latter’s sovereign functions. To imply motivation to do business in the Philippines,38 it is clear from the foregoing provisions that
otherwise would result in an absurd situation, in which all Chinese corporations owned by the the Northrail Project was a purely commercial transaction.
state would be automatically considered as performing governmental activities, even if they Admittedly, the Loan Agreement was entered into between EXIM Bank and the Philippine
are clearly engaged in commercial or proprietary pursuits. government, while the Contract Agreement was between Northrail and CNMEG. Although the
3. The Loan Agreement Contract Agreement is silent on the classification of the legal nature of the transaction, the
CNMEG claims immunity on the ground that the Aug 30 MOU on the financing of the foregoing provisions of the Loan Agreement, which is an inextricable part of the entire
Northrail Project was signed by the Philippine and Chinese governments, and its assignment undertaking, nonetheless reveal the intention of the parties to the Northrail Project to classify
as the Primary Contractor meant that it was bound to perform a governmental function on the whole venture as commercial or proprietary in character.
behalf of China. However, the Loan Agreement, which originated from the same Aug 30 MOU, Thus, piecing together the content and tenor of the Contract Agreement, the Memorandum
belies this reasoning, viz: of Understanding dated 14 September 2002, Amb. Wang’s letter dated 1 October 2003, and
Article 11. xxx (j) Commercial Activity The execution and delivery of this Agreement by the the Loan Agreement would reveal the desire of CNMEG to construct the Luzon Railways in
Borrower constitute, and the Borrower’s performance of and compliance with its obligations pursuit of a purely commercial activity performed in the ordinary course of its business.
under this Agreement will constitute, private and commercial acts done and performed for B. CNMEG failed to adduce evidence that it is immune from suit under Chinese law.
commercial purposes under the laws of the Republic of the Philippines and neither the Even assuming arguendo that CNMEG performs governmental functions, such claim does not
Borrower nor any of its assets is entitled to any immunity or privilege (sovereign or automatically vest it with immunity. This view finds support in Malong v. Philippine National

33
Railways, in which this Court held that "(i)mmunity from suit is determined by the character replete with examples of incorporated government agencies which were ruled not entitled to
of the objects for which the entity was organized."39 invoke immunity from suit, owing to provisions in their charters manifesting their consent to
In this regard, this Court’s ruling in Deutsche Gesellschaft Für Technische Zusammenarbeit be sued.
(GTZ) v. CA40 must be examined. In Deutsche Gesellschaft, Germany and the Philippines x x x           x x x          x x x
entered into a Technical Cooperation Agreement, pursuant to which both signed an It is useful to note that on the part of the Philippine government, it had designated two
arrangement promoting the Social Health Insurance–Networking and Empowerment (SHINE) entities, the Department of Health and the Philippine Health Insurance Corporation (PHIC), as
project. The two governments named their respective implementing organizations: the the implementing agencies in behalf of the Philippines. The PHIC was established under
Department of Health (DOH) and the Philippine Health Insurance Corporation (PHIC) for the Republic Act No. 7875, Section 16 (g) of which grants the corporation the power "to sue and
Philippines, and GTZ for the implementation of Germany’s contributions. In ruling that GTZ be sued in court." Applying the previously cited jurisprudence, PHIC would not enjoy
was not immune from suit, this Court held: immunity from suit even in the performance of its functions connected with SHINE, however,
The arguments raised by GTZ and the [Office of the Solicitor General (OSG)] are rooted in (sic) governmental in nature as (sic) they may be.
several indisputable facts. The SHINE project was implemented pursuant to the bilateral Is GTZ an incorporated agency of the German government? There is some mystery
agreements between the Philippine and German governments. GTZ was tasked, under the surrounding that question. Neither GTZ nor the OSG go beyond the claim that petitioner is
1991 agreement, with the implementation of the contributions of the German government. "the implementing agency of the Government of the Federal Republic of Germany." On the
The activities performed by GTZ pertaining to the SHINE project are governmental in nature, other hand, private respondents asserted before the Labor Arbiter that GTZ was "a private
related as they are to the promotion of health insurance in the Philippines. The fact that GTZ corporation engaged in the implementation of development projects." The Labor Arbiter
entered into employment contracts with the private respondents did not disqualify it from accepted that claim in his Order denying the Motion to Dismiss, though he was silent on that
invoking immunity from suit, as held in cases such as Holy See v. Rosario, Jr., which set forth point in his Decision. Nevertheless, private respondents argue in their Comment that the
what remains valid doctrine: finding that GTZ was a private corporation "was never controverted, and is therefore deemed
Certainly, the mere entering into a contract by a foreign state with a private party cannot be admitted." In its Reply, GTZ controverts that finding, saying that it is a matter of public
the ultimate test. Such an act can only be the start of the inquiry. The logical question is knowledge that the status of petitioner GTZ is that of the "implementing agency," and not
whether the foreign state is engaged in the activity in the regular course of business. If the that of a private corporation.
foreign state is not engaged regularly in a business or trade, the particular act or transaction In truth, private respondents were unable to adduce any evidence to substantiate their claim
must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident that GTZ was a "private corporation," and the Labor Arbiter acted rashly in accepting such
thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit. claim without explanation. But neither has GTZ supplied any evidence defining its legal
Beyond dispute is the tenability of the comment points (sic) raised by GTZ and the OSG that nature beyond that of the bare descriptive "implementing agency." There is no doubt that
GTZ was not performing proprietary functions notwithstanding its entry into the particular the 1991 Agreement designated GTZ as the "implementing agency" in behalf of the German
employment contracts. Yet there is an equally fundamental premise which GTZ and the OSG government. Yet the catch is that such term has no precise definition that is responsive to
fail to address, namely: Is GTZ, by conception, able to enjoy the Federal Republic’s immunity our concerns. Inherently, an agent acts in behalf of a principal, and the GTZ can be said to
from suit? act in behalf of the German state. But that is as far as "implementing agency" could take us.
The principle of state immunity from suit, whether a local state or a foreign state, is reflected The term by itself does not supply whether GTZ is incorporated or unincorporated, whether
in Section 9, Article XVI of the Constitution, which states that "the State may not be sued it is owned by the German state or by private interests, whether it has juridical personality
without its consent." Who or what consists of "the State"? For one, the doctrine is available independent of the German government or none at all.
to foreign States insofar as they are sought to be sued in the courts of the local State, x x x           x x x          x x x
necessary as it is to avoid "unduly vexing the peace of nations." Again, we are uncertain of the corresponding legal implications under German law
If the instant suit had been brought directly against the Federal Republic of Germany, there surrounding "a private company owned by the Federal Republic of Germany." Yet taking
would be no doubt that it is a suit brought against a State, and the only necessary inquiry is the description on face value, the apparent equivalent under Philippine law is that of a
whether said State had consented to be sued. However, the present suit was brought against corporation organized under the Corporation Code but owned by the Philippine
GTZ. It is necessary for us to understand what precisely are the parameters of the legal government, or a government-owned or controlled corporation without original charter.
personality of GTZ. And it bears notice that Section 36 of the Corporate Code states that "[e]very corporation
Counsel for GTZ characterizes GTZ as "the implementing agency of the Government of the incorporated under this Code has the power and capacity x x x to sue and be sued in its
Federal Republic of Germany," a depiction similarly adopted by the OSG. Assuming that the corporate name."
characterization is correct, it does not automatically invest GTZ with the ability to invoke It is entirely possible that under German law, an entity such as GTZ or particularly GTZ itself
State immunity from suit. The distinction lies in whether the agency is incorporated or has not been vested or has been specifically deprived the power and capacity to sue and/or
unincorporated. be sued. Yet in the proceedings below and before this Court, GTZ has failed to establish that
x x x           x x x          x x x under German law, it has not consented to be sued despite it being owned by the Federal
State immunity from suit may be waived by general or special law. The special law can take Republic of Germany. We adhere to the rule that in the absence of evidence to the
the form of the original charter of the incorporated government agency. Jurisprudence is contrary, foreign laws on a particular subject are presumed to be the same as those of the

34
Philippines, and following the most intelligent assumption we can gather, GTZ is akin to a emphasized the DFA’s competence and authority to provide such necessary determination, to
governmental owned or controlled corporation without original charter which, by virtue of wit:
the Corporation Code, has expressly consented to be sued. At the very least, like the Labor The DFA’s function includes, among its other mandates, the determination of persons and
Arbiter and the Court of Appeals, this Court has no basis in fact to conclude or presume that institutions covered by diplomatic immunities, a determination which, when challenge, (sic)
GTZ enjoys immunity from suit.41 (Emphasis supplied.) entitles it to seek relief from the court so as not to seriously impair the conduct of the
Applying the foregoing ruling to the case at bar, it is readily apparent that CNMEG cannot country's foreign relations. The DFA must be allowed to plead its case whenever necessary or
claim immunity from suit, even if it contends that it performs governmental functions. Its advisable to enable it to help keep the credibility of the Philippine government before the
designation as the Primary Contractor does not automatically grant it immunity, just as the international community. When international agreements are concluded, the parties thereto
term "implementing agency" has no precise definition for purposes of ascertaining whether are deemed to have likewise accepted the responsibility of seeing to it that their agreements
GTZ was immune from suit. Although CNMEG claims to be a government-owned corporation, are duly regarded. In our country, this task falls principally of (sic) the DFA as being the
it failed to adduce evidence that it has not consented to be sued under Chinese law. Thus, highest executive department with the competence and authority to so act in this aspect of
following this Court’s ruling in Deutsche Gesellschaft, in the absence of evidence to the the international arena.45 (Emphasis supplied.)
contrary, CNMEG is to be presumed to be a government-owned and -controlled corporation Further, the fact that this authority is exclusive to the DFA was also emphasized in this Court’s
without an original charter. As a result, it has the capacity to sue and be sued under Section ruling in Deutsche Gesellschaft:
36 of the Corporation Code. It is to be recalled that the Labor Arbiter, in both of his rulings, noted that it was imperative
C. CNMEG failed to present a certification from the Department of Foreign Affairs. for petitioners to secure from the Department of Foreign Affairs "a certification of
In Holy See,42 this Court reiterated the oft-cited doctrine that the determination by the respondents’ diplomatic status and entitlement to diplomatic privileges including immunity
Executive that an entity is entitled to sovereign or diplomatic immunity is a political question from suits." The requirement might not necessarily be imperative. However, had GTZ
conclusive upon the courts, to wit: obtained such certification from the DFA, it would have provided factual basis for its claim of
In Public International Law, when a state or international agency wishes to plead sovereign or immunity that would, at the very least, establish a disputable evidentiary presumption that
diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is the foreign party is indeed immune which the opposing party will have to overcome with its
sued to convey to the court that said defendant is entitled to immunity. own factual evidence. We do not see why GTZ could not have secured such certification or
x x x           x x x          x x x endorsement from the DFA for purposes of this case. Certainly, it would have been highly
In the Philippines, the practice is for the foreign government or the international organization prudential for GTZ to obtain the same after the Labor Arbiter had denied the motion to
to first secure an executive endorsement of its claim of sovereign or diplomatic immunity. But dismiss. Still, even at this juncture, we do not see any evidence that the DFA, the office of the
how the Philippine Foreign Office conveys its endorsement to the courts varies. In executive branch in charge of our diplomatic relations, has indeed endorsed GTZ’s claim of
International Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of immunity. It may be possible that GTZ tried, but failed to secure such certification, due to the
Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment, informing same concerns that we have discussed herein.
the latter that the respondent-employer could not be sued because it enjoyed diplomatic Would the fact that the Solicitor General has endorsed GTZ’s claim of State’s immunity from
immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of suit before this Court sufficiently substitute for the DFA certification? Note that the rule in
Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), public international law quoted in Holy See referred to endorsement by the Foreign Office of
the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to the State where the suit is filed, such foreign office in the Philippines being the Department of
make, in behalf of the Commander of the United States Naval Base at Olongapo City, Foreign Affairs. Nowhere in the Comment of the OSG is it manifested that the DFA has
Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the endorsed GTZ’s claim, or that the OSG had solicited the DFA’s views on the issue. The
"suggestion" in a Manifestation and Memorandum as amicus curiae. arguments raised by the OSG are virtually the same as the arguments raised by GTZ without
In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs any indication of any special and distinct perspective maintained by the Philippine
moved with this Court to be allowed to intervene on the side of petitioner. The Court allowed government on the issue. The Comment filed by the OSG does not inspire the same degree of
the said Department to file its memorandum in support of petitioner’s claim of sovereign confidence as a certification from the DFA would have elicited.46 (Emphasis supplied.)
immunity. In the case at bar, CNMEG offers the Certification executed by the Economic and Commercial
In some cases, the defense of sovereign immunity was submitted directly to the local courts Office of the Embassy of the People’s Republic of China, stating that the Northrail Project is in
by the respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; pursuit of a sovereign activity.47 Surely, this is not the kind of certification that can establish
Miquiabas v. Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America v. CNMEG’s entitlement to immunity from suit, as Holy See unequivocally refers to the
Guinto, 182 SCRA 644 [1990] and companion cases). In cases where the foreign states bypass determination of the "Foreign Office of the state where it is sued."
the Foreign Office, the courts can inquire into the facts and make their own determination as Further, CNMEG also claims that its immunity from suit has the executive endorsement of
to the nature of the acts and transactions involved.43 (Emphasis supplied.) both the OSG and the Office of the Government Corporate Counsel (OGCC), which must be
The question now is whether any agency of the Executive Branch can make a determination respected by the courts. However, as expressly enunciated in Deutsche Gesellschaft, this
of immunity from suit, which may be considered as conclusive upon the courts. This Court, in determination by the OSG, or by the OGCC for that matter, does not inspire the same degree
Department of Foreign Affairs (DFA) v. National Labor Relations Commission (NLRC),44 of confidence as a DFA certification. Even with a DFA certification, however, it must be

35
remembered that this Court is not precluded from making an inquiry into the intrinsic A. CNMEG is neither a government nor a government agency.
correctness of such certification. The Contract Agreement was not concluded between the Philippines and China, but between
D. An agreement to submit any dispute to arbitration may be construed as an implicit waiver Northrail and CNMEG.51 By the terms of the Contract Agreement, Northrail is a government-
of immunity from suit. owned or -controlled corporation, while CNMEG is a corporation duly organized and created
In the United States, the Foreign Sovereign Immunities Act of 1976 provides for a waiver by under the laws of the People’s Republic of China.52 Thus, both Northrail and CNMEG entered
implication of state immunity. In the said law, the agreement to submit disputes to into the Contract Agreement as entities with personalities distinct and separate from the
arbitration in a foreign country is construed as an implicit waiver of immunity from suit. Philippine and Chinese governments, respectively.
Although there is no similar law in the Philippines, there is reason to apply the legal reasoning Neither can it be said that CNMEG acted as agent of the Chinese government. As previously
behind the waiver in this case. discussed, the fact that Amb. Wang, in his letter dated 1 October 2003,53 described CNMEG
The Conditions of Contract,48 which is an integral part of the Contract Agreement,49 states: as a "state corporation" and declared its designation as the Primary Contractor in the
33. SETTLEMENT OF DISPUTES AND ARBITRATION Northrail Project did not mean it was to perform sovereign functions on behalf of China. That
33.1. Amicable Settlement label was only descriptive of its nature as a state-owned corporation, and did not preclude it
Both parties shall attempt to amicably settle all disputes or controversies arising from this from engaging in purely commercial or proprietary ventures.
Contract before the commencement of arbitration. B. The Contract Agreement is to be governed by Philippine law.
33.2. Arbitration Article 2 of the Conditions of Contract,54 which under Article 1.1 of the Contract Agreement
All disputes or controversies arising from this Contract which cannot be settled between the is an integral part of the latter, states:
Employer and the Contractor shall be submitted to arbitration in accordance with the APPLICABLE LAW AND GOVERNING LANGUAGE
UNCITRAL Arbitration Rules at present in force and as may be amended by the rest of this The contract shall in all respects be read and construed in accordance with the laws of the
Clause. The appointing authority shall be Hong Kong International Arbitration Center. The Philippines.
place of arbitration shall be in Hong Kong at Hong Kong International Arbitration Center The contract shall be written in English language. All correspondence and other documents
(HKIAC). pertaining to the Contract which are exchanged by the parties shall be written in English
Under the above provisions, if any dispute arises between Northrail and CNMEG, both parties language.
are bound to submit the matter to the HKIAC for arbitration. In case the HKIAC makes an Since the Contract Agreement explicitly provides that Philippine law shall be applicable, the
arbitral award in favor of Northrail, its enforcement in the Philippines would be subject to the parties have effectively conceded that their rights and obligations thereunder are not
Special Rules on Alternative Dispute Resolution (Special Rules). Rule 13 thereof provides for governed by international law.
the Recognition and Enforcement of a Foreign Arbitral Award. Under Rules 13.2 and 13.3 of It is therefore clear from the foregoing reasons that the Contract Agreement does not partake
the Special Rules, the party to arbitration wishing to have an arbitral award recognized and of the nature of an executive agreement. It is merely an ordinary commercial contract that
enforced in the Philippines must petition the proper regional trial court (a) where the assets can be questioned before the local courts.
to be attached or levied upon is located; (b) where the acts to be enjoined are being WHEREFORE, the instant Petition is DENIED. Petitioner China National Machinery &
performed; (c) in the principal place of business in the Philippines of any of the parties; (d) if Equipment Corp. (Group) is not entitled to immunity from suit, and the Contract Agreement is
any of the parties is an individual, where any of those individuals resides; or (e) in the not an executive agreement. CNMEG’s prayer for the issuance of a TRO and/or Writ of
National Capital Judicial Region. Preliminary Injunction is DENIED for being moot and academic. This case is REMANDED to the
From all the foregoing, it is clear that CNMEG has agreed that it will not be afforded immunity Regional Trial Court of Makati, Branch 145, for further proceedings as regards the validity of
from suit. Thus, the courts have the competence and jurisdiction to ascertain the validity of the contracts subject of Civil Case No. 06-203.
the Contract Agreement. No pronouncement on costs of suit.
Second issue: Whether the Contract Agreement is an executive agreement SO ORDERED.
Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna Convention) defines a
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.

36
 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
EN BANC [November 29, 1960]), for the reason that the broad powers of the Central Bank, under its
G.R. No. L-14279            October 31, 1961 charter, to maintain our monetary stability and to preserve the international value of our
THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF CUSTOMS, petitioners, currency, under section 2 of Republic Act No. 265, in relation to section 14 of said Act —
vs. authorizing the bank to issue such rules and regulations as it may consider necessary for the
EASTERN SEA TRADING, respondent. effective discharge of the responsibilities and the exercise of the powers assigned to the
Office of the Solicitor General for petitioners. Monetary Board and to the Central Bank — connote the authority to regulate no-dollar
Valentin Gutierrez for respondent. imports, owing to the influence and effect that the same may and do have upon the stability
CONCEPCION, J.: of our peso and its international value.
Petition for review of a judgment of the Court of Tax Appeals reversing a decision of the The Court of Tax Appeals entertained doubts on the legality of the executive agreement
Commissioner of Customs. sought to be implemented by Executive Order No. 328, owing to the fact that our Senate had
Respondent Eastern Sea Trading was the consignee of several shipments of onion and garlic not concurred in the making of said executive agreement. The concurrence of said House of
which arrived at the Port of Manila from August 25 to September 7, 1954. Some shipments Congress is required by our fundamental law in the making of "treaties" (Constitution of the
came from Japan and others from Hong Kong. In as much as none of the shipments had the Philippines, Article VII, Section 10[7]), which are, however, distinct and different from
certificate required by Central Bank Circulars Nos. 44 and 45 for the release thereof, the "executive agreements," which may be validly entered into without such concurrence.
goods thus imported were seized and subjected to forfeiture proceedings for alleged Treaties are formal documents which require ratification with the approval of two thirds of
violations of section 1363(f) of the Revised Administrative Code, in relation to the the Senate. Executive agreements become binding through executive action without the need
aforementioned circulars of the Central Bank. In due course, the Collector of Customs of of a vote by the Senate or by Congress.
Manila rendered a decision on September 4, 1956, declaring said goods forfeited to the xxx           xxx           xxx
Government and — the goods having been, in the meantime, released to the consignees on . . . the right of the Executive to enter into binding agreements without the necessity of
surety bonds, filed by the same, as principal, and the Alto Surety & Insurance Co., Inc., as subsequent Congressional approval has been confirmed by long usage. From the earliest days
surety, in compliance with orders of the Court of First Instance of Manila, in Civil Cases Nos. of our history we have entered into executive agreements covering such subjects as
23942 and 23852 thereof — directing that the amounts of said bonds be paid, by said commercial and consular relations, most-favored-nation rights, patent rights, trademark and
principal and surety, jointly and severally, to the Bureau of Customs, within thirty (30) days copyright protection, postal and navigation arrangements and the settlement of claims. The
from notice. validity of these has never been seriously questioned by our courts.
On appeal taken by the consignee, said decision was affirmed by the Commissioner of xxx           xxx           xxx
Customs on December 27, 1956. Subsequently, the consignee sought a review of the decision Agreements with respect to the registration of trade-marks have been concluded by the
of said two (2) officers by the Court of Tax Appeals, which reversed the decision of the Executive with various countries under the Act of Congress of March 3, 1881 (21 Stat. 502).
Commissioner of Customs and ordered that the aforementioned bonds be cancelled and Postal conventions regulating the reciprocal treatment of mail matters, money orders, parcel
withdrawn. Hence, the present petition of the Commissioner of Customs for review of the post, etc., have been concluded by the Postmaster General with various countries under
decision of the Court of Tax Appeals. authorization by Congress beginning with the Act of February 20, 1792 (1 Stat. 232, 239). Ten
The latter is based upon the following premises, namely: that the Central Bank has no executive agreements were concluded by the President pursuant to the McKinley Tariff Act of
authority to regulate transactions not involving foreign exchange; that the shipments in 1890 (26 Stat. 567, 612), and nine such agreements were entered into under the Dingley
question are in the nature of "no-dollar" imports; that, as such, the aforementioned Tariff Act 1897 (30 Stat. 151, 203, 214). A very much larger number of agreements, along the
shipments do not involve foreign exchange; that, insofar as a Central Bank license and a lines of the one with Rumania previously referred to, providing for most-favored-nation
certificate authorizing the importation or release of the goods under consideration are treatment in customs and related matters have been entered into since the passage of the
required by Central Bank Circulars Nos. 44 and 45, the latter are null and void; and that the Tariff Act of 1922, not by direction of the Act but in harmony with it.
seizure and forfeiture of the goods imported from Japan cannot be justified under Executive xxx           xxx           xxx
Order No. 328,1 not only because the same seeks to implement an executive agreement 2 —

37
International agreements involving political issues or changes of national policy and those Order No. 328 provided for export or import licenses "from the Central Bank of the
involving international arrangements of a permanent character usually take the form of Philippines or the Import Control Administration" or Commission. Indeed, the latter was
treaties. But international agreements embodying adjustments of detail carrying out well- created only to perform the task of implementing certain objectives of the Monetary Board
established national policies and traditions and those involving arrangements of a more or and the Central Bank, which otherwise had to be undertaken by these two (2) agencies. Upon
less temporary nature usually take the form of executive agreements. the abolition of said Commission, the duty to provide means and ways for the
xxx           xxx           xxx accomplishment of said objectives had merely to be discharged directly by the Monetary
Furthermore, the United States Supreme Court has expressly recognized the validity and Board and the Central Bank, even if the aforementioned Executive Order had been silent
constitutionality of executive agreements entered into without Senate approval. (39 thereon.
Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis-Wright Export Corporation, 299 WHEREFORE, the decision appealed from is hereby reversed and another one shall be
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. entered affirming that of the Commissioner of Customs, with cost against respondents
203, 86 L. ed. 796; Ozanic vs. U.S., 188 F. 2d. 288; Yale Law Journal, Vol. 15, pp. 1905-1906; defendant-appellee, Eastern Sea Trading. It is so ordered.
California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [Revised Edition], Vol. Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Paredes, Dizon and De Leon,
2, pp. 1405, 1416-1418; Willoughby on the U.S. Constitutional Law, Vol. I [2d ed.], pp. 537- JJ., concur.
540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Barrera, J., took no part.
Digest, Vol. V, pp. 390-407). (Emphasis supplied.)
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

38
 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
EN BANC BUENA, J.:
G.R. No. 138570               October 10, 2000 Confronting the Court for resolution in the instant consolidated petitions for certiorari and
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS prohibition are issues relating to, and borne by, an agreement forged in the turn of the last
MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN (United Church of century between the Republic of the Philippines and the United States of America -the
Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS, Visiting Forces Agreement.
KILUSANG MAYO UNO, GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW CENTER, The antecedents unfold.
petitioners, On March 14, 1947, the Philippines and the United States of America forged a Military Bases
vs. Agreement which formalized, among others, the use of installations in the Philippine territory
EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO by United States military personnel. To further strengthen their defense and security
SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, relationship, the Philippines and the United States entered into a Mutual Defense Treaty on
SENATE PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR BLAS OPLE, August 30, 1951. Under the treaty, the parties agreed to respond to any external armed
SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO TATAD, respondents. attack on their territory, armed forces, public vessels, and aircraft.1
x-----------------------x In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the
G.R. No. 138572               October 10, 2000 Philippines and the United States negotiated for a possible extension of the military bases
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA, agreement. On September 16, 1991, the Philippine Senate rejected the proposed RP-US
AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners, Treaty of Friendship, Cooperation and Security which, in effect, would have extended the
vs. presence of US military bases in the Philippines.2 With the expiration of the RP-US Military
HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as Bases Agreement, the periodic military exercises conducted between the two countries were
Secretary of National Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign held in abeyance. Notwithstanding, the defense and security relationship between the
Affairs, respondents. Philippines and the United States of America continued pursuant to the Mutual Defense
x-----------------------x Treaty.
G.R. No. 138587               October 10, 2000 On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEÑA III, petitioners, for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs
vs. Undersecretary Rodolfo Severino Jr., to exchange notes on "the complementing strategic
JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. interests of the United States and the Philippines in the Asia-Pacific region." Both sides
MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G. discussed, among other things, the possible elements of the Visiting Forces Agreement (VFA
BIAZON, respondents. for brevity). Negotiations by both panels on the VFA led to a consolidated draft text, which in
x-----------------------x turn resulted to a final series of conferences and negotiations3 that culminated in Manila on
G.R. No. 138680               October 10, 2000 January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos approved the VFA, which
INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila was respectively signed by public respondent Secretary Siazon and Unites States Ambassador
Grapilon, petitioners, Thomas Hubbard on February 10, 1998.
vs. On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign
JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the Philippines, and Affairs, ratified the VFA.4
HON. DOMINGO SIAZON, in his capacity as Secretary of Foreign Affairs, respondents. On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo
x-----------------------x Zamora, officially transmitted to the Senate of the Philippines,5 the Instrument of Ratification,
G.R. No. 138698               October 10, 2000 the letter of the President6 and the VFA, for concurrence pursuant to Section 21, Article VII of
JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZON-AVENCEÑA, ROLANDO the 1987 Constitution. The Senate, in turn, referred the VFA to its Committee on Foreign
SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. Relations, chaired by Senator Blas F. Ople, and its Committee on National Defense and
ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF Security, chaired by Senator Rodolfo G. Biazon, for their joint consideration and
ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), recommendation. Thereafter, joint public hearings were held by the two Committees.7
petitioners,

39
On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 4438 United States vessels or cargoes thereon shall be conducted by the United States
recommending the concurrence of the Senate to the VFA and the creation of a Legislative commanding officer in accordance with the international health regulations as promulgated
Oversight Committee to oversee its implementation. Debates then ensued. by the World Health Organization, and mutually agreed procedures.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two- "4. United States civilian personnel shall be exempt from visa requirements but shall present,
thirds (2/3) vote9 of its members. Senate Resolution No. 443 was then re-numbered as upon demand, valid passports upon entry and departure of the Philippines.
Senate Resolution No. 18.10 "5. If the Government of the Philippines has requested the removal of any United States
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between personnel from its territory, the United States authorities shall be responsible for receiving
respondent Secretary Siazon and United States Ambassador Hubbard. the person concerned within its own territory or otherwise disposing of said person outside of
The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for the Philippines.
regulating the circumstances and conditions under which US Armed Forces and defense "Article IV
personnel may be present in the Philippines, and is quoted in its full text, hereunder: Driving and Vehicle Registration
"Article I "1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license
Definitions issued by the appropriate United States authority to United States personnel for the
"As used in this Agreement, ‘United States personnel’ means United States military and operation of military or official vehicles.
civilian personnel temporarily in the Philippines in connection with activities approved by the "2. Vehicles owned by the Government of the United States need not be registered, but shall
Philippine Government. have appropriate markings.
"Within this definition: "Article V
"1. The term ‘military personnel’ refers to military members of the United States Army, Navy, Criminal Jurisdiction
Marine Corps, Air Force, and Coast Guard. "1. Subject to the provisions of this article:
"2. The term ‘civilian personnel’ refers to individuals who are neither nationals of, nor (a) Philippine authorities shall have jurisdiction over United States personnel with respect to
ordinary residents in the Philippines and who are employed by the United States armed offenses committed within the Philippines and punishable under the law of the Philippines.
forces or who are accompanying the United States armed forces, such as employees of the (b) United States military authorities shall have the right to exercise within the Philippines all
American Red Cross and the United Services Organization. criminal and disciplinary jurisdiction conferred on them by the military law of the United
"Article II States over United States personnel in the Philippines.
Respect for Law "2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with
"It is the duty of the United States personnel to respect the laws of the Republic of the respect to offenses, including offenses relating to the security of the Philippines, punishable
Philippines and to abstain from any activity inconsistent with the spirit of this agreement, under the laws of the Philippines, but not under the laws of the United States.
and, in particular, from any political activity in the Philippines. The Government of the United (b) United States authorities exercise exclusive jurisdiction over United States personnel with
States shall take all measures within its authority to ensure that this is done. respect to offenses, including offenses relating to the security of the United States,
"Article III punishable under the laws of the United States, but not under the laws of the Philippines.
Entry and Departure (c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating to
"1. The Government of the Philippines shall facilitate the admission of United States security means:
personnel and their departure from the Philippines in connection with activities covered by (1) treason;
this agreement. (2) sabotage, espionage or violation of any law relating to national defense.
"2. United States military personnel shall be exempt from passport and visa regulations upon "3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall
entering and departing the Philippines. apply:
"3. The following documents only, which shall be presented on demand, shall be required in (a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses
respect of United States military personnel who enter the Philippines: committed by United States personnel, except in cases provided for in paragraphs 1(b), 2 (b),
"(a) personal identity card issued by the appropriate United States authority showing full and 3 (b) of this Article.
name, date of birth, rank or grade and service number (if any), branch of service and (b) United States military authorities shall have the primary right to exercise jurisdiction over
photograph; United States personnel subject to the military law of the United States in relation to.
"(b) individual or collective document issued by the appropriate United States authority, (1) offenses solely against the property or security of the United States or offenses solely
authorizing the travel or visit and identifying the individual or group as United States military against the property or person of United States personnel; and
personnel; and (2) offenses arising out of any act or omission done in performance of official duty.
"(c) the commanding officer of a military aircraft or vessel shall present a declaration of (c) The authorities of either government may request the authorities of the other government
health, and when required by the cognizant representative of the Government of the to waive their primary right to exercise jurisdiction in a particular case.
Philippines, shall conduct a quarantine inspection and will certify that the aircraft or vessel is (d) Recognizing the responsibility of the United States military authorities to maintain good
free from quarantinable diseases. Any quarantine inspection of United States aircraft or order and discipline among their forces, Philippine authorities will, upon request by the

40
United States, waive their primary right to exercise jurisdiction except in cases of particular of evidence, including seizure and, in proper cases, the delivery of objects connected with an
importance to the Philippines. If the Government of the Philippines determines that the case offense.
is of particular importance, it shall communicate such determination to the United States "8. When United States personnel have been tried in accordance with the provisions of this
authorities within twenty (20) days after the Philippine authorities receive the United States Article and have been acquitted or have been convicted and are serving, or have served their
request. sentence, or have had their sentence remitted or suspended, or have been pardoned, they
(e) When the United States military commander determines that an offense charged by may not be tried again for the same offense in the Philippines. Nothing in this paragraph,
authorities of the Philippines against United states personnel arises out of an act or omission however, shall prevent United States military authorities from trying United States personnel
done in the performance of official duty, the commander will issue a certificate setting forth for any violation of rules of discipline arising from the act or omission which constituted an
such determination. This certificate will be transmitted to the appropriate authorities of the offense for which they were tried by Philippine authorities.
Philippines and will constitute sufficient proof of performance of official duty for the purposes "9. When United States personnel are detained, taken into custody, or prosecuted by
of paragraph 3(b)(2) of this Article. In those cases where the Government of the Philippines Philippine authorities, they shall be accorded all procedural safeguards established by the law
believes the circumstances of the case require a review of the duty certificate, United States of the Philippines. At the minimum, United States personnel shall be entitled:
military authorities and Philippine authorities shall consult immediately. Philippine authorities (a) To a prompt and speedy trial;
at the highest levels may also present any information bearing on its validity. United States (b) To be informed in advance of trial of the specific charge or charges made against them and
military authorities shall take full account of the Philippine position. Where appropriate, to have reasonable time to prepare a defense;
United States military authorities will take disciplinary or other action against offenders in (c) To be confronted with witnesses against them and to cross examine such witnesses;
official duty cases, and notify the Government of the Philippines of the actions taken. (d) To present evidence in their defense and to have compulsory process for obtaining
(f) If the government having the primary right does not exercise jurisdiction, it shall notify the witnesses;
authorities of the other government as soon as possible. (e) To have free and assisted legal representation of their own choice on the same basis as
(g) The authorities of the Philippines and the United States shall notify each other of the nationals of the Philippines;
disposition of all cases in which both the authorities of the Philippines and the United States (f) To have the service of a competent interpreter; and
have the right to exercise jurisdiction. (g) To communicate promptly with and to be visited regularly by United States authorities,
"4. Within the scope of their legal competence, the authorities of the Philippines and United and to have such authorities present at all judicial proceedings. These proceedings shall be
States shall assist each other in the arrest of United States personnel in the Philippines and in public unless the court, in accordance with Philippine laws, excludes persons who have no
handling them over to authorities who are to exercise jurisdiction in accordance with the role in the proceedings.
provisions of this article. "10. The confinement or detention by Philippine authorities of United States personnel shall
"5. United States military authorities shall promptly notify Philippine authorities of the arrest be carried out in facilities agreed on by appropriate Philippine and United States authorities.
or detention of United States personnel who are subject of Philippine primary or exclusive United States Personnel serving sentences in the Philippines shall have the right to visits and
jurisdiction. Philippine authorities shall promptly notify United States military authorities of material assistance.
the arrest or detention of any United States personnel. "11. United States personnel shall be subject to trial only in Philippine courts of ordinary
"6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction, and shall not be subject to the jurisdiction of Philippine military or religious
jurisdiction shall immediately reside with United States military authorities, if they so request, courts.
from the commission of the offense until completion of all judicial proceedings. United States "Article VI
military authorities shall, upon formal notification by the Philippine authorities and without Claims
delay, make such personnel available to those authorities in time for any investigative or "1. Except for contractual arrangements, including United States foreign military sales letters
judicial proceedings relating to the offense with which the person has been charged in of offer and acceptance and leases of military equipment, both governments waive any and
extraordinary cases, the Philippine Government shall present its position to the United States all claims against each other for damage, loss or destruction to property of each other’s
Government regarding custody, which the United States Government shall take into full armed forces or for death or injury to their military and civilian personnel arising from
account. In the event Philippine judicial proceedings are not completed within one year, the activities to which this agreement applies.
United States shall be relieved of any obligations under this paragraph. The one-year period "2. For claims against the United States, other than contractual claims and those to which
will not include the time necessary to appeal. Also, the one-year period will not include any paragraph 1 applies, the United States Government, in accordance with United States law
time during which scheduled trial procedures are delayed because United States authorities, regarding foreign claims, will pay just and reasonable compensation in settlement of
after timely notification by Philippine authorities to arrange for the presence of the accused, meritorious claims for damage, loss, personal injury or death, caused by acts or omissions of
fail to do so. United States personnel, or otherwise incident to the non-combat activities of the United
"7. Within the scope of their legal authority, United States and Philippine authorities shall States forces.
assist each other in the carrying out of all necessary investigation into offenses and shall "Article VII
cooperate in providing for the attendance of witnesses and in the collection and production Importation and Exportation

41
"1. United States Government equipment, materials, supplies, and other property imported I
into or acquired in the Philippines by or on behalf of the United States armed forces in Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question
connection with activities to which this agreement applies, shall be free of all Philippine the constitutionality of the VFA?
duties, taxes and other similar charges. Title to such property shall remain with the United II
States, which may remove such property from the Philippines at any time, free from export Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of
duties, taxes, and other similar charges. The exemptions provided in this paragraph shall also the Constitution?
extend to any duty, tax, or other similar charges which would otherwise be assessed upon III
such property after importation into, or acquisition within, the Philippines. Such property may Does the VFA constitute an abdication of Philippine sovereignty?
be removed from the Philippines, or disposed of therein, provided that disposition of such a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by
property in the Philippines to persons or entities not entitled to exemption from applicable US military personnel?
taxes and duties shall be subject to payment of such taxes, and duties and prior approval of b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion
the Philippine Government. perpetua or higher?
"2. Reasonable quantities of personal baggage, personal effects, and other property for the IV
personal use of United States personnel may be imported into and used in the Philippines Does the VFA violate:
free of all duties, taxes and other similar charges during the period of their temporary stay in a. the equal protection clause under Section 1, Article III of the Constitution?
the Philippines. Transfers to persons or entities in the Philippines not entitled to import b. the Prohibition against nuclear weapons under Article II, Section 8?
privileges may only be made upon prior approval of the appropriate Philippine authorities c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties
including payment by the recipient of applicable duties and taxes imposed in accordance with for the equipment, materials supplies and other properties imported into or acquired in the
the laws of the Philippines. The exportation of such property and of property acquired in the Philippines by, or on behalf, of the US Armed Forces?
Philippines by United States personnel shall be free of all Philippine duties, taxes, and other LOCUS STANDI
similar charges. At the outset, respondents challenge petitioner’s standing to sue, on the ground that the
"Article VIII latter have not shown any interest in the case, and that petitioners failed to substantiate that
Movement of Vessels and Aircraft they have sustained, or will sustain direct injury as a result of the operation of the VFA.12
"1. Aircraft operated by or for the United States armed forces may enter the Philippines upon Petitioners, on the other hand, counter that the validity or invalidity of the VFA is a matter of
approval of the Government of the Philippines in accordance with procedures stipulated in transcendental importance which justifies their standing.13
implementing arrangements. A party bringing a suit challenging the constitutionality of a law, act, or statute must show
"2. Vessels operated by or for the United States armed forces may enter the Philippines upon "not only that the law is invalid, but also that he has sustained or in is in immediate, or
approval of the Government of the Philippines. The movement of vessels shall be in imminent danger of sustaining some direct injury as a result of its enforcement, and not
accordance with international custom and practice governing such vessels, and such agreed merely that he suffers thereby in some indefinite way." He must show that he has been, or is
implementing arrangements as necessary. about to be, denied some right or privilege to which he is lawfully entitled, or that he is about
"3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not to be subjected to some burdens or penalties by reason of the statute complained of.14
be subject to the payment of landing or port fees, navigation or over flight charges, or tolls or In the case before us, petitioners failed to show, to the satisfaction of this Court, that they
other use charges, including light and harbor dues, while in the Philippines. Aircraft operated have sustained, or are in danger of sustaining any direct injury as a result of the enforcement
by or for the United States armed forces shall observe local air traffic control regulations of the VFA. As taxpayers, petitioners have not established that the VFA involves the exercise
while in the Philippines. Vessels owned or operated by the United States solely on United by Congress of its taxing or spending powers.15 On this point, it bears stressing that a
States Government non-commercial service shall not be subject to compulsory pilotage at taxpayer’s suit refers to a case where the act complained of directly involves the illegal
Philippine ports. disbursement of public funds derived from taxation.16 Thus, in Bugnay Const. &
"Article IX Development Corp. vs. Laron17 , we held:
Duration and Termination "x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or
"This agreement shall enter into force on the date on which the parties have notified each injured by the judgment or entitled to the avails of the suit as a real party in interest. Before
other in writing through the diplomatic channel that they have completed their constitutional he can invoke the power of judicial review, he must specifically prove that he has sufficient
requirements for entry into force. This agreement shall remain in force until the expiration of interest in preventing the illegal expenditure of money raised by taxation and that he will
180 days from the date on which either party gives the other party notice in writing that it sustain a direct injury as a result of the enforcement of the questioned statute or contract. It
desires to terminate the agreement." is not sufficient that he has merely a general interest common to all members of the public."
Via these consolidated11 petitions for certiorari and prohibition, petitioners - as legislators, Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the
non-governmental organizations, citizens and taxpayers - assail the constitutionality of the absence of any allegation by petitioners that public funds are being misspent or illegally
VFA and impute to herein respondents grave abuse of discretion in ratifying the agreement. expended, petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.
We have simplified the issues raised by the petitioners into the following:

42
Similarly, Representatives Wigberto Tañada, Agapito Aquino and Joker Arroyo, as petitioners- concur with the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering
legislators, do not possess the requisite locus standi to maintain the present suit. While this that the VFA has for its subject the presence of foreign military troops in the Philippines.
Court, in Phil. Constitution Association vs. Hon. Salvador Enriquez,18 sustained the legal Respondents, on the contrary, maintain that Section 21, Article VII should apply inasmuch as
standing of a member of the Senate and the House of Representatives to question the validity the VFA is not a basing arrangement but an agreement which involves merely the temporary
of a presidential veto or a condition imposed on an item in an appropriation bull, we cannot, visits of United States personnel engaged in joint military exercises.
at this instance, similarly uphold petitioners’ standing as members of Congress, in the absence The 1987 Philippine Constitution contains two provisions requiring the concurrence of the
of a clear showing of any direct injury to their person or to the institution to which they Senate on treaties or international agreements. Section 21, Article VII, which herein
belong. respondents invoke, reads:
Beyond this, the allegations of impairment of legislative power, such as the delegation of the "No treaty or international agreement shall be valid and effective unless concurred in by at
power of Congress to grant tax exemptions, are more apparent than real. While it may be least two-thirds of all the Members of the Senate."
true that petitioners pointed to provisions of the VFA which allegedly impair their legislative Section 25, Article XVIII, provides:
powers, petitioners failed however to sufficiently show that they have in fact suffered direct "After the expiration in 1991 of the Agreement between the Republic of the Philippines and
injury. the United States of America concerning Military Bases, foreign military bases, troops, or
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the
these cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity to senate and, when the Congress so requires, ratified by a majority of the votes cast by the
bring this suit in the absence of a board resolution from its Board of Governors authorizing its people in a national referendum held for that purpose, and recognized as a treaty by the
National President to commence the present action.19 other contracting State."
Notwithstanding, in view of the paramount importance and the constitutional significance of Section 21, Article VII deals with treatise or international agreements in general, in which
the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required
aside the procedural barrier and takes cognizance of the petitions, as we have done in the to make the subject treaty, or international agreement, valid and binding on the part of the
early Emergency Powers Cases,20 where we had occasion to rule: Philippines. This provision lays down the general rule on treatise or international agreements
"x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several and applies to any form of treaty with a wide variety of subject matter, such as, but not
executive orders issued by President Quirino although they were involving only an indirect limited to, extradition or tax treatise or those economic in nature. All treaties or international
and general interest shared in common with the public. The Court dismissed the objection agreements entered into by the Philippines, regardless of subject matter, coverage, or
that they were not proper parties and ruled that ‘transcendental importance to the public of particular designation or appellation, requires the concurrence of the Senate to be valid and
these cases demands that they be settled promptly and definitely, brushing aside, if we effective.
must, technicalities of procedure.’ We have since then applied the exception in many other In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve
cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 the presence of foreign military bases, troops or facilities in the Philippines. Under this
SCRA 343)." (Underscoring Supplied) provision, the concurrence of the Senate is only one of the requisites to render compliance
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,21 Daza vs. with the constitutional requirements and to consider the agreement binding on the
Singson,22 and Basco vs. Phil. Amusement and Gaming Corporation,23 where we Philippines. Section 25, Article XVIII further requires that "foreign military bases, troops, or
emphatically held: facilities" may be allowed in the Philippines only by virtue of a treaty duly concurred in by the
"Considering however the importance to the public of the case at bar, and in keeping with the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose
Court’s duty, under the 1987 Constitution, to determine whether or not the other branches of if so required by Congress, and recognized as such by the other contracting state.
the government have kept themselves within the limits of the Constitution and the laws and It is our considered view that both constitutional provisions, far from contradicting each
that they have not abused the discretion given to them, the Court has brushed aside other, actually share some common ground. These constitutional provisions both embody
technicalities of procedure and has taken cognizance of this petition. x x x" phrases in the negative and thus, are deemed prohibitory in mandate and character. In
Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,24 thisCourt ruled that in cases particular, Section 21 opens with the clause "No treaty x x x," and Section 25 contains the
of transcendental importance, the Court may relax the standing requirements and allow a phrase "shall not be allowed." Additionally, in both instances, the concurrence of the Senate
suit to prosper even where there is no direct injury to the party claiming the right of judicial is indispensable to render the treaty or international agreement valid and effective.
review. To our mind, the fact that the President referred the VFA to the Senate under Section 21,
Although courts generally avoid having to decide a constitutional question based on the Article VII, and that the Senate extended its concurrence under the same provision, is
doctrine of separation of powers, which enjoins upon the departments of the government a immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article
becoming respect for each others’ acts,25 this Court nevertheless resolves to take cognizance XVIII, the fundamental law is crystalline that the concurrence of the Senate is mandatory to
of the instant petitions. comply with the strict constitutional requirements.
APPLICABLE CONSTITUTIONAL PROVISION On the whole, the VFA is an agreement which defines the treatment of United States troops
One focal point of inquiry in this controversy is the determination of which provision of the and personnel visiting the Philippines. It provides for the guidelines to govern such visits of
Constitution applies, with regard to the exercise by the senate of its constitutional power to military personnel, and further defines the rights of the United States and the Philippine

43
government in the matter of criminal jurisdiction, movement of vessel and aircraft, MR. MAAMBONG. In other words, the Philippine government can enter into a treaty
importation and exportation of equipment, materials and supplies. covering not bases but merely troops?
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign FR. BERNAS. Yes.
military bases, troops, or facilities, should apply in the instant case. To a certain extent and in MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty
a limited sense, however, the provisions of section 21, Article VII will find applicability with covering only troops.
regard to the issue and for the sole purpose of determining the number of votes required to FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find
obtain the valid concurrence of the Senate, as will be further discussed hereunder. some. We just want to cover everything."29 (Underscoring Supplied)
It is a finely-imbedded principle in statutory construction that a special provision or law Moreover, military bases established within the territory of another state is no longer viable
prevails over a general one. Lex specialis derogat generali. Thus, where there is in the same because of the alternatives offered by new means and weapons of warfare such as nuclear
statute a particular enactment and also a general one which, in its most comprehensive weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even for
sense, would include what is embraced in the former, the particular enactment must be months and years without returning to their home country. These military warships are
operative, and the general enactment must be taken to affect only such cases within its actually used as substitutes for a land-home base not only of military aircraft but also of
general language which are not within the provision of the particular enactment.26 military personnel and facilities. Besides, vessels are mobile as compared to a land-based
In Leveriza vs. Intermediate Appellate Court,27 we enunciated: military headquarters.
"x x x that another basic principle of statutory construction mandates that general legislation At this juncture, we shall then resolve the issue of whether or not the requirements of Section
must give way to a special legislation on the same subject, and generally be so interpreted as 25 were complied with when the Senate gave its concurrence to the VFA.
to embrace only cases in which the special provisions are not applicable (Sto. Domingo vs. de Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country,
los Angeles, 96 SCRA 139), that a specific statute prevails over a general statute (De Jesus vs. unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the
People, 120 SCRA 760) and that where two statutes are of equal theoretical application to a treaty must be duly concurred in by the Senate and, when so required by congress, ratified
particular case, the one designed therefor specially should prevail (Wil Wilhensen Inc. vs. by a majority of the votes cast by the people in a national referendum; and (c) recognized as a
Baluyot, 83 SCRA 38)." treaty by the other contracting state.
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient There is no dispute as to the presence of the first two requisites in the case of the VFA. The
agreements for the reason that there is no permanent placing of structure for the concurrence handed by the Senate through Resolution No. 18 is in accordance with the
establishment of a military base. On this score, the Constitution makes no distinction between provisions of the Constitution, whether under the general requirement in Section 21, Article
"transient’ and "permanent". Certainly, we find nothing in Section 25, Article XVIII that VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter
requires foreign troops or facilities to be stationed or placed permanently in the Philippines. article requiring ratification by a majority of the votes cast in a national referendum being
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court unnecessary since Congress has not required it.
should not distinguish- Ubi lex non distinguit nec nos distinguire debemos. As to the matter of voting, Section 21, Article VII particularly requires that a treaty or
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not international agreement, to be valid and effective, must be concurred in by at least two-
controlling since no foreign military bases, but merely foreign troops and facilities, are thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII simply
involved in the VFA. Notably, a perusal of said constitutional provision reveals that the provides that the treaty be "duly concurred in by the Senate."
proscription covers "foreign military bases, troops, or facilities." Stated differently, this Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the
prohibition is not limited to the entry of troops and facilities without any foreign bases being Senate is clearly required so that the concurrence contemplated by law may be validly
established. The clause does not refer to "foreign military bases, troops, or facilities" obtained and deemed present. While it is true that Section 25, Article XVIII requires, among
collectively but treats them as separate and independent subjects. The use of comma and the other things, that the treaty-the VFA, in the instant case-be "duly concurred in by the Senate,"
disjunctive word "or" clearly signifies disassociation and independence of one thing from the it is very true however that said provision must be related and viewed in light of the clear
others included in the enumeration,28 such that, the provision contemplates three different mandate embodied in Section 21, Article VII, which in more specific terms, requires that the
situations - a military treaty the subject of which could be either (a) foreign bases, (b) foreign concurrence of a treaty, or international agreement, be made by a two -thirds vote of all the
troops, or (c) foreign facilities - any of the three standing alone places it under the coverage of members of the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to
Section 25, Article XVIII. section 21, Article, VII.
To this end, the intention of the framers of the Charter, as manifested during the As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in
deliberations of the 1986 Constitutional Commission, is consistent with this interpretation: relation to the provisions of Section 21, Article VII. In a more particular language, the
"MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas. concurrence of the Senate contemplated under Section 25, Article XVIII means that at least
This formulation speaks of three things: foreign military bases, troops or facilities. My first two-thirds of all the members of the Senate favorably vote to concur with the treaty-the VFA
question is: If the country does enter into such kind of a treaty, must it cover the three- in the instant case.
bases, troops or facilities-or could the treaty entered into cover only one or two? Under these circumstances, the charter provides that the Senate shall be composed of
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, twenty-four (24) Senators.30 Without a tinge of doubt, two-thirds (2/3) of this figure, or not
the requirement will be the same. less than sixteen (16) members, favorably acting on the proposal is an unquestionable

44
compliance with the requisite number of votes mentioned in Section 21 of Article VII. The fact remained within their powers.38 International law continues to make no distinction between
that there were actually twenty-three (23) incumbent Senators at the time the voting was treaties and executive agreements: they are equally binding obligations upon nations.39
made,31 will not alter in any significant way the circumstance that more than two-thirds of In our jurisdiction, we have recognized the binding effect of executive agreements even
the members of the Senate concurred with the proposed VFA, even if the two-thirds vote without the concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern
requirement is based on this figure of actual members (23). In this regard, the fundamental Sea Trading,40 we had occasion to pronounce:
law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes, suffice so as to "x x x the right of the Executive to enter into binding agreements without the necessity of
render compliance with the strict constitutional mandate of giving concurrence to the subject subsequent congressional approval has been confirmed by long usage. From the earliest days
treaty. of our history we have entered into executive agreements covering such subjects as
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, commercial and consular relations, most-favored-nation rights, patent rights, trademark and
we shall now pass upon and delve on the requirement that the VFA should be recognized as a copyright protection, postal and navigation arrangements and the settlement of claims. The
treaty by the United States of America. validity of these has never been seriously questioned by our courts.
Petitioners content that the phrase "recognized as a treaty," embodied in section 25, Article "x x x x x x x x x
XVIII, means that the VFA should have the advice and consent of the United States Senate "Furthermore, the United States Supreme Court has expressly recognized the validity and
pursuant to its own constitutional process, and that it should not be considered merely an constitutionality of executive agreements entered into without Senate approval. (39
executive agreement by the United States. Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation,
In opposition, respondents argue that the letter of United States Ambassador Hubbard stating 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
that the VFA is binding on the United States Government is conclusive, on the point that the U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-
VFA is recognized as a treaty by the United States of America. According to respondents, the 1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [revised
VFA, to be binding, must only be accepted as a treaty by the United States. Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d
This Court is of the firm view that the phrase "recognized as a treaty" means that the other ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth,
contracting party accepts or acknowledges the agreement as a treaty.32 To require the other International Law Digest, Vol. V, pp. 390-407). (Italics Supplied)" (Emphasis Ours)
contracting state, the United States of America in this case, to submit the VFA to the United The deliberations of the Constitutional Commission which drafted the 1987 Constitution is
States Senate for concurrence pursuant to its Constitution,33 is to accord strict meaning to enlightening and highly-instructive:
the phrase. "MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other
Well-entrenched is the principle that the words used in the Constitution are to be given their state is concerned, that is entirely their concern under their own laws.
ordinary meaning except where technical terms are employed, in which case the significance FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done
thus attached to them prevails. Its language should be understood in the sense they have in everything to make it a treaty, then as far as we are concerned, we will accept it as a
common use.34 treaty."41
Moreover, it is inconsequential whether the United States treats the VFA only as an executive The records reveal that the United States Government, through Ambassador Thomas C.
agreement because, under international law, an executive agreement is as binding as a Hubbard, has stated that the United States government has fully committed to living up to
treaty.35 To be sure, as long as the VFA possesses the elements of an agreement under the terms of the VFA.42 For as long as the united States of America accepts or acknowledges
international law, the said agreement is to be taken equally as a treaty. the VFA as a treaty, and binds itself further to comply with its obligations under the treaty,
A treaty, as defined by the Vienna Convention on the Law of Treaties, is "an international there is indeed marked compliance with the mandate of the Constitution.
instrument concluded between States in written form and governed by international law, Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence
whether embodied in a single instrument or in two or more related instruments, and of the Senate should be taken as a clear an unequivocal expression of our nation’s consent to
whatever its particular designation."36 There are many other terms used for a treaty or be bound by said treaty, with the concomitant duty to uphold the obligations and
international agreement, some of which are: act, protocol, agreement, compromis d’ responsibilities embodied thereunder.
arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and Ratification is generally held to be an executive act, undertaken by the head of the state or of
modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or the government, as the case may be, through which the formal acceptance of the treaty is
titles of international agreements included under the general term treaty have little or no proclaimed.43 A State may provide in its domestic legislation the process of ratification of a
legal significance. Certain terms are useful, but they furnish little more than mere treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a)
description.37 the treaty provides for such ratification, (b) it is otherwise established that the negotiating
Article 2(2) of the Vienna Convention provides that "the provisions of paragraph 1 regarding States agreed that ratification should be required, (c) the representative of the State has
the use of terms in the present Convention are without prejudice to the use of those terms, signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty
or to the meanings which may be given to them in the internal law of the State." subject to ratification appears from the full powers of its representative, or was expressed
Thus, in international law, there is no difference between treaties and executive agreements during the negotiation.44
in their binding effect upon states concerned, as long as the negotiating functionaries have

45
In our jurisdiction, the power to ratify is vested in the President and not, as commonly all the members of the Senate. In this light, the negotiation of the VFA and the subsequent
believed, in the legislature. The role of the Senate is limited only to giving or withholding its ratification of the agreement are exclusive acts which pertain solely to the President, in the
consent, or concurrence, to the ratification.45 lawful exercise of his vast executive and diplomatic powers granted him no less than by the
With the ratification of the VFA, which is equivalent to final acceptance, and with the fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress
exchange of notes between the Philippines and the United States of America, it now becomes itself is powerless to invade it.53 Consequently, the acts or judgment calls of the President
obligatory and incumbent on our part, under the principles of international law, to be bound involving the VFA-specifically the acts of ratification and entering into a treaty and those
by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution,46 necessary or incidental to the exercise of such principal acts - squarely fall within the sphere
declares that the Philippines adopts the generally accepted principles of international law as of his constitutional powers and thus, may not be validly struck down, much less calibrated by
part of the law of the land and adheres to the policy of peace, equality, justice, freedom, this Court, in the absence of clear showing of grave abuse of power or discretion.
cooperation and amity with all nations. It is the Court’s considered view that the President, in ratifying the VFA and in submitting the
As a member of the family of nations, the Philippines agrees to be bound by generally same to the Senate for concurrence, acted within the confines and limits of the powers
accepted rules for the conduct of its international relations. While the international obligation vested in him by the Constitution. It is of no moment that the President, in the exercise of his
devolves upon the state and not upon any particular branch, institution, or individual member wide latitude of discretion and in the honest belief that the VFA falls within the ambit of
of its government, the Philippines is nonetheless responsible for violations committed by any Section 21, Article VII of the Constitution, referred the VFA to the Senate for concurrence
branch or subdivision of its government or any official thereof. As an integral part of the under the aforementioned provision. Certainly, no abuse of discretion, much less a grave,
community of nations, we are responsible to assure that our government, Constitution and patent and whimsical abuse of judgment, may be imputed to the President in his act of
laws will carry out our international obligation.47 Hence, we cannot readily plead the ratifying the VFA and referring the same to the Senate for the purpose of complying with the
Constitution as a convenient excuse for non-compliance with our obligations, duties and concurrence requirement embodied in the fundamental law. In doing so, the President
responsibilities under international law. merely performed a constitutional task and exercised a prerogative that chiefly pertains to
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the the functions of his office. Even if he erred in submitting the VFA to the Senate for
International Law Commission in 1949 provides: "Every State has the duty to carry out in good concurrence under the provisions of Section 21 of Article VII, instead of Section 25 of Article
faith its obligations arising from treaties and other sources of international law, and it may XVIII of the Constitution, still, the President may not be faulted or scarred, much less be
not invoke provisions in its constitution or its laws as an excuse for failure to perform this adjudged guilty of committing an abuse of discretion in some patent, gross, and capricious
duty."48 manner.
Equally important is Article 26 of the convention which provides that "Every treaty in force is For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the
binding upon the parties to it and must be performed by them in good faith." This is known as scope of judicial inquiry into areas normally left to the political departments to decide, such
the principle of pacta sunt servanda which preserves the sanctity of treaties and have been as those relating to national security, it has not altogether done away with political questions
one of the most fundamental principles of positive international law, supported by the such as those which arise in the field of foreign relations.54 The High Tribunal’s function, as
jurisprudence of international tribunals.49 sanctioned by Article VIII, Section 1, "is merely (to) check whether or not the governmental
NO GRAVE ABUSE OF DISCRETION branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred
In the instant controversy, the President, in effect, is heavily faulted for exercising a power or has a different view. In the absence of a showing… (of) grave abuse of discretion amounting
and performing a task conferred upon him by the Constitution-the power to enter into and to lack of jurisdiction, there is no occasion for the Court to exercise its corrective power…It has
ratify treaties. Through the expediency of Rule 65 of the Rules of Court, petitioners in these no power to look into what it thinks is apparent error."55
consolidated cases impute grave abuse of discretion on the part of the chief Executive in As to the power to concur with treaties, the constitution lodges the same with the Senate
ratifying the VFA, and referring the same to the Senate pursuant to the provisions of Section alone.1âwphi1 Thus, once the Senate56 performs that power, or exercises its prerogative
21, Article VII of the Constitution. within the boundaries prescribed by the Constitution, the concurrence cannot, in like manner,
On this particular matter, grave abuse of discretion implies such capricious and whimsical be viewed to constitute an abuse of power, much less grave abuse thereof. Corollarily, the
exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in Senate, in the exercise of its discretion and acting within the limits of such power, may not be
an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so similarly faulted for having simply performed a task conferred and sanctioned by no less than
patent and gross as to amount to an evasion of positive duty enjoined or to act at all in the fundamental law.
contemplation of law.50 For the role of the Senate in relation to treaties is essentially legislative in character;57 the
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, Senate, as an independent body possessed of its own erudite mind, has the prerogative to
is the sole organ and authority in the external affairs of the country. In many ways, the either accept or reject the proposed agreement, and whatever action it takes in the exercise
President is the chief architect of the nation’s foreign policy; his "dominance in the field of of its wide latitude of discretion, pertains to the wisdom rather than the legality of the act. In
foreign relations is (then) conceded."51 Wielding vast powers an influence, his conduct in the this sense, the Senate partakes a principal, yet delicate, role in keeping the principles of
external affairs of the nation, as Jefferson describes, is "executive altogether."52 separation of powers and of checks and balances alive and vigilantly ensures that these
As regards the power to enter into treaties or international agreements, the Constitution cherished rudiments remain true to their form in a democratic government such as ours. The
vests the same in the President, subject only to the concurrence of at least two-thirds vote of Constitution thus animates, through this treaty-concurring power of the Senate, a healthy

46
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.

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.
----------------------------------------

47
SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors, 2. The conduct of this training Exercise is in accordance with pertinent United Nations
vs. resolutions against global terrorism as understood by the respective parties.
GLORIA MACAPAGA-ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents. 3. No permanent US basing and support facilities shall be established. Temporary structures
DISSENTING OPINION such as those for troop billeting, classroom instruction and messing may be set up for use by
SEPARATE OPINION RP and US Forces during the Exercise.
DE LEON, JR., J.: 4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the
This case involves a petition for certiorari and prohibition as well as a petition-in-intervention, authority of the Chief of Staff, AFP. In no instance will US Forces operate independently
praying that respondents be restrained from proceeding with the so-called "Balikatan 02-1" during field training exercises (FTX). AFP and US Unit Commanders will retain command over
and that after due notice and hearing, that judgment be rendered issuing a permanent writ of their respective forces under the overall authority of the Exercise Co-Directors. RP and US
injunction and/or prohibition against the deployment of U.S. troops in Basilan and Mindanao participants shall comply with operational instructions of the AFP during the FTX.
for being illegal and in violation of the Constitution. 5. The exercise shall be conducted and completed within a period of not more than six
The facts are as follows: months, with the projected participation of 660 US personnel and 3,800 RP Forces. The Chief
Beginning January of this year 2002, personnel from the armed forces of the United States of of Staff, AFP shall direct the Exercise Co-Directors to wind up and terminate the Exercise and
America started arriving in Mindanao to take part, in conjunction with the Philippine military, other activities within the six month Exercise period.
in "Balikatan 02-1." These so-called "Balikatan" exercises are the largest combined training 6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative
operations involving Filipino and American troops. In theory, they are a simulation of joint to Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further
military maneuvers pursuant to the Mutual Defense Treaty,1 a bilateral defense agreement advising, assisting and training exercises shall be conducted in Malagutay and the Zamboanga
entered into by the Philippines and the United States in 1951. area. Related activities in Cebu will be for support of the Exercise.
Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the paucity of 7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP
any formal agreement relative to the treatment of United States personnel visiting the field, commanders. The US teams shall remain at the Battalion Headquarters and, when
Philippines. In the meantime, the respective governments of the two countries agreed to hold approved, Company Tactical headquarters where they can observe and assess the
joint exercises on a reduced scale. The lack of consensus was eventually cured when the two performance of the AFP Forces.
nations concluded the Visiting Forces Agreement (V FA) in 1999. 8. US exercise participants shall not engage in combat, without prejudice to their right of self-
The entry of American troops into Philippine soil is proximately rooted in the international defense.
anti-terrorism campaign declared by President George W. Bush in reaction to the tragic 9. These terms of Reference are for purposes of this Exercise only and do not create
events that occurred on September 11, 2001. On that day, three (3) commercial aircrafts additional legal obligations between the US Government and the Republic of the Philippines.
were hijacked, flown and smashed into the twin towers of the World Trade Center in New II. EXERCISE LEVEL
York City and the Pentagon building in Washington, D.C. by terrorists with alleged links to the 1. TRAINING
al-Qaeda ("the Base"), a Muslim extremist organization headed by the infamous Osama bin a. The Exercise shall involve the conduct of mutual military assisting, advising and training of
Laden. Of no comparable historical parallels, these acts caused billions of dollars worth of RP and US Forces with the primary objective of enhancing the operational capabilities of both
destruction of property and incalculable loss of hundreds of lives. forces to combat terrorism.
On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for b. At no time shall US Forces operate independently within RP territory.
certiorari and prohibition, attacking the constitutionality of the joint exercise.2 They were c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic
joined subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-Iist regulations.
organizations, who filed a petition-in-intervention on February 11, 2002. 2. ADMINISTRATION & LOGISTICS
Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and a. RP and US participants shall be given a country and area briefing at the start of the Exercise.
PARTIDO, on the other hand, aver that certain members of their organization are residents of This briefing shall acquaint US Forces on the culture and sensitivities of the Filipinos and the
Zamboanga and Sulu, and hence will be directly affected by the operations being conducted provisions of the VF A. The briefing shall also promote the full cooperation on the part of the
in Mindanao. They likewise pray for a relaxation on the rules relative to locus standi citing the RP and US participants for the successful conduct of the Exercise.
unprecedented importance of the issue involved. b. RP and US participating forces may share, in accordance with their respective laws and
On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise wherein regulations, in the use of their resources, equipment and other assets. They will use their
Vice-President Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign. Affairs, respective logistics channels.
presented the Draft Terms of Reference (TOR).3 Five days later, he approved the TOR, which c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and
we quote hereunder: resources.
I. POLICY LEVEL d. Legal liaison officers from each respective party shall be appointed by the Exercise
1. The Exercise shall be consistent with the Philippine Constitution and all its activities shall be Directors.
in consonance with the laws of the land and the provisions of the RP-US Visiting Forces 3. PUBLIC AFFAIRS
Agreement (VFA).

48
a. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in Notwithstanding, in view of the paramount importance and the constitutional significance of
Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon City. the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes
b. Local media relations will be the concern of the AFP and all public affairs guidelines shall be aside the procedural barrier and takes cognizance of the petitions, as we have done in the
jointly developed by RP and US Forces. early Emergency Powers Cases, where we had occasion to rule:
c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US 'x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several
Forces in accordance with their respective laws and regulations, and in consultation with executive orders issued by President Quirino although they were involving only an indirect
community and local government officials. and general interest shared in common with the public. The Court dismissed the objection
Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and that they were not proper parties and ruled that 'transcendental importance to the public of
United States Charge d' Affaires Robert Fitts signed the Agreed Minutes of the discussion these cases demands that they be settled promptly and definitely, brushing aside, if we
between the Vice-President and Assistant Secretary Kelly.4 must, technicalities of procedure.' We have since then applied the exception in many other
Petitioners Lim and Ersando present the following arguments: cases. [citation omitted]
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 Singson, and Basco vs. Phil, Amusement and Gaming Corporation, where we emphatically
1951 TO PROVIDE MUTUAL MILITARY ASSIST ANCE IN ACCORDANCE WITH THE held:
'CONSTITUTIONAL PROCESSE-S' OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK Considering however the importance to the public of the case at bar, and in keeping with the
BY AN EXTERNAL AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF THEM. Court's duty, under the 1987 Constitution, to determine whether or not the other branches of
BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN the government have kept themselves within the limits of the Constitution and the laws that
BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES TO they have not abused the discretion given to them, the Court has brushed aside technicalities
AN ARMED EXTERNAL ATTACK TO WARRANT U.S. MILITARY ASSISTANCE UNDER THE MDT OF of procedure and has taken cognizance of this petition. xxx'
1951. Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases
II of transcendental importance, the Court may relax the standing requirements and allow a
NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE IN COMBAT suit to prosper even where there is no direct injury to the party claiming the right of judicial
OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON". review.
Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO. Although courts generally avoid having to decide a constitutional question based on the
In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter doctrine of separation of powers, which enjoins upon the department of the government a
alia, Lim and Ersando's standing to file suit, the prematurity of the action, as well as the becoming respect for each other's act, this Court nevertheless resolves to take cognizance of
impropriety of availing of certiorari to ascertain a question of fact. Anent their locus standi, the instant petition.6
the Solicitor General argues that first, they may not file suit in their capacities as, taxpayers Hence, we treat with similar dispatch the general objection to the supposed prematurity of
inasmuch as it has not been shown that "Balikatan 02-1 " involves the exercise of Congress' the action. At any rate, petitioners' concerns on the lack of any specific regulation on the
taxing or spending powers. Second, their being lawyers does not invest them with sufficient latitude of activity US personnel may undertake and the duration of their stay has been
personality to initiate the case, citing our ruling in Integrated Bar of the Philippines v. addressed in the Terms of Reference.
Zamora.5 Third, Lim and Ersando have failed to demonstrate the requisite showing of direct The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents
personal injury. We agree. to which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT,
It is also contended that the petitioners are indulging in speculation. The Solicitor General is for brevity). The MDT has been described as the "core" of the defense relationship between
of the view that since the Terms of Reference are clear as to the extent and duration of the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic
"Balikatan 02-1," the issues raised by petitioners are premature, as they are based only on a and technological capabilities of our armed forces through joint training with its American
fear of future violation of the Terms of Reference. Even petitioners' resort to a special civil counterparts; the "Balikatan" is the largest such training exercise directly supporting the
action for certiorari is assailed on the ground that the writ may only issue on the basis of MDT's objectives. It is this treaty to which the V FA adverts and the obligations thereunder
established facts. which it seeks to reaffirm.
Apart from these threshold issues, the Solicitor General claims that there is actually no The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it
question of constitutionality involved. The true object of the instant suit, it is said, is to obtain created a vacuum in US-Philippine defense relations, that is, until it was replaced by the
an interpretation of the V FA. The Solicitor General asks that we accord due deference to the Visiting Forces Agreement. It should be recalled that on October 10, 2000, by a vote of eleven
executive determination that "Balikatan 02-1" is covered by the VFA, considering the to three, this Court upheld the validity of the VFA.7 The V FA provides the "regulatory
President's monopoly in the field of foreign relations and her role as commander-in-chief of mechanism" by which "United States military and civilian personnel [may visit] temporarily in
the Philippine armed forces. the Philippines in connection with activities approved by the Philippine Government." It
Given the primordial importance of the issue involved, it will suffice to reiterate our view on contains provisions relative to entry and departure of American personnel, driving and vehicle
this point in a related case: 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

49
gives continued relevance to the MDT despite the passage of years. Its primary goal is to on the view that the text of a treaty must be presumed to be the authentic expression of the
facilitate the promotion of optimal cooperation between American and Philippine military intentions of the parties; the Commission accordingly came down firmly in favour of the view
forces in the event of an attack by a common foe. that 'the starting point of interpretation is the elucidation of the meaning of the text, not an
The first question that should be addressed is whether "Balikatan 02-1" is covered by the investigation ab initio into the intentions of the parties'. This is not to say that the
Visiting Forces Agreement. To resolve this, it is necessary to refer to the V FA itself: Not much travauxpreparatoires of a treaty , or the circumstances of its conclusion, are relegated to a
help can be had therefrom, unfortunately, since the terminology employed is itself the source subordinate, and wholly ineffective, role. As Professor Briggs points out, no rigid temporal
of the problem. The VFA permits United States personnel to engage, on an impermanent prohibition on resort to travaux preparatoires of a treaty was intended by the use of the
basis, in "activities," the exact meaning of which was left undefined. The expression is phrase 'supplementary means of interpretation' in what is now Article 32 of the Vienna
ambiguous, permitting a wide scope of undertakings subject only to the approval of the Convention. The distinction between the general rule of interpretation and the
Philippine government.8 The sole encumbrance placed on its definition is couched in the supplementary means of interpretation is intended rather to ensure that the supplementary
negative, in that United States personnel must "abstain from any activity inconsistent with means do not constitute an alternative, autonomous method of interpretation divorced from
the spirit of this agreement, and in particular, from any political activity."9 All other activities, the general rule.10
in other words, are fair game. The Terms of Reference rightly fall within the context of the VFA.
We are not left completely unaided, however. The Vienna Convention on the Law of Treaties, After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning
which contains provisos governing interpretations of international agreements, state: of the word .'activities" arose from accident. In our view, it was deliberately made that way to
SECTION 3. INTERPRETATION OF TREATIES give both parties a certain leeway in negotiation. In this manner, visiting US forces may
Article 31 sojourn in Philippine territory for purposes other than military. As conceived, the joint
General rule of interpretation exercises may include training on new techniques of patrol and surveillance to protect the
1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be nation's marine resources, sea search-and-rescue operations to assist vessels in distress,
given to the tenus of the treaty in their context and in the light of its object and purpose. disaster relief operations, civic action projects such as the building of school houses, medical
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to and humanitarian missions, and the like.
the text, including its preamble and annexes: Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only
(a) any agreement relating to the treaty which was made between all the parties in connexion logical to assume that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and
with the conclusion of the treaty; training exercise," falls under the umbrella of sanctioned or allowable activities in the context
(b) any instrument which was made by one or more parties in connexion with the conclusion of the agreement. Both the history and intent of the Mutual Defense Treaty and the V FA
of the treaty and accepted by the other parties as an instrument related to the party . support the conclusion that combat-related activities -as opposed to combat itself -such as
3. There shall be taken into account, together with the context: the one subject of the instant petition, are indeed authorized.
(a) any subsequent agreement between the parties regarding the interpretation of the treaty That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under
or the application of its provisions; the terms of the VFA, what may US forces legitimately do in furtherance of their aim to
(b) any subsequent practice in the application of the treaty which establishes the agreement provide advice, assistance and training in the global effort against terrorism? Differently
of the parties regarding its interpretation; phrased, may American troops actually engage in combat in Philippine territory? The Terms of
(c) any relevant rules of international law applicable in the relations between the parties. Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants
4. A special meaning shall be given to a term if it is established that the parties so intended. may not engage in combat "except in self-defense." We wryly note that this sentiment is
Article 32 admirable in the abstract but difficult in implementation. The target of "Balikatan 02-1 I" the
Supplementary means of interpretation Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to their very
Recourse may be had to supplementary means of interpretation, including the preparatory doorstep. They cannot be expected to pick and choose their targets for they will not have the
work of the treaty and the circumstances of its conclusion, in order to confirm the meaning luxury of doing so. We state this point if only to signify our awareness that the parties
resulting from the application of article 31, or to determine the meaning when the straddle a fine line, observing the honored legal maxim "Nemo potest facere per alium quod
interpretation according to article 31 : non potest facere per directum."11 The indirect violation is actually petitioners' worry, that in
(a) leaves the meaning ambiguous or obscure; or reality, "Balikatan 02-1 " is actually a war principally conducted by the United States
(b) leads to a result which is manifestly absurd unreasonable. government, and that the provision on self-defense serves only as camouflage to conceal the
It is clear from the foregoing that the cardinal rule of interpretation must involve an true nature of the exercise. A clear pronouncement on this matter thereby becomes crucial.
examination of the text, which is presumed to verbalize the parties' intentions. The In our considered opinion, neither the MDT nor the V FA allow foreign troops to engage in an
Convention likewise dictates what may be used as aids to deduce the meaning of terms, offensive war on Philippine territory. We bear in mind the salutary proscription stated in the
which it refers to as the context of the treaty, as well as other elements may be taken into Charter of the United Nations, to wit:
account alongside the aforesaid context. As explained by a writer on the Convention , Article 2
[t]he Commission's proposals (which were adopted virtually without change by the The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in
conference and are now reflected in Articles 31 and 32 of the Convention) were clearly based accordance with the following Principles.

50
xxx      xxx      xxx      xxx upon the parties to it and must be performed by them in good faith."14 Further, a party to a
4. All Members shall refrain in their international relations from the threat or use of force treaty is not allowed to "invoke the provisions of its internal law as justification for its failure
against the territorial integrity or political independence of any state, or in any other manner to perform a treaty."15
inconsistent with the Purposes of the United Nations. Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5
xxx      xxx      xxx      xxx of Article VIII:
In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in The Supreme Court shall have the following powers:
all other treaties and international agreements to which the Philippines is a party, must be xxx      xxx      xxx      xxx
read in the context of the 1987 Constitution. In particular, the Mutual Defense Treaty was (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of
concluded way before the present Charter, though it nevertheless remains in effect as a valid Court may provide, final judgments and order of lower courts in:
source of international obligation. The present Constitution contains key provisions useful in (A) All cases in which the constitutionality or validity of any treaty, international or executive
determining the extent to which foreign military troops are allowed in Philippine territory. agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
Thus, in the Declaration of Principles and State Policies, it is provided that: regulation is in question.
xxx      xxx      xxx      xxx xxx      xxx      xxx      xxx
SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject to
generally accepted principles of international law as part of the law of the land and adheres qualification or amendment by a subsequent law, or that it is subject to the police power of
to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. the State. In Gonzales v. Hechanova,17
xxx      xxx      xxx      xxx xxx As regards the question whether an international agreement may be invalidated by our
SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the
the paramount consideration shall be national sovereignty, territorial integrity, national affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may not
interest, and the right to self- determination. be deprived "of its jurisdiction to review, revise, reverse, modify, or affirm on appeal,
SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of certiorari, or writ of error as the law or the rules of court may provide, final judgments and
freedom from nuclear weapons in the country. decrees of inferior courts in -( I) All cases in which the constitutionality or validity of any
xxx      xxx      xxx      xxx treaty, law, ordinance, or executive order or regulation is in question." In other words, our
The Constitution also regulates the foreign relations powers of the Chief Executive when it Constitution authorizes the nullification of a treaty, not only when it conflicts with the
provides that "[n]o treaty or international agreement shall be valid and effective unless fundamental law, but, also, when it runs counter to an act of Congress.
concurred in by at least two-thirds of all the members of the Senate."12 Even more pointedly, The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an
the Transitory Provisions state: offensive war on Philippine territory.
Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the Yet a nagging question remains: are American troops actively engaged in combat alongside
Philippines and the United States of America concerning Military Bases, foreign military bases, Filipino soldiers under the guise of an alleged training and assistance exercise? Contrary to
troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred what petitioners would have us do, we cannot take judicial notice of the events transpiring
in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast down south,18 as reported from the saturation coverage of the media. As a rule, we do not
by the people in a national referendum held for that purpose, and recognized as a treaty by take cognizance of newspaper or electronic reports per se, not because of any issue as to
the other contracting state. their truth, accuracy, or impartiality, but for the simple reason that facts must be established
The aforequoted provisions betray a marked antipathy towards foreign military presence in in accordance with the rules of evidence. As a result, we cannot accept, in the absence of
the country, or of foreign influence in general. Hence, foreign troops are allowed entry into concrete proof, petitioners' allegation that the Arroyo government is engaged in
the Philippines only by way of direct exception. Conflict arises then between the fundamental "doublespeak" in trying to pass off as a mere training exercise an offensive effort by foreign
law and our obligations arising from international agreements. troops on native soil. The petitions invite us to speculate on what is really happening in
A rather recent formulation of the relation of international law vis-a-vis municipal law was Mindanao, to issue I make factual findings on matters well beyond our immediate perception,
expressed in Philip Morris, Inc. v. Court of Appeals,13 to wit: and this we are understandably loath to do.
xxx Withal, the fact that international law has been made part of the law of the land does not It is all too apparent that the determination thereof involves basically a question of fact. On
by any means imply the primacy of international law over national law in the municipal this point, we must concur with the Solicitor General that the present subject matter is not a
sphere. Under the doctrine of incorporation as applied in most countries, rules of fit topic for a special civil action for certiorari. We have held in too many instances that
international law are given a standing equal, not superior, to national legislation. questions of fact are not entertained in such a remedy. The sole object of the writ is to
This is not exactly helpful in solving the problem at hand since in trying to find a middle correct errors of jurisdiction or grave abuse of discretion: The phrase "grave abuse of
ground, it favors neither one law nor the other, which only leaves the hapless seeker with an discretion" has a precise meaning in law, denoting abuse of discretion "too patent and gross
unsolved dilemma. Other more traditional approaches may offer valuable insights. as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined
From the perspective of public international law, a treaty is favored over municipal law or act in contemplation of law, or where the power is exercised in an arbitrary and despotic
pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding manner by reason of passion and personal hostility."19

51
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.

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.

52
The Rome Statute established the International Criminal Court which "shall have the power to Victims of Involuntary Disappearances, a juridical entity duly organized and existing pursuant
exercise its jurisdiction over persons for the most serious crimes of international concern xxx to Philippine Laws with the avowed purpose of promoting the cause of families and victims of
and shall be complementary to the national criminal jurisdictions." 1 Its jurisdiction covers the human rights violations in the country; Bianca Hacintha Roque and Harrison Jacob Roque,
crime of genocide, crimes against humanity, war crimes and the crime of aggression as aged two (2) and one (1), respectively, at the time of filing of the instant petition, and suing
defined in the Statute.2 The Statute was opened for signature by all states in Rome on July 17, under the doctrine of inter-generational rights enunciated in the case of Oposa vs. Factoran,
1998 and had remained open for signature until December 31, 2000 at the United Nations Jr.;9 and a group of fifth year working law students from the University of the Philippines
Headquarters in New York. The Philippines signed the Statute on December 28, 2000 through College of Law who are suing as taxpayers.
Charge d’ Affairs Enrique A. Manalo of the Philippine Mission to the United Nations.3 Its The question in standing is whether a party has alleged such a personal stake in the outcome
provisions, however, require that it be subject to ratification, acceptance or approval of the of the controversy as to assure that concrete adverseness which sharpens the presentation of
signatory states.4 issues upon which the court so largely depends for illumination of difficult constitutional
Petitioners filed the instant petition to compel the respondents — the Office of the Executive questions.10
Secretary and the Department of Foreign Affairs — to transmit the signed text of the treaty to We find that among the petitioners, only Senator Pimentel has the legal standing to file the
the Senate of the Philippines for ratification. instant suit. The other petitioners maintain their standing as advocates and defenders of
It is the theory of the petitioners that ratification of a treaty, under both domestic law and human rights, and as citizens of the country. They have not shown, however, that they have
international law, is a function of the Senate. Hence, it is the duty of the executive sustained or will sustain a direct injury from the non-transmittal of the signed text of the
department to transmit the signed copy of the Rome Statute to the Senate to allow it to Rome Statute to the Senate. Their contention that they will be deprived of their remedies for
exercise its discretion with respect to ratification of treaties. Moreover, petitioners submit the protection and enforcement of their rights does not persuade. The Rome Statute is
that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and intended to complement national criminal laws and courts. Sufficient remedies are available
customary international law. Petitioners invoke the Vienna Convention on the Law of Treaties under our national laws to protect our citizens against human rights violations and petitioners
enjoining the states to refrain from acts which would defeat the object and purpose of a can always seek redress for any abuse in our domestic courts.
treaty when they have signed the treaty prior to ratification unless they have made their As regards Senator Pimentel, it has been held that "to the extent the powers of Congress are
intention clear not to become parties to the treaty.5 impaired, so is the power of each member thereof, since his office confers a right to
The Office of the Solicitor General, commenting for the respondents, questioned the standing participate in the exercise of the powers of that institution." 11 Thus, legislators have the
of the petitioners to file the instant suit. It also contended that the petition at bar violates the standing to maintain inviolate the prerogatives, powers and privileges vested by the
rule on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue Constitution in their office and are allowed to sue to question the validity of any official action
that the executive department has no duty to transmit the Rome Statute to the Senate for which they claim infringes their prerogatives as legislators. The petition at bar invokes the
concurrence. power of the Senate to grant or withhold its concurrence to a treaty entered into by the
A petition for mandamus may be filed when any tribunal, corporation, board, officer or executive branch, in this case, the Rome Statute. The petition seeks to order the executive
person unlawfully neglects the performance of an act which the law specifically enjoins as a branch to transmit the copy of the treaty to the Senate to allow it to exercise such authority.
duty resulting from an office, trust, or station.6 We have held that to be given due course, a Senator Pimentel, as member of the institution, certainly has the legal standing to assert such
petition for mandamus must have been instituted by a party aggrieved by the alleged inaction authority of the Senate.
of any tribunal, corporation, board or person which unlawfully excludes said party from the We now go to the substantive issue.
enjoyment of a legal right. The petitioner in every case must therefore be an aggrieved party The core issue in this petition for mandamus is whether the Executive Secretary and the
in the sense that he possesses a clear legal right to be enforced and a direct interest in the Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of
duty or act to be performed.7 The Court will exercise its power of judicial review only if the the Rome Statute signed by a member of the Philippine Mission to the United Nations even
case is brought before it by a party who has the legal standing to raise the constitutional or without the signature of the President.
legal question. "Legal standing" means a personal and substantial interest in the case such We rule in the negative.
that the party has sustained or will sustain direct injury as a result of the government act that In our system of government, the President, being the head of state, is regarded as the sole
is being challenged. The term "interest" is material interest, an interest in issue and to be organ and authority in external relations and is the country’s sole representative with foreign
affected by the decree, as distinguished from mere interest in the question involved, or a nations.12 As the chief architect of foreign policy, the President acts as the country’s
mere incidental interest.8 mouthpiece with respect to international affairs. Hence, the President is vested with the
The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to authority to deal with foreign states and governments, extend or withhold recognition,
file the suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the maintain diplomatic relations, enter into treaties, and otherwise transact the business of
House of Representatives and Chairperson of its Committee on Human Rights; the Philippine foreign relations.13 In the realm of treaty-making, the President has the sole authority to
Coalition for the Establishment of the International Criminal Court which is composed of negotiate with other states.
individuals and corporate entities dedicated to the Philippine ratification of the Rome Statute; Nonetheless, while the President has the sole authority to negotiate and enter into treaties,
the Task Force Detainees of the Philippines, a juridical entity with the avowed purpose of the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all
promoting the cause of human rights and human rights victims in the country; the Families of the members of the Senate for the validity of the treaty entered into by him. Section 21,

53
Article VII of the 1987 Constitution provides that "no treaty or international agreement shall embodied in the treaty, the instrument is deemed effective upon its signature. 16 [emphasis
be valid and effective unless concurred in by at least two-thirds of all the Members of the supplied]
Senate." The 1935 and the 1973 Constitution also required the concurrence by the legislature Petitioners’ arguments equate the signing of the treaty by the Philippine representative with
to the treaties entered into by the executive. Section 10 (7), Article VII of the 1935 ratification. It should be underscored that the signing of the treaty and the ratification are
Constitution provided: two separate and distinct steps in the treaty-making process. As earlier discussed, the
Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the signature is primarily intended as a means of authenticating the instrument and as a symbol
Members of the Senate, to make treaties xxx. of the good faith of the parties. It is usually performed by the state’s authorized
Section 14 (1) Article VIII of the 1973 Constitution stated: representative in the diplomatic mission. Ratification, on the other hand, is the formal act by
Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and which a state confirms and accepts the provisions of a treaty concluded by its representative.
effective unless concurred in by a majority of all the Members of the Batasang Pambansa. It is generally held to be an executive act, undertaken by the head of the state or of the
The participation of the legislative branch in the treaty-making process was deemed essential government.17 Thus, Executive Order No. 459 issued by President Fidel V. Ramos on
to provide a check on the executive in the field of foreign relations.14 By requiring the November 25, 1997 provides the guidelines in the negotiation of international agreements
concurrence of the legislature in the treaties entered into by the President, the Constitution and its ratification. It mandates that after the treaty has been signed by the Philippine
ensures a healthy system of checks and balance necessary in the nation’s pursuit of political representative, the same shall be transmitted to the Department of Foreign Affairs. The
maturity and growth.15 Department of Foreign Affairs shall then prepare the ratification papers and forward the
In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution signed copy of the treaty to the President for ratification. After the President has ratified the
to mean that the power to ratify treaties belongs to the Senate. treaty, the Department of Foreign Affairs shall submit the same to the Senate for
We disagree. concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign
Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in Affairs shall comply with the provisions of the treaty to render it effective. Section 7 of
this wise: Executive Order No. 459 reads:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive
exchange of the instruments of ratification. The treaty may then be submitted for registration Agreement. — The domestic requirements for the entry into force of a treaty or an executive
and publication under the U.N. Charter, although this step is not essential to the validity of agreement, or any amendment thereto, shall be as follows:
the agreement as between the parties. A. Executive Agreements.
Negotiation may be undertaken directly by the head of state but he now usually assigns this i. All executive agreements shall be transmitted to the Department of Foreign Affairs after
task to his authorized representatives. These representatives are provided with credentials their signing for the preparation of the ratification papers. The transmittal shall include the
known as full powers, which they exhibit to the other negotiators at the start of the formal highlights of the agreements and the benefits which will accrue to the Philippines arising from
discussions. It is standard practice for one of the parties to submit a draft of the proposed them.
treaty which, together with the counter-proposals, becomes the basis of the subsequent ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency,
negotiations. The negotiations may be brief or protracted, depending on the issues involved, shall transmit the agreements to the President of the Philippines for his ratification. The
and may even "collapse" in case the parties are unable to come to an agreement on the original signed instrument of ratification shall then be returned to the Department of Foreign
points under consideration. Affairs for appropriate action.
If and when the negotiators finally decide on the terms of the treaty, the same is opened for B. Treaties.
signature. This step is primarily intended as a means of authenticating the instrument and for i. All treaties, regardless of their designation, shall comply with the requirements provided in
the purpose of symbolizing the good faith of the parties; but, significantly, it does not sub-paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the
indicate the final consent of the state in cases where ratification of the treaty is required. Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for
The document is ordinarily signed in accordance with the alternat, that is, each of the several concurrence in the ratification by the President. A certified true copy of the treaties, in such
negotiators is allowed to sign first on the copy which he will bring home to his own state. numbers as may be required by the Senate, together with a certified true copy of the
Ratification, which is the next step, is the formal act by which a state confirms and accepts ratification instrument, shall accompany the submission of the treaties to the Senate.
the provisions of a treaty concluded by its representatives. The purpose of ratification is to ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall
enable the contracting states to examine the treaty more closely and to give them an comply with the provision of the treaties in effecting their entry into force.
opportunity to refuse to be bound by it should they find it inimical to their interests. It is for Petitioners’ submission that the Philippines is bound under treaty law and international law to
this reason that most treaties are made subject to the scrutiny and consent of a department ratify the treaty which it has signed is without basis. The signature does not signify the final
of the government other than that which negotiated them. consent of the state to the treaty. It is the ratification that binds the state to the provisions
xxx thereof. In fact, the Rome Statute itself requires that the signature of the representatives of
The last step in the treaty-making process is the exchange of the instruments of ratification, the states be subject to ratification, acceptance or approval of the signatory states.
which usually also signifies the effectivity of the treaty unless a different date has been agreed Ratification is the act by which the provisions of a treaty are formally confirmed and approved
upon by the parties. Where ratification is dispensed with and no effectivity clause is by a State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be

54
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. EN BANC
SO ORDERED. 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

55
Trading of the JPEPA, MA. LUISA GIGETTE IMPERIAL, in her capacity as Director of the the JPEPA.
Bureau of Local Employment of the Department of Labor and Employment (DOLE) and lead Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission does
negotiator for Movement of Natural Persons of the JPEPA, PASCUAL DE GUZMAN, in his not have a copy of the documents being requested, albeit he was certain that Usec. Aquino
capacity as Director of the Board of Investments and lead negotiator for Investment of the would provide the Congressman with a copy "once the negotiation is completed." And by
JPEPA, JESUS MOTOOMULL, in his capacity as Director for the Bureau of Product Standards letter of July 18, 2005, NEDA Assistant Director-General Margarita R. Songco informed the
of the DTI and lead negotiator for Mutual Recognition of the JPEPA, LOUIE CALVARIO, in his Congressman that his request addressed to Director-General Neri had been forwarded to
capacity as lead negotiator for Intellectual Property of the JPEPA, ELMER H. DORADO, in his Usec. Aquino who would be "in the best position to respond" to the request.
capacity as Officer-in-Charge of the Government Procurement Policy Board Technical In its third hearing conducted on August 31, 2005, the House Committee resolved to issue a
Support Office, the government agency that is leading the negotiations on Government subpoena for the most recent draft of the JPEPA, but the same was not pursued because by
Procurement of the JPEPA, RICARDO V. PARAS, in his capacity as Chief State Counsel of the Committee Chairman Congressman Teves’ information, then House Speaker Jose de Venecia
Department of Justice (DOJ) and lead negotiator for Dispute Avoidance and Settlement of had requested him to hold in abeyance the issuance of the subpoena until the President gives
the JPEPA, ADONIS SULIT, in his capacity as lead negotiator for the General and Final her consent to the disclosure of the documents.3
Provisions of the JPEPA, EDUARDO R. ERMITA, in his capacity as Executive Secretary, and Amid speculations that the JPEPA might be signed by the Philippine government within
ALBERTO ROMULO, in his capacity as Secretary of the DFA,* Respondents. December 2005, the present petition was filed on December 9, 2005.4 The agreement was to
DECISION be later signed on September 9, 2006 by President Gloria Macapagal-Arroyo and Japanese
CARPIO MORALES, J.: Prime Minister Junichiro Koizumi in Helsinki, Finland, following which the President endorsed
Petitioners – non-government organizations, Congresspersons, citizens and taxpayers – seek it to the Senate for its concurrence pursuant to Article VII, Section 21 of the Constitution. To
via the present petition for mandamus and prohibition to obtain from respondents the full date, the JPEPA is still being deliberated upon by the Senate.
text of the Japan-Philippines Economic Partnership Agreement (JPEPA) including the The JPEPA, which will be the first bilateral free trade agreement to be entered into by the
Philippine and Japanese offers submitted during the negotiation process and all pertinent Philippines with another country in the event the Senate grants its consent to it, covers a
attachments and annexes thereto. broad range of topics which respondents enumerate as follows: trade in goods, rules of
Petitioners Congressmen Lorenzo R. Tañada III and Mario Joyo Aguja filed on January 25, 2005 origin, customs procedures, paperless trading, trade in services, investment, intellectual
House Resolution No. 551 calling for an inquiry into the bilateral trade agreements then being property rights, government procurement, movement of natural persons, cooperation,
negotiated by the Philippine government, particularly the JPEPA. The Resolution became the competition policy, mutual recognition, dispute avoidance and settlement, improvement of
basis of an inquiry subsequently conducted by the House Special Committee on Globalization the business environment, and general and final provisions. 5
(the House Committee) into the negotiations of the JPEPA. While the final text of the JPEPA has now been made accessible to the public since September
In the course of its inquiry, the House Committee requested herein respondent 11, 2006,6 respondents do not dispute that, at the time the petition was filed up to the filing
Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the Philippine Coordinating of petitioners’ Reply – when the JPEPA was still being negotiated – the initial drafts thereof
Committee created under Executive Order No. 213 ("Creation of A Philippine Coordinating were kept from public view.
Committee to Study the Feasibility of the Japan-Philippines Economic Partnership Before delving on the substantive grounds relied upon by petitioners in support of the
Agreement")1 to study and negotiate the proposed JPEPA, and to furnish the Committee with petition, the Court finds it necessary to first resolve some material procedural issues.
a copy of the latest draft of the JPEPA. Usec. Aquino did not heed the request, however. Standing
Congressman Aguja later requested for the same document, but Usec. Aquino, by letter of For a petition for mandamus such as the one at bar to be given due course, it must be
November 2, 2005, replied that the Congressman shall be provided with a copy thereof "once instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or
the negotiations are completed and as soon as a thorough legal review of the proposed person which unlawfully excludes said party from the enjoyment of a legal right.7
agreement has been conducted." Respondents deny that petitioners have such standing to sue. "[I]n the interest of a speedy
In a separate move, the House Committee, through Congressman Herminio G. Teves, and definitive resolution of the substantive issues raised," however, respondents consider it
requested Executive Secretary Eduardo Ermita to furnish it with "all documents on the subject sufficient to cite a portion of the ruling in Pimentel v. Office of Executive Secretary 8 which
including the latest draft of the proposed agreement, the requests and offers etc." 2 Acting on emphasizes the need for a "personal stake in the outcome of the controversy" on questions
the request, Secretary Ermita, by letter of June 23, 2005, wrote Congressman Teves as of standing.
follows: In a petition anchored upon the right of the people to information on matters of public
In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs] concern, which is a public right by its very nature, petitioners need not show that they have
explains that the Committee’s request to be furnished all documents on the JPEPA may be any legal or special interest in the result, it being sufficient to show that they are citizens and,
difficult to accomplish at this time, since the proposed Agreement has been a work in therefore, part of the general public which possesses the right. 9 As the present petition is
progress for about three years. A copy of the draft JPEPA will however be forwarded to the anchored on the right to information and petitioners are all suing in their capacity as citizens
Committee as soon as the text thereof is settled and complete. (Emphasis supplied) and groups of citizens including petitioners-members of the House of Representatives who
Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff additionally are suing in their capacity as such, the standing of petitioners to file the present
Commission Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the latest text of suit is grounded in jurisprudence.

56
Mootness In determining whether or not a particular information is of public concern there is no rigid
Considering, however, that "[t]he principal relief petitioners are praying for is the disclosure test which can be applied. ‘Public concern’ like ‘public interest’ is a term that eludes exact
of the contents of the JPEPA prior to its finalization between the two States parties,"10 public definition. Both terms embrace a broad spectrum of subjects which the public may want to
disclosure of the text of the JPEPA after its signing by the President, during the pendency of know, either because these directly affect their lives, or simply because such matters naturally
the present petition, has been largely rendered moot and academic. arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine
With the Senate deliberations on the JPEPA still pending, the agreement as it now stands on a case by case basis whether the matter at issue is of interest or importance, as it relates
cannot yet be considered as final and binding between the two States. Article 164 of the to or affects the public.16 (Underscoring supplied)
JPEPA itself provides that the agreement does not take effect immediately upon the signing From the nature of the JPEPA as an international trade agreement, it is evident that the
thereof. For it must still go through the procedures required by the laws of each country for Philippine and Japanese offers submitted during the negotiations towards its execution are
its entry into force, viz: matters of public concern. This, respondents do not dispute. They only claim that diplomatic
Article 164 negotiations are covered by the doctrine of executive privilege, thus constituting an
Entry into Force exception to the right to information and the policy of full public disclosure.
This Agreement shall enter into force on the thirtieth day after the date on which the Respondents’ claim of privilege
Governments of the Parties exchange diplomatic notes informing each other that their It is well-established in jurisprudence that neither the right to information nor the policy of
respective legal procedures necessary for entry into force of this Agreement have been full public disclosure is absolute, there being matters which, albeit of public concern or public
completed. It shall remain in force unless terminated as provided for in Article 165.11 interest, are recognized as privileged in nature. The types of information which may be
(Emphasis supplied) considered privileged have been elucidated in Almonte v. Vasquez,17 Chavez v. PCGG, 18 Chavez
President Arroyo’s endorsement of the JPEPA to the Senate for concurrence is part of the v. Public Estate’s Authority,19 and most recently in Senate v. Ermita20 where the Court
legal procedures which must be met prior to the agreement’s entry into force. reaffirmed the validity of the doctrine of executive privilege in this jurisdiction and dwelt on
The text of the JPEPA having then been made accessible to the public, the petition has its scope.
become moot and academic to the extent that it seeks the disclosure of the "full text" Whether a claim of executive privilege is valid depends on the ground invoked to justify it and
thereof. the context in which it is made.21 In the present case, the ground for respondents’ claim of
The petition is not entirely moot, however, because petitioners seek to obtain, not merely the privilege is set forth in their Comment, viz:
text of the JPEPA, but also the Philippine and Japanese offers in the course of the x x x The categories of information that may be considered privileged includes matters of
negotiations.12 diplomatic character and under negotiation and review. In this case, the privileged character
A discussion of the substantive issues, insofar as they impinge on petitioners’ demand for of the diplomatic negotiations has been categorically invoked and clearly explained by
access to the Philippine and Japanese offers, is thus in order. respondents particularly respondent DTI Senior Undersecretary.
Grounds relied upon by petitioners The documents on the proposed JPEPA as well as the text which is subject to negotiations and
Petitioners assert, first, that the refusal of the government to disclose the documents bearing legal review by the parties fall under the exceptions to the right of access to information on
on the JPEPA negotiations violates their right to information on matters of public concern13 matters of public concern and policy of public disclosure. They come within the coverage of
and contravenes other constitutional provisions on transparency, such as that on the policy of executive privilege. At the time when the Committee was requesting for copies of such
full public disclosure of all transactions involving public interest.14 Second, they contend that documents, the negotiations were ongoing as they are still now and the text of the proposed
non-disclosure of the same documents undermines their right to effective and reasonable JPEPA is still uncertain and subject to change. Considering the status and nature of such
participation in all levels of social, political, and economic decision-making.15 Lastly, they documents then and now, these are evidently covered by executive privilege consistent with
proffer that divulging the contents of the JPEPA only after the agreement has been concluded existing legal provisions and settled jurisprudence.
will effectively make the Senate into a mere rubber stamp of the Executive, in violation of the Practical and strategic considerations likewise counsel against the disclosure of the "rolling
principle of separation of powers. texts" which may undergo radical change or portions of which may be totally abandoned.
Significantly, the grounds relied upon by petitioners for the disclosure of the latest text of the Furthermore, the negotiations of the representatives of the Philippines as well as of Japan
JPEPA are, except for the last, the same as those cited for the disclosure of the Philippine and must be allowed to explore alternatives in the course of the negotiations in the same
Japanese offers. manner as judicial deliberations and working drafts of opinions are accorded strict
The first two grounds relied upon by petitioners which bear on the merits of respondents’ confidentiality.22 (Emphasis and underscoring supplied)
claim of privilege shall be discussed. The last, being purely speculatory given that the Senate The ground relied upon by respondents is thus not simply that the information sought
is still deliberating on the JPEPA, shall not. involves a diplomatic matter, but that it pertains to diplomatic negotiations then in progress.
The JPEPA is a matter of public concern Privileged character of diplomatic negotiations
To be covered by the right to information, the information sought must meet the threshold The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In
requirement that it be a matter of public concern. Apropos is the teaching of Legaspi v. Civil discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that
Service Commission: "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

57
earlier, the same privilege was upheld in People’s Movement for Press Freedom (PMPF) v. Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of
Manglapus24 wherein the Court discussed the reasons for the privilege in more precise terms. the JPEPA may not be kept perpetually confidential – since there should be "ample
In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s opportunity for discussion before [a treaty] is approved" – the offers exchanged by the parties
representatives on the state of the then on-going negotiations of the RP-US Military Bases during the negotiations continue to be privileged even after the JPEPA is published. It is
Agreement.25 The Court denied the petition, stressing that "secrecy of negotiations with reasonable to conclude that the Japanese representatives submitted their offers with the
foreign countries is not violative of the constitutional provisions of freedom of speech or of understanding that "historic confidentiality"27 would govern the same. Disclosing these offers
the press nor of the freedom of access to information." The Resolution went on to state, could impair the ability of the Philippines to deal not only with Japan but with other foreign
thus: governments in future negotiations.
The nature of diplomacy requires centralization of authority and expedition of decision A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny
which are inherent in executive action. Another essential characteristic of diplomacy is its would discourage future Philippine representatives from frankly expressing their views during
confidential nature. Although much has been said about "open" and "secret" diplomacy, with negotiations. While, on first impression, it appears wise to deter Philippine representatives
disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed from entering into compromises, it bears noting that treaty negotiations, or any negotiation
and justified the practice. In the words of Mr. Stimson: for that matter, normally involve a process of quid pro quo, and oftentimes negotiators have
"A complicated negotiation . . . cannot be carried through without many, many private talks to be willing to grant concessions in an area of lesser importance in order to obtain more
and discussion, man to man; many tentative suggestions and proposals. Delegates from favorable terms in an area of greater national interest. Apropos are the following
other countries come and tell you in confidence of their troubles at home and of their observations of Benjamin S. Duval, Jr.:
differences with other countries and with other delegates; they tell you of what they would x x x [T]hose involved in the practice of negotiations appear to be in agreement that publicity
do under certain circumstances and would not do under other circumstances. . . If these leads to "grandstanding," tends to freeze negotiating positions, and inhibits the give-and-take
reports . . . should become public . . . who would ever trust American Delegations in essential to successful negotiation. As Sissela Bok points out, if "negotiators have more to gain
another conference? (United States Department of State, Press Releases, June 7, 1930, pp. from being approved by their own sides than by making a reasoned agreement with
282-284.)." competitors or adversaries, then they are inclined to 'play to the gallery . . .'' In fact, the
xxxx public reaction may leave them little option. It would be a brave, or foolish, Arab leader who
There is frequent criticism of the secrecy in which negotiation with foreign powers on expressed publicly a willingness for peace with Israel that did not involve the return of the
nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of entire West Bank, or Israeli leader who stated publicly a willingness to remove Israel's existing
democracy. As expressed by one writer, "It can be said that there is no more rigid system of settlements from Judea and Samaria in return for peace.28 (Emphasis supplied)
silence anywhere in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lippincott Indeed, by hampering the ability of our representatives to compromise, we may be
Co., 1938) President Wilson in starting his efforts for the conclusion of the World War jeopardizing higher national goals for the sake of securing less critical ones.
declared that we must have "open covenants, openly arrived at." He quickly abandoned his Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA
thought. negotiations constituting no exception. It bears emphasis, however, that such privilege is only
No one who has studied the question believes that such a method of publicity is possible. In presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged
the moment that negotiations are started, pressure groups attempt to "muscle in." An ill- does not mean that it will be considered privileged in all instances. Only after a consideration
timed speech by one of the parties or a frank declaration of the concession which are of the context in which the claim is made may it be determined if there is a public interest
exacted or offered on both sides would quickly lead to widespread propaganda to block the that calls for the disclosure of the desired information, strong enough to overcome its
negotiations. After a treaty has been drafted and its terms are fully published, there is traditionally privileged status.
ample opportunity for discussion before it is approved. (The New American Government and Whether petitioners have established the presence of such a public interest shall be discussed
Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied) later. For now, the Court shall first pass upon the arguments raised by petitioners against the
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export application of PMPF v. Manglapus to the present case.
Corp.26 that the President is the sole organ of the nation in its negotiations with foreign Arguments proffered by petitioners against the application of PMPF v. Manglapus
countries, viz: Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present case,
"x x x In this vast external realm, with its important, complicated, delicate and manifold there being substantial factual distinctions between the two.
problems, the President alone has the power to speak or listen as a representative of the To petitioners, the first and most fundamental distinction lies in the nature of the treaty
nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. involved. They stress that PMPF v. Manglapus involved the Military Bases Agreement which
Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to necessarily pertained to matters affecting national security; whereas the present case
invade it. As Marshall said in his great argument of March 7, 1800, in the House of involves an economic treaty that seeks to regulate trade and commerce between the
Representatives, "The President is the sole organ of the nation in its external relations, and Philippines and Japan, matters which, unlike those covered by the Military Bases Agreement,
its sole representative with foreign nations." Annals, 6th Cong., col. 613. . . (Emphasis are not so vital to national security to disallow their disclosure.
supplied; underscoring in the original) Petitioners’ argument betrays a faulty assumption that information, to be considered
privileged, must involve national security. The recognition in Senate v. Ermita29 that executive

58
privilege has encompassed claims of varying kinds, such that it may even be more accurate to capacity as "the sole organ of the nation in its external relations, and its sole representative
speak of "executive privileges," cautions against such generalization. with foreign nations." And, as with the deliberative process privilege, the privilege accorded
While there certainly are privileges grounded on the necessity of safeguarding national to diplomatic negotiations arises, not on account of the content of the information per se, but
security such as those involving military secrets, not all are founded thereon. One example is because the information is part of a process of deliberation which, in pursuit of the public
the "informer’s privilege," or the privilege of the Government not to disclose the identity of a interest, must be presumed confidential.
person or persons who furnish information of violations of law to officers charged with the The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v.
enforcement of that law.30 The suspect involved need not be so notorious as to be a threat to Department of the Treasury37 enlightens on the close relation between diplomatic
national security for this privilege to apply in any given instance. Otherwise, the privilege negotiations and deliberative process privileges. The plaintiffs in that case sought access to
would be inapplicable in all but the most high-profile cases, in which case not only would this notes taken by a member of the U.S. negotiating team during the U.S.-French tax treaty
be contrary to long-standing practice. It would also be highly prejudicial to law enforcement negotiations. Among the points noted therein were the issues to be discussed, positions
efforts in general. which the French and U.S. teams took on some points, the draft language agreed on, and
Also illustrative is the privilege accorded to presidential communications, which are presumed articles which needed to be amended. Upholding the confidentiality of those notes, Judge
privileged without distinguishing between those which involve matters of national security Green ruled, thus:
and those which do not, the rationale for the privilege being that Negotiations between two countries to draft a treaty represent a true example of a
x x x [a] frank exchange of exploratory ideas and assessments, free from the glare of publicity deliberative process. Much give-and-take must occur for the countries to reach an accord. A
and pressure by interested parties, is essential to protect the independence of decision- description of the negotiations at any one point would not provide an onlooker a summary of
making of those tasked to exercise Presidential, Legislative and Judicial power. x x x31 the discussions which could later be relied on as law. It would not be "working law" as the
(Emphasis supplied) points discussed and positions agreed on would be subject to change at any date until the
In the same way that the privilege for judicial deliberations does not depend on the nature of treaty was signed by the President and ratified by the Senate.
the case deliberated upon, so presidential communications are privileged whether they The policies behind the deliberative process privilege support non-disclosure. Much harm
involve matters of national security. could accrue to the negotiations process if these notes were revealed. Exposure of the pre-
It bears emphasis, however, that the privilege accorded to presidential communications is not agreement positions of the French negotiators might well offend foreign governments and
absolute, one significant qualification being that "the Executive cannot, any more than the would lead to less candor by the U. S. in recording the events of the negotiations process.
other branches of government, invoke a general confidentiality privilege to shield its officials As several months pass in between negotiations, this lack of record could hinder readily the
and employees from investigations by the proper governmental institutions into possible U. S. negotiating team. Further disclosure would reveal prematurely adopted policies. If these
criminal wrongdoing." 32 This qualification applies whether the privilege is being invoked in policies should be changed, public confusion would result easily.
the context of a judicial trial or a congressional investigation conducted in aid of legislation. 33 Finally, releasing these snapshot views of the negotiations would be comparable to
Closely related to the "presidential communications" privilege is the deliberative process releasing drafts of the treaty, particularly when the notes state the tentative provisions and
privilege recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v. language agreed on. As drafts of regulations typically are protected by the deliberative
Sears, Roebuck & Co,34 deliberative process covers documents reflecting advisory opinions, process privilege, Arthur Andersen & Co. v. Internal Revenue Service, C.A. No. 80-705
recommendations and deliberations comprising part of a process by which governmental (D.C.Cir., May 21, 1982), drafts of treaties should be accorded the same protection.
decisions and policies are formulated. Notably, the privileged status of such documents rests, (Emphasis and underscoring supplied)
not on the need to protect national security but, on the "obvious realization that officials will Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence
not communicate candidly among themselves if each remark is a potential item of discovery from the privileged character of the deliberative process.
and front page news," the objective of the privilege being to enhance the quality of agency The Court is not unaware that in Center for International Environmental Law (CIEL), et al. v.
decisionshttp://web2.westlaw.com/find/default.wl? Office of U.S. Trade Representative38 – where the plaintiffs sought information relating to the
rs=WLW7.07&serialnum=1975129772&fn=_top&sv=Split&tc=-1&findtype=Y&tf=- just-completed negotiation of a United States-Chile Free Trade Agreement – the same district
1&db=708&utid=%7b532A6DBF-9B4C-4A5A-8F16-C20D9BAA36C4%7d&vr=2.0&rp=%2ffind court, this time under Judge Friedman, consciously refrained from applying the doctrine in
%2fdefault.wl&mt=WLIGeneralSubscription. 35 Fulbright and ordered the disclosure of the information being sought.
The diplomatic negotiations privilege bears a close resemblance to the deliberative process Since the factual milieu in CIEL seemed to call for the straight application of the doctrine in
and presidential communications privilege. It may be readily perceived that the rationale for Fulbright, a discussion of why the district court did not apply the same would help illumine
the confidential character of diplomatic negotiations, deliberative process, and presidential this Court’s own reasons for deciding the present case along the lines of Fulbright.
communications is similar, if not identical. In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding
The earlier discussion on PMPF v. Manglapus36 shows that the privilege for diplomatic information, namely, Exemption 5 of the Freedom of Information Act (FOIA). 39 In order to
negotiations is meant to encourage a frank exchange of exploratory ideas between the qualify for protection under Exemption 5, a document must satisfy two conditions: (1) it must
negotiating parties by shielding such negotiations from public view. Similar to the privilege for be either inter-agency or intra-agency in nature, and (2) it must be both pre-decisional and
presidential communications, the diplomatic negotiations privilege seeks, through the same part of the agency's deliberative or decision-making process.40
means, to protect the independence in decision-making of the President, particularly in its

59
Judge Friedman, in CIEL, himself cognizant of a "superficial similarity of context" between the Petitioners thus conclude that the present case involves the right of members of Congress to
two cases, based his decision on what he perceived to be a significant distinction: he found demand information on negotiations of international trade agreements from the Executive
the negotiator’s notes that were sought in Fulbright to be "clearly internal," whereas the branch, a matter which was not raised in PMPF v. Manglapus.
documents being sought in CIEL were those produced by or exchanged with an outside party, While indeed the petitioners in PMPF v. Manglapus consisted only of members of the mass
i.e. Chile. The documents subject of Fulbright being clearly internal in character, the question media, it would be incorrect to claim that the doctrine laid down therein has no bearing on a
of disclosure therein turned not on the threshold requirement of Exemption 5 that the controversy such as the present, where the demand for information has come from members
document be inter-agency, but on whether the documents were part of the agency's pre- of Congress, not only from private citizens.
decisional deliberative process. On this basis, Judge Friedman found that "Judge Green's The privileged character accorded to diplomatic negotiations does not ipso facto lose all
discussion [in Fulbright] of the harm that could result from disclosure therefore is irrelevant, force and effect simply because the same privilege is now being claimed under different
since the documents at issue [in CIEL] are not inter-agency, and the Court does not reach circumstances. The probability of the claim succeeding in the new context might differ, but to
the question of deliberative process." (Emphasis supplied) say that the privilege, as such, has no validity at all in that context is another matter
In fine, Fulbright was not overturned. The court in CIEL merely found the same to be altogether.
irrelevant in light of its distinct factual setting. Whether this conclusion was valid – a question The Court’s statement in Senate v. Ermita that "presidential refusals to furnish information
on which this Court would not pass – the ruling in Fulbright that "[n]egotiations between two may be actuated by any of at least three distinct kinds of considerations [state secrets
countries to draft a treaty represent a true example of a deliberative process" was left privilege, informer’s privilege, and a generic privilege for internal deliberations], and may be
standing, since the CIEL court explicitly stated that it did not reach the question of asserted, with differing degrees of success, in the context of either judicial or legislative
deliberative process. investigations,"41 implies that a privilege, once recognized, may be invoked under different
Going back to the present case, the Court recognizes that the information sought by procedural settings. That this principle holds true particularly with respect to diplomatic
petitioners includes documents produced and communicated by a party external to the negotiations may be inferred from PMPF v. Manglapus itself, where the Court held that it is
Philippine government, namely, the Japanese representatives in the JPEPA negotiations, and the President alone who negotiates treaties, and not even the Senate or the House of
to that extent this case is closer to the factual circumstances of CIEL than those of Fulbright. Representatives, unless asked, may intrude upon that process.
Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle Clearly, the privilege for diplomatic negotiations may be invoked not only against citizens’
articulated in Fulbright that the public policy underlying the deliberative process privilege demands for information, but also in the context of legislative investigations.
requires that diplomatic negotiations should also be accorded privileged status, even if the Hence, the recognition granted in PMPF v. Manglapus to the privileged character of
documents subject of the present case cannot be described as purely internal in character. diplomatic negotiations cannot be considered irrelevant in resolving the present case, the
It need not be stressed that in CIEL, the court ordered the disclosure of information based on contextual differences between the two cases notwithstanding.
its finding that the first requirement of FOIA Exemption 5 – that the documents be inter- As third and last point raised against the application of PMPF v. Manglapus in this case,
agency – was not met. In determining whether the government may validly refuse disclosure petitioners proffer that "the socio-political and historical contexts of the two cases are worlds
of the exchanges between the U.S. and Chile, it necessarily had to deal with this requirement, apart." They claim that the constitutional traditions and concepts prevailing at the time PMPF
it being laid down by a statute binding on them. v. Manglapus came about, particularly the school of thought that the requirements of foreign
In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory policy and the ideals of transparency were incompatible with each other or the
requirement similar to FOIA Exemption 5 in particular. Hence, Philippine courts, when "incompatibility hypothesis," while valid when international relations were still governed by
assessing a claim of privilege for diplomatic negotiations, are more free to focus directly on power, politics and wars, are no longer so in this age of international cooperation. 42
the issue of whether the privilege being claimed is indeed supported by public policy, without Without delving into petitioners’ assertions respecting the "incompatibility hypothesis," the
having to consider – as the CIEL court did – if these negotiations fulfill a formal requirement of Court notes that the ruling in PMPF v. Manglapus is grounded more on the nature of treaty
being "inter-agency." Important though that requirement may be in the context of domestic negotiations as such than on a particular socio-political school of thought. If petitioners are
negotiations, it need not be accorded the same significance when dealing with international suggesting that the nature of treaty negotiations have so changed that "[a]n ill-timed speech
negotiations. by one of the parties or a frank declaration of the concession which are exacted or offered on
There being a public policy supporting a privilege for diplomatic negotiations for the reasons both sides" no longer "lead[s] to widespread propaganda to block the negotiations," or that
explained above, the Court sees no reason to modify, much less abandon, the doctrine in parties in treaty negotiations no longer expect their communications to be governed by
PMPF v. Manglapus. historic confidentiality, the burden is on them to substantiate the same. This petitioners failed
A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus from to discharge.
the present case is the fact that the petitioners therein consisted entirely of members of the Whether the privilege applies only at certain stages of the negotiation process
mass media, while petitioners in the present case include members of the House of Petitioners admit that "diplomatic negotiations on the JPEPA are entitled to a reasonable
Representatives who invoke their right to information not just as citizens but as members of amount of confidentiality so as not to jeopardize the diplomatic process." They argue,
Congress. 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

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the formulation and exploratory stage to the firming up of definite propositions or official be defeated only by a strong showing of need by another institution of government- a
recommendations, citing Chavez v. PCGG44 and Chavez v. PEA.45 showing that the responsibilities of that institution cannot responsibly be fulfilled without
The following statement in Chavez v. PEA, however, suffices to show that the doctrine in both access to records of the President's deliberations- we believed in Nixon v. Sirica, and
that case and Chavez v. PCGG with regard to the duty to disclose "definite propositions of the continue to believe, that the effective functioning of the presidential office will not be
government" does not apply to diplomatic negotiations: impaired. x x x
We rule, therefore, that the constitutional right to information includes official information on xxxx
on-going negotiations before a final contract. The information, however, must constitute The sufficiency of the Committee's showing of need has come to depend, therefore, entirely
definite propositions by the government and should not cover recognized exceptions like on whether the subpoenaed materials are critical to the performance of its legislative
privileged information, military and diplomatic secrets and similar matters affecting functions. x x x (Emphasis and underscoring supplied)
national security and public order. x x x46 (Emphasis and underscoring supplied) In re Sealed Case52 involved a claim of the deliberative process and presidential
It follows from this ruling that even definite propositions of the government may not be communications privileges against a subpoena duces tecum of a grand jury. On the claim of
disclosed if they fall under "recognized exceptions." The privilege for diplomatic negotiations deliberative process privilege, the court stated:
is clearly among the recognized exceptions, for the footnote to the immediately quoted ruling The deliberative process privilege is a qualified privilege and can be overcome by a sufficient
cites PMPF v. Manglapus itself as an authority. showing of need. This need determination is to be made flexibly on a case-by-case, ad hoc
Whether there is sufficient public interest to overcome the claim of privilege basis. "[E]ach time [the deliberative process privilege] is asserted the district court must
It being established that diplomatic negotiations enjoy a presumptive privilege against undertake a fresh balancing of the competing interests," taking into account factors such as
disclosure, even against the demands of members of Congress for information, the Court shall "the relevance of the evidence," "the availability of other evidence," "the seriousness of the
now determine whether petitioners have shown the existence of a public interest sufficient to litigation," "the role of the government," and the "possibility of future timidity by
overcome the privilege in this instance. government employees. x x x (Emphasis, italics and underscoring supplied)
To clarify, there are at least two kinds of public interest that must be taken into account. One Petitioners have failed to present the strong and "sufficient showing of need" referred to in
is the presumed public interest in favor of keeping the subject information confidential, the immediately cited cases. The arguments they proffer to establish their entitlement to the
which is the reason for the privilege in the first place, and the other is the public interest in subject documents fall short of this standard.
favor of disclosure, the existence of which must be shown by the party asking for Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA
information. 47 negotiation process effectively results in the bargaining away of their economic and property
The criteria to be employed in determining whether there is a sufficient public interest in rights without their knowledge and participation, in violation of the due process clause of the
favor of disclosure may be gathered from cases such as U.S. v. Nixon,48 Senate Select Constitution. They claim, moreover, that it is essential for the people to have access to the
Committee on Presidential Campaign Activities v. Nixon,49 and In re Sealed Case.50 initial offers exchanged during the negotiations since only through such disclosure can their
U.S. v. Nixon, which involved a claim of the presidential communications privilege against the constitutional right to effectively participate in decision-making be brought to life in the
subpoena duces tecum of a district court in a criminal case, emphasized the need to balance context of international trade agreements.
such claim of privilege against the constitutional duty of courts to ensure a fair administration Whether it can accurately be said that the Filipino people were not involved in the JPEPA
of criminal justice. negotiations is a question of fact which this Court need not resolve. Suffice it to state that
x x x the allowance of the privilege to withhold evidence that is demonstrably relevant in a respondents had presented documents purporting to show that public consultations were
criminal trial would cut deeply into the guarantee of due process of law and gravely impair conducted on the JPEPA. Parenthetically, petitioners consider these "alleged consultations" as
the basic function of the courts. A President’s acknowledged need for confidentiality in the "woefully selective and inadequate."53
communications of his office is general in nature, whereas the constitutional need for AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and
production of relevant evidence in a criminal proceeding is specific and central to the fair Japanese representatives have not been disclosed to the public, the Court shall pass upon the
adjudication of a particular criminal case in the administration of justice. Without access to issue of whether access to the documents bearing on them is, as petitioners claim, essential
specific facts a criminal prosecution may be totally frustrated. The President’s broad interest to their right to participate in decision-making.
in confidentiality of communications will not be vitiated by disclosure of a limited number of The case for petitioners has, of course, been immensely weakened by the disclosure of the
conversations preliminarily shown to have some bearing on the pending criminal cases. full text of the JPEPA to the public since September 11, 2006, even as it is still being
(Emphasis, italics and underscoring supplied) deliberated upon by the Senate and, therefore, not yet binding on the Philippines. Were the
Similarly, Senate Select Committee v. Nixon,51 which involved a claim of the presidential Senate to concur with the validity of the JPEPA at this moment, there has already been, in the
communications privilege against the subpoena duces tecum of a Senate committee, spoke of words of PMPF v. Manglapus, "ample opportunity for discussion before [the treaty] is
the need to balance such claim with the duty of Congress to perform its legislative functions. approved."
The staged decisional structure established in Nixon v. Sirica was designed to ensure that the The text of the JPEPA having been published, petitioners have failed to convince this Court
President and those upon whom he directly relies in the performance of his duties could that they will not be able to meaningfully exercise their right to participate in decision-making
continue to work under a general assurance that their deliberations would remain unless the initial offers are also published.
confidential. So long as the presumption that the public interest favors confidentiality can

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It is of public knowledge that various non-government sectors and private citizens have authority to deal with foreign states and governments, extend or withhold recognition,
already publicly expressed their views on the JPEPA, their comments not being limited to maintain diplomatic relations, enter into treaties, and otherwise transact the business of
general observations thereon but on its specific provisions. Numerous articles and statements foreign relations. In the realm of treaty-making, the President has the sole authority to
critical of the JPEPA have been posted on the Internet.54 Given these developments, there is negotiate with other states.
no basis for petitioners’ claim that access to the Philippine and Japanese offers is essential to Nonetheless, while the President has the sole authority to negotiate and enter into treaties,
the exercise of their right to participate in decision-making. the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all
Petitioner-members of the House of Representatives additionally anchor their claim to have a the members of the Senate for the validity of the treaty entered into by him. x x x (Emphasis
right to the subject documents on the basis of Congress’ inherent power to regulate and underscoring supplied)
commerce, be it domestic or international. They allege that Congress cannot meaningfully While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is
exercise the power to regulate international trade agreements such as the JPEPA without exercised by the President only by delegation of that body, it has long been recognized that
being given copies of the initial offers exchanged during the negotiations thereof. In the same the power to enter into treaties is vested directly and exclusively in the President, subject
vein, they argue that the President cannot exclude Congress from the JPEPA negotiations only to the concurrence of at least two-thirds of all the Members of the Senate for the validity
since whatever power and authority the President has to negotiate international trade of the treaty. In this light, the authority of the President to enter into trade agreements with
agreements is derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of foreign nations provided under P.D. 146458 may be interpreted as an acknowledgment of a
the Constitution and Sections 401 and 402 of Presidential Decree No. 1464.55 power already inherent in its office. It may not be used as basis to hold the President or its
The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate representatives accountable to Congress for the conduct of treaty negotiations.
treaties and international agreements, but the power to fix tariff rates, import and export This is not to say, of course, that the President’s power to enter into treaties is unlimited but
quotas, and other taxes. Thus it provides: for the requirement of Senate concurrence, since the President must still ensure that all
(2) The Congress may, by law, authorize the President to fix within specified limits, and treaties will substantively conform to all the relevant provisions of the Constitution.
subject to such limitations and restrictions as it may impose, tariff rates, import and export It follows from the above discussion that Congress, while possessing vast legislative powers,
quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the may not interfere in the field of treaty negotiations. While Article VII, Section 21 provides for
national development program of the Government. Senate concurrence, such pertains only to the validity of the treaty under consideration, not
As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article to the conduct of negotiations attendant to its conclusion. Moreover, it is not even Congress
VII – the article on the Executive Department – which states: as a whole that has been given the authority to concur as a means of checking the treaty-
No treaty or international agreement shall be valid and effective unless concurred in by at making power of the President, but only the Senate.
least two-thirds of all the Members of the Senate. Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-
The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the members of the House of Representatives fail to present a "sufficient showing of need" that
President, being the sole organ of the nation in its external relations, was echoed in BAYAN v. the information sought is critical to the performance of the functions of Congress, functions
Executive Secretary56 where the Court held: that do not include treaty-negotiation.
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, Respondents’ alleged failure to timely claim executive privilege
is the sole organ and authority in the external affairs of the country. In many ways, the On respondents’ invocation of executive privilege, petitioners find the same defective, not
President is the chief architect of the nation's foreign policy; his "dominance in the field of having been done seasonably as it was raised only in their Comment to the present petition
foreign relations is (then) conceded." Wielding vast powers and influence, his conduct in the and not during the House Committee hearings.
external affairs of the nation, as Jefferson describes, is "executive altogether." That respondents invoked the privilege for the first time only in their Comment to the present
As regards the power to enter into treaties or international agreements, the Constitution petition does not mean that the claim of privilege should not be credited. Petitioners’ position
vests the same in the President, subject only to the concurrence of at least two thirds vote presupposes that an assertion of the privilege should have been made during the House
of all the members of the Senate. In this light, the negotiation of the VFA and the subsequent Committee investigations, failing which respondents are deemed to have waived it.
ratification of the agreement are exclusive acts which pertain solely to the President, in the When the House Committee and petitioner-Congressman Aguja requested respondents for
lawful exercise of his vast executive and diplomatic powers granted him no less than by the copies of the documents subject of this case, respondents replied that the negotiations were
fundamental law itself. Into the field of negotiation the Senate cannot intrude, and still on-going and that the draft of the JPEPA would be released once the text thereof is
Congress itself is powerless to invade it. x x x (Italics in the original; emphasis and settled and complete. There was no intimation that the requested copies are confidential in
underscoring supplied) nature by reason of public policy. The response may not thus be deemed a claim of privilege
The same doctrine was reiterated even more recently in Pimentel v. Executive Secretary57 by the standards of Senate v. Ermita, which recognizes as claims of privilege only those which
where the Court ruled: are accompanied by precise and certain reasons for preserving the confidentiality of the
In our system of government, the President, being the head of state, is regarded as the sole information being sought.
organ and authority in external relations and is the country's sole representative with Respondents’ failure to claim the privilege during the House Committee hearings may not,
foreign nations. As the chief architect of foreign policy, the President acts as the country's however, be construed as a waiver thereof by the Executive branch. As the immediately
mouthpiece with respect to international affairs. Hence, the President is vested with the preceding paragraph indicates, what respondents received from the House Committee and

62
petitioner-Congressman Aguja were mere requests for information. And as priorly stated, the This Court has long and consistently adhered to the legal maxim that those that cannot be
House Committee itself refrained from pursuing its earlier resolution to issue a subpoena done directly cannot be done indirectly. To declare the PIATCO contracts valid despite the
duces tecum on account of then Speaker Jose de Venecia’s alleged request to Committee clear statutory prohibition against a direct government guarantee would not only make a
Chairperson Congressman Teves to hold the same in abeyance. mockery of what the BOT Law seeks to prevent -- which is to expose the government to the
While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to risk of incurring a monetary obligation resulting from a contract of loan between the project
executive officials – out of respect for their office – until resort to it becomes necessary, the proponent and its lenders and to which the Government is not a party to -- but would also
fact remains that such requests are not a compulsory process. Being mere requests, they do render the BOT Law useless for what it seeks to achieve –- to make use of the resources of the
not strictly call for an assertion of executive privilege. private sector in the "financing, operation and maintenance of infrastructure and
The privilege is an exemption to Congress’ power of inquiry. 59 So long as Congress itself finds development projects" which are necessary for national growth and development but which
no cause to enforce such power, there is no strict necessity to assert the privilege. In this the government, unfortunately, could ill-afford to finance at this point in time. 64
light, respondents’ failure to invoke the privilege during the House Committee investigations Similarly, while herein petitioners-members of the House of Representatives may not have
did not amount to a waiver thereof. been aiming to participate in the negotiations directly, opening the JPEPA negotiations to
The Court observes, however, that the claim of privilege appearing in respondents’ Comment their scrutiny – even to the point of giving them access to the offers exchanged between the
to this petition fails to satisfy in full the requirement laid down in Senate v. Ermita that the Japanese and Philippine delegations – would have made a mockery of what the Constitution
claim should be invoked by the President or through the Executive Secretary "by order of the sought to prevent and rendered it useless for what it sought to achieve when it vested the
President."60 Respondents’ claim of privilege is being sustained, however, its flaw power of direct negotiation solely with the President.
notwithstanding, because of circumstances peculiar to the case. What the U.S. Constitution sought to prevent and aimed to achieve in defining the treaty-
The assertion of executive privilege by the Executive Secretary, who is one of the respondents making power of the President, which our Constitution similarly defines, may be gathered
herein, without him adding the phrase "by order of the President," shall be considered as from Hamilton’s explanation of why the U.S. Constitution excludes the House of
partially complying with the requirement laid down in Senate v. Ermita. The requirement that Representatives from the treaty-making process:
the phrase "by order of the President" should accompany the Executive Secretary’s claim of x x x The fluctuating, and taking its future increase into account, the multitudinous
privilege is a new rule laid down for the first time in Senate v. Ermita, which was not yet final composition of that body, forbid us to expect in it those qualities which are essential to the
and executory at the time respondents filed their Comment to the petition.61 A strict proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a
application of this requirement would thus be unwarranted in this case. steady and systematic adherence to the same views; a nice and uniform sensibility to national
Response to the Dissenting Opinion of the Chief Justice character, decision, secrecy and dispatch; are incompatible with a body so variable and so
We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our numerous. The very complication of the business by introducing a necessity of the
people’s right to information against any abuse of executive privilege. It is a zeal that We fully concurrence of so many different bodies, would of itself afford a solid objection. The greater
share. frequency of the calls upon the house of representatives, and the greater length of time
The Court, however, in its endeavor to guard against the abuse of executive privilege, should which it would often be necessary to keep them together when convened, to obtain their
be careful not to veer towards the opposite extreme, to the point that it would strike down as sanction in the progressive stages of a treaty, would be source of so great inconvenience and
invalid even a legitimate exercise thereof. expense, as alone ought to condemn the project.65
We respond only to the salient arguments of the Dissenting Opinion which have not yet been These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution,
sufficiently addressed above. unlike that of the U.S., does not even grant the Senate the power to advise the Executive in
1. After its historical discussion on the allocation of power over international trade the making of treaties, but only vests in that body the power to concur in the validity of the
agreements in the United States, the dissent concludes that "it will be turning somersaults treaty after negotiations have been concluded.66 Much less, therefore, should it be inferred
with history to contend that the President is the sole organ for external relations" in that that the House of Representatives has this power.
jurisdiction. With regard to this opinion, We make only the following observations: Since allowing petitioner-members of the House of Representatives access to the subject
There is, at least, a core meaning of the phrase "sole organ of the nation in its external JPEPA documents would set a precedent for future negotiations, leading to the contravention
relations" which is not being disputed, namely, that the power to directly negotiate treaties of the public interests articulated above which the Constitution sought to protect, the subject
and international agreements is vested by our Constitution only in the Executive. Thus, the documents should not be disclosed.
dissent states that "Congress has the power to regulate commerce with foreign nations but 2. The dissent also asserts that respondents can no longer claim the diplomatic secrets
does not have the power to negotiate international agreements directly."62 privilege over the subject JPEPA documents now that negotiations have been concluded,
What is disputed is how this principle applies to the case at bar. since their reasons for nondisclosure cited in the June 23, 2005 letter of Sec. Ermita, and later
The dissent opines that petitioner-members of the House of Representatives, by asking for in their Comment, necessarily apply only for as long as the negotiations were still pending;
the subject JPEPA documents, are not seeking to directly participate in the negotiations of the In their Comment, respondents contend that "the negotiations of the representatives of the
JPEPA, hence, they cannot be prevented from gaining access to these documents. Philippines as well as of Japan must be allowed to explore alternatives in the course of the
On the other hand, We hold that this is one occasion where the following ruling in Agan v. negotiations in the same manner as judicial deliberations and working drafts of opinions are
PIATCO63 – and in other cases both before and since – should be applied: accorded strict confidentiality." That respondents liken the documents involved in the JPEPA

63
negotiations to judicial deliberations and working drafts of opinions evinces, by itself, that petitioner- requesting parties to show that they have a strong need for the information
they were claiming confidentiality not only until, but even after, the conclusion of the sufficient to overcome the privilege. They have not, however.
negotiations. 4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming the
Judicial deliberations do not lose their confidential character once a decision has been privilege "by order of the President," the same may not be strictly applied to the privilege
promulgated by the courts. The same holds true with respect to working drafts of opinions, claim subject of this case.
which are comparable to intra-agency recommendations. Such intra-agency When the Court in Senate v. Ermita limited the power of invoking the privilege to the
recommendations are privileged even after the position under consideration by the agency President alone, it was laying down a new rule for which there is no counterpart even in the
has developed into a definite proposition, hence, the rule in this jurisdiction that agencies United States from which the concept of executive privilege was adopted. As held in the 2004
have the duty to disclose only definite propositions, and not the inter-agency and intra- case of Judicial Watch, Inc. v. Department of Justice,69 citing In re Sealed Case,70 "the issue of
agency communications during the stage when common assertions are still being whether a President must personally invoke the [presidential communications] privilege
formulated.67 remains an open question." U.S. v. Reynolds,71 on the other hand, held that "[t]here must be a
3. The dissent claims that petitioner-members of the House of Representatives have formal claim of privilege, lodged by the head of the department which has control over the
sufficiently shown their need for the same documents to overcome the privilege. Again, We matter, after actual personal consideration by that officer."
disagree. The rule was thus laid down by this Court, not in adherence to any established precedent, but
The House Committee that initiated the investigations on the JPEPA did not pursue its earlier with the aim of preventing the abuse of the privilege in light of its highly exceptional nature.
intention to subpoena the documents. This strongly undermines the assertion that access to The Court’s recognition that the Executive Secretary also bears the power to invoke the
the same documents by the House Committee is critical to the performance of its legislative privilege, provided he does so "by order of the President," is meant to avoid laying down too
functions. If the documents were indeed critical, the House Committee should have, at the rigid a rule, the Court being aware that it was laying down a new restriction on executive
very least, issued a subpoena duces tecum or, like what the Senate did in Senate v. Ermita, privilege. It is with the same spirit that the Court should not be overly strict with applying the
filed the present petition as a legislative body, rather than leaving it to the discretion of same rule in this peculiar instance, where the claim of executive privilege occurred before the
individual Congressmen whether to pursue an action or not. Such acts would have served as judgment in Senate v. Ermita became final.
strong indicia that Congress itself finds the subject information to be critical to its legislative 5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent
functions. implies that the Court therein erred in citing US v. Curtiss Wright72 and the book entitled The
Further, given that respondents have claimed executive privilege, petitioner-members of the New American Government and Its Work73 since these authorities, so the dissent claims, may
House of Representatives should have, at least, shown how its lack of access to the Philippine not be used to calibrate the importance of the right to information in the Philippine setting.
and Japanese offers would hinder the intelligent crafting of legislation. Mere assertion that The dissent argues that since Curtiss-Wright referred to a conflict between the executive and
the JPEPA covers a subject matter over which Congress has the power to legislate would not legislative branches of government, the factual setting thereof was different from that of
suffice. As Senate Select Committee v. Nixon68 held, the showing required to overcome the PMPF v. Manglapus which involved a collision between governmental power over the
presumption favoring confidentiality turns, not only on the nature and appropriateness of the conduct of foreign affairs and the citizen’s right to information.
function in the performance of which the material was sought, but also the degree to which That the Court could freely cite Curtiss-Wright – a case that upholds the secrecy of diplomatic
the material was necessary to its fulfillment. This petitioners failed to do. negotiations against congressional demands for information – in the course of laying down a
Furthermore, from the time the final text of the JPEPA including its annexes and attachments ruling on the public right to information only serves to underscore the principle mentioned
was published, petitioner-members of the House of Representatives have been free to use it earlier that the privileged character accorded to diplomatic negotiations does not ipso facto
for any legislative purpose they may see fit. Since such publication, petitioners’ need, if any, lose all force and effect simply because the same privilege is now being claimed under
specifically for the Philippine and Japanese offers leading to the final version of the JPEPA, has different circumstances.
become even less apparent. PMPF v. Manglapus indeed involved a demand for information from private citizens and not
In asserting that the balance in this instance tilts in favor of disclosing the JPEPA documents, an executive-legislative conflict, but so did Chavez v. PEA74 which held that "the [public’s] right
the dissent contends that the Executive has failed to show how disclosing them after the to information . . . does not extend to matters recognized as privileged information under the
conclusion of negotiations would impair the performance of its functions. The contention, separation of powers." What counts as privileged information in an executive-legislative
with due respect, misplaces the onus probandi. While, in keeping with the general conflict is thus also recognized as such in cases involving the public’s right to information.
presumption of transparency, the burden is initially on the Executive to provide precise and Chavez v. PCGG75 also involved the public’s right to information, yet the Court recognized as a
certain reasons for upholding its claim of privilege, once the Executive is able to show that the valid limitation to that right the same privileged information based on separation of powers –
documents being sought are covered by a recognized privilege, the burden shifts to the party closed-door Cabinet meetings, executive sessions of either house of Congress, and the
seeking information to overcome the privilege by a strong showing of need. internal deliberations of the Supreme Court.
When it was thus established that the JPEPA documents are covered by the privilege for These cases show that the Court has always regarded claims of privilege, whether in the
diplomatic negotiations pursuant to PMPF v. Manglapus, the presumption arose that their context of an executive-legislative conflict or a citizen’s demand for information, as closely
disclosure would impair the performance of executive functions. It was then incumbent on intertwined, such that the principles applicable to one are also applicable to the other.

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The reason is obvious. If the validity of claims of privilege were to be assessed by entirely Given that the dissent has clarified that it does not seek to apply the "clear and present
different criteria in each context, this may give rise to the absurd result where Congress danger" test to the present controversy, but the balancing test, there seems to be no
would be denied access to a particular information because of a claim of executive privilege, substantial dispute between the position laid down in this ponencia and that reflected in the
but the general public would have access to the same information, the claim of privilege dissent as to what test to apply. It would appear that the only disagreement is on the results
notwithstanding. of applying that test in this instance.
Absurdity would be the ultimate result if, for instance, the Court adopts the "clear and The dissent, nonetheless, maintains that "it suffices that information is of public concern for it
present danger" test for the assessment of claims of privilege against citizens’ demands for to be covered by the right, regardless of the public’s need for the information," and that the
information. If executive information, when demanded by a citizen, is privileged only when same would hold true even "if they simply want to know it because it interests them." As has
there is a clear and present danger of a substantive evil that the State has a right to prevent, been stated earlier, however, there is no dispute that the information subject of this case is a
it would be very difficult for the Executive to establish the validity of its claim in each instance. matter of public concern. The Court has earlier concluded that it is a matter of public concern,
In contrast, if the demand comes from Congress, the Executive merely has to show that the not on the basis of any specific need shown by petitioners, but from the very nature of the
information is covered by a recognized privilege in order to shift the burden on Congress to JPEPA as an international trade agreement.
present a strong showing of need. This would lead to a situation where it would be more However, when the Executive has – as in this case – invoked the privilege, and it has been
difficult for Congress to access executive information than it would be for private citizens. established that the subject information is indeed covered by the privilege being claimed, can
We maintain then that when the Executive has already shown that an information is covered a party overcome the same by merely asserting that the information being demanded is a
by executive privilege, the party demanding the information must present a "strong showing matter of public concern, without any further showing required? Certainly not, for that would
of need," whether that party is Congress or a private citizen. render the doctrine of executive privilege of no force and effect whatsoever as a limitation on
The rule that the same "showing of need" test applies in both these contexts, however, the right to information, because then the sole test in such controversies would be whether
should not be construed as a denial of the importance of analyzing the context in which an an information is a matter of public concern.
executive privilege controversy may happen to be placed. Rather, it affirms it, for it means Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing the
that the specific need being shown by the party seeking information in every particular documents of the JPEPA negotiations, the Philippine government runs the grave risk of
instance is highly significant in determining whether to uphold a claim of privilege. This betraying the trust reposed in it by the Japanese representatives, indeed, by the Japanese
"need" is, precisely, part of the context in light of which every claim of privilege should be government itself. How would the Philippine government then explain itself when that
assessed. happens? Surely, it cannot bear to say that it just had to release the information because
Since, as demonstrated above, there are common principles that should be applied to certain persons simply wanted to know it "because it interests them."
executive privilege controversies across different contexts, the Court in PMPF v. Manglapus Thus, the Court holds that, in determining whether an information is covered by the right to
did not err when it cited the Curtiss-Wright case. information, a specific "showing of need" for such information is not a relevant consideration,
The claim that the book cited in PMPF v. Manglapus entitled The New American Government but only whether the same is a matter of public concern. When, however, the government
and Its Work could not have taken into account the expanded statutory right to information has claimed executive privilege, and it has established that the information is indeed covered
in the FOIA assumes that the observations in that book in support of the confidentiality of by the same, then the party demanding it, if it is to overcome the privilege, must show that
treaty negotiations would be different had it been written after the FOIA. Such assumption is, that the information is vital, not simply for the satisfaction of its curiosity, but for its ability to
with due respect, at best, speculative. effectively and reasonably participate in social, political, and economic decision-making. 79
As to the claim in the dissent that "[i]t is more doubtful if the same book be used to calibrate 7. The dissent maintains that "[t]he treaty has thus entered the ultimate stage where the
the importance of the right of access to information in the Philippine setting considering its people can exercise their right to participate in the discussion whether the Senate should
elevation as a constitutional right," we submit that the elevation of such right as a concur in its ratification or not." (Emphasis supplied) It adds that this right "will be diluted
constitutional right did not set it free from the legitimate restrictions of executive privilege unless the people can have access to the subject JPEPA documents". What, to the dissent, is a
which is itself constitutionally-based.76 Hence, the comments in that book which were cited in dilution of the right to participate in decision-making is, to Us, simply a recognition of the
PMPF v. Manglapus remain valid doctrine. qualified nature of the public’s right to information. It is beyond dispute that the right to
6. The dissent further asserts that the Court has never used "need" as a test to uphold or information is not absolute and that the doctrine of executive privilege is a recognized
allow inroads into rights guaranteed under the Constitution. With due respect, we assert limitation on that right.
otherwise. The Court has done so before, albeit without using the term "need." Moreover, contrary to the submission that the right to participate in decision-making would
In executive privilege controversies, the requirement that parties present a "sufficient be diluted, We reiterate that our people have been exercising their right to participate in the
showing of need" only means, in substance, that they should show a public interest in favor of discussion on the issue of the JPEPA, and they have been able to articulate their different
disclosure sufficient in degree to overcome the claim of privilege.77 Verily, the Court in such opinions without need of access to the JPEPA negotiation documents.
cases engages in a balancing of interests. Such a balancing of interests is certainly not new in Thus, we hold that the balance in this case tilts in favor of executive privilege.
constitutional adjudication involving fundamental rights. Secretary of Justice v. Lantion,78 8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select Committee
which was cited in the dissent, applied just such a test. 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

65
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.
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.

66
 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,
EN BANC unless such tribunal has been established by the UN Security Council, or
G.R. No. 159618               February 1, 2011 (b) be surrendered or transferred by any means to any other entity or third country, or
BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep. expelled to a third country, for the purpose of surrender to or transfer to any international
LIZA L. MAZA, Petitioner, tribunal, unless such tribunal has been established by the UN Security Council.
vs. 3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to
ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity a third country, the [US] will not agree to the surrender or transfer of that person by the third
as Secretary of Foreign Affairs, Respondents. country to any international tribunal, unless such tribunal has been established by the UN

67
Security Council, absent the express consent of the Government of the Republic of the III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT THE
Philippines [GRP]. CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE x x x.11
4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a The foregoing issues may be summarized into two: first, whether or not the Agreement was
third country, the [GRP] will not agree to the surrender or transfer of that person by the third contracted validly, which resolves itself into the question of whether or not respondents
country to any international tribunal, unless such tribunal has been established by the UN gravely abused their discretion in concluding it; and second, whether or not the Agreement,
Security Council, absent the express consent of the Government of the [US]. which has not been submitted to the Senate for concurrence, contravenes and undermines
5. This Agreement shall remain in force until one year after the date on which one party the Rome Statute and other treaties. But because respondents expectedly raised it, we shall
notifies the other of its intent to terminate the Agreement. The provisions of this Agreement first tackle the issue of petitioner’s legal standing.
shall continue to apply with respect to any act occurring, or any allegation arising, before the The Court’s Ruling
effective date of termination. This petition is bereft of merit.
In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non- Procedural Issue: Locus Standi of Petitioner
surrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that Petitioner, through its three party-list representatives, contends that the issue of the validity
the exchange of diplomatic notes constituted a legally binding agreement under international or invalidity of the Agreement carries with it constitutional significance and is of paramount
law; and that, under US law, the said agreement did not require the advice and consent of the importance that justifies its standing. Cited in this regard is what is usually referred to as the
US Senate.10 emergency powers cases,12 in which ordinary citizens and taxpayers were accorded the
In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding personality to question the constitutionality of executive issuances.
and ratifying the Agreement and prays that it be struck down as unconstitutional, or at least Locus standi is "a right of appearance in a court of justice on a given question."13 Specifically,
declared as without force and effect. it is "a party’s personal and substantial interest in a case where he has sustained or will
For their part, respondents question petitioner’s standing to maintain a suit and counter that sustain direct injury as a result"14 of the act being challenged, and "calls for more than just a
the Agreement, being in the nature of an executive agreement, does not require Senate generalized grievance."15 The term "interest" refers to material interest, as distinguished from
concurrence for its efficacy. And for reasons detailed in their comment, respondents assert one that is merely incidental.16 The rationale for requiring a party who challenges the validity
the constitutionality of the Agreement. of a law or international agreement to allege such a personal stake in the outcome of the
The Issues controversy is "to assure the concrete adverseness which sharpens the presentation of issues
I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY ABUSED THEIR upon which the court so largely depends for illumination of difficult constitutional
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR CONCLUDING THE RP- questions."17
US NON SURRENDER AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13 MAY 2003, Locus standi, however, is merely a matter of procedure and it has been recognized that, in
WHEN THE PHILIPPINE GOVERNMENT HAS ALREADY SIGNED THE ROME STATUTE OF THE some cases, suits are not brought by parties who have been personally injured by the
[ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE PHILIPPINE SENATE. operation of a law or any other government act, but by concerned citizens, taxpayers, or
A. Whether by entering into the x x x Agreement Respondents gravely abused their discretion voters who actually sue in the public interest.18 Consequently, in a catena of cases,19 this Court
when they capriciously abandoned, waived and relinquished our only legitimate recourse has invariably adopted a liberal stance on locus standi.
through the Rome Statute of the [ICC] to prosecute and try "persons" as defined in the x x x Going by the petition, petitioner’s representatives pursue the instant suit primarily as
Agreement, x x x or literally any conduit of American interests, who have committed crimes of concerned citizens raising issues of transcendental importance, both for the Republic and the
genocide, crimes against humanity, war crimes and the crime of aggression, thereby citizenry as a whole.
abdicating Philippine Sovereignty. When suing as a citizen to question the validity of a law or other government action, a
B. Whether after the signing and pending ratification of the Rome Statute of the [ICC] the [RP] petitioner needs to meet certain specific requirements before he can be clothed with
President and the [DFA] Secretary x x x are obliged by the principle of good faith to refrain standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang
from doing all acts which would substantially impair the value of the undertaking as signed. Pilipino, Inc.20 expounded on this requirement, thus:
C. Whether the x x x Agreement constitutes an act which defeats the object and purpose of In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
the Rome Statute of the International Criminal Court and contravenes the obligation of good requirements have been met have been given standing by this Court.
faith inherent in the signature of the President affixed on the Rome Statute of the When suing as a citizen, the interest of the petitioner assailing the constitutionality of a
International Criminal Court, and if so whether the x x x Agreement is void and unenforceable statute must be direct and personal. He must be able to show, not only that the law or any
on this ground. government act is invalid, but also that he sustained or is in imminent danger of sustaining
D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave abuse some direct injury as a result of its enforcement, and not merely that he suffers thereby in
of discretion amounting to lack or excess of jurisdiction in connection with its execution. some indefinite way. It must appear that the person complaining has been or is about to be
II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR CONTRACTING denied some right or privilege to which he is lawfully entitled or that he is about to be
OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT VARIANCE WITH UNIVERSALLY subjected to some burdens or penalties by reason of the statute or act complained of. In fine,
RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW. 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

68
In the case at bar, petitioner’s representatives have complied with the qualifying conditions The point where ordinary correspondence between this and other governments ends and
or specific requirements exacted under the locus standi rule. As citizens, their interest in the agreements – whether denominated executive agreements or exchange of notes or otherwise
subject matter of the petition is direct and personal. At the very least, their assertions – begin, may sometimes be difficult of ready ascertainment.31 x x x
questioning the Agreement are made of a public right, i.e., to ascertain that the Agreement It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the
did not go against established national policies, practices, and obligations bearing on the Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as
State’s obligation to the community of nations. consent to be bound––is a recognized mode of concluding a legally binding international
At any event, the primordial importance to Filipino citizens in general of the issue at hand written contract among nations.
impels the Court to brush aside the procedural barrier posed by the traditional requirement Senate Concurrence Not Required
of locus standi, as we have done in a long line of earlier cases, notably in the old but oft-cited Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an international
emergency powers cases22 and Kilosbayan v. Guingona, Jr.23 In cases of transcendental agreement concluded between states in written form and governed by international law,
importance, we wrote again in Bayan v. Zamora,24 "The Court may relax the standing whether embodied in a single instrument or in two or more related instruments and
requirements and allow a suit to prosper even where there is no direct injury to the party whatever its particular designation."32 International agreements may be in the form of (1)
claiming the right of judicial review." treaties that require legislative concurrence after executive ratification; or (2) executive
Moreover, bearing in mind what the Court said in Tañada v. Angara, "that it will not shirk, agreements that are similar to treaties, except that they do not require legislative
digress from or abandon its sacred duty and authority to uphold the Constitution in matters concurrence and are usually less formal and deal with a narrower range of subject matters
that involve grave abuse of discretion brought before it in appropriate cases, committed by than treaties.33
any officer, agency, instrumentality or department of the government,"25 we cannot but Under international law, there is no difference between treaties and executive agreements in
resolve head on the issues raised before us. Indeed, where an action of any branch of terms of their binding effects on the contracting states concerned,34 as long as the negotiating
government is seriously alleged to have infringed the Constitution or is done with grave abuse functionaries have remained within their powers.35 Neither, on the domestic sphere, can one
of discretion, it becomes not only the right but in fact the duty of the judiciary to settle it. As be held valid if it violates the Constitution.36 Authorities are, however, agreed that one is
in this petition, issues are precisely raised putting to the fore the propriety of the Agreement distinct from another for accepted reasons apart from the concurrence-requirement aspect. 37
pending the ratification of the Rome Statute. As has been observed by US constitutional scholars, a treaty has greater "dignity" than an
Validity of the RP-US Non-Surrender Agreement executive agreement, because its constitutional efficacy is beyond doubt, a treaty having
Petitioner’s initial challenge against the Agreement relates to form, its threshold posture behind it the authority of the President, the Senate, and the people;38 a ratified treaty, unlike
being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement. an executive agreement, takes precedence over any prior statutory enactment. 39
Petitioners’ contention––perhaps taken unaware of certain well-recognized international Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of
doctrines, practices, and jargons––is untenable. One of these is the doctrine of incorporation, the nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner takes a
as expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the cue from Commissioner of Customs v. Eastern Sea Trading, in which the Court reproduced the
generally accepted principles of international law and international jurisprudence as part of following observations made by US legal scholars: "[I]nternational agreements involving
the law of the land and adheres to the policy of peace, cooperation, and amity with all political issues or changes of national policy and those involving international arrangements
nations.26 An exchange of notes falls "into the category of inter-governmental agreements," 27 of a permanent character usually take the form of treaties [while] those embodying
which is an internationally accepted form of international agreement. The United Nations adjustments of detail carrying out well established national policies and traditions and those
Treaty Collections (Treaty Reference Guide) defines the term as follows: involving arrangements of a more or less temporary nature take the form of executive
An "exchange of notes" is a record of a routine agreement, that has many similarities with the agreements." 40
private law contract. The agreement consists of the exchange of two documents, each of the Pressing its point, petitioner submits that the subject of the Agreement does not fall under
parties being in the possession of the one signed by the representative of the other. Under any of the subject-categories that are enumerated in the Eastern Sea Trading case, and that
the usual procedure, the accepting State repeats the text of the offering State to record its may be covered by an executive agreement, such as commercial/consular relations, most-
assent. The signatories of the letters may be government Ministers, diplomats or favored nation rights, patent rights, trademark and copyright protection, postal and
departmental heads. The technique of exchange of notes is frequently resorted to, either navigation arrangements and settlement of claims.
because of its speedy procedure, or, sometimes, to avoid the process of legislative approval. 28 In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales
In another perspective, the terms "exchange of notes" and "executive agreements" have been and Merchant,41 holding that an executive agreement through an exchange of notes cannot
used interchangeably, exchange of notes being considered a form of executive agreement be used to amend a treaty.
that becomes binding through executive action.29 On the other hand, executive agreements We are not persuaded.
concluded by the President "sometimes take the form of exchange of notes and at other The categorization of subject matters that may be covered by international agreements
times that of more formal documents denominated ‘agreements’ or ‘protocols.’" 30 As former mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the
US High Commissioner to the Philippines Francis B. Sayre observed in his work, The propriety of entering, on a given subject, into a treaty or an executive agreement as an
Constitutionality of Trade Agreement Acts: 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

69
they so wish to further their respective interests. Verily, the matter of form takes a back seat The Agreement Not in Contravention of the Rome Statute
when it comes to effectiveness and binding effect of the enforcement of a treaty or an It is the petitioner’s next contention that the Agreement undermines the establishment of the
executive agreement, as the parties in either international agreement each labor under the ICC and is null and void insofar as it unduly restricts the ICC’s jurisdiction and infringes upon
pacta sunt servanda42 principle. the effectivity of the Rome Statute. Petitioner posits that the Agreement was constituted
As may be noted, almost half a century has elapsed since the Court rendered its decision in solely for the purpose of providing individuals or groups of individuals with immunity from the
Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex and jurisdiction of the ICC; and such grant of immunity through non-surrender agreements
the domain of international law wider, as to include such subjects as human rights, the allegedly does not legitimately fall within the scope of Art. 98 of the Rome Statute. It
environment, and the sea. In fact, in the US alone, the executive agreements executed by its concludes that state parties with non-surrender agreements are prevented from meeting
President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation, their obligations under the Rome Statute, thereby constituting a breach of Arts. 27, 50 86,51
aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and 8952 and 9053 thereof.
nuclear safety, among others.43 Surely, the enumeration in Eastern Sea Trading cannot Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that
circumscribe the option of each state on the matter of which the international agreement those responsible for the worst possible crimes are brought to justice in all cases, primarily by
format would be convenient to serve its best interest. As Francis Sayre said in his work states, but as a last resort, by the ICC; thus, any agreement—like the non-surrender
referred to earlier: agreement—that precludes the ICC from exercising its complementary function of acting
x x x It would be useless to undertake to discuss here the large variety of executive when a state is unable to or unwilling to do so, defeats the object and purpose of the Rome
agreements as such concluded from time to time. Hundreds of executive agreements, other Statute.
than those entered into under the trade-agreement act, have been negotiated with foreign Petitioner would add that the President and the DFA Secretary, as representatives of a
governments. x x x They cover such subjects as the inspection of vessels, navigation dues, signatory of the Rome Statute, are obliged by the imperatives of good faith to refrain from
income tax on shipping profits, the admission of civil air craft, custom matters and commercial performing acts that substantially devalue the purpose and object of the Statute, as signed.
relations generally, international claims, postal matters, the registration of trademarks and Adding a nullifying ingredient to the Agreement, according to petitioner, is the fact that it has
copyrights, etc. x x x an immoral purpose or is otherwise at variance with a priorly executed treaty.
And lest it be overlooked, one type of executive agreement is a treaty-authorized44 or a Contrary to petitioner’s pretense, the Agreement does not contravene or undermine, nor
treaty-implementing executive agreement,45 which necessarily would cover the same matters does it differ from, the Rome Statute. Far from going against each other, one complements
subject of the underlying treaty. the other. As a matter of fact, the principle of complementarity underpins the creation of the
But over and above the foregoing considerations is the fact that––save for the situation and ICC. As aptly pointed out by respondents and admitted by petitioners, the jurisdiction of the
matters contemplated in Sec. 25, Art. XVIII of the Constitution46––when a treaty is required, ICC is to "be complementary to national criminal jurisdictions [of the signatory states]." 54 Art.
the Constitution does not classify any subject, like that involving political issues, to be in the 1 of the Rome Statute pertinently provides:
form of, and ratified as, a treaty. What the Constitution merely prescribes is that treaties Article 1
need the concurrence of the Senate by a vote defined therein to complete the ratification The Court
process. An International Crimininal Court ("the Court") is hereby established. It x x x shall have the
Petitioner’s reliance on Adolfo47 is misplaced, said case being inapplicable owing to different power to exercise its jurisdiction over persons for the most serious crimes of international
factual milieus. There, the Court held that an executive agreement cannot be used to amend concern, as referred to in this Statute, and shall be complementary to national criminal
a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement that jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions
does not require the concurrence of the Senate for its ratification may not be used to amend of this Statute. (Emphasis ours.)
a treaty that, under the Constitution, is the product of the ratifying acts of the Executive and Significantly, the sixth preambular paragraph of the Rome Statute declares that "it is the duty
the Senate. The presence of a treaty, purportedly being subject to amendment by an of every State to exercise its criminal jurisdiction over those responsible for international
executive agreement, does not obtain under the premises. crimes." This provision indicates that primary jurisdiction over the so-called international
Considering the above discussion, the Court need not belabor at length the third main issue crimes rests, at the first instance, with the state where the crime was committed; secondarily,
raised, referring to the validity and effectivity of the Agreement without the concurrence by with the ICC in appropriate situations contemplated under Art. 17, par. 155 of the Rome
at least two-thirds of all the members of the Senate. The Court has, in Eastern Sea Trading,48 Statute.
as reiterated in Bayan,49 given recognition to the obligatory effect of executive agreements Of particular note is the application of the principle of ne bis in idem56 under par. 3 of Art. 20,
without the concurrence of the Senate: Rome Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that
x x x [T]he right of the Executive to enter into binding agreements without the necessity of of the ICC. As far as relevant, the provision states that "no person who has been tried by
subsequent Congressional approval has been confirmed by long usage. From the earliest days another court for conduct x x x [constituting crimes within its jurisdiction] shall be tried by the
of our history, we have entered executive agreements covering such subjects as commercial [International Criminal] Court with respect to the same conduct x x x."
and consular relations, most favored-nation rights, patent rights, trademark and copyright The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of
protection, postal and navigation arrangements and the settlement of claims. The validity of jurisdictional conflict between the Philippines, as party to the non-surrender agreement, and
these has never been seriously questioned by our courts. the ICC; or the idea of the Agreement substantially impairing the value of the RP’s

70
undertaking under the Rome Statute. Ignoring for a while the fact that the RP signed the Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by
Rome Statute ahead of the Agreement, it is abundantly clear to us that the Rome Statute bargaining away the jurisdiction of the ICC to prosecute US nationals, government
expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes officials/employees or military personnel who commit serious crimes of international
committed within their respective borders, the complementary jurisdiction of the ICC coming concerns in the Philippines. Formulating petitioner’s argument a bit differently, the RP, by
into play only when the signatory states are unwilling or unable to prosecute. entering into the Agreement, does thereby abdicate its sovereignty, abdication being done by
Given the above consideration, petitioner’s suggestion––that the RP, by entering into the its waiving or abandoning its right to seek recourse through the Rome Statute of the ICC for
Agreement, violated its duty required by the imperatives of good faith and breached its erring Americans committing international crimes in the country.
commitment under the Vienna Convention57 to refrain from performing any act tending to We are not persuaded. As it were, the Agreement is but a form of affirmance and
impair the value of a treaty, e.g., the Rome Statute––has to be rejected outright. For nothing confirmance of the Philippines’ national criminal jurisdiction. National criminal jurisdiction
in the provisions of the Agreement, in relation to the Rome Statute, tends to diminish the being primary, as explained above, it is always the responsibility and within the prerogative of
efficacy of the Statute, let alone defeats the purpose of the ICC. Lest it be overlooked, the the RP either to prosecute criminal offenses equally covered by the Rome Statute or to
Rome Statute contains a proviso that enjoins the ICC from seeking the surrender of an erring accede to the jurisdiction of the ICC. Thus, the Philippines may decide to try "persons" of the
person, should the process require the requested state to perform an act that would violate US, as the term is understood in the Agreement, under our national criminal justice system.
some international agreement it has entered into. We refer to Art. 98(2) of the Rome Statute, Or it may opt not to exercise its criminal jurisdiction over its erring citizens or over US
which reads: "persons" committing high crimes in the country and defer to the secondary criminal
Article 98 jurisdiction of the ICC over them. As to "persons" of the US whom the Philippines refuses to
Cooperation with respect to waiver of immunity prosecute, the country would, in effect, accord discretion to the US to exercise either its
and consent to surrender national criminal jurisdiction over the "person" concerned or to give its consent to the referral
xxxx of the matter to the ICC for trial. In the same breath, the US must extend the same privilege
2. The Court may not proceed with a request for surrender which would require the to the Philippines with respect to "persons" of the RP committing high crimes within US
requested State to act inconsistently with its obligations under international agreements territorial jurisdiction.
pursuant to which the consent of a sending State is required to surrender a person of that In the context of the Constitution, there can be no serious objection to the Philippines
State to the Court, unless the Court can first obtain the cooperation of the sending State for agreeing to undertake the things set forth in the Agreement. Surely, one State can agree to
the giving of consent for the surrender. waive jurisdiction—to the extent agreed upon—to subjects of another State due to the
Moreover, under international law, there is a considerable difference between a State-Party recognition of the principle of extraterritorial immunity. What the Court wrote in Nicolas v.
and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory Romulo59—a case involving the implementation of the criminal jurisdiction provisions of the
state is only obliged to refrain from acts which would defeat the object and purpose of a RP-US Visiting Forces Agreement—is apropos:
treaty;58 whereas a State-Party, on the other hand, is legally obliged to follow all the Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction
provisions of a treaty in good faith. or some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of
In the instant case, it bears stressing that the Philippines is only a signatory to the Rome such immunity like Heads of State, diplomats and members of the armed forces contingents
Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to of a foreign State allowed to enter another State’s territory. x x x
refrain from acts which would defeat the object and purpose of the Rome Statute. Any To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the
argument obliging the Philippines to follow any provision in the treaty would be premature. postulate that some of its provisions constitute a virtual abdication of its sovereignty. Almost
As a result, petitioner’s argument that State-Parties with non-surrender agreements are every time a state enters into an international agreement, it voluntarily sheds off part of its
prevented from meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89 sovereignty. The Constitution, as drafted, did not envision a reclusive Philippines isolated
and 90, must fail. These articles are only legally binding upon State-Parties, not signatories. from the rest of the world. It even adheres, as earlier stated, to the policy of cooperation and
Furthermore, a careful reading of said Art. 90 would show that the Agreement is not amity with all nations.60
incompatible with the Rome Statute. Specifically, Art. 90(4) provides that "[i]f the requesting By their nature, treaties and international agreements actually have a limiting effect on the
State is a State not Party to this Statute the requested State, if it is not under an international otherwise encompassing and absolute nature of sovereignty. By their voluntary act, nations
obligation to extradite the person to the requesting State, shall give priority to the request for may decide to surrender or waive some aspects of their state power or agree to limit the
surrender from the Court. x x x" In applying the provision, certain undisputed facts should be exercise of their otherwise exclusive and absolute jurisdiction. The usual underlying
pointed out: first, the US is neither a State-Party nor a signatory to the Rome Statute; and consideration in this partial surrender may be the greater benefits derived from a pact or a
second, there is an international agreement between the US and the Philippines regarding reciprocal undertaking of one contracting party to grant the same privileges or immunities to
extradition or surrender of persons, i.e., the Agreement. Clearly, even assuming that the the other. On the rationale that the Philippines has adopted the generally accepted principles
Philippines is a State-Party, the Rome Statute still recognizes the primacy of international of international law as part of the law of the land, a portion of sovereignty may be waived
agreements entered into between States, even when one of the States is not a State-Party to without violating the Constitution.61 Such waiver does not amount to an unconstitutional
the Rome Statute. diminution or deprivation of jurisdiction of Philippine courts.62
Sovereignty Limited by International Agreements

71
Agreement Not Immoral/Not at Variance In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria
with Principles of International Law Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of
Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral the authority and discretion vested in her by the Constitution. At the end of the day, the
obligations and/or being at variance with allegedly universally recognized principles of President––by ratifying, thru her deputies, the non-surrender agreement––did nothing more
international law. The immoral aspect proceeds from the fact that the Agreement, as than discharge a constitutional duty and exercise a prerogative that pertains to her office.
petitioner would put it, "leaves criminals immune from responsibility for unimaginable While the issue of ratification of the Rome Statute is not determinative of the other issues
atrocities that deeply shock the conscience of humanity; x x x it precludes our country from raised herein, it may perhaps be pertinent to remind all and sundry that about the time this
delivering an American criminal to the [ICC] x x x."63 petition was interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Office of
The above argument is a kind of recycling of petitioner’s earlier position, which, as already the Executive Secretary. 67 As the Court emphasized in said case, the power to ratify a treaty,
discussed, contends that the RP, by entering into the Agreement, virtually abdicated its the Statute in that instance, rests with the President, subject to the concurrence of the
sovereignty and in the process undermined its treaty obligations under the Rome Statute, Senate, whose role relative to the ratification of a treaty is limited merely to concurring in or
contrary to international law principles.64 withholding the ratification. And concomitant with this treaty-making power of the President
The Court is not persuaded. Suffice it to state in this regard that the non-surrender is his or her prerogative to refuse to submit a treaty to the Senate; or having secured the
agreement, as aptly described by the Solicitor General, "is an assertion by the Philippines of latter’s consent to the ratification of the treaty, refuse to ratify it. 68 This prerogative, the Court
its desire to try and punish crimes under its national law. x x x The agreement is a recognition hastened to add, is the President’s alone and cannot be encroached upon via a writ of
of the primacy and competence of the country’s judiciary to try offenses under its national mandamus. Barring intervening events, then, the Philippines remains to be just a signatory to
criminal laws and dispense justice fairly and judiciously." the Rome Statute. Under Art. 12569 thereof, the final acts required to complete the treaty
Petitioner, we believe, labors under the erroneous impression that the Agreement would process and, thus, bring it into force, insofar as the Philippines is concerned, have yet to be
allow Filipinos and Americans committing high crimes of international concern to escape done.
criminal trial and punishment. This is manifestly incorrect. Persons who may have committed Agreement Need Not Be in the Form of a Treaty
acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851,
in the US; or with the consent of the RP or the US, before the ICC, assuming, for the nonce, otherwise known as the "Philippine Act on Crimes Against International Humanitarian Law,
that all the formalities necessary to bind both countries to the Rome Statute have been met. Genocide, and Other Crimes Against Humanity." Sec. 17 of RA 9851, particularly the second
For perspective, what the Agreement contextually prohibits is the surrender by either party of paragraph thereof, provides:
individuals to international tribunals, like the ICC, without the consent of the other party, Section 17. Jurisdiction. – x x x x
which may desire to prosecute the crime under its existing laws. With the view we take of In the interest of justice, the relevant Philippine authorities may dispense with the
things, there is nothing immoral or violative of international law concepts in the act of the investigation or prosecution of a crime punishable under this Act if another court or
Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over international tribunal is already conducting the investigation or undertaking the prosecution
an offense considered criminal by both Philippine laws and the Rome Statute. of such crime. Instead, the authorities may surrender or extradite suspected or accused
No Grave Abuse of Discretion persons in the Philippines to the appropriate international court, if any, or to another State
Petitioner’s final point revolves around the necessity of the Senate’s concurrence in the pursuant to the applicable extradition laws and treaties. (Emphasis supplied.)
Agreement. And without specifically saying so, petitioner would argue that the non-surrender A view is advanced that the Agreement amends existing municipal laws on the State’s
agreement was executed by the President, thru the DFA Secretary, in grave abuse of obligation in relation to grave crimes against the law of nations, i.e., genocide, crimes against
discretion. humanity and war crimes. Relying on the above-quoted statutory proviso, the view posits that
The Court need not delve on and belabor the first portion of the above posture of petitioner, the Philippine is required to surrender to the proper international tribunal those persons
the same having been discussed at length earlier on. As to the second portion, We wish to accused of the grave crimes defined under RA 9851, if it does not exercise its primary
state that petitioner virtually faults the President for performing, through respondents, a task jurisdiction to prosecute them.
conferred the President by the Constitution—the power to enter into international The basic premise rests on the interpretation that if it does not decide to prosecute a foreign
agreements. national for violations of RA 9851, the Philippines has only two options, to wit: (1) surrender
By constitutional fiat and by the nature of his or her office, the President, as head of state and the accused to the proper international tribunal; or (2) surrender the accused to another
government, is the sole organ and authority in the external affairs of the country. 65 The State if such surrender is "pursuant to the applicable extradition laws and treaties." But the
Constitution vests in the President the power to enter into international agreements, subject, Philippines may exercise these options only in cases where "another court or international
in appropriate cases, to the required concurrence votes of the Senate. But as earlier tribunal is already conducting the investigation or undertaking the prosecution of such
indicated, executive agreements may be validly entered into without such concurrence. As crime;" otherwise, the Philippines must prosecute the crime before its own courts pursuant
the President wields vast powers and influence, her conduct in the external affairs of the to RA 9851.
nation is, as Bayan would put it, "executive altogether." The right of the President to enter Posing the situation of a US national under prosecution by an international tribunal for any
into or ratify binding executive agreements has been confirmed by long practice.66 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

72
that this option of the Philippines under Sec. 17 of RA 9851 is not subject to the consent of statutory construction that the word "may" denotes discretion, and cannot be construed as
the US, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the US having mandatory effect.73 Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is
before the Philippines can exercise such option, requires an amendatory law. In line with this simply permissive on the part of the Philippine State.1avvphi1
scenario, the view strongly argues that the Agreement prevents the Philippines—without the Besides, even granting that the surrender of a person is mandatorily required when the
consent of the US—from surrendering to any international tribunal US nationals accused of Philippines does not exercise its primary jurisdiction in cases where "another court or
crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851. Consequently, the international tribunal is already conducting the investigation or undertaking the prosecution
view is strongly impressed that the Agreement cannot be embodied in a simple executive of such crime," still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said
agreement in the form of an exchange of notes but must be implemented through an legal proviso aptly provides that the surrender may be made "to another State pursuant to
extradition law or a treaty with the corresponding formalities. the applicable extradition laws and treaties." The Agreement can already be considered a
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where treaty following this Court’s decision in Nicolas v. Romulo74 which cited Weinberger v. Rossi. 75
the Philippines adopts, as a national policy, the "generally accepted principles of international In Nicolas, We held that "an executive agreement is a ‘treaty’ within the meaning of that
law as part of the law of the land," the Court is further impressed to perceive the Rome word in international law and constitutes enforceable domestic law vis-à-vis the United
Statute as declaratory of customary international law. In other words, the Statute embodies States."76
principles of law which constitute customary international law or custom and for which Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US
reason it assumes the status of an enforceable domestic law in the context of the aforecited Extradition Treaty, which was executed on November 13, 1994. The pertinent Philippine law,
constitutional provision. As a corollary, it is argued that any derogation from the Rome on the other hand, is Presidential Decree No. 1069, issued on January 13, 1977. Thus, the
Statute principles cannot be undertaken via a mere executive agreement, which, as an Agreement, in conjunction with the RP-US Extradition Treaty, would neither violate nor run
exclusive act of the executive branch, can only implement, but cannot amend or repeal, an counter to Sec. 17 of RA 9851.
existing law. The Agreement, so the argument goes, seeks to frustrate the objects of the The view’s reliance on Suplico v. Neda77 is similarly improper. In that case, several petitions
principles of law or alters customary rules embodied in the Rome Statute. were filed questioning the power of the President to enter into foreign loan agreements.
Prescinding from the foregoing premises, the view thus advanced considers the Agreement However, before the petitions could be resolved by the Court, the Office of the Solicitor
inefficacious, unless it is embodied in a treaty duly ratified with the concurrence of the General filed a Manifestation and Motion averring that the Philippine Government decided
Senate, the theory being that a Senate- ratified treaty partakes of the nature of a municipal not to continue with the ZTE National Broadband Network Project, thus rendering the
law that can amend or supersede another law, in this instance Sec. 17 of RA 9851 and the petition moot. In resolving the case, the Court took judicial notice of the act of the executive
status of the Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of department of the Philippines (the President) and found the petition to be indeed moot.
the Constitution. Accordingly, it dismissed the petitions.
We are unable to lend cogency to the view thus taken. For one, we find that the Agreement In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of
does not amend or is repugnant to RA 9851. For another, the view does not clearly state what an executive agreement. He stated that "an executive agreement has the force and effect of
precise principles of law, if any, the Agreement alters. And for a third, it does not law x x x [it] cannot amend or repeal prior laws."78 Hence, this argument finds no application
demonstrate in the concrete how the Agreement seeks to frustrate the objectives of the in this case seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument
principles of law subsumed in the Rome Statute. cannot be found in the ratio decidendi of the case, but only in the dissenting opinion.
Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the
former merely reinforces the primacy of the national jurisdiction of the US and the Philippines reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, "[a]n offense shall be an
in prosecuting criminal offenses committed by their respective citizens and military personnel, extraditable offense if it is punishable under the laws in both Contracting Parties x x x,"79 and
among others. The jurisdiction of the ICC pursuant to the Rome Statute over high crimes thereby concluding that while the Philippines has criminalized under RA 9851 the acts defined
indicated thereat is clearly and unmistakably complementary to the national criminal in the Rome Statute as war crimes, genocide and other crimes against humanity, there is no
jurisdiction of the signatory states. similar legislation in the US. It is further argued that, citing U.S. v. Coolidge, in the US, a
Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international person cannot be tried in the federal courts for an international crime unless Congress adopts
humanitarian law, genocide and other crimes against humanity;70 (2) provides penal sanctions a law defining and punishing the offense.
and criminal liability for their commission;71 and (3) establishes special courts for the This view must fail.
prosecution of these crimes and for the State to exercise primary criminal jurisdiction. 72 On the contrary, the US has already enacted legislation punishing the high crimes mentioned
Nowhere in RA 9851 is there a proviso that goes against the tenor of the Agreement. earlier. In fact, as early as October 2006, the US enacted a law criminalizing war crimes.
The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the Section 2441, Chapter 118, Part I, Title 18 of the United States Code Annotated (USCA)
Philippine State to surrender to the proper international tribunal those persons accused of provides for the criminal offense of "war crimes" which is similar to the war crimes found in
crimes sanctioned under said law if it does not exercise its primary jurisdiction to prosecute both the Rome Statute and RA 9851, thus:
such persons. This view is not entirely correct, for the above quoted proviso clearly provides (a) Offense – Whoever, whether inside or outside the United States, commits a war crime, in
discretion to the Philippine State on whether to surrender or not a person accused of the any of the circumstances described in subsection (b), shall be fined under this title or
crimes under RA 9851. The statutory proviso uses the word "may." It is settled doctrine in

73
imprisoned for life or any term of years, or both, and if death results to the victim, shall also term usually refers to legal scholars or "academic writers." 82 It has not been shown that the
be subject to the penalty of death. authors83 of this report are highly qualified publicists.
(b) Circumstances – The circumstances referred to in subsection (a) are that the person Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of
committing such war crime or the victim of such war crime is a member of the Armed Forces the crimes are nonexistent. To highlight, the table below shows the definitions of genocide
of the United States or a national of the United States (as defined in Section 101 of the and war crimes under the Rome Statute vis-à-vis the definitions under US laws:
Immigration and Nationality Act). Rome Statute US Law
(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 §1091. Genocide
August 1949, or any protocol to such convention to which the United States is a party; (a) Basic Offense – Whoever, whether in the time of peace or in
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV, Respecting
For the purpose of this Statute, "genocide" means any of the time of war and with specific intent to destroy, in whole or in
the Laws and Customs of War on Land, signed 18 October 1907; following acts committed with intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as
(3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d]) when
part, a national, ethnical, racial or religious group, as such: such–
committed in the context of and in association with an armed conflict not of an international
(a) Killing members of the group; (1) kills members of that group;
character; or (b) Causing serious bodily or mental harm to members of the (2) causes serious bodily injury to members of that group;
(4) Of a person who, in relation to an armed conflict and contrary to the provisions of the (3) causes the permanent impairment of the mental faculties of
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (c) Deliberately inflicting on the group conditions of life members of the group through drugs, torture, or similar
as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), whencalculated the to bring about its physical destruction in whole or in techniques;
United States is a party to such Protocol, willfully kills or causes serious injury to (4) subjects the group to conditions of life that are intended to
civilians.801avvphi1 (d) Imposing measures intended to prevent births within the cause the physical destruction of the group in whole or in part;
Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit: (5) imposes measures intended to prevent births within the
§1091. Genocide (e) Forcibly transferring children of the group to another group. group; or
(a) Basic Offense – Whoever, whether in the time of peace or in time of war and with specific (6) transfers by force children of the group to another group;
intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as shall be punished as provided in subsection (b).
such–
(1) kills members of that group; (d) Definition – As used in this Section the term "war crime"
(2) causes serious bodily injury to members of that group; means any conduct –
(3) causes the permanent impairment of the mental faculties of members of the group2. For the purpose of this Statute, "war crimes" means: (1) Defined as a grave breach in any of the international
through drugs, torture, or similar techniques; (a) Grave breaches of the Geneva Conventions of 12 August conventions signed at Geneva 12 August 1949, or any protocol to
1949, namely, any of the following acts against persons or
(4) subjects the group to conditions of life that are intended to cause the physical destruction such convention to which the United States is a party;
of the group in whole or in part; property protected under the provisions of the relevant Geneva (2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the
(5) imposes measures intended to prevent births within the group; or Convention: x x x84 Hague Convention IV, Respecting the Laws and Customs of War
(6) transfers by force children of the group to another group; (b) Other serious violations of the laws and customs applicable in on Land, signed 18 October 1907;
shall be punished as provided in subsection (b).81 international armed conflict, within the established framework of (3) Which constitutes a grave breach of common Article 3 (as
Arguing further, another view has been advanced that the current US laws do not cover international
every law, namely, any of the following acts: defined in subsection [d]85) when committed in the context of
crime listed within the jurisdiction of the ICC and that there is a gap between the definitions and in association with an armed conflict not of an international
of the different crimes under the US laws versus the Rome Statute. The view used a report (c) In the case of an armed conflict not of an international character; or
written by Victoria K. Holt and Elisabeth W. Dallas, entitled "On Trial: The US Military andcharacter,
the serious violations of article 3 common to the four (4) Of a person who, in relation to an armed conflict and contrary
International Criminal Court," as its basis. Geneva Conventions of 12 August 1949, namely, any of the to the provisions of the Protocol on Prohibitions or Restrictions
At the outset, it should be pointed out that the report used may not have any weight or following
value acts committed against persons taking no active part in on the Use of Mines, Booby-Traps and Other Devices as amended
the hostilities,
under international law. Article 38 of the Statute of the International Court of Justice (ICJ) lists including members of armed forces who have laid at Geneva on 3 May 1996 (Protocol II as amended on 3 May
the sources of international law, as follows: (1) international conventions, whether generaldown or their arms and those placed hors de combat by sickness, 1996), when the United States is a party to such Protocol,
wounds, detention or any other cause:
particular, establishing rules expressly recognized by the contesting states; (2) international willfully kills or causes serious injury to civilians. 86
custom, as evidence of a general practice accepted as law; (3) the general principles of law
recognized by civilized nations; and (4) subject to the provisions of Article 59, judicial (d) Paragraph 2 (c) applies to armed conflicts not of an
decisions and the teachings of the most highly qualified publicists of the various nations, international
as character and thus does not apply to situations of
subsidiary means for the determination of rules of law. The report does not fall underinternal
any of disturbances and tensions, such as riots, isolated and
the foregoing enumerated sources. It cannot even be considered as the "teachings of sporadic highly acts of violence or other acts of a similar nature.
qualified publicists." A highly qualified publicist is a scholar of public international law and the

74
(e) Other serious violations of the laws and customs applicable in punishing ‘the crime of piracy as defined by the law of nations is an appropriate exercise of its
armed conflicts not of an international character, within the constitutional authority, Art. I, s 8, cl. 10, ‘to define and punish’ the offense since it has
established framework of international law, namely, any of the adopted by reference the sufficiently precise definition of international law. x x x Similarly by
following acts: x x x. 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
Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the within the jurisdiction of military commissions, all offenses which are defined as such by the
report itself stated as much, to wit: law of war x x x, and which may constitutionally be included within that jurisdiction. 98 x x x
Few believed there were wide differences between the crimes under the jurisdiction of the (Emphasis supplied.)
Court and crimes within the Uniform Code of Military Justice that would expose US personnel This rule finds an even stronger hold in the case of crimes against humanity. It has been held
to the Court. Since US military lawyers were instrumental in drafting the elements of crimes that genocide, war crimes and crimes against humanity have attained the status of customary
outlined in the Rome Statute, they ensured that most of the crimes were consistent with international law. Some even go so far as to state that these crimes have attained the status
those outlined in the UCMJ and gave strength to complementarity for the US. Small areas of of jus cogens.99
potential gaps between the UCMJ and the Rome Statute, military experts argued, could be Customary international law or international custom is a source of international law as stated
addressed through existing military laws.87 x x x in the Statute of the ICJ.100 It is defined as the "general and consistent practice of states
The report went on further to say that "[a]ccording to those involved, the elements of crimes recognized and followed by them from a sense of legal obligation." 101 In order to establish the
laid out in the Rome Statute have been part of US military doctrine for decades." 88 Thus, the customary status of a particular norm, two elements must concur: State practice, the
argument proffered cannot stand. objective element; and opinio juris sive necessitates, the subjective element.102
Nonetheless, despite the lack of actual domestic legislation, the US notably follows the State practice refers to the continuous repetition of the same or similar kind of acts or norms
doctrine of incorporation. As early as 1900, the esteemed Justice Gray in The Paquete by States.103 It is demonstrated upon the existence of the following elements: (1) generality;
Habana89 case already held international law as part of the law of the US, to wit: (2) uniformity and consistency; and (3) duration.104 While, opinio juris, the psychological
International law is part of our law, and must be ascertained and administered by the courts element, requires that the state practice or norm "be carried out in such a way, as to be
of justice of appropriate jurisdiction as often as questions of right depending upon it are duly evidence of a belief that this practice is rendered obligatory by the existence of a rule of law
presented for their determination. For this purpose, where there is no treaty and no requiring it."105
controlling executive or legislative act or judicial decision, resort must be had to the customs "The term ‘jus cogens’ means the ‘compelling law.’" 106 Corollary, "a jus cogens norm holds the
and usages of civilized nations, and, as evidence of these, to the works of jurists and highest hierarchical position among all other customary norms and principles." 107 As a result,
commentators who by years of labor, research, and experience have made themselves jus cogens norms are deemed "peremptory and non-derogable." 108 When applied to
peculiarly well acquainted with the subjects of which they treat. Such works are resorted to international crimes, "jus cogens crimes have been deemed so fundamental to the existence
by judicial tribunals, not for the speculations of their authors concerning what the law ought of a just international legal order that states cannot derogate from them, even by
to be, but for the trustworthy evidence of what the law really is.90 (Emphasis supplied.) agreement."109
Thus, a person can be tried in the US for an international crime despite the lack of domestic These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state may
legislation. The cited ruling in U.S. v. Coolidge,91 which in turn is based on the holding in U.S. v. exercise jurisdiction over an individual who commits certain heinous and widely condemned
Hudson,92 only applies to common law and not to the law of nations or international law.93 offenses, even when no other recognized basis for jurisdiction exists." 110 "The rationale behind
Indeed, the Court in U.S. v. Hudson only considered the question, "whether the Circuit Courts this principle is that the crime committed is so egregious that it is considered to be committed
of the United States can exercise a common law jurisdiction in criminal cases." 94 Stated against all members of the international community"111 and thus granting every State
otherwise, there is no common law crime in the US but this is considerably different from jurisdiction over the crime.112
international law. Therefore, even with the current lack of domestic legislation on the part of the US, it still has
The US doubtless recognizes international law as part of the law of the land, necessarily both the doctrine of incorporation and universal jurisdiction to try these crimes.
including international crimes, even without any local statute.95 In fact, years later, US courts Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in
would apply international law as a source of criminal liability despite the lack of a local statute the Rome Statute is not declaratory of customary international law.
criminalizing it as such. So it was that in Ex Parte Quirin 96 the US Supreme Court noted that The first element of customary international law, i.e., "established, widespread, and
"[f]rom the very beginning of its history this Court has recognized and applied the law of war consistent practice on the part of States,"113 does not, under the premises, appear to be
as including that part of the law of nations which prescribes, for the conduct of war, the obtaining as reflected in this simple reality: As of October 12, 2010, only 114114 States have
status, rights and duties of enemy nations as well as of enemy individuals." 97 It went on ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier, or on
further to explain that Congress had not undertaken the task of codifying the specific offenses July 1, 2002. The fact that 114 States out of a total of 194115 countries in the world, or roughly
covered in the law of war, thus: 58.76%, have ratified the Rome Statute casts doubt on whether or not the perceived
It is no objection that Congress in providing for the trial of such offenses has not itself principles contained in the Statute have attained the status of customary law and should be
undertaken to codify that branch of international law or to mark its precise boundaries, or to deemed as obligatory international law. The numbers even tend to argue against the urgency
enumerate or define by statute all the acts which that law condemns. An Act of Congress of establishing international criminal courts envisioned in the Rome Statute. Lest it be

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overlooked, the Philippines, judging by the action or inaction of its top officials, does not even In light of the above consideration, the position or view that the challenged RP-US Non-
feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years have elapsed Surrender Agreement ought to be in the form of a treaty, to be effective, has to be rejected.
since the Philippine representative signed the Statute, but the treaty has not been WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for
transmitted to the Senate for the ratification process. lack of merit. No costs.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the SO ORDERED.
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?
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.

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