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July 30, 1949
BORIS MEJOFF, petitioner, vs. DIRECTOR OF PRISONS, respondent. BENGZON, J.: The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from Shanghai as a secret operative by the Japanese forces during the latter's regime in these Islands. Upon liberation he was arrested aa a Japanese spy, by U. S. Army Counter Intelligence Corps. Later he was handed to the Commonwealth Government for disposition in accordance with Commonwealth Act No. 682. Thereafter the People's Court ordered his release. But the deportation board taking his case up, found that having no travel documents Mejoff was illegally in this country, and consequently refferd the matter to the immigration authorities. After the corresponding investigation, the Board oF Commissioners of Immigration on April 5, 1948, declared that Mejoff had entered the Philippines illegally in 1944, withoutinspection and admission by the immigration officials at a designated port of entry and, therefore, it ordered that he be deported on the first available transportation to Russia. The petitioner was then under custody, he having been arrested on March 18, 1948. In May, 1948, he was transferred to the Cebu Provincial Jail together with three other Russians to await the arrival of some Russian vessels. In July and in August of that year two boats of Russian nationality called at the Cebu Port. But their masters refused to take petitioner and his companions alleging lack of authority to do so. In October, 1948, after repeated failures to ship this deportee abroad, the authorities removed him to Bilibid Prison at Muntinglupa where he has been confined up to the present time, inasmuch as the Commissioner of Immigration believes it is for the best interest of the country to keep him under detention while arrangements for his deportation are being made. It is contended on behalf of petitioner that having been brought to the Philippines legally by the Japanese forces, he may not now be deported. It is enough to say that the argument would deny to this Government the power and the authority to eject from the Islands any and all of that members of the Nipponese Army of occupation who may still be found hiding in remote places. Which is absurd. Petitioner likewise contends that he may not be deported because the statutory period to do that under the laws has long expired. The proposition has no basis. Under section 37 of the Philippine Immigration Act of 1940 any alien who enters this country "without inspection and admission by the immigration authorities at a designated point of entry" is subject to deportation within five years. In a recent decision of a similar litigation (Borovsky vs. Commissioner of Immigration) we denied the request for habeas corpus, saying: "It must be admitted that temporary detention is a necessary step in the process of exclusion or expulsion of undesirable aliens and that pending arrangements for his deportation, the Government has the right to hold the undesirable alien under confinement for a reasonable lenght of time. However, under established precedents, too long a detention may justify the issuance of a writ of habeas 1 corpus. "The meaning of "reasonable time" depends upon the circumstances, specially the difficulties of obtaining a passport, the availability 2 of transfortation, the diplomatic arrangements concerned and the efforts displayed to send the deportee away. Considering that this Government desires to expel the alien, and does not relish keeping him at the people's expense, we must presume it is making efforts to carry out the decree of exclusion by the highest officer of the land. On top of this presumption assurances were made during the oral argument that the Government is really trying to expedite the expulsion of this petitioner. On the other hand, the record fails to show how long he has been under confinement since the last time he was apprehended. Neither does he indicate neglected opportunities to send him abroad. And unless it is shown that the deportee is being indefinitely imprisoned under the 3 4 pretense of awaiting a chance for deportation or unless the Government admits that itcan not deport him or unless the detainee is being held for too long a period our courts will not interfere. "In the United States there were at least two instances in which courts fixed a time limit within which the imprisoned aliens should 5 be deported otherwise their release would be ordered by writ of habeas corpus. Nevertheless, supposing such precedents apply in this jurisdiction, still we have no sufficient data fairly to fix a definite deadline." The difference between this and the Borovsky case lies in the fact that the record shows this petitioner has been detained since March, 1948. However, considering that in the United States (where transportation facilities are much greater and diplomatic arrangements are easier to make) a delay of twenty months in carrying out an order of deportation has not been held sufficient to 6 justify the issuance of the writ of habeas corpus, this petition must be, and it is hereby denied. So ordered. Agustin vs Edu 88 SCRA 195 Facts This case is a petition assailing the validity or the constitutionality of a Letter of Instruction No. 229,issued by President Ferdinand E. Marcos, requiring all vehicle owners, users or drivers to procure early warning devices to be installed a distance away from such vehicle when it stalls or is disabled. Incompliance with such letter of instruction, the Commissioner of the Land Transportation Office issued Administrative Order No. 1 directing the compliance thereof. This petition alleges that such letter of instruction and subsequent administrative order are unlawful and unconstitutional as it violates the provisions on due process, equal protection of the law and undue delegation of police power. Issue Whether or not the Letter of Instruction No. 229 and the subsequent Administrative Order issued is unconstitutional Ruling
The Supreme Court ruled for the dismissal of the petition. The statutes in question are deemed not unconstitutional. These were definitely in the exercise of police power as such was established to promote public welfare and public safety. In fact, the letter of instruction is based on the constitutional provision of adopting to the generally accepted principles of international law as part of the law of the land. The letter of instruction mentions, as its premise and basis, the resolutions of the 1968 Vienna Convention on Road Signs and Signals and the discussions on traffic safety by the United Nations – that such letter was issued in consideration of a growing number of road accidents due to stalled or parked vehicles on the streets and highways. Facts : This is a petition questioning the validity of a Letter of Instruction providing for an early warning device mandatory for motor vehicles. It is assailed in this prohibition proceeding as being violative to the constitutional guarantee of due process in as far as the rules and regulations for its implementation are concerned. The assailed Letter of Instruction No. 229 of President Ferdinand Marcos aimed to prevent road accidents and in the interest of safety on all streets, highways including expressways. All motorist and motor vehicle owners shall have at all times one pair of early warning device. These hazards posed by such obstructions to traffic have been recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Roads and Signs and the United Nations Organization (UN). Philippine Government under P.D. No. 207 ratified the said Vienna convention requiring the installation of road signs and devices. Herein respondent Edu in his capacity as Land Transportation Commisioner set forth the implementing rules and regulations of the said instruction. Issue : Whether or not the assailed Letter of Instruction is invalid and violated constitutional guarantees of due process. Held : The assailed Letter of Instruction was a valid exercise of police power and there was no unlawful delegation of legislative power on the part of the respondent. As identified, police power is a state authority to enact legislation that may interfere personal liberty or property in order to promote the general welfare. In this case, the particular exercise of police power was clearly intended to promote public safety. It cannot be disputed that the Declaration of Principle found in the Constitution possesses relevance: The Philippines ------ adopts the generally accepted principles of international law as part of the law of the nation.” Thus, as impressed in the 1968 Vienna Convention it is not for this country to repudiate a commitment to which it had pledged its word. Our country’s word was rese mbled in our own act of legislative ratification of the said Hague and Vienna Conventions thru P.D. No. 207 . The concept of Pacta sunt servanda stands in the way of such an attitude which is, moreover, at war with the principle of international morality. In Santiago vs Far Eatern Broadcasting Company , it was held that the constitutionality of the law will not be considered unless the point is specially pleaded, insisted upon and adequately argued. Equal protection is not a talismanic formula at the mere invocation of which a party to a lawsuit can rightfully expect success will crown his efforts. The law is anything but that. Petition is DISMISSED and the restraining order is lifted. US vs GUINTO, 182 SCRA 644 These are cases that have been consolidated because they all involve the doctrine of state immunity. The United States of America was not impleaded in the case at bar but has moved to dismiss on the ground that they are in effect suits against it to which it has not consented. FACTS: 1. USA vs GUINTO (GR No. 76607) The private respondents are suing several officers of the US Air Force in Clark Air Base in connection with the bidding conducted by them for contracts for barber services in the said base, which was won by Dizon. The respondents wanted to cancel the award because they claimed that Dizon had included in his bid an area not included in the invitation to bid, and also, to conduct a rebidding. 2. USA vs RODRIGO (GR No. 79470) Genove filed a complaint for damages for his dismissal as cook in the US Air Force Recreation Center at Camp John Hay Air Station. It had been ascertained after investigation that Genove had poured urine into the soup stock used in cooking the vegetables served to the club customers. The club manager suspended him and thereafter referred the case to a board of arbitrators, which unanimously found him guilty and recommended his dismissal. 3. USA vs CEBALLOS (GR No. 80018) Bautista, a barracks boy in Camp O’ Donnell, was arrested following a buy -bust operation conducted by petitioners, who were USAF officers and special agents of the Air Force Office. An information was filed against Bautista and at the trial, petitioners testified against him. As a result of the charge, Bautista was dismissed from his employment. He then filed for damages against petitioners claiming that it was because of the latter’s acts that he lost his job. 4. USA vs VERGARA (GR No. 80258) A complaint for damages was filed by private respondents against petitioners (US military officers) for injuries allegedly sustained by the former when defendants beat them up, handcuffed them and unleashed dogs on them. The petitioners deny this and claim that respondents were arrested for theft but resisted arrest, thus incurring the injuries. ISSUE: Whether or not the defendants were immune from suit under the RP-US Bases Treaty for acts done by them in the performance of their official duties.
RULING: The rule that a State may not be sued without its consent is one of the generally accepted principles of international law that were have adopted as part of the law of our land. Even without such affirmation, we would still be bound by the generally accepted principles of international law under the doctrine of incorporation. Under this doctrine, as accepted by the majority of the states, such principles are deemed incorporated in the law of every civilized state as a condition and consequence of its membership in the society of nations. All states are sovereign equals and cannot assert jurisdiction over one another. While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the states for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, the suit must be regarded as against the state although it has not been formally impleaded. When the government enters into a contract, it is deemed to have descended to the level of the other contracting party and divested of its sovereign immunity from suit with its implied consent. It bears stressing at this point that the aforesaid principle do not confer on the USA a blanket immunity for all acts done by it or its agents in the Philippines. Neither may the other petitioners claim that they are also insulated from suit in this country merely because they have acted as agents of the United States in the discharge of their official functions. There is no question that the USA, like any other state, will be deemed to have impliedly waived its non-suability if it has entered into a contract in its proprietary or private capacity (commercial acts/jure gestionis). It is only when the contract involves its sovereign or governmental capacity (governmental acts/jure imperii) that no such waiver may be implied. In US vs GUINTO, the court finds the barbershops subject to the concessions granted by the US government to be commercial enterprises operated by private persons. The Court would have directly resolved the claims against the defendants as in USA vs RODRIGO, except for the paucity of the record as the evidence of the alleged irregularity in the grant of the barbershop concessions were not available. Accordingly, this case was remanded to the court below for further proceedings. In US vs RODRIGO, the restaurant services offered at the John Hay Air Station partake of the nature of a business enterprise undertaken by the US government in its proprietary capacity, as they were operated for profit, as a commercial and not a governmental activity. Not even the US government can claim such immunity because by entering into the employment contract with Genove in the discharge of its proprietary functions, it impliedly divested itself of its sovereign immunity from suit. But, the court still dismissed the complaint against petitioners on the ground that there was nothing arbitrary about the proceedings in the dismissal of Genove, as the petitioners acted quite properly in terminating Genove’s employment for his unbelievably nauseating act. In US vs CEBALLOS, it was clear that the petitioners were acting in the exercise of their official functions when they conducted the buy-bust operation and thereafter testified against the complainant. For discharging their duties as agents of the United States, they cannot be directly impleaded for acts imputable to their principal, which has not given its consent to be sued. In US vs VERGARA, the contradictory factual allegations in this case need a closer study of what actually happened. The record was too meager to indicate if the defendants were really discharging their official duties or had actually exceeded their authority when the incident occurred.The needed inquiry must first be made by the lower court so it may assess and resolve the conflicting claims of the parties. NOTE: 1. A STATE MAY BE SAID TO HAVE DESCENDED TO THE LEVEL OF AN INDIVIDUAL AND CAN THUS BE DEEMED TO HAVE TACITLY GIVEN ITS CONSENT TO BE SUED ONLY WHEN IT ENTERS INTO BUSINESS CONTRACTS. 2. Jure Gestionis – by right of economic or business relations, may be sued. (US vs Guinto) Jure Imperii – by right of sovereign power, in the exercise of sovereign functions. No implied consent. (US v. Ruiz, 136 SCRA 487)
G.R. No. 139465
January 18, 2000
SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents. MELO, J.: The individual citizen is but a speck of particle or molecule vis-à-vis the vast and overwhelming powers of government. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill of Rights which shield him in times of need. The Court is now called to decide whether to uphold a citizen's basic due process rights, or the government's ironclad duties under a treaty. The bugle sounds and this Court must once again act as the faithful guardian of the fundamental writ. The petition at our doorstep is cast against the following factual backdrop:
1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country".On January 13. The United States had to secure orders from the . and the need for rules to guide the executive department and the courts in the proper implementation of said treaties. 2. 11. through counsel. Article 7 thereof (on the admissibility of the documents accompanying an extradition request upon certification by the principal diplomatic or consular officer of the requested state resident in the Requesting State). petitioner. We merely determine whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. 0522 containing a request for the extradition of private respondent Mark Jimenez to the United States. request and extradition documents and this Department will not pose any objection to a request for ample time to evaluate said documents. Southern District of Florida. We find it premature to furnish you with copies of the extradition request and supporting documents from the United States Government. Marcos issued Presidential Decree No. Maximum Penalty — 5 years on each count).D. four  counts. On June 18. representing the Government of the Republic of the Philippines. six  counts. in a reply-letter dated July 13. the panel began with the "technical evaluation and assessment" of the extradition request and the documents in support thereof. 15. expressed its concurrence in the ratification of said treaty. In response to private respondent's July 1. private respondent appears to be charged in the United States with violation of the following provisions of the United States Code (USC): A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States. On November 13.S. private respondent requested that preliminary. the Department of Justice received from the Department of Foreign Affairs U. 1069. then President Ferdinand E. denied the foregoing requests for the following reasons: 1. The Senate. petitioner issued Department Order No. he be given at least a copy of. Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to preliminary investigation of criminal cases. or access to. 1069. It is only after the filing of the petition for extradition when the person sought to be extradited will be furnished by the court with copies of the petition. as well as all documents and papers submitted therewith. The Decree is founded on: the doctrine of incorporation under the Constitution. E) 2 USC 441f (Election contributions in name of another. two  counts. radio. and that he be given ample time to comment on the request after he shall have received copies of the requested papers. private respondent. 1999). or television. by way of Resolution No. 14. B) 26 USC 7201 (Attempt to evade or defeat tax. Maximum Penalty — less than one year). Maximum Penalty — 5 years on each count). Based on the papers submitted. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a). wrote a letter dated July 1. Rollo). Later. Maximum Penalty — 5 years on each count).S. pending evaluation by this Department of the sufficiency of the extradition documents submitted in accordance with the provisions of the extradition treaty and our extradition law. signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the United States of America" (hereinafter referred to as the RP-US Extradition Treaty). and other supporting documents for said extradition. (p. two  counts. Drilon. 1999. 1977. Evidentiary requirements under our domestic law are also set forth in Section 4 of P. Article 7 of the Extradition Treaty between the Philippines and the United States enumerates the documentary requirements and establishes the procedures under which the documents submitted shall be received and admitted as evidence. 1994. the request of the United States Government. 1999 letter. the extradition treaty with the Republic of Indonesia and the intention of the Philippines to enter into similar treaties with other interested countries. Rollo.S. Maximum Penalty — 5 years on each count). The formal request for extradition of the United States contains grand jury information and documents obtained through grand jury process covered by strict secrecy rules under United States law. thirty-three  counts. the mutual concern for the suppression of crime both in the state where it was committed and the state where the criminal may have escaped. The constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not available. Attached to the Note Verbale were the Grand Jury Indictment. Accordingly. D) 18 USC 1001 (False statement or entries. C) 18 USC 1343 (Fraud by wire. 1999 (but received by private respondent only on August 4.) On the same day. District Court. and after receiving a copy of the Diplomatic Note. a period of time to amplify on his request. Government. 249 designating and authorizing a panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. Note Verbale No. The panel found that the "official English translation of some documents in Spanish were not attached to the request and that there are some other matters that needed to be addressed" (p. No. Pending evaluation of the aforestated extradition documents. 1999 addressed to petitioner requesting copies of the official extradition request from the U. Private respondent also requested that the proceedings on the matter be held in abeyance in the meantime. the warrant of arrest issued by the U. then Secretary of Justice Franklin M.
E. (pp. III. fairly and objectively). CERTIORARI AND PROHIBITION WAS. 1999. Rollo. ordered to file their written comment and/or opposition to the issuance of a Preliminary Injunction on or before said date. or oppose. On August 10.certiorari (to set aside herein petitioner's letter dated July 13. Rollo. 3. the Secretary of Foreign Affairs. 1069 is the counsel of the foreign governments in all extradition requests. 1999. Jimenez. 104-105. . Article 26 of the Vienna Convention on the Law of Treaties. to give him access thereto. disposing: WHEREFORE. Lantion. for mandamus (to compel herein petitioner to furnish private respondent the extradition documents. and from performing any act directed to the extradition of the petitioner to the United States. Petitioner. Rule 58 of the 1997 Rules of Court. for a period of twenty (20) days from service on respondents of this Order. moved that he be given ample time to file a memorandum. who appeared in his own behalf.concerned District Courts authorizing the United States to disclose certain grand jury information to Philippine government and law enforcement personnel for the purpose of extradition of Mr. OR OPPOSITION TO. 77-78. GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES. 1999). SO ORDERED. Any further disclosure of the said information is not authorized by the United States District Courts. PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW. THE REQUEST. No. and thereafter to evaluate the request impartially. private respondent filed with the Regional Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice. this Court hereby Orders the respondents. TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON. with an application for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. 110-111. and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extradition of private respondent to the United States). BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED OF. THE MAIN PRAYER FOR A WRIT OF MANDAMUSIN THE PETITION FOR MANDAMUS. pursuant to Section 5. on August 6. arguing that: PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE: I. II. is set on August 17. their agents and/or representatives to maintain the status quo by refraining from committing the acts complained of. The respondents are. the Secretary of Foreign Affairs and the Director of the National Bureau of Investigation. respondent judge issued an order dated the previous day. The hearing as to whether or not this Court shall issue the preliminary injunction. The Department of Justice under P. In this particular extradition request the United States Government requested the Philippine Government to prevent unauthorized disclosure of the subject information. After due notice to the parties. from filing the corresponding Petition with a Regional Trial court. as agreed upon by the counsels for the parties herein. Extradition is a tool of criminal law enforcement and to be effective. the case was heard on August 9. This Department's denial of your request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the Philippine Government must represent the interests of the United States in any proceedings arising out of a request for extradition.D. Rollo). to which we are a party provides that "[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith". 1999 at 9:00 o'clock in the morning. This Department is not in a position to hold in abeyance proceedings in connection with an extradition request.. from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner.) Such was the state of affairs when. 1999. namely: the Secretary of Justice. requests for extradition or surrender of accused or convicted persons must be processed expeditiously. and to afford him an opportunity to comment on. likewise. the extradition request. 99-94684 and thereafter raffled to Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable Ralph C. IN EFFECT. The aforementioned petition was docketed as Civil Case No. but the same was denied. and prohibition (to restrain petitioner from considering the extradition request and from filing an extradition petition in court.) Forthwith. (pp. I. and the Director of the National Bureau of Investigation. petitioner initiated the instant proceedings.
AND WILL NOT SUFFER ANY IRREPARABLE INJURY. is there any conflict between private respondent's basic due process rights and the provisions of the RP-US Extradition Treaty? The issues having transcendental importance. thus allowing petitioner to fast-track the process leading to the filing of the extradition petition with the proper regional trial court. Rollo. (pp. (Sec. with the fullest particulars as to the name and identity of the accused." The portions of the Decree relevant to the instant case which involves a charged and not convicted individual. 4. 1999 issued by public respondent in Civil Case No. 1999. 1999 by the trial court. From the pleadings of the opposing parties. You. while a negative resolution would call for the immediate lifting of the TRO issued by this Court dated August 24. AND IV. The RP-US Extradition Treaty which was executed only on November 13. Presidential Decree No. sufficient for evaluation of the request. would this entitlement constitute a breach of the legal commitments and obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming that the result would indeed be a breach. Such other documents or information in support of the request. 1999. effective immediately and continuing until further orders from this Court. are abstracted as follows: The Extradition Request The request is made by the Foreign Diplomat of the Requesting State. DAVIDE. as prayed for. moot and academic (the issues of which are substantially the same as those before us now). Also issued.) The case was heard on oral argument on August 31. CERTIORARI AND PROHIBITION IS. after which the parties. was a temporary restraining order (TRO) providing: NOW. 3. Corollarily. Respondent Judge Ralph C. However. 1069. and of the issuance of the TRO of August 17. GIVEN by the Honorable HILARIO G. and 4. and the designation or description of the offense by the law. both procedural and substantive issues are patent. THEREFORE. in the event that private respondent is adjudged entitled to basic due process rights at the evaluation stage of the extradition proceedings. particularly the propriety of the filing of the petition therein..THE PETITION FOR (MANDAMUS). A recital of the acts for which extradition is requested. 99-94684. 1999. representatives or any person or persons acting in your place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated August 9. the acts or omissions complained of. and shall be accompanied by: 1. PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND ENFORCEMENT.) . 1994. and the time and place of the commission of these acts. (pp. Chief Justice. The text of the applicable law or a statement of the contents of said law. as directed. your agents. Rollo. JR. Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government. is private respondent entitled to the two basic due process rights of notice and hearing? An affirmative answer would necessarily render the proceedings at the trial court. the Court has elected to go directly into the substantive merits of the case. ushered into force the implementing provisions of Presidential Decree No.) On August 17. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of the Requesting State having jurisdiction over the matter. 120-121. filed their respective memoranda. 9994684. 19-20. compel us to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition proceedings. To be sure. this 17th day of August 1999. his whereabouts in the Philippines. Lantion. if known. 2. brushing aside peripheral procedural matters which concern the proceedings in Civil Case No. also called as the Philippine Extradition Law. addressed to the Secretary of Foreign Affairs. the issues call for a review of the extradition procedure. the Court required private respondent to file his comment. or some other instruments having equivalent legal force. a review of these issues as well as the extensive arguments of both parties. Supreme Court of the Philippines. 1069. ON ITS FACE. FORMALLY AND SUBSTANTIALLY DEFICIENT.
(Paragraph 3.Sec. or other types of information specified in paragraph 3 or paragraph 4 of said Article. who shall immediately designate and authorize an attorney in his office to take charge of the case. A copy of the warrant or order of arrest issued by a judge or other competent authority. upon receipt of the petition for extradition. Section 5.) 7. . Documents. Presidential Decree No. 1069. Such evidence as. A statement of the provisions of the law describing the essential elements of the offense for which extradition is requested. particularly to prevent the flight of the prospective extraditee. The lawyer designated shall then file a written petition with the proper regional trial court of the province or city. shall. The judge may issue a warrant of arrest if it appears that the immediate arrest and temporary detention of the accused will best serve the ends of justice (Paragraph . statements. During the hearing. Article 7. with a prayer that the court take the extradition request under consideration (Paragraph .) The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents received in support of the request had been certified by the principal diplomatic or consular officer of the Requested State resident in the Requesting State (Embassy Note No. according to the law of the Requested State. 3. he shall deliver the same to the Secretary of Justice. 2. ibid. 951309 from the Department of Foreign Affairs). A copy of the charging document. What then is the coverage of this task? In accordance with Paragraphs 2 and 3. The Extradition Hearing The Extradition Law does not specifically indicate whether the extradition proceeding is criminal. 052 from U. pertinently provides . The above provision shows only too clearly that the executive authority given the task of evaluating the sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive authority of the Requested State determines that the request is politically motivated. he shall forward the request together with the related documents to the Secretary of Justice. upon application by the Requesting State. 8. (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law and the relevant treaty or convention. (Paragraph 2. In this light. who shall immediately designate and authorize an attorney in his office to take charge of the case (Paragraph . Embassy Note No. civil." The Extradition Petition Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are sufficient and complete in form and substance. the executive authority must ascertain whether or not the request is supported by: 1. . No. Section 6. The presiding judge of the regional trial court. Section 8 of the Decree provides that the attorney having charge of the case may. or that the offense is a military offense which is not punishable under non-military penal legislation. or a special proceeding. 6. 1069). the provisions of the Rules of Court. as soon as practicable. Documents. Article 7 of the RP-US Extradition Treaty. insofar as practicable and not inconsistent with the summary nature of the proceedings. A statement of the provisions of the law describing any time limit on the prosecution or the execution of punishment for the offense. and 9. Section 9 thereof provides that in the hearing of the extradition petition. statements. 4.). . Nevertheless. shall apply. ibid. which sets forth the duty of the Secretary of Foreign Affairs. Paragraph . as applicable. S. 5. would provide probable cause for his arrest and committal for trial if the offense had been committed there. Paragraph 3.D. represent the latter throughout the proceedings. issue an order summoning the prospective extraditee to appear and to answer the petition on the day and hour fixed in the order. P.). or other types of information which describe the identity and probable location of the person sought. A statement of the facts of the offense and the procedural history of the case. A statement of the provisions of law describing the punishment for the offense. Embassy. 5 of the Presidential Decree. ibid.
Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the required 15-day period to file brief (Section 13, ibid.). The trial court determines whether or not the offense mentioned in the petition is extraditable based on the application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition Treaty. The trial court also determines whether or not the offense for which extradition is requested is a political one (Paragraph , Article 3, RP-US Extradition Treaty). With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself: What is the nature of the role of the Department of Justice at the evaluation stage of the extradition proceedings? A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the extradition petition after the request and all the supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure their sufficiency, and under Paragraph , Article 3 of the Treaty, to determine whether or not the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation. Ipso facto, as expressly provided in Paragraph , Section 5 of the Extradition Law, the Secretary of Justice has the ministerial duty of filing the extradition papers. However, looking at the factual milieu of the case before us, it would appear that there was failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the Department of Justice received the request, apparently without the Department of Foreign Affairs discharging its duty of thoroughly evaluating the same and its accompanying documents. The statement of an assistant secretary at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a post office, for which reason he simply forwarded the request to the Department of Justice, indicates the magnitude of the error of the Department of Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to determine the completeness of the documents and to evaluate the same to find out whether they comply with the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of Justice had no obligation to evaluate the extradition documents, the Department also had to go over them so as to be able to prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private respondent insisted on the following; (1) the right to be furnished the request and the supporting papers; (2) the right to be heard which consists in having a reasonable period of time to oppose the request, and to present evidence in support of the opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing of private respondent's opposition to the request. The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers and the other enlarging its commission. The Department of Foreign Affairs, moreover, has, through the Solicitor General, filed a manifestation that it is adopting the instant petition as its own, indirectly conveying the message that if it were to evaluate the extradition request, it would not allow private respondent to participate in the process of evaluation. Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a well-founded judgment that the request and its annexed documents satisfy the requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not privately review the papers all by himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or his undersecretary, in less than one day, make the more authoritative determination? The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to make a technical assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and on the face of the supporting documents the crimes indicated are not extraditable; and (c) to make a determination whether or not the request is politically motivated, or that the offense is a military one which is not punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph , Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body's quasi-judicial power. In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining facts based upon the evidence presented; and (c) rendering an order or decision supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as examining or investigatory power, is one or the determinative powers of an administrative body which better enables it to exercise its quasijudicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to inspect the records and premises, and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of information by means or accounts, records, reports, testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64). The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial functions. Notably, investigation is indispensable to prosecution. In Ruperto v. Torres (100 Phil. 1098 , unreported), the Court had occasion to rule on the functions of an investigatory body with the sole power of investigation. It does not exercise judicial functions and its power is limited to investigating the facts and
making findings in respect thereto. The Court laid down the test of determining whether an administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based on the facts and circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is an absence of judicial discretion and judgment. The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents. The body has no power to adjudicate in regard to the rights and obligations of both the Requesting State and the prospective extraditee. Its only power is to determine whether the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial and not final. The body has no power to determine whether or not the extradition should be effected. That is the role of the court. The body's power is limited to an initial finding of whether or not the extradition petition can be filed in court. It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages: First, the provisional arrest of the prospective extraditee pending the submission of the request. This is so because the Treaty provides that in case of urgency, a contracting party may request the provisional arrest of the person sought pending presentation of the request (Paragraph , Article 9, RP-US Extradition Treaty), but he shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the provisions only mean that once a request is forwarded to the Requested State, the prospective extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph , Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flight from the Requested State. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069). Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one. Because of these possible consequences, we conclude that the evaluation process is akin to an administrative agency conducting an investigative proceeding, the consequences of which are essentially criminal since such technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78,Rollo). In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. In a number of cases, we had occasion to make available to a respondent in an administrative case or investigation certain constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at the trial stage that had been advanced to an earlier stage in the proceedings, such as the right to counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436). In Pascual v. Board of Medical Examiners (28 SCRA 344 ), we held that the right against self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an administrative investigation of a licensed physician who is charged with immorality, which could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 ), pointed out that the revocation of one's license as a medical practitioner, is an even greater deprivation than forfeiture of property. Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the investigation may result in forfeiture of property, the administrative proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 ), where the Court, citing American jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture can be included in the criminal case, such proceeding is criminal in nature, although it may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature. The cases mentioned above refer to an impending threat of deprivation of one's property or property right. No less is this true, but even more so in the case before us, involving as it does the possible deprivation of liberty, which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself and enjoys precedence over property, for while forfeited property can be returned or replaced, the time spent in incarceration is irretrievable and beyond recompense. By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the evaluation procedure is akin to a preliminary investigation since both procedures may have the same result — the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage of extradition proceedings, a preliminary investigation, which may result in the filing of an information against the respondent, can possibly lead to his arrest, and to the deprivation of his liberty. Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 ) (p. 8, petitioner's Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not well-taken.Wright is not authority for petitioner's conclusion that his preliminary processing is not akin to a preliminary investigation. The characterization of a treaty
in Wright was in reference to the applicability of the prohibition against an ex post facto law. It had nothing to do with the denial of the right to notice, information, and hearing. As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserved these principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due process requirements cannot be deemed non-compliance with treaty commitments. The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective jurisdictions. At the same time, both States accord common due process protection to their respective citizens. The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology, but more importantly, they are alike in what their respective Supreme Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity in their interpretation, their dynamic and resilient character which make them capable of meeting every modern problem, and their having been designed from earliest time to the present to meet the exigencies of an undefined and expanding future. The requirements of due process are interpreted in both the United States and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila, 20 SCRA 849 ). It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S. 366). Due process is comprised of two components — substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106). True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64). In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the Rules of Court guarantees the respondent's basic due process rights, granting him the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits and other supporting documents within ten days from receipt thereof. Moreover, the respondent shall have the right to examine all other evidence submitted by the complainant. These twin rights may, however, be considered dispensable in certain instances, such as: 1. In proceeding where there is an urgent need for immediate action, like the summary abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters showing obscene movies or like establishments which are immediate threats to public health and decency, and the cancellation of a passport of a person sought for criminal prosecution; 2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary appointee; and 3. Where the twin rights have previously been offered but the right to exercise them had not been claimed. Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the extradition proceedings fall under any of the described situations mentioned above? Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy considering that the subject treaty involves the U.S. Government. American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition Clause in the U.S. Constitution (Art. IV, §2 cl 2), and international extradition proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to the demanding state. The Extradition Clause and the implementing statute are given a liberal construction to carry out their manifest purpose, which is to effect the return as swiftly as possible of persons for trial to the state in which they have been charged with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the requisition papers or the demand must be in proper form, and all the elements or jurisdictional facts essential to the extradition must appear on the face of the papers, such as the allegation that the person demanded was in the demanding state at the time the offense charged was committed, and that the person demanded is charged with the commission of the crime or that prosecution has been begun in the demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents are then filed with the governor of the asylum state, and must contain such papers and documents prescribed by statute, which
However. the Department of State prepares a declaration confirming that a formal request has been made. Sadly.S. Private respondent asks what prejudice will be caused to the U. and judicial decisions. in the instant case. From the foregoing. it may be observed that in the United States.) [In this regard. affidavit.2d 853). 410. Government should the person sought to be extradited be given due process rights by the Philippines in the evaluation stage. He emphasizes that petitioner's primary concern is the possible delay in the evaluation process. Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in support of the extradition request (Ibid. a person facing extradition may present whatever information he deems relevant to the Secretary of State. and having satisfied itself on the points earlier mentioned (see pp. and. All requests for extradition are transmitted through the diplomatic channel. if so warranted. The subject of an extradition request may not litigate questions concerning the motives of the requesting government in seeking his extradition. to wit: 1. that under Article 17 thereof the parties provide reciprocal legal representation in extradition proceedings. information. The Department of State forwards the incoming Philippine extradition request to the Department of Justice. federal statutes. and (c) there is probable cause to believe that the defendant is the person sought and that he committed the offenses charged (Ibid. extradition procedures and principles. that the offenses are covered as extraditable offenses under Article 2 thereof. p. At the hearing. Department of Justice. and that the documents have been authenticated in accordance with the federal statute that ensures admissibility at any subsequent extradition hearing. 2. which are basically governed by a combination of treaties (with special reference to the RP-US Extradition Treaty). Before doing so. it is the Department of Foreign Affairs which should make the initial evaluation of the request.. 256 S. it incorporates its determinations in factual findings and conclusions of law and certifies the person's extraditability. 1999 from the Criminal Division of the U. Statutory requirements with respect to said charging instrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on the government of the asylum state to effect extradition (35 C. We agree with private respondent's citation of an American Supreme Court ruling: . and vice-versa. extradition treaties generally provide for the presentation to the executive authority of the Requested State of a requisition or demand for the return of the alleged offender. §3186). If the court decides that the elements necessary for extradition are present. in the person of the Secretary of State. In urgent cases. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18 U. 324. A statutory provision requiring duplicate copies of the indictment . However. and the designation of the particular officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815). he attached thereto a letter dated September 13. Department of Justice. 3. extradition begins and ends with one entity — the Department of State — which has the power to evaluate the request and the extradition documents in the beginning. the Department of Foreign Affairs. citing Ex parte Moore. 1999. that the treaty is in full force and effect.J.) 4. 2d 103. requests for the provincial arrest of an individual may be made directly by the Philippine Department of Justice to the U. perfunctorily turned over the request to the Department of Justice which has taken over the task of evaluating the request as well as thereafter.C.] 6. the court must determine whether the person arrested is extraditable to the foreign country. it is noted that a long line of American decisions pronounce that international extradition proceedings partake of the character of a preliminary examination before a committing magistrate. summarizing the U. 158 Tex. and prosecuting the petition for extradition. or judgment of conviction or sentence and other instruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney is directory.C. In the event of a provisional arrest. Cr.W. 7. Cr. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the hearing. however. §3184). S. the power to act or not to act on the court's determination of extraditability.S. a formal request for extradition is transmitted subsequently through the diplomatic channel.essentially include a copy of the instrument charging the person demanded with a crime.W. such as an indictment or an affidavit made before a magistrate.S. 408-410). then forwards the request to the Department of Justice for the preparation and filing of the petition for extradition. The court then forwards this certification of extraditability to the Department of State for disposition by the Secretary of State. charging any person found within his jurisdiction" with having committed any of the crimes provided for by the governing treaty in the country requesting extradition (Ibid. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U. the right being such a basic one has been held to be a right mandatory on demand (Ibid.S. In the Philippine setting. 407 andEx parte Tucker. filing.S. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a "complaint made under oath.) 5.S.. who makes the final determination whether to surrender an individual to the foreign government concerned. rather than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826). 10-12).S. In petitioner's memorandum filed on September 15. In international proceedings. (b) the defendant is being sought for offenses for which the applicable treaty permits extradition. preparing.
it should be observed that the Department of Justice exerted notable efforts in assuring compliance with the requirements of the law and the treaty since it even informed the U. With the meticulous nature of the evaluation. subject to such limitations as may be provided by law. Extradition may or may not occur. it is also necessary that the means employed to pursue it be in keeping with the Constitution. The general right guaranteed by said provision is the right to information on matters of public concern. requests for extradition or the surrender of accused or convicted persons must be processed expeditiously. Secretary of Agrarian Reform. as well as to government research data used as basis for policy development. (pp. Illinois." Is there really an urgent need for immediate action at the evaluation stage? At that point. not always incompatible. Government of certain problems in the extradition papers (such as those that are in Spanish and without the official English translation. Similarly. be compelled to act favorably (37 C. if after a careful examination of the extradition documents the Secretary of Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty.S. Apart from the due process clause of the Constitution. (Stanley vs. the end does not justify the means. 40-41. There is no question that not even the strongest moral conviction or the most urgent public need. Inc. In interstate extradition. in particular. There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement. The "accused" (as Section 2[c] of Presidential Decree No. no doubt. or decisions. The prejudice to the "accused" is thus blatant and manifest. 7. and to documents and papers pertaining to official acts. The 1987 Phil. In its implementation. the governor of the asylum state may not. They do not always clash in discord. In fact. subject only to a few notable exceptions. namely: (1) the right to information on matters of public concern.S. and perhaps more. have not been met (31 Am Jur 2d 819). These cognate or related rights are "subject to limitations as may be provided by law" (Bernas. will excuse the bypassing of an individual's rights. this Court's ruling is invoked: One of the basic principles of the democratic system is that where the rights of the individual are concerned. Is private respondent precluded from enjoying the right to notice and hearing at a later time without prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. than mediocre ones. 645. It is not enough that there be a valid objective. It does not carry a disregard of the basic principles inherent in "ordered liberty. it results in an administrative if adverse to the person involved. faces the threat of arrest. vs. 1069 calls him). Nevertheless. however. in the absence of mandatory statute. one might fairly say of the Bill of Rights in general.S. Private Respondent's Memorandum. Justice Department. Plainly. he may hold that federal and statutory requirements. 375376 ). The right of the people to information on matters of public concern shall be recognized.J. how then can we say that it is a proceeding that urgently necessitates immediate and prompt action where notice and hearing can be dispensed with? Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. which are significantly jurisdictional. On one hand there is yet no extraditee. . not only after the extradition petition is filed in court. Access to official records. petitioner even admits that consultation meetings are still supposed to take place between the lawyers in his Department and those from the U. But the Constitution recognizes higher values than speed and efficiency . he shall not forward the request to the Department of Justice for the filing of the extradition petition since non-compliance with the aforesaid requirements will not vest our government with jurisdiction to effect the extradition. and those that are not properly authenticated). the notice and hearing requirements of administrative due process cannot be dispensed with and shelved aside.) In the Philippine context. there is no extraditee yet in the strict sense of the word. transactions. 656) The United States. the right of access to official records is likewise conferred. shall be afforded the citizen. may cause his immediate incarceration. Accordingly. but even during the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. In this light. the executive authority of the requested state has the power to deny the behest from the requesting state. is sacrificed at the altar of expediency. To be effective. and (2) the corollary right of access to official records documents. Indeed.The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. accelerated or fasttracked proceedings and adherence to fair procedures are. The grant of the request shall lead to the filing of the extradition petition in court. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right (Association of Small Landowners in the Philippines. which cannot just be completed in an abbreviated period of time due to its intricacies. under an extradition treaty. 387) since after a close evaluation of the extradition papers. and the Due Process Clause. that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less. private respondent likewise invokes Section 7 of Article III which reads: Sec. The above provision guarantees political rights which are available to citizens of the Philippines. Summary does not mean precipitous haste. shares the same interest as the Philippine Government that no right — that of liberty — secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well. Mere expediency will not excuse constitutional shortcuts. but ironically on the other. 175 SCRA 343. 404 U.S.
is there really a conflict between international law and municipal or national law? En contrario. 1992 ed. Moreover." Under the doctrine of incorporation. private respondent argues that the distinction between matters vested with public interest and matters which are of purely private interest only becomes material when a third person.. The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. During the evaluation procedure. Government. justice. However. at such particular time. jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. In the case at bar. p. cit. p. and in documents and papers pertaining to official acts. rules of international law form part of the law of the and land no further legislative action is needed to make such rules applicable in the domestic sphere (Salonga & Yap. 1999 do not fall under the guarantee of the foregoing provision since the matters contained in the documents requested are not of public concern. Civil Service Commission. requires the parties to a treaty to keep their agreement therein in good faith. 1996 ed. equality. op. 101 Phil. Article II of the Constitution which provides that "[t]he Philippines renounces war as an instrument of national policy.. both statutes and treaties may be invalidated if they are in conflict with the constitution ( Ibid.. 150 SCRA 530 ). Such information may be contained in official records. because our government by then shall have already made an official decision to grant the extradition request. Public International Law. When the individual himself is involved in official government action because said action has a direct bearing on his life. in favor of the interests necessary for the proper functioning of the government. Efforts should first be exerted to harmonize them. his right to information becomes absolute. who is not directly affected by the matters requested. he invokes Section 14. cooperation and amity with nations.S. Strictly speaking. On the other hand. one of the oldest and most fundamental maxims of international law. if the person invoking the right is the one directly affected thereby. the real party in interest is the people and any citizen has "standing". but are not superior to. Accordingly. decrees that rules of international law are given equal standing with. The 1987 Constitution of the Republic of the Philippines. we are afraid that the balance must be tilted. let us categorically say that this is not the proper time to pass upon the constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. 12). or decisions. so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the observance of the Incorporation Clause in the above-cited constitutional provision (Cruz. Consequently. if a third party invokes this constitutional provision. records of the extradition hearing would already fall under matters of public concern. transactions. and in contrast. The right to information is implemented by the right of access to information within the control of the government (Bernas.. Gonzales vs. 9 SCRA 230 . In a situation. The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. the papers have some relation to matters of foreign relations with the U. invokes the right to information. In the case at bar. Government. As to an accused in a criminal proceeding. 337). The 1987 Constitution of the Republic of the Philippines. The extradition of a fellow Filipino would be forthcoming. 1997 ed. freedom. The observance of our country's legal duties under a treaty is also compelled by Section 2. and may either cause him some kind of deprivation or injury. particularly the right to be informed of the nature and cause of the accusation against him. as applied in most countries. The concept of matters of public concerns escapes exact definition. We limit ourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent on foreign relations. This concept embraces a broad spectrum of subjects which the public may want to know. p. either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen (Legaspi v. The rule of pacta sunt servanda. hence the invocation of the right is premature. is there really a conflict between the treaty and the due process clause in the Constitution? First and foremost. 104) and rely on the premise that ultimately it is an informed and critical public opinion which alone can protect the values of democratic government (Ibid. 1155 . the principle lex posterior derogat priori takes effect — a treaty may repeal a statute and a statute may repeal a treaty. The doctrine of incorporation. p. and adheres to the policy of peace. No official action from our country has yet been taken. no official governmental action of our own government has as yet been done.). There is no occasion to choose which of the two should be . 1996 ed. 1996 ed. 13). p. Petitioner argues that the matters covered by private respondent's letter-request dated July 1. every act of a public officer in the conduct of the governmental process is a matter of public concern (Bernas. Hechanova.).Constitution A Reviewer-Primer. We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private respondent's entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the answer is in the affirmative. such as the Republic of the Philippines. these two components of the law of the land are not pined against each other.. adopts the generally accepted principles of international law as part of the law of the land. where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law.. Hence. Hernandez. In re: Garcia. national legislative enactments. Later. stating that the extradition papers are matters of public concern since they may result in the extradition of a Filipino. p. the papers requested by private respondent pertain to official government action from the U. Philippine Political Law. 2 SCRA 984 ) for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances (Salonga & Yap. however. In states where the constitution is the highest law of the land. 55). 336).S. he actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to information on matters of public concern.
276 SCRA 1 . Inc. NLRC. Helpmate. Presidential Decree No. If the information is truly confidential. the aforestated guarantees in the Bill of Rights could thus be subservient thereto? The basic principles of administrative law instruct us that "the essence of due process in administrative proceeding is an opportunity to explain one's side or an opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs. a provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9." Can petitioner validly argue that since these contraventions are by virtue of a treaty and hence affecting foreign relations. Jamer vs. Sec. . Petitioner's fears that the Requesting State may have valid objections to the Requested State's non-performance of its commitments under the Extradition Treaty are insubstantial and should not be given paramount consideration. 1069). as well as American jurisprudence and procedures on extradition. One will search in vain the RP-US Extradition Treaty. shall. Petitioner contends that the United States requested the Philippine Government to prevent unauthorized disclosure of confidential information. [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed or dismissed even without formal investigation. after the filing of the extradition petition and during the judicial determination of the propriety of extradition. 20. the secrecy surrounding the action of the Department of Justice Panel of Attorneys. NLRC. The Department of Justice states that the U. American jurisprudence and procedures on extradition pose no proscription. or be released on recognizance as may be provided by law. . we see a void in the provisions of the RP-US Extradition Treaty. NLRC. Consequently. A libertarian approach is thus called for under the premises. procedural due process refers to the method or manner by which the law is enforced (Corona vs. be bailable by sufficient sureties. . How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential Decree No. the veil of secrecy cannot be lifted at any stage of the extradition proceedings. As held in GSIS vs. because there is no provision of its availability. PLDT vs. Earlier. 1069? Of analogous application are the rulings in Government Service Insurance System vs. 807 (Providing for the Organization of the Civil Service Commission in Accordance with Provisions of the Constitution. Following petitioner's theory. as regards the basic due process rights of a prospective extraditee at the evaluation stage of extradition proceedings. does this imply that for a period of time. notwithstanding Section 13. we stated that there are similarities between the evaluation process and a preliminary investigation since both procedures may result in the arrest of the respondent or the prospective extraditee. before conviction. overturned by petitioner's revelation that everything it refuses to make available at this stage would be obtainable during trial.. 1069. vs. 278 SCRA 602 . Prescribing its Powers and Functions and for Other Purposes). From the procedures earlier abstracted. Petitioner interprets this silence as unavailability of these rights. Article III of the Constitution which provides that "[a]ll persons. Reference to the U. Not even during trial. 1707. as amended by Presidential Decree No. Neither the Treaty nor the Extradition Law precludes these rights from a prospective extraditee.S. the Extradition Law. The confidentiality argument is. We have to consider similar situations in jurisprudence for an application by analogy. Court of Appeals: . NLRC. 410). The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. However. the law is silent as to these rights. NLRC.S. 283 SCRA 31 ). 278 SCRA 632 ). Magnaye. An application of the basic twin due process rights of notice and hearing will not go against the treaty or the implementing law. 971 (Providing Legal Assistance for Members of the Integrated National Police who may be charged for Service-Connected Offenses and Improving the Disciplinary System in the Integrated National Police. Court of Appeals (201 SCRA 661 ) and Go vs. despite Section 15. Article III of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner's theory would also infer that bail is not available during the arrest of the prospective extraditee when the extradition petition has already been filed in court since Presidential Decree No. District Court concerned has authorized the disclosure of certain grand jury information. 273 SCRA 457 . Padilla vs. . his right to be supplied the same becomes a demandable right (35 C. the minimum requirements of due process still operate. In the evaluation process. In the absence of a law or principle of law. Appropriating Funds Therefor and for other purposes). This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty. as implemented by Presidential Decree No. except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong. In fact. we must apply the rules of fair play. in certain instances. Similarly. Hence. 276 SCRA 315 . he describes the evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition request and the supporting documents. RP-US Extradition Treaty. It is equally clear to us that an employee must be . the rights of notice and hearing are clearly granted to the prospective extraditee. extradition procedures also manifests this silence. Aquinas School vs. 270 SCRA 96 . National Police Commission (271 SCRA 447 ) where we ruled that in summary proceedings under Presidential Decree No.upheld. United Harbor Pilots Association of the Phils. In essence.J. We disagree. and Presidential Decree No. 1069 does not provide therefor. and if he does. in interstate extradition proceedings as explained above. the privilege of the writ of habeas corpus is suspended. for any prohibition against the conferment of the two basic due process rights of notice and hearing during the evaluation stage of the extradition proceedings. however. the prospective extraditee may even request for copies of the extradition documents from the governor of the asylum state. although summary dismissals may be effected without the necessity of a formal investigation.S. Instead. prior thereto.
although not guaranteed by statute or by treaty. and that the normal way by which the employee is so informed is by furnishing him with a copy of the charges against him. Thus. the Constitutional right to procedural due process must override treaty obligations. the same is hereby ordered dismissed. Dissent (original decision): Under the extradition treaty. that is to say. Colonel MARGARITO TORALBA. Court of Appeals. 268 SCRA 677 ). which may eventually lead to his forcible banishment to a foreign land. SO ORDERED.." may be availed of only in the absence of. Inc. It is not a criminal proceeding which will call into operation all the rights of an accused guaranteed by the Bill of Rights. The process of extradition does not involve the determination of the guilt or innocence of an accused. The convergence of petitioner's favorable action on the extradition request and the deprivation of private respondent's liberty is easily comprehensible. Lukban. Fred Ruiz Castro Federico Arenas Mariano Yengco. Assuming that the extradition treaty does not allow for such rights. Melville Hussey for respondents. His guilt or innocence will be adjudged in the court of the state where he will be extradited.R. Jr. the prospective extraditee may be provisionally arrested pending the submission of the request. (at p. Colonel PEDRO TABUENA. 267 SCRA 530 . petitioner. statutory law or judicial pronouncements (Smith Bell & Co. Petitioner is ordered to furnish private respondent copies of the extradition request and its supporting papers. respondents. When there is a conflict between international law obligations and the Constitution. Jimenez requested for copies of the US’ extradition request. This is a basic procedural requirement that a statute cannot dispense with and still remain consistent with the constitutional provision on due process. the US requested for the extradition of Mark Jimenez for violations of US tax and election laws. in view of the foregoing premises. private respondent does not only face a clear and present danger of loss of property or employment. WHEREFORE. permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces in violation of the laws and customs of war" — comes before this Court seeking to establish the . G. . The incidents in Civil Case No. MELVILLE S. MORAN. C. . formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in The Philippines during a period covering 19433 and 19444 who is now charged before a military Commission convened by the Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and failed "to discharge his duties as such command. and to grant him a reasonable period within which to file his comment with supporting evidence. Brigadier General CALIXTO DUQUE. and never against. and Liberato B. We have ruled time and again that this Court's equity jurisdiction. 99-94684 having been rendered moot and academic by this decision. By virtue of an extradition treaty between the US and the Philippines.. Ricardo A. vs." since private respondent's due process rights. the basic due process rights of notice and hearing are indispensable. ISSUE: During the evaluation stage of the extradition proceedings. and partakes of the nature of a criminal investigation. but of liberty itself. David-Chan vs. We would not be true to the organic law of the land if we choose strict construction over guarantees against the deprivation of liberty. No. is private respondent entitled to the two basic due process rights of notice and hearing? HELD: Private respondent is bereft of the right to notice and hearing during the evaluation stage of the extradition process. the Constitution must prevail. The second minimum requirement is that the employee charged with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter. Arcilla and S. Pending evaluation of the extradition documents by the Philippine government.J. In the case at bar. as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority. Colonel IRENEO BUENCONSEJO. . Cinco for petitioner. The constitutional issue in the case at bar does not even call for "justice outside legality. Extradition is a proceeding sui generis. Verily. the instant petition is hereby DISMISSED for lack of merit. Major General RAFAEL JALANDONI. yet we upheld the due process rights of the respondent. Jose G. Major FEDERICO ARANAS. HUSSEY and ROBERT PORT. lest an errant and wayward course be laid. the evaluation process is akin to an administrative agency conducting an investigative proceeding. L-2662 March 26. The Secetary of Justice denied that request. Because of this possible consequence. he must ever hold the oar of freedom in the stronger arm. That would not be in keeping with the principles of democracy on which our Constitution is premised. 671) Said summary dismissal proceedings are also non-litigious in nature. his defenses against the charges levelled against him and to present evidence in support of his defenses. are protected by constitutional guarantees. which is aptly described as "justice outside legality. vs. Court of Appeals. Pedro Serran.: Shigenori Kuroda.informed of the charges preferred against him. 1949 SHIGENORI KURODA.
... was issued by the President of the Philippines on the 29th days of July. (Cowles Trial of War Criminals by Military Tribunals. 68 is illegal on the ground that it violates not only the provision of our constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not based on law. Article 2 of our Constitution provides in its section 3. It cannot be denied that the rules and regulation of the Hague and Geneva conventions form.illegality of Executive Order No. ( Ex parte Quirin 317 U. — "That Executive Order No. Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts committed in violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only in 1947. 664) 1 when we said — War is not ended simply because hostilities have ceased. establishing a National War Crimes Office prescribing rule and regulation governing the trial of accused war criminals. 42 Off. Such rule and principles therefore form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rule and principle of international law as continued inn treaties to which our government may have been or shall be a signatory. This includes the period of an armistice or military occupation up to the effective of a treaty of peace and may extend beyond by treaty agreement. 68 the President of the Philippines has acted in conformity with the generally accepted and policies of international law which are part of the our Constitution. Styer (L-129. national and international. Ct." Hence petitioner argues — "That in view off the fact that this commission has been empanelled by virtue of an unconstitutional law an illegal order this commission is without jurisdiction to try herein petitioner..S. Misa (76 Phil. 68 of the President of the Philippines: to enjoin and prohibit respondents Melville S." Second. In support of his case petitioner tenders the following principal arguments. 1947 This Court holds that this order is valid and constitutional. If at all our emergency as a free state entitles us to enforce the right on our own of trying and punishing those who committed crimes against crimes against our people. 1. After cessation of armed hostilities incident of war may remain pending which should be disposed of as in time of war. Third. These rights and obligation were not erased by our assumption of full sovereignty. Executive Order No. — That the participation in the prosecution of the case against petitioner before the Commission in behalf of the United State of America of attorneys Melville Hussey and Robert Port who are not attorneys authorized by the Supreme Court to practice law in the Philippines is a diminution of our personality as an independent state and their appointment as prosecutor are a violation of our Constitution for the reason that they are not qualified to practice law in the Philippines. In facts these rules and principles were accepted by the two belligerent nation the United State and Japan who were signatories to the two Convention. The promulgation of said executive order is an exercise by the President of his power as Commander in chief of all our armed forces as upheld by this Court in the case of Yamashita vs. of humanity and civilization are held accountable therefor. First. — That Attorneys Hussey and Port have no personality as prosecution the United State not being a party in interest in the case. 1944. Gaz. that — The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the of the nation. the President as Commander in Chief is fully empowered to consummate this unfinished aspect of war namely the trial and punishment of war criminal through the issuance and enforcement of Executive Order No. America Bar Association Journal June. In this connection it is well to remember what we have said in the case of Laurel vs. An importance incident to a conduct of war is the adoption of measure by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measure those enemies who in their attempt to thwart or impede our military effort have violated the law of war. 372): .) Consequently. 68. 2. Consequently in the promulgation and enforcement of Execution Order No. part of and are wholly based on the generally accepted principals of international law. In accordance with the generally accepted principle of international law of the present day including the Hague Convention the Geneva Convention and significant precedents of international jurisprudence established by the United Nation all those person military or civilian who have been guilty of planning preparing or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto in violation of the laws and customs of war. And in the language of a writer a military commission has jurisdiction so long as a technical state of war continues. Hussey and Robert Port from participating in the prosecution of petitioner's case before the Military Commission and to permanently prohibit respondents from proceeding with the case of petitioners. 63 Sup. Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was under the sovereignty of United States and thus we were equally bound together with the United States and with Japan to the right and obligation contained in the treaties between the belligerent countries.) Indeed the power to create a military commission for the trial and punishment of war criminals is an aspect of waging war. 68.
national and international.O. The change of our form government from Commonwealth to Republic does not affect the prosecution of those charged with the crime of treason committed during then Commonwealth because it is an offense against the same sovereign people. 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. that – The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the law of the nation. No. No.] YES. 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. . 68. Feria. No. . 68 valid and constitutional. Bengzon. 68 that created the National War Crimes Office and prescribed rules on the trial of accused war criminals. No. THE FACTS Petitioner Shigenori Kuroda. 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.. .. JJ. was charged before the Philippine Military Commission of war crimes. 68. Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. He contended the Philippines is not a signatory to the Hague Convention on Rules and Regulations covering Land Warfare and therefore he is charged of crimes not based on law. Tuason. I. Hussey and Robert Port in the prosecution of his case on the ground that said attorney's are not qualified to practice law in Philippines in accordance with our Rules of court and the appointment of said attorneys as prosecutors is violative of our national sovereignty. 68 which provides for the organization of such military commission is a valid and constitutional law.O. For all the foregoing the petition is denied with costs de oficio. 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. 68 valid and constitutional? III. concur. Pablo. It is only fair and proper that United States. Article 2 of our Constitution provides in its section 3. He questioned the constitutionality of E. Paras. 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. 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. The least that we could do in the spirit of comity is to allow them representation in said trials. II. In accordance with the generally accepted principle of international law of the present day including the Hague Convention the Geneva Convention and significant precedents of international jurisprudence established by the United Nation all those person military or civilian who have been guilty of planning preparing or waging a war of aggression and of the commission of crimes and . 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. and having said petitioner in its custody. Montemayor and Reyes. this Court will not interfere with the due process of such Military commission. . It has already been shown that Executive Order No. 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. E. . By the same token war crimes committed against our people and our government while we were a Commonwealth are triable and punishable by our present Republic. Petitioner challenges the participation of two American attorneys namely Melville S. THE RULING [The Court DENIED the petition and upheld the validity and constitutionality of E. 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. THE ISSUES Was E. the Commanding General of the Japanese Imperial Forces in the Philippines during the Japanese occupation.O.O.
A. ALI MONTANA BABAO. DEPARTMENT SECRETARY OF BUDGET AND MANAGEMENT. ABBAS. CARAGUE. in his capacity as the Secretary of the Budget.A. petitioner. It cannot be denied that the rules and regulation of the Hague and Geneva conventions form. DATU MACALIMPOWAC DELANGALEN. petitioners. G. 1976. 6734 raised by petitioners may generally be categorized into either of the following: (a) that R. 1989 ATTY. and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. a new Constitution was ratified. 68 the President of the Philippines has acted in conformity with the generally accepted and policies of international law which are part of the our Constitution. of humanity and civilization are held accountable therefor. or parts thereof. 6734. vs. 89651 November 10.A. JULMUNIR JANNARAL. 6734. and geographical areas sharing common and distinctive historical and cultural heritage. CELSO PALMA. the case was deemed submitted for decision. and the COMMISSION ON ELECTIONS. and (b) that certain provisions of R." In 1987. The arguments against R. unconstitutional . 1989 DATU FIRDAUSI I. GUILLERMO CARAGUE. Such rule and principles therefore form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rule and principle of international law as contained in treaties to which our government may have been or shall be a signatory. The Tripoli Agreement. Consequently in the promulgation and enforcement of Execution Order No.R. In facts these rules and principles were accepted by the two belligerent nations the United State and Japan who were signatories to the two Convention. scheduled for November 19.offenses consequential and incidental thereto in violation of the laws and customs of war. more specifically. economic and social structures. section 15 of the charter provides that "[t]here shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces. DATU BLO UMPAR ADIONG. in implementation of Republic Act No. 6734.Y. vs. No. It provided for "[t]he establishment of Autonomy in the southern Philippines within the realm of the sovereignty and territorial 2 integrity of the Republic of the Philippines" and enumerated the thirteen (13) provinces comprising the "areas of autonomy.: The present controversy relates to the plebiscite in thirteen (13) provinces and nine (9) cities in Mindanao and Palawan. petitioner Mama-o filed a "Manifestation with Motion for Leave to File Reply on Respondents' Comment and to Open Oral Arguments. the Agreement Between the government of the Republic of the Philippines of the Philippines and Moro National Liberation Front with the Participation of the Quadripartie Ministerial Commission Members of the Islamic Conference and the Secretary General of the Organization of Islamic Conference" took effect on December 23. 89965 November 10. and DATU JAMAL ASHLEY ABBAS. municipalities. No. which the for the first time provided for regional autonomy. and (2) declare R." To effectuate this mandate. which the Court considered as the answer. MAMA-O. RASHID SABER. CORTES. cities. J.R. Article X. respondents. representing the other taxpayers of Mindanao. the Constitution further provides: 1 ." which the Court noted. COMMISSION ON ELECTIONS. part of and are wholly based on the generally accepted principals of international law. xxx xxx xxx Petitioner argues that respondent Military Commission has no jurisdiction to try petitioner for acts committed in violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only in 1947. After a consolidated comment was filed by Solicitor General for the respondents. entitled "An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao. respondents. HON. 6734 conflict with the Tripoli Agreement. and HONORABLE GUILLERMO C. or parts thereof. the issues having been joined. No. Subsequently. ABDULLAH D. No.A. 1989. G." These consolidated petitions pray that the Court: (1) enjoin the Commission on Elections (COMELEC) from conducting the plebiscite and the Secretary of Budget and Management from releasing funds to the COMELEC for that purpose. violates the Constitution.
. and utilized in accordance with applicable laws. The Court shall dispose first of the second category of arguments raised by petitioners. supervised. nor a binding international agreement. the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization. The Solicitor General asserts that the Tripoli Agreement is neither a binding treaty. 6734 conflict with the provisions of the Tripoli Agreement. 112 U.A. and property relations. pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras. 21. R. 6734 and the provisions of the Tripoli Agreement will not have the effect of enjoining the implementation of the Organic Act. and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. (8) Preservation and development of the cultural heritage. 580 (1884) and Foster v. (3) Ancestral domain and natural resources. 1989. Thus. PUBLIC INTERNATIONAL LAW 320 (4th ed. The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose.S. In the first place. We find it neither necessary nor determinative of the case to rule on the nature of the Tripoli Agreement and its binding effect on the Philippine Government whether under public international or internal Philippine law. The organic act shall define the basic structure of government for the region consisting of the executive and representative of the constituent political units. rather it would be in the same class as the latter [SALONGA. Assuming for the sake of argument that the Tripoli Agreement is a binding treaty or international agreement. 6734 was enacted and signed into law on August 1. any conflict between the provisions of R. and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government. i.A. and property law jurisdiction consistent with the provisions of this Constitution and national laws. Sec. Sec. All powers. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. 6734 would be amendatory of the Tripoli . Sec. (5) Regional urban and rural planning development. Sec.A. The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized. (6) Economic. (2) Creation of sources of revenues. 18. not having been entered into by the Republic of the Philippines with a sovereign state and ratified according to the provisions of the 1973 or 1987 Constitutions. within eighteen months from the time of organization of both Houses. family. that certain provisions of R. it is now the Constitution itself that provides for the creation of an autonomous region in Muslim Mindanao. The defense and security of the region shall be the responsibility of the National Government. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws.A. 6734 would therefore be what is so provided in the Constitution. 17. 16. (7) Educational policies. Thus. 19 The first Congress elected under this Constitution shall. it would then constitute part of the law of the land. 2 Pet. cities.e. No. No. Petitioners premise their arguments on the assumption that the Tripoli Agreement is part of the law of the land. maintained.A.A. 1974). R. The standard for any inquiry into the validity of R. citing Head Money Cases. No. (4) Personal. No. But as internal law it would not be superior to R. functions. being a binding international agreement . 1. The organic acts shall likewise provide for special courts with personal. and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. provided that only the provinces. if at all. No. family.Sec. an enactment of the Congress of the Philippines. Nelson. 20. 253 (1829)]. Pursuant to the constitutional mandate. Sec. The President shall exercise general supervision over autonomous regions to ensure that the laws are faithfully executed. 6734. social and tourism development. No.
Comparing this with the provision on the creation of the autonomous region. 2. The provinces and cities wherein such a majority is not attained shall not be included in the autonomous region. it is provided that "[t]his Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose . "the creation of the autonomous region shall be effective when approved by a majority of the votes cast in a plebiscite called for the purpose. an autonomous region would still be created composed of the two provinces where the favorable votes were obtained. Article X of the Constitution. 6734. 6734 shall be included therein.A.A.A. The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain the existing administrative determination. . section 1(1) of R. not all of the thirteen (13) provinces and nine (9) cities mentioned in Article II. sec. this is also the sense in which the vote requirement in the plebiscite provided under Article X. 13. Thus. No. [See III RECORD OF THE CONSTITUTIONAL COMMISSION 482-492 (1986)]. X.." Petitioner contends that the tenor of the above provision makes the creation of an autonomous region absolute. in Article XVIII. The Court shall therefore only pass upon the constitutional questions which have been raised by petitioners. [Art. 6734 which declares that "[t]here is hereby created the Autonomous Region in Muslim Mindanao. petitioner cites Article II. it will readily be seen that the creation of the autonomous region is made to depend. being a subsequent law. contrary to the aforequoted provisions of the Constitution on the autonomous region which make the creation of such region dependent upon the outcome of the plebiscite. among those enumerated in R. Firs. para. they could have simply adopted the same phraseology as that used for the ratification of the Constitution. More importantly. section 27. the creation of the Autonomous region in Muslim Mindanao is made effective upon the approval "by majority of the votes cast by the constituent units in a plebiscite called for the purpose" [Art. No. cities and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. merge the existing regions.. If the framers of the Constitution intended to require approval by a majority of all the votes cast in the plebiscite they would have so indicated. 18. the creation of the autonomous region shall take effect only when approved by a majority of the votes cast by the constituent units in a plebiscite. 18]. such that even if only two provinces vote in favor of autonomy. Second. No. 6734 unconditionally creates an autonomous region in Mindanao. i. The single plebiscite contemplated by the Constitution and R. It may be that even if an autonomous region is created.A. there is a specific provision in the Transitory Provisions (Article XIX) of the Organic Act. No.A. In support of his argument. That only the provinces and cities voting favorably in such plebiscite shall be included in the Autonomous Region in Muslim Mindanao. X. for if the intention of the framers of the Constitution was to get the majority of the totality of the votes cast. or both? We need not go beyond the Constitution to resolve this question. thus: SEC. not on the total majority vote in the plebiscite. but on the will of the majority in each of the constituent units and the proviso underscores this. because of its categorical language. section 18 must have been understood by the people when they ratified the Constitution. The reference to the constitutional provision cannot be glossed over for it clearly indicates that the creation of the autonomous region shall take place only in accord with the constitutional requirements. sec. 6734 contravened the Constitution would 3 result in the granting of the reliefs sought. The question has been raised as to what this majority means. in accordance with Section 18. Petitioner Abbas argues that R. 6734 will therefore be determinative of (1) whether there shall be an autonomous region in Muslim Mindanao and (2) which provinces and cities.A. No 6734. No. No. which incorporates substantially the same requirements embodied in the Constitution and fills in the details. As provided in the Constitution. shall compromise it. 6734 refers to Section 18. which reads: The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose." It is thus clear that what is required by the Constitution is a simple majority of votes approving the organic Act in individual constituent units and not a double majority of the votes in all constituent units put together.A. 1 of Article II of this Act in a plebiscite which shall be held not earlier than ninety (90) days or later than one hundred twenty (120) days after the approval of this Act: Provided. Only a determination by this Court that R. Does it refer to a majority of the total votes cast in the plebiscite in all the constituent units.e. The creation of the Autonomous Region in Muslim Mindanao shall take effect when approved by a majority of the votes cast by the constituent units provided in paragraph (2) of Sec. provided that only provinces. section 1 (2) of R. or a majority in each of the constituent units. The matter of the creation of the autonomous region and its composition needs to be clarified. to be composed of provinces and cities voting favorably in the plebiscite called for the purpose.Agreement.A. No. Article X of the Constitution which sets forth the conditions necessary for the creation of the autonomous region. Thus. as well as in the individual constituent units. 2]. under the Constitution and R. the questioned provision itself in R. and only those provinces and cities where a majority vote in favor of the Organic Act shall be included in the autonomous region.
possess such concurrence in historical and cultural heritage and other relevant characteristics. No. He insists that R. an actual controversy between litigants must first exist [Angara v. wherein an application of national law might be offensive to a Muslim's religious convictions. There are no conflicting claims involving the application of national law resulting in an alleged violation of religious freedom. said provision grants the President the power to merge regions. a power which is not conferred by the Constitution upon the President. dec. In Dumlao v. Sec. Pres. cities. 63 Phil 139 (1936). January 22. . Dec. No. Land tenure Administration. divided. Administrative regions are not territorial and political subdivisions like provinces. Sulu. That the President may choose to merge existing regions pursuant to the Organic Act is challenged as being in conflict with Article X. Regions I to XII and the National Capital Region. or its boundary substantially altered. 372 (1946). As a condition precedent for the power to be exercised. Electoral Commission. 95 SCRA 392]. merge the existing regions. Petitioner Abbas supports this objection by enumerating possible instances of conflict between provisions of the Muslim Code and national law. No. 6734 which. 6734 is unconstitutional because only the provinces of Basilan. municipalities and barangays [see Art. however. L-21064. 31 SCRA 413]. it is a power which has traditionally been lodged with the President to facilitate the exercise of the power of general supervision over local governments [see Art. Both petitions also question the validity of R. By including areas which do not strictly share the same characteristic as the others. municipality. As enshrined in the Constitution. equal protection permits of reasonable classification [People v. 43 SCRA 677]. No. The objection centers on a provision in the Organic Act which mandates that should there be any conflict between the Muslim Code [P. By including areas which do not strictly share the same characteristics. The Constitution lays down the standards by which Congress shall determine which areas should constitute the autonomous region. Mutuc. J. Tuason and Co. which are mere groupings of contiguous provinces for administrative purposes [Integrated Reorganization Plan (1972). 1968. Section 10 of the Constitution which provides: No province. 76 Phil. such determination by Congress of which areas should be covered by the organic act for the autonomous region constitutes a recognized legislative prerogative. Moreover.D. economic and social structures. to his view. The guarantee of equal protection is thus not infringed in this case.R. 56 (1963). 1 of the Constitution]. on the other hand. 1083] and the Tribal Code (still be enacted) on the one had. and the national law on the other hand. 6734 on the ground that it violates the constitutional guarantee on free exercise of religion [Art. Any determination by Congress of what areas in Mindanao should compromise the autonomous region. petitioner Mama-o would then adopt the extreme view that other non-Muslim areas in Mindanao should likewise be covered. After assailing the inclusion of non-Muslim areas in the Organic Act for lack of basis. Petitioner's argument is not tenable. As earlier stated. the ascertainment by Congress of the areas that share common attributes is within the exclusive realm of the legislature's discretion. sec. G. No. among others. Petitioners maintain that the islamic law (Shari'ah) is derived from the Koran. its scope should be further broadened to include the rest of the non-Muslim areas in Mindanao in order for the other non-Muslim areas denies said areas equal protection of the law.R. According to petitioners. whose wisdom may not be inquired into by this Court. 1970. the Shari'ah courts created under the same Act should apply national law. share common and distinctive historical and cultural heritage. which makes it part of divine law. merged.A. L-34161. Misa. taking into account shared historical and cultural heritage. v. 52245. 742]. No. That only the provinces and cities voting favorably in such plebiscite shall be included in the Autonomous Region in Muslim Mindanao. Any review of this ascertainment would have to go into the wisdom of the law. February 18. He argues that since the Organic Act covers several non-Muslim areas. This the Court cannot do without doing violence to the separation of governmental powers. No. abolished. and not all of the thirteen (13) provinces and nine (9) cities included in the Organic Act. X. February 29. the Court ruled that once class may be treated differently from another where the groupings are based on reasonable and real distinctions. and therefore is violative of the Constitution. Vera. [Art. supra.e. January 31. that the President may. judicial power includes the duty to settle actual controversies involving rights which are legally demandable and enforceable. Commission on Elections G. III. G. sec. L-20387. Petitioners also impugn the constitutionality of Article XIX. The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain in the existing administrative regions: Provided. the Court in this case may not be called upon to resolve what is merely a perceived potential conflict between the provisions the Muslim Code and national law. .A. No. city. i. petitioner Mama-o. In the present case. 22 SCRA 424]. This being so. petitioner claims that Congress has expanded the scope of the autonomous region which the constitution itself has prescribed to be limited. 6734 is the merger of administrative regions. economic and social structures. sec. X. Lanao del Norte and Maguindanao and the cities of Marawi and Cotabato. Provided. Lanao del Sur. 65 Phil. 1972. It must be pointed out that what is referred to in R. and other relevant characteristics. 1980.R.A. Electoral Commission. Petitioner's contention runs counter to the very same constitutional provision he had earlier invoked. by administrative determination.M. Thus it may not be subjected to any "man-made" national law. Tan v. 11. and other relevant characteristics should be properly included within the coverage of the autonomous region. Tawi-Tawi. maintains that only those areas which. no actual controversy between real litigants exists. While the power to merge administrative regions is not expressly provided for in the Constitution. Laurel v. or barangay may be created. which was made as part of the law of the land by Pres. [Angara v.R. Guided by these constitutional criteria. states: . section 13 of R. No.A. 1. . the classification having been made by Congress on the basis of substantial distinctions as set forth by the Constitution itself. would necessarily carry with it the exclusion of other areas. No.Invoking the earlier cited constitutional provisions. 5]. G. No. VIII. Morfe v. Macapagal. except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.
300. not to administrative regions. No. WHEREFORE. which offered to buy 51% of the MHC or 15. Those who petition this Court to declare a law. otherwise. 1995 (reset to November 3. SO ORDERED. Corollarily. appropriations. for such is evidently aimed at effecting a smooth transition period for the regional government. vs. unconstitutional must clearly establish the basis for such a declaration. XIX. L-47771. the creation of the autonomous region immediately takes effect. Pertinent provisions of the bidding rules prepared by respondent GSIS state — I. 46 SCRA 734. Trinidad. privileges. pursuant to the privatization program of the Philippine Government under Proclamation No. Salas v. G. L-29788. 6734 requiring an oversight Committee to supervise the transfer do not provide for a different date of effectivity. the Court finds that petitioners have failed to overcome the presumption. The controversy arose when respondent Government Service Insurance System (GSIS). No. the State shall give preference to qualified Filipinos .R.4 of the Constitution]. the creation of the autonomous region hinges only on the result of the plebiscite. No. Jarencio. No. with ITT-Sheraton as its hotel operator. or P2. and Renong Berhad. supra. cities. Mutuc. In a close bidding held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation. Morfe v. and concessions covering the 1 national economy and patrimony. No." is to provide management expertise and/or an international marketing/reservation system. Opposing. the creation of the autonomous region immediately takes effect delay the creation of the autonomous region. inevitable. The questioned provisions in R. or the eventual "strategic partner. Petitioners likewise question the validity of provisions in the Organic Act which create an Oversight Committee to supervise the transfer to the autonomous region of the powers. their petition must fail.. and that such transfer should be accomplished within six (6) years from the organization of the regional government. if the Organic Act is approved by majority of the votes cast by constituent units in the scheduled plebiscite. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC — 1.00 per share. therefore. the creation of the autonomous region hinges only on the result of the plebiscite. 1997 MANILA PRINCE HOTEL petitioner. is in oked by petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation (MHC) which owns the historic Manila Hotel. if the Organic Act is approved by majority of the votes cast by constituent units in the scheduled plebiscite. i. G. 47 Phil. Secs. decided to sell through public bidding 30% to 51% of the issued and outstanding shares of respondent MHC.e. 6734. The dismissal of these two petitions is. The constitutional objection on this point thus cannot be sustained as there is no bases therefor. the petitions are DISMISSED for lack of merit.A. Under the constitution. The winning bidder. or parts thereof. There is no conflict between the power of the President to merge administrative regions with the constitutional provision requiring a plebiscite in the merger of local government units because the requirement of a plebiscite in a merger expressly applies only to provinces. and properties vested upon the regional government by the organic Act [Art. Said provisions mandate that the transfer of certain national government offices and their properties to the regional government shall be made pursuant to a schedule prescribed by the Oversight Committee. Much less would the organization of the Oversight Committee cause an impediment to the operation of the Organic Act. a Malaysian firm. 387 (1925). Peralta v. 3 and 4]. 50 dated 8 December 1986. 1978. in the grant of rights. they ask whether the 51% shares form part of the national economy and patrimony covered by the protective mantle of the Constitution. 82 SCRA 30]. GOVERNMENT SERVICE INSURANCE SYSTEM. It is asserted by petitioners that such provisions are unconstitutional because while the Constitution states that the creation of the autonomous region shall take effect upon approval in a plebiscite. the requirement of organizing an Oversight committee tasked with supervising the transfer of powers and properties to the regional government would in effect delay the creation of the autonomous region. March 11.58 per share. The FiIipino First Policy enshrined in the 1987 Constitution. Based on the grounds raised by petitioners to challenge the constitutionality of R. which bid for the same number of shares at P44. The Highest Bidder must comply with the conditions set forth below by October 23. August 30. a Filipino corporation.000 shares at P41. COMELEC. 122156 February 3. and financial support to strengthen the profitability 2 and performance of the Manila Hotel. 1995) or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders: .R. respondents. G. MANILA HOTEL CORPORATION. municipalities or barangays.42 more than the bid of petitioner. COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL.R. Under the Constitution. 1979. respondents maintain that the provision is not self-executing but requires an implementing legislation for its enforcement. Every law has in its favor the presumption of constitutionality [Yu Cong Eng v.A.
. petitioner invokes Sec. It is a proud legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of independence and its power and capacity to release the full potential of the Filipino people. of the 1987 Constitution is merely a statement of principle and policy since it is not a self-executing provision and requires implementing legislation(s) . 10. wildlife.. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER — The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met: a.. International Marketing/Reservation System Contract or other type of contract specified by the Highest Bidder in its strategic plan for the Manila Hotel. and exclusive marine zone as cited in the first and second paragraphs of Sec. In a subsequent letter dated 10 October 1995 petitioner sent a manager's check issued by Philtrust Bank for Thirty-three 5 Million Pesos (P33. . 10. Moreover.000. GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share . The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS . Fernando and Fr. . 1995 (reset to November 3. petroleum and other mineral oils. not the hotel building nor the land upon which the building stands. For the bidding rules mandate that if for any reason. They maintain that: First. 1. b. petitioner came to this Court on prohibition and mandamus. to which Sec. second par. granting that the Manila Hotel forms part of the national patrimony. applies. Sec.00) as Bid Security to match the bid of the Malaysian Group. as amici curiae." Second. It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its business also unquestionably part of the national economy petitioner should be preferred after it has matched the bid offer of the Malaysian firm. What is more. not to respondent GSIS which possesses a personality of its own separate and distinct from the Philippines as a State. GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price 8 per share. coal. second par. of the bidding rules which provides that if for any reason. . K.J. 10. 2. Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the execution of the necessary contracts. 51% of the equity of the MHC cannot be considered part of the national patrimony. . Thus. subpar. the Highest Bidder cannot be awarded the Block of Shares. and b. Bernas. petitioner in a letter to respondent GSIS dated 28 September 1995 matched the bid price of P44. Renong Berhad . . Joaquin G. S. Art. waters. fisheries. is misplaced. Art. any transaction involving 51% of the shares of stock of the MHC is clearly covered by the term national economy.00 per share tendered by Renong 4 Berhad.. J. Certainly. XII. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management Contract. the Highest Bidder cannot be awarded the Block of Shares. On 18 October 1995 the Court issued a temporary restraining order enjoining respondents from perfecting and consummating the sale to the Malaysian firm. there must be existing laws "to lay down conditions under which business may be done. Third. petitioner should have questioned it right from the beginning and not after it had lost in the bidding. . it has become a part of the 6 national patrimony. Thus. while petitioner speaks of the guests who have slept in the hotel and the events that have transpired therein which make the hotel historic. V. the reliance by petitioner on par. 1995). Execution of the necessary contracts with GSIS/MHC not later than October 23. In the main.000. . forests or timber. XII.. Messrs . . the hotel business of respondent GSIS being a part of the tourism industry is unquestionably a part of the national economy. Art. if the disposition of the shares of the MHC is really contrary to the Constitution. On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to it by the First Division. second par. The case was then set for oral arguments with former Chief Justice Enrique M.. flora and fauna and all marine wealth in its territorial sea. Respondents except. granting that this provision is self-executing. the constitutional provision invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the corporation. Fourth. Petitioner also argues that since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which is owned by respondent GSIS. the Highest . of the 1987 Constitution and submits that the Manila Hotel has been identified with the Filipino nation and has practically become a historical monument which reflects the vibrancy of Philippine heritage and culture. these alone do not make the hotel fall under the patrimonyof the nation. According to respondents. Respondents postulate that the privilege of submitting a matching bid has not yet arisen since it only takes place if for any reason. XII. Art. On 17 October 1995. a government-owned and controlled corporation. the mandate of the Constitution is addressed to the State. . Manila Hotel does not fall under the term national patrimony which only refers to lands of the public domain.. 1987 7 Constitution. 1987 Constitution. perhaps apprehensive that respondent GSIS has disregarded the tender of the matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and consummated with Renong Berhad. for the said provision 9 to Operate. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/OGCC (Office of 3 the Government Corporate Counsel) are obtained. which respondent GSIS refused to accept. all forces of potential energy.a. To all intents and purposes. XII. minerals.
or whether. . but say definitely "TO QUALIFIED FILIPINOS" as against whom? As against aliens or over aliens? MR. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself. they shall be effective. Admittedly. For example. et cetera (emphasis supplied by respondents) MR. paramount and supreme law of the nation. RODRIGO. No. Unless the contrary is clearly intended. It is just a matter of style. As against constitutions of the past. . 10. . NOLLEDO Yes. Hence. it is deemed written in every statute and contract. MR. I am asking this question as the Chairman of the Committee on Style. Under the doctrine of constitutional supremacy. But a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation. as a contrary rule would give the legislature discretion to determine when. in case of doubt. What is the question of Commissioner Rodrigo? Is it to remove the word "QUALIFIED?". and if ever it did abuse its discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law. why do we not make it clear? To qualified Filipinos as against aliens? THE PRESIDENT. qualifications on the setting up of other financial structures. MR." can it be understood as a preference to qualified Filipinos vis-a-vis Filipinos who are not qualified. Their provisions command the legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government providing for the different 12 departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens. the presumption now is that all provisions of the constitution are self-executing If the constitutional provisions are treated as requiring legislation instead of self14 executing. Thus the submission by petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid had not yet taken place. Similarly. since the Constitution is the fundamental. is usually not self-executing. as it has always been. some constitutions are merely declarations of policies and principles. whimsical manner. A provision which lays down a general principle. the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. We now resolve. Finally. II of the 1987 Constitution.. It is supreme. of the 1987 Constitution is clearly not self-executing. Respondents argue that Sec. I think that is understood. assigns to the different departments their respective powers and duties. So. This can be cataclysmic. RODRIGO. and the function of constitutional conventions has evolved into one more like that of a legislative body. so that they can be determined by an examination and construction of its terms. It has been defined as the fundamental and 10 paramount law of the nation. Madam President. such as those found in Art. the petition for mandamus should fail as petitioner has no clear legal right to what it demands and respondents do not have an imperative duty to perform the act required of them by petitioner. is self-executing. the Constitution should be considered self-executing rather than non-self-executing . that — . . These provisions would be subordinated to the will of the lawmaking body.Bidder cannot be awarded the Block of Shares. unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate. which could make them entirely meaningless 15 by simply refusing to pass the needed implementing statute. NOLLEDO. absolute and unalterable except by the authority from which it emanates. second par. A constitution is a system of fundamental laws for the governance and administration of a nation. 16 . . The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with 11 which all private rights must be determined and all public authority administered. RODRIGO. as they quote from discussions on the floor of the 1986 Constitutional Commission — MR. the prayer for prohibition grounded on grave abuse of discretion should fail since respondent GSIS did not exercise its discretion in a capricious. It prescribes the permanent framework of a system of government. and there is no language indicating that the subject 13 is referred to the legislature for action. if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. modern constitutions have been generally drafted upon a different principle and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory enactments. the provisions of the Constitution should be considered self-executing. Art. Thus. We use the word "QUALIFIED" because the existing laws or prospective laws will always lay down conditions under which business may be done. That is why the prevailing view is. no. XII. and establishes certain fixed principles on which government is founded. Madam President. or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected. If the wording of "PREFERENCE" is given to QUALIFIED FILIPINOS. imperious.
. As regards our national patrimony. by itself. it has since then become the venue of various significant events which have shaped Philippine history. the State shall give preference to qualified Filipinos. and the State still needs legislation to regulate and exercise authority over foreign investments within its national jurisdiction. When the Constitution speaks of national patrimony. The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of a City. positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. a member of the 1986 Constitutional Commission 34 explains — The patrimony of the Nation that should be conserved and developed refers not only to out rich natural resources but also to the cultural heritage of out race. the vital role of the youth in nation-building the promotion of social 24 25 26 justice. The very terms of the provisions manifest that they are only principles upon which the legislations must be based. Philippine Amusements and Gaming Corporation speaks of constitutional 21 22 23 provisions on personal dignity. Secretary of Finance refers to the constitutional provisions on social justice 27 28 29 and human rights and on education. consequently. which are basically not self-executing and only placed in the Constitution as moral incentives to legislation. it plays host to dignitaries and official visitors who are accorded the traditional Philippine hospitality. by the same logic. as in the first paragraph.. Morato cites provisions on the promotion of general 30 31 32 welfare. as in the third paragraph. not as judicially 20 enforceable rights — are simply not in point. mines and other natural resources but also the mental ability or faculty of our people. It also refers to our intelligence in arts. Formerly a concourse for the elite. in the 1950's and 1960's. sciences and letters. Inc.. If the first and third paragraphs are not self-executing because Congress is still to enact measures to encourage the formation and operation of enterprises fully owned by Filipinos. prescribe a practice to be used for its enforcement. and from which all legislations must take their bearings. 10. Manila Hotel has become a landmark — a living testimonial of Philippine heritage. playing host to almost every political convention. privileges and concessions covering the national economy and patrimony. Thereafter. privileges. XII is implied from the tenor of the first 18 and third paragraphs of the same section which undoubtedly are not self-executing. of Art XII is couched in such a way as not to make it appear that it is non-self-executing but simply for purposes of style. Kilosbayan. Therefore. second par. the hotel became the center of political activities. of Art. During World War II the hotel was converted by the Japanese Military Administration into a military headquarters. further the exercise of constitutional right and 17 make it more available. as the Constitution could have very well used the term natural resources. A constitutional provision 19 may be self-executing in one part and non-self-executing in another. When the American forces returned to recapture Manila the hotel was selected by the Japanese together with Intramuros as the two (2) places fro their final stand. But. certainly. such right enforces itself by its own inherent potency and puissance. Respondents also argue that the non-self-executing nature of Sec. It is per se judicially enforceable When our Constitution mandates that [i]n the grant of rights. 10. we should develop not only our lands. provide a convenient remedy for the protection of the rights secured or the determination thereof. Minor details may be left to the legislature without impairing the self-executing nature of constitutional provisions. While it was restrictively an American hotel when it first opened in 1912. but also to the cultural heritage of the Filipinos.Quite apparently. The rule is that a self-executing provision of the constitution does not necessarily exhaust legislative power on the subject. second par. Basco v. forests. the vital role of the youth in nation-building and the promotion of total human liberation 33 and development. or place reasonable safeguards around the exercise of the right. The mere fact that legislation may supplement and add to or prescribe a penalty for the violation of a selfexecuting constitutional provision does not render such a provision ineffective in the absence of such legislation. And when our Constitution declares that a right exists in certain specified circumstances an action may be maintained to enforce such right notwithstanding the absence of any legislation on the subject. Lastly. the sanctity of family life. Res ipsa loquitur. In 1970 the hotel reopened after a renovation and reaped numerous international recognitions. Tolentino v. if there is no statute especially enacted to enforce such constitutional right. XII of the of the 1987 Constitution is a mandatory. On the other hand. the legislature is not precluded from enacting other further laws to enforce the constitutional provision so long as the contemplated statute squares with the Constitution. the legislature may still enact legislation to facilitate the exercise of powers directly granted by the constitution. In its plain and ordinary meaning. Sec. then a fortiori. Dubbed as the Official Guest House of the Philippine 36 Government. it means just that — qualified Filipinos shall be preferred. Sec. the second paragraph can only be self-executing as it does not by its language require any legislation in order to give preference to qualified Filipinos in the grant of rights. it immediately evolved to be truly Filipino. It was the site of the festivities during the inauguration of the Philippine Commonwealth. Ubi jus ibi remedium. Where there is a right there is a remedy. Art. We agree. The argument is flawed. the term patrimony pertains to heritage. From its very words the provision does not require any legislation to put it in operation. but any legislation must be in harmony with the constitution. In self-executing constitutional provisions. further the operation of such a provision. and concessions covering national economy and patrimony. an acknowledgment of 37 35 . The omission from a constitution of any express provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be self-executing. and the values of education. second par. fully enforceable. Subsequent legislation however does not necessarily mean that the subject constitutional provision is not. the sanctity of family life. It was called the Cultural Center of the 1930's. v. A reading of these provisions indeed clearly shows that they are not judicially enforceable constitutional rights but merely guidelines for legislation. 10. it refers not only to the natural resources of the Philippines. Even the cases cited by respondents holding that certain constitutional provisions are merely statements of principles and policies.
we cannot sustain respondents' claim that theFilipino First Policy provision is not applicable since what is being sold is only 51% of the outstanding 38 shares of the corporation. FOZ. will include not only individual Filipinos but also Filipino-controlled entities or 40 entities fully-controlled by Filipinos. For sure. The phrase preference to qualified Filipinos was explained thus — MR. its own historicity associated with our struggle for sovereignty. xxx xxx xxx MR. The term qualified Filipinos as used in Our Constitution also includes corporations at least 60% of which is owned by Filipinos. Madam President. not the Hotel building nor the land upon which the building stands . . Verily. MR. Before we vote. if a foreign enterprise is qualified and a Filipino enterprise is also qualified. THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. NOLLEDO. but we have to raise a question. MONSOD. NOLLEDO. I want to get that meaning clear because "QUALIFIED FILIPINOS" may refer only to individuals and not to juridical personalities or entities. Obviously. DAVIDE. RODRIGO. as intended by the proponents. I would like to introduce an amendment to the Nolledo amendment. The amendment will read: "IN THE GRANT OF RIGHTS. do we not give it preference? MR. At least 60 percent. Commissioner Davide is recognized. may I request that the amendment be read again. The Nolledo amendment would refer to an individual Filipino. 39 xxx xxx xxx MR. Madam President." MR FOZ. Suppose it is a corporation that is 80-percent Filipino. In connection with that amendment. In this instance. in fact. MR. In 1986 the hotel was the site of a failed coup d' etat where an aspirant for vice-president was "proclaimed" President of the Philippine Republic." And the word "Filipinos" here. Madam President. MONSOD. loves and frustrations of the Filipinos.the Filipino talent and ingenuity. NOLLEDO. MR. "IN THE GRANT OF RIGHTS. I would like to request Commissioner Nolledo to please restate his amendment so that I can ask a question. Is that the intention? MR. THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. The argument is pure sophistry. Manila Hotel has become part of our national economy and patrimony. Consequently. independence and nationhood. MR. 51% of the equity of the MHC comes within the purview of the constitutional shelter for it comprises the majority and controlling stock. MR: DAVIDE. This is very clear from the proceedings of the 1986 Constitutional Commission THE PRESIDENT. MONSOD. Madam President. Yes. We agree. because. PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY. MONSOD. so that anyone who acquires or owns the 51% will have actual control and management of the hotel. apparently the proponent is agreeable. DAVIDE. 51% of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice stands. PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY. For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures. MR. And the amendment would consist in substituting the words "QUALIFIED FILIPINOS" with the following: "CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH CITIZENS. What about a corporation wholly owned by Filipino citizens? MR. will the Filipino enterprise still be given a preference? MR. DAVIDE. its existence is impressed with public interest. we would be limiting it if we say that the preference should only be 100-percent Filipino.
It is undisputed that the sale of 51% of the MHC could only be carried out with the prior approval of the State acting through respondent Committee on Privatization. . privileges." (2) when the government is so significantly involved with the private actor as to make the government responsible for his action. If the foreigner is more qualified in some aspects than the Filipino enterprise. and concessions. We cannot simply afford the government a defense that arises out of the failure to enact further enabling. Bernas." it will be "SHALL — THE STATE SHALL GlVE PREFERENCE TO QUALIFIED FILIPINOS. will the Filipino still be preferred? MR. for an interpretation every time the 45 executive is confronted by a constitutional command. To adopt such a line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. . Since the " Filipino First Policy provision of the Constitution bestows preference on .MR. After all." Lastly. Respondents further argue that the constitutional provision is addressed to the State. Bernas. The penchant to try to whittle away the mandate of the Constitution by arguing that the subject provision is not self-executory and requires implementing legislation is quite disturbing. S. privileges and rights covering the national patrimony. a government instrumentality deriving its authority from the State. That means that Filipinos should be 42 given preference in the grant of concessions. As correctly pointed out by Fr. including the Constitution. S.." In constitutional jurisprudence. and secured the requisite approvals. Accordingly. In the granting of economic rights. Thank you. although entered into by respondent GSIS. Joaquin G. this fact alone makes the sale of the assets of respondents GSIS and MHC a "state action. 41 Expounding further on the Filipino First Policy provision Commissioner Nolledo continues — MR. Joaquin G. the executive would have to ask Congress. This embodies the so-called "Filipino First" policy. The bidding rules expressly provide that the highest bidder shall only be declared the winning bidder after it has negotiated and executed the necessary contracts. Yes. It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning bidder. Petitioner was so considered by respondent GSIS and selected as one of the qualified bidders. This provision was never found in previous Constitutions . or perhaps the Court. . In fine. It is evident that the act of respondent GSIS in selling 51% of its share in respondent MHC comes under the second and third categories of "state action. since such an indiscriminate preference would be counter productive and inimical to the common good. the word qualified is also determinable. If it were. it must be guided by its own understanding of the constitutional command and of applicable laws. It is better known as the FILIPINO FIRST Policy . NOLLEDO. even some of the provisions of the Constitution which evidently need implementing legislation have juridical life of their own and can be the source of a judicial remedy. Instead of "MUST. The term "qualified Filipinos" simply means that preference shall be given to those citizens who can make a viable contribution to the common good. For. government is composed of three (3) divisions of power — legislative. The responsibility for reading and understanding the Constitution and the laws is not the sole prerogative of Congress. Madam President. That is not how constitutional government operates. NOLLEDO. . and. This argument again is at best specious. the acts of persons distinct from the government are considered " state action" covered by the Constitution (1) when the activity it engages in is a "public function. or it has an overall management and marketing proficiency to successfully operate the Manila 44 Hotel." the latter shall be chosen over the former. is in fact a 46 transaction of the State and therefore subject to the constitutional command. because of credible competence and efficiency." MR. the discourse of Fr. FOZ. The answer is "yes.J. even before Congress acts — provided that there are discoverable legal standards for executive action. on constitutional government is apt — The executive department has a constitutional duty to implement laws. a constitutional mandate directed to the State is correspondingly directed to the three(3) branches of government. FOZ. When the Constitution addresses the State it refers not only to the people but also to the government as elements of the State.." Without doubt therefore the transaction. It certainly does NOT mandate the pampering and preferential treatment to Filipino citizens or organizations that are incompetent or inefficient.J. (3) when the government has approved or authorized the action. implementing or guiding legislation. or it has significant equity ownership in another hotel company. when a choice has to be made between a "qualified foreigner" end a "qualified Filipino. It was pre-qualified by respondent GSIS in accordance with its own guidelines so that the sole inference here is that petitioner has been found to be possessed of proven management expertise in the hotel industry. It is undeniable that in this case the subject constitutional injunction is addressed among others to the Executive Department and respondent GSIS. . The attempt to violate a clear constitutional provision — by the government itself — is only too distressing. executive and judicial. not to respondent GSIS which by itself possesses a separate and distinct personality. The exchange of views in the sessions of the Constitutional Commission regarding the subject provision was still further clarified by 43 Commissioner Nolledo — Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all economic concerns. When the executive acts.
J. The refusal of respondent GSIS to execute the corresponding documents with petitioner as provided in the bidding rules after the latter has matched the bid of the Malaysian firm clearly constitutes grave abuse of discretion. And if the Filipino matches the bid of a foreign firm the award should go to the Filipino. Adhering to the doctrine of constitutional supremacy. while petitioner was already preferred at the inception of the bidding because of the constitutional mandate. . The Filipino First Policy is a product of Philippine nationalism. so must it be enforced. But foreigners may be awarded the sale only if no Filipino qualifies. petitioner had not yet matched the bid offered by Renong Berhad. Those which violate the Constitution lose their reason for being. the subject constitutional provision is. For. there is no time frame for invoking the constitutional safeguard unless perhaps the award has been finally made. nor are they under obligation to enter into one with the highest bidder. For in choosing the awardee respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of which are presumed to be known to all the bidders and other interested parties. and bound by its mistakes or gross errors of judgment. It is embodied in the 1987 Constitution not merely to be used as a guideline for future legislation but primarily to be enforced. Resultantly. only after it had matched the bid of the foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid did the latter have a cause of action. GSIS may offer this to other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per 47 share. under any reasonable circumstance. In the case before us. where a foreign firm submits the highest bid in a public bidding concerning the grant of rights. while this may neither be expressly stated nor contemplated in the bidding rules. . there is no question that the Filipino will have to be allowed to match the bid of the foreign entity. Paragraph V. But the Constitution and laws of the Philippines are understood to be always open to public scrutiny. This Court does not discount the apprehension that this policy may discourage foreign investors. thereby exceeding the bid of a Filipino. Besides. the Supreme Court has not been spared criticism for decisions perceived as obstacles to economic progress and development . Any person therefore desiring to do business in the Philippines or with any of its agencies or instrumentalities is presumed to know his rights and obligations under the Constitution and the laws of the forum. Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the bidding rules. in connection with a temporary injunction issued by the Court's First Division against the sale of the Manila Hotel to a Malaysian Firm and its partner. it is its bounden duty to make sure that they do not violate the Constitution or the laws. bid. respondent GSIS is left with no alternative but to award to petitioner the block of shares of MHC and to execute the necessary agreements and documents to effect the sale in accordance not only with the bidding guidelines and procedures but with the Constitution as well. the constitutional fiat is. Far from it. omnipresent to be simply disregarded. lest the bidding rules be nullified for being violative of the Constitution. The miscomprehension of the Constitution is regrettable. It is worth emphasizing that it is not the intention of this Court to impede and diminish. In the instant case.qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will be declared the winning bidder. or even the highest. respondents are not bound to make the award yet. The position of the Court on this matter could have not been more appropriately articulated by Chief Justice Narvasa — As scrupulously as it has tried to observe that it is not its function to substitute its judgment for that of the legislature or the executive about the wisdom and feasibility of legislation economic in nature. much less undermine. or if the qualified Filipino fails to match the highest bid tendered by the foreign entity. To insist on selling the Manila Hotel to foreigners when there is a Filipino group willing to match the bid of the foreign group is to insist that government be treated as any other ordinary market player. It is a basic principle in constitutional law that all laws and contracts must conform with the fundamental law of the land. Thus it did not have the right or personality then to compel respondent GSIS to accept its earlier bid. Certainly. Rightly. This Court as the ultimate guardian of the Constitution will never shun. Undoubtedly. privileges and concessions covering the national economy and patrimony. as it should be. It must be so if we are to give life and meaning to the Filipino First Policy provision of the 1987 Constitution. Thus we would rather remedy the indiscretion while there is still an opportunity to do so than let the government develop the habit of forgetting that the Constitution lays down the basic conditions and parameters for its actions. we cannot conceive of a stronger reason than the constitutional injunction itself. 1 of the bidding rules provides that [if] for any reason the Highest Bidder cannot be awarded the Block of Shares. impliedly written in the bidding rules issued by respondent GSIS. Let it be stated for the record once again that while it is no business of the Court to intervene in contracts of the kind referred to or set itself up as the judge of whether they are viable or attainable. regardless of the consequences to the Filipino people. the influx of foreign investments. These are given factors which investors must consider when venturing into business in a foreign jurisdiction. In fact. certain statements were published in a major daily to the effect that injunction "again demonstrates that the Philippine legal system can be a major obstacle to doing business here. the Court encourages and welcomes more business opportunities but avowedly sanctions the preference for Filipinos whenever such preference is ordained by the Constitution. the constitutional mandate itself is reason enough not to award the block of shares immediately to the foreign bidder notwithstanding its submission of a higher. The argument of respondents that petitioner is now estopped from questioning the sale to Renong Berhad since petitioner was well aware from the beginning that a foreigner could participate in the bidding is meritless. Filipinos and foreigners alike were invited to the bidding. or are not adopted or implemented with grave abuse of . the duty of upholding the majesty of the Constitution which it is tasked to defend. To ignore it would be to sanction a perilous skirting of the basic law.
The nation-state can have no higher purpose. Art. We are talking about a hotel where heads of states would prefer to be housed as a strong manifestation of their desire to cloak the dignity of the highest state function to their official visits to the Philippines. objective should not be pursued at the expense of national pride and dignity. Protection of foreign investments. how much dignity will be preserved and realized if the national patrimony is safekept in the hands of a qualified. is not just any commodity to be sold to the highest bidder solely for the sake of privatization. mines and other natural resources but also the mental ability or faculty of our people. it refers not only to the natural resources of the Philippines. 51% of the MHC. Par. HELD: No. 12 of the 1987 Constitution* *. no matter how buffeted by 48 winds of unfair and ill-informed criticism. SO ORDERED. indeed. the conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than mephistophelian for it is. RB then assailed the TRO issued in favor of MPH arguing among others that: 1. It also refers to our intelligence in arts. It will never shirk that duty. heeding the clarion call of the Constitution and accepting the duty of being the elderly watchman of the nation. the Court will always defer to the Constitution in the proper governance of a free society. independence and nationhood. while laudible. 12 of the 1987 Constitution needs an implementing law because it is merely a statement of principle and policy (not self-executing). 10. sciences and letters. for that matter. The Constitution is the fundamental. MPH’s bid was at P41.00 per share and thereafter to execute the necessary clearances and to do such other acts and deeds as may be necessary for purpose. This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the historical landmark — this Grand Old Dame of hotels in Asia — to a total stranger. 2. respondents GOVERNMENT SERVICE INSURANCE SYSTEM. Two bidders participated.00/share. . nay even a budgetary. Manila Hotel does not fall under national patrimony. Sec. there is nothing so 49 sacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is involved. When the Constitution speaks of national patrimony. in the very concept of the Philippines being a democratic and republican state. Art. Sec. COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the Manila Hotel Corporation to RENONG BERHAD. 2. Art. loves and frustrations of the Filipinos. For the Constitution enshrines higher and nobler non-material values. which cannot be equally drawn from a qualified Filipino. Indeed. we should develop not only our lands. In turn MPH filed a TRO to avoid the perfection/consummation of the sale to RB. 2. for more than 8 decades (9 now) Manila Hotel has bore mute witness to the triumphs and failures. Note that. after all. Privatization of a business asset for purposes of enhancing its business viability and preventing further losses. The Manila Hotel or. In this sense. We are not talking about an ordinary piece of property in a commercial district. ISSUE: Whether or not RB should be admitted as the highest bidder and hence be proclaimed as the legit buyer of shares. the happiness and welfare of the people must be the goal. And this Court. And so we ask: What advantage. For. 10. zealous and well-meaning Filipino? This is the plain and simple meaning of the Filipino First Policy provision of the Philippine Constitution. can be gained by the Filipinos Manila Hotel — and all that it stands for — is sold to a non-Filipino? How much of national pride will vanish if the nation's cultural heritage is entrusted to a foreign entity? On the other hand. MPH should be awarded the sale pursuant to Art 12 of the 1987 Const. Par. It cannot override the demands of 50 nationalism. a most historical setting that has played a part in the shaping of a country . but also to the cultural heritage of the Filipinos. We are talking about a historic relic that has hosted many of the most important events in the short history of the Philippines as a nation. it is deemed written in every statute and contract. 10. will continue to respect and protect the sanctity of the Constitution. paramount and supreme law of the nation. -----------------------------------------------------------------------------Pursuant to the privatization program of the government. MPH matches RB’s bid and invoked the Filipino First policy enshrined under par. A commercial. In nationalism. Thus the Manila Hotel has played and continues to play a significant role as an authentic repository of twentieth century Philippine history and culture. it has become truly a reflection of the Filipino 51 soul — a place with a history of grandeur. Sec. and to ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila Hotel Corporation at P44. GSIS decided to sell 30-51% of the Manila Hotel Corporation. Pending declaration. Patrimony in its plain and ordinary meaning pertains to heritage. its own historicity associated with our struggle for sovereignty. This is in light of the Filipino First Policy. 2. a veritable alienation of a nation's soul for some pieces of foreign silver.58/per share while RB’s bid was at P44. MPH and Malaysian Firm Renong Berhad. in whatever manner viewed. its existence is impressed with public interest. Therefore. but GSIS refused to accept. as the Constitution could have very well used the term natural resources.discretion amounting to lack or excess of jurisdiction. with sovereignty residing in the Filipino people and from whom all government authority emanates. Manila Hotel falls under national patrimony. MANILA HOTEL CORPORATION. should not take precedence over non-material values. regardless of the character of the asset. forests. WHEREFORE. Any interpretation of any constitutional provision must adhere to such basic concept. Even if said passage is self-executing. 12 of the 1987 Constitution is self executing. RB was the highest bidder hence it was logically considered as the winning bidder but is yet to be declared so. is merely a policy. Nationalism is inherent.
BLAS OPLE. NICANOR P. HEHERSON ALVAREZ. when the national interest dictates. the world finally gave birth to that administering body — the World Trade Organization — with the signing of the "Final Act" 1 in Marrakesh. In the granting of economic rights. Finding market niches and becoming the best in specific industries in a market-driven and export-oriented global scenario are replacing age-old "beggar-thy-neighbor" policies that unilaterally protect weak and inefficient domestic producers of goods and services. the well-known management guru. the State shall give preference to qualified Filipinos. MACAPAGAL-ARROYO. PANGANIBAN. upon recommendation of the economic and planning agency. DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS. EDGARDO ANGARA. LETICIA RAMOS-SHAHANI. even retaliation. the International Trade Organization (ITO). tax exemptions and currency controls. in his capacity as Secretary of Finance. RAUL ROCO. CIVIL LIBERTIES UNION. in representation of various taxpayers and as non-governmental organizations. and concessions covering the national economy and patrimony. RODOLFO BIAZON. INC. plans for the establishment of three multilateral institutions — inspired by that grand political body. in her capacity as National Treasurer. NEPTALI GONZALES. LIKAS-KAYANG KAUNLARAN FOUNDATION. and the third. TAÑADA and ANNA DOMINIQUE COSETENG.: The emergence on January 1. or such higher percentage as Congress may prescribe. . when a choice has to be made between a “qualified foreigner” and a “qualified Filipino. reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens. ALBERTO ROMULO. SANTANINA RASUL. PERLAS and HORACIO R. the International Monetary Fund (IMF) which was to deal with currency problems. in his capacity as Secretary of Foreign Affairs. are ushering in a new borderless world of business by sweeping away as mere historical relics the heretofore traditional modes of promoting and protecting national economies like tariffs. because of credible competence and efficiency. 1995 of the World Trade Organization. in their respective capacities as members of the Philippine Senate who concurred in the ratification by the President of the Philippines of the Agreement Establishing the World Trade Organization. the ITO. abetted by the membership thereto of the vast majority of countries has revolutionized international business and economic relations amongst states. quantitative restrictions. In the grant of rights. the second. never took off. since such an indiscriminate preference would be counter productive and inimical to the common good. It certainly does NOT mandate the pampering and preferential treatment to Filipino citizens or organizations that are incompetent or inefficient." Brief Historical Background To hasten worldwide recovery from the devastation wrought by the Second World War. Liberalization. deregulation and privatization. respondents. It has irreversibly propelled the world towards trade liberalization and economic globalization. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES. GREGORIO ANDOLANA and JOKER ARROYO as members of the House of Representatives and as taxpayers. in his capacity as Secretary of Budget and Management. Morocco and the ratification of the WTO Agreement by its members. NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION. The first was the World Bank (WB) which was to address the rehabilitation and reconstruction of war-ravaged and later developing countries. unlike the IMF and WB. for a variety of reasons. "Increased participation in the world economy has become the key to domestic economic growth and prosperity. certain areas of investments. from other states. ORLANDO MERCADO. both as taxpayers. the thirdmillennium buzz words. G. FRANCISCO TATAD and FREDDIE WEBB. the Tokyo Round and the Uruguay Round. globalization. GATT was a collection of treaties governing access to the economies of treaty adherents with no institutionalized body administering the agreements or dependable system of dispute settlement. export subsidies. The term “qualified Filipinos” simply means that preference shall be given to those citizen s who can make a viable contribution to the common good. vs. as members of the Philippine Senate and as taxpayers. in his capacity as Executive Secretary. privileges. J. However.” **Section 10. the United Nations — were discussed at Dumbarton Oaks and Bretton Woods. in his capacity as Secretary of Trade and Industry.R. SALVADOR ENRIQUEZ. CARIDAD VALDEHUESA. What remained was only GATT — the General Agreement on Tariffs and Trade. After half a century and several dizzying rounds of negotiations. RAMON REVILLA. which was to foster order and predictability in world trade and to minimize unilateral protectionist policies that invite challenge.” the latter shall be chosen over the former.Herein resolved as well is the term Qualified Filipinos which not only pertains to individuals but to corporations as well and other juridical entities/personalities.. import quotas. including its non-ratification by the United States.. privileges. 1997 WIGBERTO E. GLORIA. RIZALINO NAVARRO. No. ROBERTO SEBASTIAN. INC. and concessions. petitioners. principally the Kennedy Round. JOHN OSMEÑA. and PHILIPPINE PEASANT INSTITUTE. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. ROBERTO DE OCAMPO. In the words of Peter Drucker. MORALES. ROBERTO ROMULO. 118295 May 2. The Congress shall. and TEOFISTO T. AGAPITO AQUINO. ERNESTO HERRERA. PHILIPPINE RURAL RECONSTRUCTION MOVEMENT. in his capacity as Secretary of Agriculture. GUINGONA. JOSE LINA.
1994. and where naturally.S. the members of the Philippine Senate received another letter from the President of the Philippines likewise dated August 11. that the Senate concur. as well as the use of government properties and resources by respondent-heads of various executive offices concerned therewith. trade disputes were settled mainly through negotiations where solutions were arrived at frequently on the basis of relative bargaining strengths. agreed: (a) to submit. Morocco.Like many other developing countries." The text of the WTO Agreement is written on pages 137et seq. stating among others that "the Uruguay Round Final Act is hereby submitted to the Senate for its concurrence pursuant to Section 21. Respondent Rizalino Navarro." On August 13. By signing the Final Act. the Philippines — and this is of special interest to the legal profession — will benefit from the WTO system of dispute settlement by judicial adjudication through the independent WTO settlement bodies called (1) Dispute Settlement Panels and (2) Appellate Tribunal. . the WTO Agreement for the consideration of their respective competent authorities. the Philippine Senate adopted Resolution No. for brevity). deregulated and privatized? These are the main questions raised in this petition for certiorari. through the reduction of tariffs on its exports. as articulated by President Fidel V. Heretofore. weak and underdeveloped countries were at a disadvantage. 1994. Article VII of the Constitution. The Petition in Brief Arguing mainly (1) that the WTO requires the Philippines "to place nationals and products of member-countries on the same footing as Filipinos and local products" and (2) that the WTO "intrudes. dated December 14. prohibition andmandamus under Rule 65 of the Rules of Court praying (1) for the nullification. Secretary Navarro on behalf of the Republic of the Philippines. limits and/or impairs" the constitutional powers of both Congress and the Supreme Court. The Facts On April 15. . 1994. of Volume I of the 36-volume Uruguay Round of Multilateral Trade Negotiations and includes various agreements and associated legal instruments (identified in the said Agreement as Annexes 1. 1083. which stated among others that "the Uruguay Round Final Act. the members of the Philippine Senate received a letter dated August 11. the instant petition before this Court assails the WTO Agreement for violating the mandate of the 1987 Constitution to "develop a self-reliant and independent national economy effectively controlled by Filipinos . Article VII of the Constitution. 1994. and the Understanding on Commitments in Financial Services are hereby submitted to the Senate for its concurrence pursuant to Section 21. (the reduction of) costs and uncertainty associated with exporting ." Although the Chief Executive did not expressly mention it in his letter. of improving "Philippine access to foreign markets. of the concurrence of the Philippine Senate in the ratification by the President of the Philippines of the Agreement Establishing the World Trade Organization (WTO Agreement." The President also saw in the WTO the opening of "new opportunities for the services sector . This concurrence is embodied in Senate Resolution No. . On August 12. the Agreement Establishing the World Trade Organization. . for brevity) as follows: ANNEX 1 Annex 1A: Multilateral Agreement on Trade in Goods General Agreement on Tariffs and Trade 1994 Agreement on Agriculture Agreement on the Application of Sanitary and Phytosanitary Measures Agreement on Textiles and Clothing Agreement on Technical Barriers to Trade Agreement on Trade-Related Investment Measures 4 2 . 97." On December 9. representing the Government of the Republic of the Philippines. . 1994." Simply stated. a resolution 5 entitled "Concurring in the Ratification of the Agreement Establishing the World Trade Organization. domestic materials and locally produced goods. the Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiations (Final Act. and (the attraction of) more investments into the country. 1994. as appropriate. 97 which "Resolved. ." On December 14. 1994. then Secretary of The Department of Trade and Industry (Secretary Navarro. particularly agricultural and industrial products. Ramos in two letters to the Senate (infra). (to) give preference to qualified Filipinos (and to) promote the preferential use of Filipino labor. especially its major trading partners. as it hereby concurs. does the Philippine Constitution prohibit Philippine participation in worldwide trade liberalization and economic globalization? Does it proscribe Philippine integration into a global economy that is liberalized. 1994 from the President of the 3 Philippines. 2 and 3 thereto and collectively referred to as Multilateral Trade Agreements. in the ratification by the President of the Philippines of the Agreement Establishing the World Trade 6 Organization. signed in Marrakesh. the President of the Philippines certified the necessity of the immediate adoption of P. as it is hereby resolved. on constitutional grounds. with a view to seeking approval of the Agreement in accordance with their procedures. . the Ministerial Declarations and Decisions. for brevity) and (2) for the prohibition of its implementation and enforcement through the release and utilization of public funds. . and (b) to adopt the Ministerial Declarations and Decisions. for brevity). the assignment of public officials and employees. the Philippines joined WTO as a founding member with the goal.
During the Oral Argument held on August 27. After receipt of the foregoing documents. In his Memorandum dated May 13. 1996. hereafter referred to as "Bautista Paper. as soon as possible. relationship of WTO with the International Monetary Fund (IMF). 1995. such as measures in favor of least developed countries. 1996. Switzerland. among other things. Morocco on 15 April 1994. commercial presence and new financial service. Bautista. the Court directed: (a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy and (2) the transcript of proceedings/hearings in the Senate. signed at Marrakesh. declaring: NOW THEREFORE. The court also requested the Honorable Lilia R." for brevity. two (2) and three (3) of that Agreement which are integral parts thereof. 1994. the Solicitor General describes these two latter documents as follows: The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide range of matters. do hereby ratify and confirm the same and every Article and Clause thereof. 1996. which derogate from Philippine sovereignty and (2) copies of the multi-volume WTO Agreement and other documents mentioned in the Final Act. President of the Republic of the Philippines. On December 29. national treatment. to give due course to the petition. the Final Act signed by Secretary Navarro embodies not only the WTO Agreement (and its integral annexes aforementioned) but also (1) the Ministerial Declarations and Decisions and (2) the Understanding on Commitments in Financial 8 Services. to submit a paper. he listed the various "bilateral or multilateral treaties or 7 ." On the other hand. the President of the Philippines signed the Instrument of Ratification.Agreement on Implementation of Article VI of he General Agreement on Tariffs and Trade 1994 Agreement on Implementation of Article VII of the General on Tariffs and Trade 1994 Agreement on Pre-Shipment Inspection Agreement on Rules of Origin Agreement on Imports Licensing Procedures Agreement on Subsidies and Coordinating Measures Agreement on Safeguards Annex 1B: General Agreement on Trade in Services and Annexes Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights ANNEX 2 Understanding on Rules and Procedures Governing the Settlement of Disputes ANNEX 3 Trade Policy Review Mechanism On December 16. FIDEL V. In a Compliance dated September 16. the WTO Agreement ratified by the President of the Philippines is composed of the Agreement Proper and "the associated legal instruments included in Annexes one (1). and in another Compliance dated October 24. the Court resolved on December 12. and agreements on technical barriers to trade and on dispute settlement. 1996. the present petition was filed. and (b) the Solicitor General. two (2) and three (3) of that Agreement which are integral parts thereof. To emphasize. After careful deliberation on respondents' comment and petitioners' reply thereto. (1) providing a historical background of and (2) summarizing the said agreements. the Philippine Ambassador to the United Nations 9 stationed in Geneva. after having seen and considered the aforementioned Agreement Establishing the World Trade Organization and the agreements and associated legal instruments included in Annexes one (1). notification procedures. RAMOS. the Court said it would consider the case submitted for resolution. and the parties thereafter filed their respective memoranda. the Solicitor General submitted a printed copy of the 36-volume Uruguay Round of Multilateral Trade Negotiations. standstill or limitations and qualifications of commitments to existing non-conforming measures. to file (1) a list of Philippine treaties signed prior to the Philippine adherence to the WTO Agreement. The Understanding on Commitments in Financial Services dwell on. market access. be it known that I. as counsel for respondents. 1994. and definitions of non-resident supplier of financial services.
4. even if ruled in respondents' favor.international instruments involving derogation of Philippine sovereignty. F. On the other hand. 3. the Court noted that the respondents did not question the locus standi of petitioners. all of the 1987 Philippine Constitution. Tañada and Anna Dominique Coseteng) are estopped from joining this suit. on the other hand. the Solicitor General has effectively ignored three. who are not vulnerable to the defense of estoppel. will not cause the petition's dismissal as there are petitioners other than the two senators. this issue. They probably realized that grave constitutional issues. The foregoing notwithstanding. Article II. E. 1997. restrict and impair Philippine sovereignty specifically the legislative power which. Article VI. Whether the petitioner members of the Senate who participated in the deliberations and voting leading to the concurrence are estopped from impugning the validity of the Agreement Establishing the World Trade Organization or of the validity of the concurrence. (2) whether petitioner-members of the Senate (Wigberto E. and (3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be taken up as an integral part of the disposition of the four issues raised by the Solicitor General. on January 30. Article XII. 2. the Solicitor General as counsel for respondents "synthesized the several issues raised by petitioners into the 10 following": 1. namely: (1) whether the petition presents a political question or is otherwise not justiciable. spirit and intent of Section 19. and being a matter that probes into the very jurisdiction of this Court to hear and decide this case — was deliberated upon by the Court and will thus be ruled upon as the first issue. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or excess of jurisdiction when they concurred only in the ratification of the Agreement Establishing the World Trade Organization. During its deliberations on the case. 2. Article II and Sections 10 and 12. Whether provisions of the Agreement Establishing the World Trade Organization unduly limit. they are also deemed to have waived the benefit of such issue. under Sec. Whether the petition presents a political question or is otherwise not justiciable. restrict or impair the exercise of legislative power by Congress. C. in any event. Whether the provisions of the Agreement Establishing the World Trade Organization contravene the provisions of Sec. Hence. and Secs. 10 and 12. By raising and arguing only four issues against the seven presented by petitioners. B. D. Article XII of the 1987 Constitution. 1987 Philippine Constitution is "vested in the Congress of the Philippines". The Issues In their Memorandum dated March 11. Ministerial Declaration and Decisions. 19. 1996. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or excess of jurisdiction when they voted for concurrence in the ratification of the constitutionally-infirm Agreement Establishing the World Trade Organization. Whether or not certain provisions of the Agreement unduly limit. Whether or not the concurrence of the Senate "in the ratification by the President of the Philippines of the Agreement establishing the World Trade Organization" implied rejection of the treaty embodied in the Final Act. and (3) whether the respondentmembers of the Senate acted in grave abuse of discretion when they voted for concurrence in the ratification of the WTO Agreement. and the Understanding on Commitments in Financial Services. Whether or not the provisions of the "Agreement Establishing the World Trade Organization and the Agreements and Associated Legal Instruments included in Annexes one (1). expenditures ." Petitioners. submitted their Compliance dated January 28. G. petitioners summarized the issues as follows: A. two (2) and three (3) of that agreement" cited by petitioners directly contravene or undermine the letter. this Court resolved to deal with these three issues thus: (1) The "political question" issue — being very fundamental and vital. 1997. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this Honorable Court in promulgating the rules of evidence. (2) The matter of estoppel will not be taken up because this defense is waivable and the respondents have effectively waived it by not pursuing it in any of their pleadings. and not with the Presidential submission which included the Final Act. Whether provisions of the Agreement Establishing the World Trade Organization interfere with the exercise of judicial power.
the main issue. rather than skirted or deflected by procedural 11 matters." Once a "controversy as to the application or interpretation of a constitutional provision is raised before this Court (as in the instant case). taxes. It is an innovation in our political law. digress from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases. AND THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES? The First Issue: Does the Court Have Jurisdiction Over the Controversy? In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution. ARTICLE XII. The foregoing text emphasizes the judicial department's duty and power to strike down grave abuse of discretion on the part of any 16 branch or instrumentality of government including Congress. we have no hesitation at all in holding that this petition should be given due course and the vital questions raised therein ruled upon under Rule 65 of the Rules of Court. instrumentality or department of the government. 18 . As explained by former Chief 17 Justice Roberto Concepcion. it becomes a legal issue 13 which the Court is bound by constitutional mandate to decide. 12 The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld. Second Issue: The WTO Agreement and Economic Nationalism This is the lis mota. "The question thus posed is judicial rather than political. speedy or adequate remedy in the ordinary course of law. OF THE PHILIPPINE CONSTITUTION? (3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT. agency. MINISTERIAL DECLARATIONS AND DECISIONS. acts of legislative and executive officials. OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY CONGRESS? (4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE OF JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES ON EVIDENCE? (5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS ANNEXES SUFFICIENT AND/OR VALID. this Court will not review the wisdom of the decision of the President and the Senate in enlisting the country into the WTO. CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT. This is not only a judicial power but a duty to pass judgment on matters of this nature. 19. quantitative restrictions. the petition no doubt raises a justiciable controversy. AND SECS. We should stress that. "the judiciary is the final arbiter on the question of whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. and other import/trade barriers. On this.of public funds and serious international commitments of the nation are involved here. prohibition andmandamus are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify. it will not shirk. when proper. in deciding to take jurisdiction over this petition. 10 AND 12. committed by any officer. it becomes not only the right but in fact the duty of the judiciary to settle the dispute. Rather. Where an action of the legislative branch is seriously alleged to have infringed the Constitution. Neither will it rule on the propriety of the government's economic policy of reducing/removing tariffs. it will only exercise its constitutional duty "to determine whether or not there had been a grave abuse of discretion amounting to lack or excess of jurisdiction" on the part of the Senate in ratifying the WTO Agreement and its three annexes. 15 as Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable. As the petition alleges grave abuse of discretion and as there is no other plain. we have no equivocation. the issues that will be ruled upon shortly are: (1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE STATED." The jurisdiction of this Court to adjudicate the matters follows: 14 raised in the petition is clearly set out in the 1987 Constitution. Indeed. certiorari. subsidies. RESTRICT. raised by the petition." As this Court has repeatedly and firmly emphasized in many cases. To recapitulate. ARTICLE II. or pass upon the merits of trade liberalization as a policy espoused by said international body. and that transcendental public interest requires that the substantive issues be met head on and decided on the merits. and 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. DOES THE PETITION INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT HAS NO JURISDICTION? (2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES CONTRAVENE SEC.
no Member shall apply any TRIM that is inconsistent with the provisions of Article II or Article XI of GATT 1994. Legal Instruments. for brevity): Article 2 National Treatment and Quantitative Restrictions. and adopt measures that help make them competitive. 1. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. and concessions covering the national economy and patrimony. or compliance with which is necessary to obtain an advantage. . 12. In the grant of rights. or . 10 and 12. 27. which are worded as follows: Article II DECLARATION OF PRINCIPLES AND STATE POLICIES xxx xxx xxx Sec. of the Constitution. 22121. the "flagship" constitutional provisions referred to are Sec 19. in terms of volume or value of products. An illustrative list of TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions provided for in paragraph I of Article XI of GATT 1994 is contained in the Annex to this Agreement. and Secs. 10. Without prejudice to other rights and obligations under GATT 1994. The Annex referred to reads as follows: ANNEX Illustrative List 1. whether specified in terms of particular products. emphasis supplied). spirit and intent" of the Constitution mandating "economic nationalism" are violated by the so-called "parity provisions" and "national treatment" clauses scattered in various parts not only of the WTO Agreement and its annexes but also in the Ministerial Decisions and Declarations and in the Understanding on Commitments in Financial Services. . the State shall give preference to qualified Filipinos. Specifically. Article II. Article XII. or in terms of proportion of volume or value of its local production. The State shall promote the preferential use of Filipino labor.Petitioners vigorously argue that the "letter. xxx xxx xxx Sec. TRIMS that are inconsistent with the obligation of national treatment provided for in paragraph 4 of Article III of GATT 1994 include those which are mandatory or enforceable under domestic law or under administrative rulings. 19." (Agreement on Trade-Related Investment Measures. privileges. Petitioners aver that these sacred constitutional principles are desecrated by the following WTO provisions quoted in their 19 memorandum: a) In the area of investment measures related to trade in goods (TRIMS. and which require: (a) the purchase or use by an enterprise of products of domestic origin or from any domestic source. Vol. domestic materials and locally produced goods. p. 2. xxx xxx xxx Article XII NATIONAL ECONOMY AND PATRIMONY xxx xxx xxx Sec. Uruguay Round. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos. .
in terms of volume or value of products. transportation." in contravention of the "Filipino First" policy of the Constitution. distribution or use.(b) that an enterprise's purchases or use of imported products be limited to an amount related to the volume or value of local products that it exports. 1. and which restrict: (a) the importation by an enterprise of products used in or related to the local production that it exports. (par. 28. or (c) the exportation or sale for export specified in terms of particular products. 2. Legal Instruments p. treatment no less favourable than it accords to its own like services and service suppliers. General Agreement on Trade in Services. domestic materials and locally produced goods. offering for sale. . TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994 include those which are mandatory or enforceable under domestic laws or under administrative rulings. 62 UMTS 82-84 in relation to paragraph 1(a) of the General Agreement on Tariffs and Trade 1994. (b) the importation by an enterprise of products used in or related to its local production by restricting its access to foreign exchange inflows attributable to the enterprise. 177. Vol. 14 September 1948. in respect of all measures affecting the supply of services. p. Uruguay Round Legal Documents. emphasis supplied). A Member may meet the requirement of paragraph I by according to services and service suppliers of any other Member. 2. and subject to any conditions and qualifications set out therein. regulations and requirements affecting their internal sale. as amended by the Protocol Modifying Part II. emphasis supplied). (b) In the area of trade related aspects of intellectual property rights (TRIPS. each Member shall accord to services and service suppliers of any other Member. . 1 Article 3." The constitutional conflict becomes more manifest when viewed in the context of the clear duty imposed on the Philippines as a WTO member to ensure the conformity of its laws. either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers. Uruguay Round Legal Instruments. Vol. or compliance with which is necessary to obtain an advantage. It is petitioners' position that the foregoing "national treatment" and "parity provisions" of the WTO Agreement "place nationals and products of member countries on the same footing as Filipinos and local products. or in terms of a preparation of volume or value of its local production. 25432 (emphasis supplied) (c) In the area of the General Agreement on Trade in Services : National Treatment 1. 22610 emphasis supplied). 31. Agreement on Trade-Related Aspect of Intellectual Property rights. (Annex to the Agreement on Trade-Related Investment Measures. either formally suppliers of any other Member. the provisions of this paragraph shall not prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the means of transport and not on the nationality of the product. 22125. Petitioners further argue that these provisions contravene constitutional limitations on the role exports play in national development and negate the preferential treatment accorded to Filipino labor. 27. Legal Instruments. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of completion in favour of services or service suppliers of the Member compared to like services or service suppliers of any other Member. Uruguay Round. Vol. In the sectors inscribed in its schedule. for brevity) : Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property. Vol. p. The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows: The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favorable than that accorded to like products of national origin in respect of laws. purchase. 3. GATT 1947. Uruguay Round. and Article XXVI of GATT. They allegedly render meaningless the phrase "effectively controlled by Filipinos. regulations and administrative procedures with its obligations as provided in the annexed 20 agreements. p. (Article XVII. ." (Article III.
Jr. It seems to me important that the legal right which is an essential component of a cause of action be a specific. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review. We shall now discuss and rule on these arguments. defendants may well be unable to defend themselves intelligently and effectively. (Bernas. 1. (3) that read properly. to propel courts into the uncharted ocean of . Morato. considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code." the result will be. If the executive and the legislature failed to heed the directives of the article.D. 1 and 13 thereof. therefore. 2). 1869 violates Sections 11 (Personal Dignity) 12 (Family) and 13 (Role of Youth) of Article II. the cited WTO clauses do not conflict with Constitution.. the disregard of which can give rise to a cause of action in the courts. As such. and that the trial court should have given petitioners an effective opportunity so to demonstrate.On the other hand. or failures to act. respondents through the Solicitor General counter (1) that such Charter provisions are not self-executing and merely set out general policies. imputed to the public respondent by petitioners so that the trial court can validly render judgment grating all or part of the relief prayed for. the available remedy was not judicial but political. explained these reasons as follows: My suggestion is simply that petitioners must. (2) that these nationalistic portions of the Constitution invoked by petitioners should not be read in isolation but should be related to other relevant provisions of Art. . for at least two (2) reasons. II. the court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of law. On petitioners' allegation that P. The reasons for denying a cause of action to an alleged infringement of board constitutional principles are sourced from basic considerations of due process and the lack of judicial authority to wade "into the uncharted ocean of social and economic policy 26 making. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable. before the trial court. As held in the leading case 24 of Kilosbayan. To my mind. XII. and (4) that the WTO Agreement contains sufficient provisions to protect developing countries like the Philippines from the harshness of sudden trade liberalization. . The second is a broader-gauge consideration — where a specific violation of law or applicable regulation is not alleged or proved. Incorporated vs. in other words. instead of aborting the proceedings on a motion to dismiss. it is respectfully submitted. Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution." In the same light." Mr. the 1935 provisions were not intended to be self-executing principles ready for enforcement through the courts. Justice Florentino P." The counterpart of this article in the 21 22 1935 Constitution is called the "basic political creed of the nation" by Dean Vicente Sinco. Feliciano in his concurring opinion in Oposa vs. In general. show a more specific legal right — a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution — that is or may be violated by the actions. These principles in Article II are not 23 intended to be self-executing principles ready for enforcement through the courts. . They were rather directives addressed to the executive and to the legislature. Factoran. operable legal right. and 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. the principles and state policies enumerated in Article II and some sections of Article XII are not "self-executing provisions. particularly Secs. they are basically not self-executing. meaning a law should be passed by Congress to clearly define and effectuate such principles. rather than a constitutional or statutory policy. They do not embody judicially enforceable constitutional rights but guidelines for legislation. there are due process dimensions to this matter. we held in Basco vs. One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms. Article II of the Constitution is a "declaration of principles and state policies. (Emphasis supplied) When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction. Declaration of Principles Not Self-Executing By its very title. and by the legislature in its enactment of laws. suffice it to state also that these are merely statements of principles and policies. Pagcor thus: 25 that broad constitutional principles need legislative enactments to implement the. The electorate could express their displeasure with the failure of the executive and the legislature through the language of the ballot. petitioners can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads: Sec. Vol. p.
WTO Recognizes Need to Protect Weak Economies 31 . 2. operable norms and standards are shown to exist." However.. A more equitable distribution of opportunities. In other words. ." In similar language. 10. and speaks of industries "which are competitive in both domestic and foreign markets" as well as of the protection of "Filipino enterprises against unfair foreign competition and trade practices. xxx xxx xxx Sec. domestic materials and locally-produced goods". Where no specific. Economic Nationalism Should Be Read with Other Constitutional Mandates to Attain Balanced Development of Economy On the other hand. and (3) by requiring the State to "develop a self-reliant and independent national economy effectively 29 controlled by Filipinos. And we hold that there are. it allows an exchange on the basis of equality and reciprocity. XII is self-executing or not. services and investments into the country. and 3. As pointed out by the Solicitor General. services. An expanding productivity as the key to raising the quality of life for all especially the underprivileged. our courts have no claim to special technical competence and experience and professional qualification. the Constitution then ordains the ideals of economic nationalism (1) by expressing preference in favor 27 of qualified Filipinos "in the grant of rights. goods and services in the development of the Philippine economy. Rather. It refers to exceptions rather than the rule. privileges and concessions covering national economy and patrimony" and not to every aspect of trade and commerce. From its very words the provision does not require any legislation to put it in operation. 13. positive command which is complete in itself and which needs no further guidelines or implementing laws or rule for its enforcement. Art. while the Constitution indeed mandates a bias in favor of Filipino goods. the Constitution takes into account the realities of the outside world as it requires the pursuit of "a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality 30 ad reciprocity". especially Secs. With these goals in context. Sec. through industries that make full and efficient use of human and natural resources. XII of the 1987 Constitution is a mandatory. and which are competitive in both domestic and foreign markets. then the policy making departments — the legislative and executive departments — must be given a real and effective opportunity to fashion and promulgate those norms and standards. it does not prohibit them either. However. 10 of Art. While the Constitution does not encourage the unlimited entry of foreign goods. at the same time. a sustained increase in the amount of goods and services produced by the nation for the benefit of the people. A sustained increase in the amount of goods and services provided by the nation for the benefit of the people. In fact. Secs. 1 and 13 thereof which read: Sec.social and economic policy making. privileges and concessions covering the national economy and patrimony" and in the use of "Filipino labor. frowning only on foreign competition that is unfair." It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System . In the pursuit of these goals. income. as the constitutional provision itself states. and wealth. labor and enterprises. income and wealth. 1 lays down the basic goals of national economic development. all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. it is enforceable only in regard to "the grants of rights. it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of 32 Filipino enterprises only against foreign competition and trade practices that are unfair. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity. . and an expanding productivity as the key to raising the quality of life for all especially the underprivileged. apart from merely laying down general principles relating to the national economy and patrimony. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform.. At least in respect of the vast area of environmental protection and management. . 1. It is per se judicially enforceable. should be read and understood in relation to the other sections in said article. and to implement them before the courts should intervene. as a rule. there are enough balancing provisions in the Constitution to allow the Senate to ratify the Philippine concurrence in the WTO Agreement. the Constitution did not intend to pursue an isolationist policy. as follows: 1. (2) by mandating the State to "adopt measures that help 28 make them competitive. the State shall protect Filipino enterprises against unfair foreign competition and trade practices. All told. It did not shut out foreign investments. et al. the issue is whether. The issue here is not whether this paragraph of Sec. The goals of the national economy are a more equitable distribution of opportunities. this Court held that "Sec. second par. 10 and 12 of Article XII.
while allowing for the optimal use of the world's resources in accordance with the objective of sustainable development. therefore. Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international trade relations. Recognizing further that there is need for positive efforts designed to ensure that developing countries. developing countries can form powerful blocs to push their economic agenda more decisively than outside the Organization. secure a share in the growth in international trade commensurate with the needs of their economic development. however. more viable and durable multilateral trading system encompassing the General Agreement on Tariffs and Trade. Unlike in the UN where major states have permanent seats and veto powers in the Security Council. Quite the contrary. GATT requires an average tariff reduction rate of 36% for developed countries to be effected within a period of six (6) years while developing countries — including the Philippines — are required to effect an average tariff reduction of only 24% within ten (10) years . the respondents have gravely abused their discretion. Specifically. Where local businesses are jeopardized by unfair foreign competition.Upon the other hand. to develop an integrated. There is no WTO equivalent of the UN Security Council. the WTO Agreement grants developing countries a more lenient treatment. decisions of the Ministerial Conference and the General Council shall be taken by the majority of the votes cast. thus. Thus. WTO decides by consensus whenever possible. the Solicitor General points out that pursuant to and consistent with the foregoing basic principles. Resolved. GATT requires developed countries to reduce their budgetary outlays for export subsidy by 36% and export volumes receiving export subsidy by 21% within a period of six (6) years. local industries and enterprises will all be wiped out and that Filipinos will be deprived of control of the economy. There is hardly therefore any basis for the statement that under the WTO. and expanding the production of and trade in goods and services. Amendments to MFN provisions and the Amendments provision will require assent of all members. decisions are made on the basis of sovereign equality. in the WTO. poor countries can protect their common interests more effectively through the WTO than through one-on-one negotiations with developed countries. preferential treatment is given to developing countries in terms of the amount of tariff reduction and the period within which the reduction is to be spread out . GATT requires developed countries to reduce domestic support to agricultural products by 20% over six (6) years.) Specific WTO Provisos Protect Developing Countries So too. there would be no basis to say that in joining the WTO. In regard to export subsidy for agricultural products. the weaker situations of developing nations like the Philippines have been taken into account. GATT itself has provided built-in protection from unfair foreign competition and trade practices including anti-dumping measures. giving their domestic industries some protection from the rush of foreign competition. they have made a bold decision to steer the ship of state into the yet uncharted sea of economic liberalization. with respect to tariffs in general. countervailing measures and safeguards against import surges. . which comprise the vast majority of its members. seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development. This is not merely a matter of practical alliances but a negotiating strategy rooted in law. Any member may withdraw from the Agreement upon the expiration of six months from the date of 33 notice of withdrawals. the basic principles underlying the WTO Agreement recognize the need of developing countries like the Philippines to "share in the growth in international tradecommensurate with the needs of their economic development. otherwise. the Philippines can avail of these measures. (emphasis supplied. Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living. respondents maintain that the WTO itself has some built-in advantages to protect weak and developing economies. the results of past trade liberalization efforts. and all of the results of the Uruguay Round of Multilateral Trade Negotiations. For developing countries. with each member's vote equal in weight to that of any other. . Determined to preserve the basic principles and to further the objectives underlying this multilateral trading system. Amendments would require two thirds vote in general. ensuring full employment and a large and steadily growing volume of real income and effective demand. . as compared to only 13% for developing countries to be effected within ten (10) years . Thus. In respect to domestic subsidy. Moreover. True. and especially the least developed among them. Hence. the reduction rate is only two-thirds of that prescribed for developed countries and a longer period of ten (10) years within which to effect such reduction. except in cases of interpretation of the Agreement or waiver of the obligation of a member which would require three fourths vote." These basic principles are found in 34 the preamble of the WTO Agreement as follows: The Parties to this Agreement. Within the WTO. But such decision cannot be set aside on the ground of .
the question boils down to whether WTO/GATT will favor the general welfare of the public at large. Independence refers to the freedom from undue foreign control of the national economy. Filipino entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to grow and to prosper against the best offered under a policy of laissez faire. Indeed. By the same token. not in a twinkling by mandate of our delegates. it means avoiding mendicancy in the international community. the root and not the blossom. employment. the WTO Agreement was not yet in existence when the Constitution was drafted and ratified in 1987. That does not mean however that the Charter is necessarily flawed in the sense that its framers might not have anticipated the advent of a borderless world of business." "national treatment. Did that necessarily mean that the then Constitution might not have contemplated a diminution of the absoluteness of sovereignty when the Philippines signed the UN Charter. Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality? Will WTO/GATT succeed in promoting the Filipinos' general welfare because it will — as promised by its promoters — expand the country's exports and generate more employment? Will it bring more prosperity. simply because we disagree with it or simply because we believe only in other economic policies. the base and framework only of the edifice that is yet to rise. the Court in taking jurisdiction of this case will not pass upon the advantages and disadvantages of trade liberalization as an economic policy. It will only perform its constitutional duty of determining whether the Senate committed grave abuse of discretion. nor can it conjure by mere fiat an 35 . In fine. for which they are answerable to our people during appropriate electoral exercises. As earlier stated. Constitution Does Not Rule Out Foreign Competition Furthermore. The WTO reliance on "most favored nation. On the other hand. thereby effectively surrendering part of its control over its foreign relations to the decisions of various UN organs like the Security Council? It is not difficult to answer this question. It is but the core of the dream that must take shape. sponsor of this constitutional policy: Economic self-reliance is a primary objective of a developing country that is keenly aware of overdependence on external assistance for even its most basic needs. but one in favor of the gradual development of robust industries that can compete with the best in the foreign markets." where it will in time develop its sinews and gradually gather its strength and finally achieve its substance. respondents claim that WTO/GATT aims to make available to the Filipino consumer the best goods and services obtainable anywhere in the world at the most reasonable prices. Constitution Designed to Meet Future Events and Contingencies No doubt. They should be interpreted to cover even future and unknown circumstances." thereby demonstrating a clear policy against a sheltered domestic trade environment. the United Nations was not yet in existence when the 1935 Constitution became effective. purchasing power and quality products at the most reasonable rates to the Filipino public? The responses to these questions involve "judgment calls" by our policy makers.grave abuse of discretion. Consequently. It is to the credit of its drafters that a Constitution can withstand the assaults of bigots and infidels but at the same time bend with the refreshing winds of change necessitated by 38 unfolding events. the Constitution cannot. rather. It does not mean autarky or economic seclusion . goods and services." the fundamental law encourages industries that are "competitive in both domestic and foreign markets. but slowly "in the crucible of Filipino minds and hearts." As explained by Constitutional Commissioner Bernardo Villegas. Constitution Favors Consumers. Constitutions are designed to meet not only the vagaries of contemporary events. And given a free trade environment. rise full-grown from the brow of the Constitutional Convention. As one eminent political law writer and respected jurist explains: The Constitution must be quintessential rather than superficial. Filipino managers and Filipino enterprises have shown capability and tenacity to compete internationally. nor does it contain any specific pronouncement that Filipino companies should be pampered with a total proscription of foreign competition. the constitutional policy of a "self-reliant and independent national economy" does not necessarily rule out the entry of foreign investments. Not Industries or Enterprises The Constitution has not really shown any unbalanced bias in favor of any business or enterprise. It contemplates neither "economic seclusion" nor "mendicancy in the international community. Aside from envisioning a trade 37 policy based on "equality and reciprocity. Such questions and the answers thereto are not subject to judicial pronouncements based on grave abuse of discretion. especially in such strategic industries as in the development of natural resources 36 and public utilities. like the goddess Athena." and "trade without discrimination" cannot be struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply to all WTO members.
instant Utopia. It must grow with the society it seeks to re-structure and march apace with the progress of the race, drawing from the vicissitudes of history the dynamism and vitality that will keep it, far from becoming a petrified rule, a pulsing, living law attuned to the heartbeat of the nation . Third Issue: The WTO Agreement and Legislative Power The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its laws, regulations and administrative 39 procedures with its obligations as provided in the annexed Agreements." Petitioners maintain that this undertaking "unduly limits, restricts and impairs Philippine sovereignty, specifically the legislative power which under Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the Congress of the Philippines. It is an assault on the sovereign powers of the Philippines because this means that Congress could not pass legislation that will be good for our national interest and general welfare if such legislation will not conform with the WTO Agreement, which not only relates to the trade in goods . . . but also to the flow of investments and 40 money . . . as well as to a whole slew of agreements on socio-cultural matters . . . More specifically, petitioners claim that said WTO proviso derogates from the power to tax, which is lodged in the Congress. And while the Constitution allows Congress to authorize the President to fix tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts, such authority is subject to "specified limits and . . . such limitations and restrictions" as Congress 42 may provide, as in fact it did under Sec. 401 of the Tariff and Customs Code. Sovereignty Limited by International Law and Treaties This Court notes and appreciates the ferocity and passion by which petitioners stressed their arguments on this issue. However, while sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. Unquestionably, the Constitution did not envision a hermit-type isolation of the country from the rest of the world. In its Declaration of Principles and State Policies, the Constitution "adopts the generally accepted principles of international law as part of the law of 43 the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all nations." By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be 44 automatically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda — international agreements must be performed in good faith. "A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties . . . A state which has contracted valid international obligations is bound to make in its 45 legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken." By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, 46 the laying down of rules governing conduct in peace and the establishment of international organizations. The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations. As aptly put by John F. Kennedy, "Today, no nation can build its destiny alone. The age of self-sufficient nationalism is over. The age of 47 interdependence is here." UN Charter and Other Treaties Limit Sovereignty Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented to restrict its sovereign rights 47 under the "concept of sovereignty as auto-limitation." -A Under Article 2 of the UN Charter, "(a)ll members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action." Such assistance includes payment of its corresponding share not merely in administrative expenses but also in expenditures for the peace-keeping operations of the organization. In its advisory opinion of July 20, 1961, the International Court of Justice held that money used by the United Nations Emergency Force in the Middle East and in the Congo were "expenses of the United Nations" under Article 17, paragraph 2, of the UN Charter. Hence, all its members must bear their corresponding share in such expenses. In this sense, the Philippine Congress is restricted in its power to appropriate. It is compelled to appropriate funds whether it agrees with such peace-keeping expenses or not. So too, under Article 105 of the said Charter, the UN and its representatives enjoy diplomatic privileges and immunities, thereby limiting again the exercise of sovereignty of members within their own territory. Another example: although "sovereign equality" and "domestic jurisdiction" of all members are set forth as underlying principles in the UN Charter, such provisos are however subject to enforcement measures decided by the Security Council for the maintenance of international peace and security under Chapter VII of the Charter. A final example: under Article 103, "(i)n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligation under the present charter shall prevail," thus unquestionably denying the Philippines — as a member — the sovereign power to make a choice as to which of conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other international pacts — both bilateral and multilateral — that involve limitations on Philippine sovereignty. These are enumerated by the Solicitor General in his Compliance dated October 24, 1996, as follows: (a) Bilateral convention with the United States regarding taxes on income, where the Philippines agreed, among others, to exempt from tax, income received in the Philippines by, among others, the Federal Reserve Bank of the United States, the Export/Import Bank of the United States, the Overseas Private Investment Corporation of the United States. Likewise, in said convention, wages, salaries and similar remunerations paid by the United States to its citizens for labor and personal services performed by them as employees or officials of the United States are exempt from income tax by the Philippines. (b) Bilateral agreement with Belgium, providing, among others, for the avoidance of double taxation with respect to taxes on income. (c) Bilateral convention with the Kingdom of Sweden for the avoidance of double taxation. (d) Bilateral convention with the French Republic for the avoidance of double taxation. (e) Bilateral air transport agreement with Korea where the Philippines agreed to exempt from all customs duties, inspection fees and other duties or taxes aircrafts of South Korea and the regular equipment, spare parts and supplies arriving with said aircrafts. (f) Bilateral air service agreement with Japan, where the Philippines agreed to exempt from customs duties, excise taxes, inspection fees and other similar duties, taxes or charges fuel, lubricating oils, spare parts, regular equipment, stores on board Japanese aircrafts while on Philippine soil. (g) Bilateral air service agreement with Belgium where the Philippines granted Belgian air carriers the same privileges as those granted to Japanese and Korean air carriers under separate air service agreements. (h) Bilateral notes with Israel for the abolition of transit and visitor visas where the Philippines exempted Israeli nationals from the requirement of obtaining transit or visitor visas for a sojourn in the Philippines not exceeding 59 days. (i) Bilateral agreement with France exempting French nationals from the requirement of obtaining transit and visitor visa for a sojourn not exceeding 59 days. (j) Multilateral Convention on Special Missions, where the Philippines agreed that premises of Special Missions in the Philippines are inviolable and its agents can not enter said premises without consent of the Head of Mission concerned. Special Missions are also exempted from customs duties, taxes and related charges. (k) Multilateral convention on the Law of Treaties. In this convention, the Philippines agreed to be governed by the Vienna Convention on the Law of Treaties. (l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the International Court of Justice. The International Court of Justice has jurisdiction in all legal disputes concerning the interpretation of a treaty, any question of international law, the existence of any fact which, if established, would constitute a breach "of international obligation." In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign powers of taxation, eminent domain and police power. The underlying consideration in this partial surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the same privilege and immunities to the Philippines, its officials and its citizens. The same reciprocity characterizes the Philippine commitments under WTO-GATT. International treaties, whether relating to nuclear disarmament, human rights, the environment, the law of the sea, or trade, constrain domestic political sovereignty through the assumption of external obligations. But unless anarchy in international relations is preferred as an alternative, in most cases we accept that the benefits of the reciprocal obligations involved outweigh the costs associated with any loss of political sovereignty. (T)rade treaties that structure relations by reference to durable, well-defined substantive norms and objective dispute resolution procedures reduce the risks of larger countries exploiting raw economic power to bully smaller countries, by subjecting power relations to some form of legal ordering. In addition, smaller countries typically stand to gain disproportionately from trade liberalization. This is due to the simple fact that liberalization will provide access to a larger set of potential new trading relationship than in case of the larger country gaining enhanced success to the 48 smaller country's market. The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without violating the Constitution, based on the rationale that the Philippines "adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of . . . cooperation and amity with all nations."
Fourth Issue: The WTO Agreement and Judicial Power Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the Agreement on Trade-Related 49 Aspects of Intellectual Property Rights (TRIPS) intrudes on the power of the Supreme Court to promulgate rules concerning 50 pleading, practice and procedures. To understand the scope and meaning of Article 34, TRIPS,
it will be fruitful to restate its full text as follows: Article 34
Process Patents: Burden of Proof 1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred to in paragraph 1 (b) of Article 28, if the subject matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process. Therefore, Members shall provide, in at least one of the following circumstances, that any identical product when produced without the consent of the patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented process: (a) if the product obtained by the patented process is new; (b) if there is a substantial likelihood that the identical product was made by the process and the owner of the patent has been unable through reasonable efforts to determine the process actually used. 2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the condition referred to in subparagraph (b) is fulfilled. 3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their manufacturing and business secrets shall be taken into account. From the above, a WTO Member is required to provide a rule of disputable (not the words "in the absence of proof to the contrary") presumption that a product shown to be identical to one produced with the use of a patented process shall be deemed to have been obtained by the (illegal) use of the said patented process, (1) where such product obtained by the patented product is new, or (2) where there is "substantial likelihood" that the identical product was made with the use of the said patented process but the owner of the patent could not determine the exact process used in obtaining such identical product. Hence, the "burden of proof" contemplated by Article 34 should actually be understood as the duty of the alleged patent infringer to overthrow such presumption. Such burden, properly understood, actually refers to the "burden of evidence" (burden of going forward) placed on the producer of the identical (or fake) product to show that his product was produced without the use of the patented process. The foregoing notwithstanding, the patent owner still has the "burden of proof" since, regardless of the presumption provided under paragraph 1 of Article 34, such owner still has to introduce evidence of the existence of the alleged identical product, the fact that it is "identical" to the genuine one produced by the patented process and the fact of "newness" of the genuine product or the fact of "substantial likelihood" that the identical product was made by the patented process. The foregoing should really present no problem in changing the rules of evidence as the present law on the subject, Republic Act No. 165, as amended, otherwise known as the Patent Law, provides a similar presumption in cases of infringement of patented design or utility model, thus: Sec. 60. Infringement. — Infringement of a design patent or of a patent for utility model shall consist in unauthorized copying of the patented design or utility model for the purpose of trade or industry in the article or product and in the making, using or selling of the article or product copying the patented design or utility model. Identity or substantial identity with the patented design or utility model shall constitute evidence of copying. (emphasis supplied) Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption applies only if (1) the product obtained by the patented process in NEW or (2) there is a substantial likelihood that the identical product was made by the process and the process owner has not been able through reasonable effort to determine the process used. Where either of these two provisos does not obtain, members shall be free to determine the appropriate method of implementing the provisions of TRIPS within their own internal systems and processes. By and large, the arguments adduced in connection with our disposition of the third issue — derogation of legislative power — will apply to this fourth issue also. Suffice it to say that the reciprocity clause more than justifies such intrusion, if any actually exists. Besides, Article 34 does not contain an unreasonable burden, consistent as it is with due process and the concept of adversarial dispute settlement inherent in our judicial system.
namely. I of the 36-volume Uruguay Round of Multilateral Trade Negotiations. clearing systems and refinancing available in the normal 57 course of business. Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other Documents Contained in the Final Act Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes — but not in the other documents referred to in the Final Act. free transfer and processing of information. They contend that the second letter of the President to 53 the Senate which enumerated what constitutes the Final Act should have been the subject of concurrence of the Senate. and generally with a view to facilitating the operation and furthering the 56 objectives of this Agreement. the WTO Agreement itself expresses what multilateral agreements are deemed included as its integral 58 parts." On the other hand." It is not the treaty itself. as follows: . conventions.So too. as subsequently rectified. The Agreements and associated legal instruments included in Annex 4 (hereinafter referred to as "Plurilateral Trade Agreements") are also part of this Agreement for those Members that have accepted them. temporary entry of personnel. the adjustment 52 in legislation and rules of procedure will not be substantial." The Understanding on Commitments in Financial Services also approved in Marrakesh does not apply to the Philippines. binding on all Members. and (b) to adopt the Ministerial Declarations and Decisions. 97 expressed concurrence in exactly what the Final Act required from its signatories. The Agreements and associated legal instruments included in Annexes 1. and 3. dated 30 October 1947. namely the Ministerial Declaration and Decisions and the Understanding on Commitments in Financial Services — is defective and insufficient and thus constitutes abuse of discretion. annexed to the Final Act adopted at the conclusion of the Second Session of the Preparatory Committee of the United Nations Conference on Trade and Employment. 1994. and national treatment with respect to access to payment. 1994. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (hereinafter referred to as "GATT 1994") is legally distinct from the General Agreement on Tariffs and Trade. 4. elimination of monopoly. The text of the "Final Act Embodying the Results of the 55 Uruguay Round of Multilateral Trade Negotiations" is contained in just one page in Vol. and are binding on those Members. expansion of operation of existing financial service suppliers. recommendations and other acts agreed upon 54 and signed by the plenipotentiaries attending the conference. the senators 60 of the Republic minutely dissected what the Senate was concurring in. amended or modified (hereinafter referred to as "GATT 1947"). trademarks and copyrights. Secretary Navarro as representative of the Republic of the Philippines undertook: (a) to submit. They were approved by the ministers by virtue of Article XXV: 1 of GATT which provides that representatives of the members can meet "to give effect to those provisions of this Agreement which invoke joint action. After reading the letter of President Ramos dated August 11. since the Philippine is a signatory to most international conventions on patents. as appropriate. sometimes called protocol de cloture. concurrence of the Senate in the WTO Agreement. 3. which in turn was the document signed by Secretary Navarro. as follows: Article II Scope of the WTO 1. They submit that such concurrence in the WTO Agreement alone is flawed because it is in effect a rejection of the Final Act. the WTO Agreement for the consideration of their respective competent authorities with a view to seeking approval of the Agreement in accordance with their procedures. The assailed Senate Resolution No. "A final act. 2. The Plurilateral Trade Agreements do not create either obligation or rights for Members that have not accepted them. It is rather a summary of the proceedings of a protracted conference which may have taken place over several years. It should be added that the Senate was well-aware of what it was concurring in as shown by the members' deliberation on August 59 25. It applies only to those 27 Members which "have indicated in their respective schedules of commitments on standstill. 2. The Ministerial Declarations and Decisions were deemed adopted without need for ratification. in representation of the Republic upon authority of the President. The WTO shall provide the common institutional frame-work for the conduct of trade relations among its Members in matters to the agreements and associated legal instruments included in the Annexes to this Agreement. By signing said Final Act. (hereinafter referred to as "Multilateral Agreements") are integral parts of this Agreement. is an instrument which records the winding up of the proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties.
And if that is the one that is being submitted now. THE CHAIRMAN. we read and I quote : By signing the present Final Act. Can this Committee hear from Senator Tañada and later on Senator Tolentino since they were the ones that raised this question yesterday? Senator Tañada.THE CHAIRMAN: Yes. That suggestion was to treat the proceedings of the Committee as being in the nature of briefings for Senators until the question of the submission could be clarified. Senator Tolentino. THE CHAIRMAN. is the President submitting a new . it would now clearly appear that what is being submitted to the Senate for ratification is not the Final Act of the Uruguay Round. It requires us to ratify the Agreement which is now being submitted. And so. Based on what Secretary Romulo has read. Senator Gonzales. Chairman. the question of the validity of the submission came up in the first day hearing of this Committee yesterday. In paragraph 2 of the Final Act. Mr. The Constitution does not require us to ratify the Final Act. the representatives agree : (a) to submit as appropriate the WTO Agreement for the consideration of the respective competent authorities with a view to seeking approval of the Agreement in accordance with their procedures. Mr. Thank you. Secretary Romulo. but rather the Agreement on the World Trade Organization as well as the Ministerial Declarations and Decisions. Senator Lina. Chairman. Mr. Then the new submission is. The Final Act itself specifies what is going to be submitted to with the governments of the participants. to make sure that it is clear cut and there should be no misunderstanding. Chairman. . Now. it is not the Final Act that was agreed to be submitted to the governments for ratification or acceptance as whatever their constitutional procedures may provide but it is the World Trade Organization Agreement. and with the Final Act itself . LINA. I am now satisfied with the wording of the new submission of President Ramos . And they had been adequately reflected in the journal of yesterday's session and I don't see any need for repeating the same . Thank you. is he making a new submission which improves on the clarity of the first submission? MR. Chairman. . please. . Now. and I think it now complies with the provisions of the Constitution. Chairman. Mr. THE CHAIRMAN: Thank you. however. Thank you. THE CHAIRMAN. Mr. SEN. SEN. stating the obvious and therefore I have no further comment to make. I have not seen the new submission actually transmitted to us but I saw the draft of his earlier. Thank you. SEN. ROMULO: Mr. my views on this matter are already a matter of record . TOLENTINO. President. Chairman. May I call on Senator Gonzales. Mr. . Senator Tolentino raised a point of order which. Epilogue . GONZALES. Was the observation made by Senator Tañada that what was submitted to the Senate was not the agreement on establishing the World Trade Organization by the final act of the Uruguay Round which is not the same as the agreement establishing the World Trade Organization? And on that basis. do you want to make any comment on this? SEN. I agree with the observation just made by Senator Gonzales out of the abundance of question. I would consider the new submission as an act ex abudante cautela . I think it satisfies both the Constitution and the Final Act itself . of President Ramos. and the Understanding and Commitments in Financial Services. Senator Tañada. in effect. In other words. SEN. he agreed to withdraw upon understanding that his suggestion for an alternative solution at that time was acceptable. Can we hear from Senator Tolentino? And after him Senator Neptali Gonzales and Senator Lina. TAÑADA. it was his intention to clarify all matters by giving this letter. TAÑADA: Thank you. I believe. .
and endowed with a vision of the future. To do so would constitute grave abuse in the exercise of our own judicial power and duty. after deliberation and voting. the alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced by the adoption of the generally accepted principles of international law as part of the law of the land and the adherence of the Constitution to the policy of cooperation and amity with all nations. domestic materials and locally produced goods. As to whether the nation should join the worldwide march toward trade liberalization and economic globalization is a matter that our people should determine in electing their policy makers. and thus its actions are presumed regular and done in good faith. After all. They are not sources for causes of action. SO ORDERED.11 sec 19. That is a matter between the elected policy makers and the people. Notwithstanding objections against possible limitations on national sovereignty. and by the legislature in its enactments of laws. Russia and Saudi Arabia negotiating for membership in the WTO. It is itself a constitutional body independent and coordinate. the principles stated herein are not self-executingg. Let the people. Issue: whether or not such affiliation is prohibited by our constitution Held: art 2 of the constitution. products. speedy and adequate remedy in the ordinary course of law. as alleged by petitioners. 97. It must be grave abuse of discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility. should this be the political desire of a member. But that is not a legal reason to attribute grave abuse of discretion to the Senate and to nullify its decision. Moreover. the WTO Agreement allows withdrawal of membership. Petioner contends that it is in conflict with the provisions of our constitution. But it is equally true that such principles — while serving as judicial and legislative guides — are not in themselves sources of causes of action. may even agree with petitioners that it is more advantageous to the national interest to strike down Senate Resolution No. this Court never forgets that the Senate. this Court will resolve every doubt in its favor. beneficial or viable is outside the realm of judicial inquiry and review. Tanada vs angara GR 118295 Facts: the instant case is a petition for certiorari. is one of two sovereign houses of Congress and is thus entitled to great respect in its actions. if not economic self-destruction. The eminent futurist John Naisbitt. stagnation. politically and culturally in the next century. a writ of certiorari grounded on grave abuse of discretion may be issued by the Court under Rule 65 of the Rules of Court when it is amply shown that petitioners have no other plain. or at least some of its members. Unless convincing proof and persuasive arguments are presented to overthrow such presumptions. petitioners are invoking this Court's constitutionally imposed duty "to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction" on the part of the Senate in giving its concurrence therein via Senate Resolution No. That the Senate. this Court cannot find any cogent reason to impute grave abuse of discretion to the Senate's exercise of its power of concurrence in the WTO Agreement granted it by Sec. The alternative to WTO is isolation. WHEREFORE. 21 of Article VII of 64 the Constitution. the WTO remains as the only viable structure for multilateral trading and the veritable forum for the development of international trade law. It is true. and art 12. Mere abuse of discretion is not enough. We find no "patent and gross" arbitrariness or despotism "by reason of passion or personal hostility" in such exercise. There are at present about 31 countries including China. Failure on the 63 part of the petitioner to show grave abuse of discretion will result in the dismissal of the petition. specifically Art.prohibition and mandamus filed bby petitioner to contest the constitutionality of joinuing the WTO which was concurred upon by majority of the Senate. Ineludably. sec 10. Using the foregoing well-accepted definition of grave abuse of discretion and the presumption of regularity in the Senate's processes. what the Senate did was a valid exercise of its authority. By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of 61 jurisdiction. 65 . and to protect and/or prefer Filipino labor. So too. Duly enriched with original membership. make their free choice. that broad constitutional principles require the State to develop an independent national economy effectively controlled by Filipinos." thereby justifying its acceptance of said treaty. keenly aware of the advantages and disadvantages of globalization with its on-line experience. They are used by the judiciary as aids or as guidelines in the exercise of its power of judicial review. As to whether such exercise was wise.In praying for the nullification of the Philippine ratification of the WTO Agreement. and must be so patent and so gross as to amount to an 62 evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. predicts an Asian Renaissance where "the East will become the dominant region of the world economically. Procedurally." He refers to the "free market" espoused by WTO as the "catalyst" in this coming Asian ascendancy. there are other equally fundamental constitutional principles relied upon by the Senate which mandate the pursuit of a "trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity" and the promotion of industries "which are competitive in both domestic and foreign markets. whose act is under review. voluntarily and overwhelmingly gave its consent to the WTO Agreement thereby making it "a part of the law of the land" is a legitimate exercise of its sovereign duty and power. 97. through their duly authorized elected officers. It is not impossible to surmise that this Court. the petition is DISMISSED for lack of merit. the Philippines now straddles the crossroads of an international strategy for economic prosperity and stability in the new millennium. In rendering this Decision. author of the best seller Megatrends.
assailing the Resolutions dated 22 June 2004 and 23 November 2004 of the Sandiganbayan in CRIMINAL CASE NO. while in the performance of his official function. Philippines.56).806.: We resolve the Petition for Certiorari filed under Rule 65 of the Revised Rules of Court by the People of the Philippines   (People). namely: (1) that the facts alleged in the information do not constitute the offense with which the accused was charged. then President Ferdinand E. denied the People’s motion for reconsideration of the first assailed Resolution. and the act charged – receiving dual compensation – is absolutely irrelevant and unrelated to the act of granting licenses. He argued that there was no interruption of the prescriptive period for the offense because the proceedings undertaken under the 1987 complaint filed with the Presidential Commission on Good Government ( PCGG) were null and void pursuant to the   Supreme Court’s ruling in Cojuangco Jr. on the ground of grave abuse of discretion and/or lack or excess of jurisdiction.348. 26916 entitled People of the Philippines versus Benjamin “Kokoy” Romualdez. The petition is dismissed for lack of merit. the second assailed Resolution. or other concessions. x----------------------------------------------------------------------------------------------x DECISION BRION. 2008 BENJAMIN “KOKOY” T. 3019 (RA 3019). permits. To support his prescription argument. in the City of Manila.709. thereby making it a part of the law of the land. The deliberation and voting of the senate. 3326) does not contain any rule similar to that found in the Revised Penal Code. accused Benjamin “Kokoy” Romualdez. He likewise argued that the Revised Penal Code  provision that prescription does not run when the offender is absent from the Philippines should not apply to his case. The first assailed Resolution granted the motion to quash filed by private respondent Benjamin “Kokoy” Romualdez (Romualdez). did then and there willfully. Respondents. The  Information reads: That on or about and during the period from 1976 to February 1986 or sometime prior or subsequent thereto. voluntarily and overwhelmingly gave its consent to the WTO agreement. committing the offense in relation to his Office. permits. Petitioner. PEOPLE OF THE PHILIPPINES. Promulgated: . had himself appointed and/or assigned as Ambassador to foreign countries. and within the jurisdiction of this Honorable Court.C. and using his influence with his brother-in-law. respectively. otherwise known as the Anti-Graft and Corrupt Practices Act. to the damage and prejudice of the Government in the aforementioned amount of P5. knowing fully well that such appointment and/or assignment is in violation of the existing laws as the Office of the Ambassador or Chief of Mission is incompatible with his position as Governor of the Province of Leyte. Kingdom of Saudi Arabia (Jeddah).  Romualdez moved to quash the information on two grounds. and United States of America (Washington D. and (b) there can be no damage and prejudice to the Government considering that he actually rendered services for the dual positions of Provincial Governor of Leyte and Ambassador to foreign countries. CONTRARY TO LAW. or other concessions.86) both Philippine Currencies. .709. as amended. a public officer being then the Provincial Governor of the Province of Leyte. PCGG and Cruz Jr [sic]. the law on the prescription of offenses punished under special laws (Republic Act No. Romualdez posited that the 15-year prescription under Section 11 of RA 3019 had lapsed since the preliminary investigation of the case for an offense committed on or about and during the period from 1976 to February 1986 commenced only in May 2001 after a Division of the Sandiganbayan referred the matter to the Office of the Ombudsman.911.versus July 23. as he was charged with an offense not covered by the Revised Penal Code. thereby enabling himself to collect dual compensation from both the Department of Foreign Affairs and the Provincial Government of Leyte in the amount of Two Hundred Seventy-six Thousand Nine Hundred Eleven Dollars and 56/100 (US $276. on the other hand. J. unlawfully and criminally with evident bad faith.50) and Two Hundred Ninety-three Thousand Three Hundred Forty-eight Pesos and 86/100 (P293.).806. v. Marcos. cause undue injury to the Government in the following manner: accused public officer being then the elected Provincial Governor of Leyte and without abandoning said position.50. He argued that the acts imputed against him do not constitute an offense because: (a) the cited provision of the law applies only to public officers charged with the grant of licenses. and (2) that the criminal action or liability has been extinguished by prescription. the treaty is in harmony with the generally accepted principles of international law as part of the law of the land and the adherence of the amity with all nations. US Currency or its equivalent amount of Five Million Eight Hundred Six Thousand Seven Hundred Nine Pesos and 50/100 (P5.Furthermore. ANTECEDENTS The Office of the Ombudsman (Ombudsman) charged Romualdez before the Sandiganbayan with violation of Section 3 (e) of Republic Act No. ROMUALDEZ and THE SANDIGANBAYAN (FIRST DIVISION). particularly the People’s Republic of China (Peking).
“Gross negligence” is characterized by the want of even slight care. that assuming the averments of the foregoing information are hypothetically admitted by the accused. are wanting. the “bad faith” must be “evident”. Even assuming that the appointee influenced the appointing authority. it would not constitute the offense of violation of Section 3 (e) of RA 3019 as the elements of (a) causing undue injury to any party. Jurisprudence has established what “evident bad faith” and “gross negligence” entail. a perusal of the information shows that pertinently. The accused alleges in the subject Motion that he actually rendered services to the government. even nominal.709. The Sandiganbayan found no merit in Romualdez’ prescription argument. and  that prescription is a matter of technicality to which no one has a vested right. (Emphasis supplied) The accused may have been inefficient as a public officer by virtue of his holding of two concurrent positions. whether or not he had himself appointed to the position of the ambassador while concurrently holding the position of provincial governor. The Sandiganbayan granted Romualdez’ motion to quash in the first Resolution assailed in this petition. the Sandiganbayan denied via the second assailed Resolution the People’s motion for reconsideration under the following terms – The Court held in its Resolution of June 22. 2004. Romualdez filed a Reply to this Opposition. unless it is alleged that he acted in conspiracy with his appointing authority. is not so claimed by the prosecution in the instant case. 3019.50 representing the accused’s compensation is without basis. No. from the government. which. and (b) that the public officer acted with manifest partiality. R. The People opposed Romualdez’ motion for partial reconsideration. it is the appointing authority that should be responsible  . Romualdez opposed the People’s motion. even if the accused’s appointment was contrary to law or the constitution. the act of the accused that caused undue injury must have been done with evident bad faith or with gross inexcusable negligence. acting or omitting to act in a willful or omitting to act in a willful or intentional manner displaying a conscious indifference to consequences as far as other persons may be affected. the Information does not sufficiently aver how the act of receiving dual compensation resulted to undue injury to the government so as to make the accused liable for violation of Section  3 (e) of R. citing “reversible errors” that the Sandiganbayan committed in its  ruling. Thereafter. as discussed above. laches or estoppel. Thus. At most.” On the issue of prescription. Article XI of the Constitution provides that the right of the State to recover properties unlawfully acquired by public officials or employees.806. however. permanent or temporary. shall not be barred by prescription. But bad faith per se is not enough for one to be held liable under the law. a nd United States of America. but also moved for a partial reconsideration of the Resolution’s ruling on   prescription. by giving unwarranted benefits. accused is being charged for: (a) having himself appointed as ambassador to various posts while serving as governor of the Province of Leyte and (b) for collecting dual compensation for said positions. the appointee only makes a passive participation by entering into the appointment. As to the first. from them or from their nominees or transferees. As it is. A. given the elements of the crime and the standards set by the Supreme Court quoted above. and so maintains and sustains. absent a showing that the accused did not actually render services for his two concurrent positions as Provincial Governor of the Province of Leyte and as Ambassador to the People’s Republic of China.A. evident bad faith or gross inexcusable negligence. but such inefficiency is not enough to hold him criminally liable under the Information charged against him. 3019. because the act of appointment is something that can only be imputed to the appointing authority. including the government. the Court finds that accused cannot be held criminally liable. any liability arising from the holding of both positions by the accused may be administrative in nature. advantage or preference to such parties. To receive compensation for actual services rendered would not come within the ambit of improper or illegal use of funds or properties of the government. xxx However. The Sandiganbayan stated: We find that the allegation of damage and prejudice to the Government in the amount of P5. Kingdom of Saudi Arabia. The People moved to reconsider this Resolution. whether in the classified or unclassified or  exempt service receiving compensation. No. nor would it constitute unjust enrichment tantamount to the damage and prejudice of the government. thus: In order to be held guilty of violating Section 3 (e).The People opposed the motion to quash on the argument that Romualdez is misleading the court in asserting that Section 3 (e) of RA 3019 does not apply to him when Section 2 (b) of the law states that corrupt practices may be committed by public officers who include “elective and appointive officials and employees. the People argued that Section 15. xxx xxx xxx xxx.
to so pay him is to make illegal payment of public funds and cause undue injury to the government under Section 3 (e) of RA 3019. The People.50) and Two Hundred Ninety-three Thousand Three Hundred Forty Eight Pesos and 86/100 (P293. evident bad faith or gross inexcusable negligence. herein accused. Required to comment on the petition. under the rules on payment of compensation. close and terminate the  proceedings against Romuldez. inadequate. The Sandiganbayan went beyond the ultimate facts required in charging a violation of Section 3 (e) of RA 3019 and delved into matters yet to be proven during trial.709. OUR RULING The Threshold Issue The Sandiganbayan ruling granting Romuldez’ motion to quash the Information shall. As it is. is through Section 7 of Presidential Decree No. when public interest is involved. liable for the appointment.therefor because it is the latter who is the doer of the alleged wrongful act. It likewise found no merit in Romualdez’ motion for partial reconsideration. Besides receiving compensation is an incident of actual services rendered. which provides that decisions and final orders of the Sandiganbayan are appealable to the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45. or reviewed. Citing the express provision of Section 7 of Republic Act No. or that certiorari is not a substitute for the lost remedy of an appeal. as Romualdez correctly maintains. instead of Rule 65. the appointing authority responsible for such unlawful employment shall be personally liable for the pay that would have accrued had the appointment been lawful. judgments of courts become final and irrevocable at some definite date fixed by law. is a final order. hence. These submissions bring to the fore the threshold issue of whether the present petition may be given due course given the Rule 65 mode of review that the People used. 1606 (as amended by Section 5 of Republic Act No. the rule may be relaxed when the issue raised is purely legal. He argued that the filing of the present Rule 65 petition is improper. 8249 (which provides that decisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court) . hence it cannot be construed as injury or damage to the government. it is not merely interlocutory and is therefore imm ediately  appealable. advantage or preference to any party and to acting with manifest partiality. As will be seen below. can no longer be questioned. thus.348. 1606. Romualdez countered in his Rejoinder that the assailed Resolutions. the People asked for a review of the case based on substantial justice and the claimed merits of the instant petition. and in case of urgency. he argued that certiorari cannot be availed of because of the availability of appeal. and insufficient. in the absence of any contention that receipt of such was tantamount to giving unwarranted benefits. Further. Marcos has been laid to rest. the appointing authority herein. it is a final ruling that disposes of the case and is properly reviewable by appeal. considering that: a. He cited in support of this contention the ruling that an order granting a motion to quash. Romualdez filed a Motion to Dismiss with Comment Ad Cautelam. as the People filed it beyond the 15-day reglementary filing period for a Rule 45 petition. speedy. re-opened. our examination of this threshold issue leads to the consideration of the grave abuse of discretion issue. Romualdez cannot be legally appointed as an ambassador of the Republic of the Philippines during his incumbency as Governor of the Province of Leyte.806. In fact. then President Ferdinand E. thus. and adequate remedy in the ordinary course of law. It also argued that certiorari may also be availed of where an appeal would be slow. On the substantive issues raised in the petition. He further argued that the present petition was belatedly filed. the allegation in the information that the accused collected compensation in the amounts of Five Million Eight Hundred Six Thousand Seven Hundred Nine Pesos and 50/100 (P5. Romualdez cannot receive compensation for his illegal appointment as Ambassador of the Republic of the Philippines and for his services in this capacity. of the Revised Rules of Court is the proper remedy.86) cannot sustain the theory of the prosecution that the accused caused damage and prejudice to the government. as amended by Republic Act No. on the other hand. and that it is within this Court’s power to suspend or exempt a particular case from the operation of the r ules when its strict application will frustrate rather than promote justice. and c. asserted in reply that while a petition for certiorari under Rule 65 may be availed of only when there is no appeal or any plain. Thus. b. to draw salaries for the two positions is to cause undue injury to the government under Section 3 (e) of RA 3019.    . 8249). The appeal. he argued that the factual averments in the Information do not constitute the offense charged and that the criminal action or liability has been extinguished by prescription. being final. unlike one of denial. considering that the assailed Resolutions are appealable. as a petition filed under Rule 45. upon finality. so it would be incongruous and illogical to hold his appointee. THE PETITION AND THE PARTIES’ SUBMISSIONS The People filed the present petition on the argument that the Sandiganbayan committed grave abuse of discretion in quashing the Information based on the reasons it stated in the assailed Resolutions. that public policy and sound practice demand that at the risk of occasional errors.
within sixty (60) days therefrom. Sandiganbayan case. as the above cited provision requires. although the decision has technically lapsed to finality. we have had occasions to relax the strict rules regulating these modes of review. Sandiganbayan (Third Division) and Republic v. Because of the spirit of liberality that   pervades the Rules of Court and the interest of substantial justice that we have always believed should be upheld. we will not hesitate to deviate from the strict application of our procedural rules when grave abuse of discretion amounting to lack or excess of jurisdiction is properly and substantially alleged in a petition filed after the lapse of the period for appeal under Rule 45 but prior to the lapse of the period for filing a Rule 65 petition . provides a completely different basis for review through the extraordinary writ of certiorari. Sandiganbayan we allowed a Rule 65 petition. speedy. the exceptions would displace the general rule. then its ruling. require that we so act. on the other hand. the remedies of appeal and certiorari are mutually exclusive and not alternative or successive. Under these terms. Conceptually. to review a Sandiganbayan Decision in view of the importance of the issues raised in the case. The purpose and occasion for the use of Rules 45 and 65 as modes of review are clearly established under the Rules of   Court and related jurisprudence. if the Sandiganbayan merely legally erred while acting within the confines of its jurisdiction. Section 1 of the 1987 Constitution which provides: Judicial power includes the duty of the courts of justice to settle actual controversy involving rights which are legally demandable and enforceable. The only deviation in terms of strict application of the Rules is from what we have discussed above regarding the basic nature of a petition for certiorari as expressly laid down by Rule 65. Rule 65. the ruling’s jurisdictional defect and the demands of substantial justice that we believe should receive primacy over the strict application of rules of procedure. In the past. Grounds. then this ruling is fatally defective on jurisdictional ground and we should allow it to be questioned within the period for filing a petition for certiorari under Rule 65. subject  only to the procedural limits on the right to question them provided under Rule 65. the People asks us to relax the application of the rules on the modes of review. these occasions are few and far between and have always been attended by exceptional circumstances. If. the Sandiganbayan ruling is attended by grave abuse of discretion amounting to lack or excess of jurisdiction. In the latter Republic v. otherwise. We similarly allowed a review under   Rule 65 in Republic v. notwithstanding that the proper remedy is a Rule 45 appeal. notwithstanding the lapse of the period of appeal under Rule 45. and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. a petition for certiorari cannot likewise be a substitute for  a lost appeal. certiorari is not allowed when a party to a case fails to appeal a judgment or final order despite the availability of that remedy. Rule 65 is the proper remedy when there is no appeal or any other plain.Significantly. However. on the other hand. Sandiganbayan (Special First Division) – cases on ill-gotten wealth – on the reasoning that the nature of the cases was endowed with public interest and involved public policy concerns. action on grave abuse of discretion is not only a power we can exercise. the People does not deny at all that the mode of review to question a Sandiganbayan final ruling is by way of Rule 45. and adequate remedy in the ordinary course of law. The Rule 65 petition brought under these circumstances is then being used as a substitute for a lost appeal. Cases on the choice between the Rule 45 and Rule 65 modes of review are not novel. it is a duty wemust discharge. That we can single out for special treatment cases involving grave abuse of discretion is supported by no less than thesecond paragraph of Article VIII. Rule 45 provides for the broad process of appeal to the Supreme Court on pure errors of law committed by the lower court. more than this. By express provision. speedy. To reiterate. not mere legalisms or perfection of form. Under this provision. should be relentlessly and firmly pursued. on jurisdictional grounds. In Filoteo v. even if erroneous. xxxx  . Under  established jurisprudence. we have likewise allowed a similar treatment  on the showing that an appeal was an inadequate remedy.The accused may move to quash the complaint or information on any of the following grounds: (a) That the facts charged do not constitute an offense. The writ is extraordinary because it solely addresses lower court actions rendered without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. or in case of urgency. Thus. no major deviation from the rules in fact transpires in doing this. rendering useless the distinctions painstakingly established through the years to foster procedural orderliness. and thus is not allowed as a  substitute when a party fails to appeal a judgment or final order despite the availability of that remedy. and any Rule 65 petition subsequently filed will be for naught. and adequate remedy in the ordinary course of law. decisions and rulings rendered without or with lack or excess of jurisdiction are null and void. we added that substantial justice to the Filipino people and to all parties concerned. . when public interest is involved. It only posits that this requirement does not foreclose the use of a Rule 65 petition for certiorari premised on grave abuse of discretion when the issue is purely legal. In the spirit embodied in this constitutional provision and in the interest of substantial justice. The Grave Abuse of Discretion Issue Romualdez’ motion to quash that gave rise to the present case was anchored on Section 3 (a) of Rule 117 of the Revised Rules of Court which provides: Section 3. is properly the subject of a petition for review on certiorari under Rule 45. In short. It is for this reason that a decision that lapses to finality fifteen (15) days after its receipt can still be questioned. it is available only when there is no appeal or any other plain.
had himself appointed and/or assigned as Ambassador to foreign countries. including the government. the last element corresponds to the allegation that the “ accused… cause[d] undue injury to the Government . advantage or preference in the discharge of his official.806. then President Ferdinand E. Whether the Sandiganbayan acted correctly. administrative or judicial functions through manifest partiality. Marcos. based on the elements of the offense. .” Thus. it acts with grave abuse of discretion if its ruling is a capricious or whimsical exercise of judgment equivalent to lack of jurisdiction. and His action caused undue injury to any party. whether the facts alleged. and using his influence with his brother-in-law. evident bad faith or inexcusable negligence in the discharge of his functions. The second element appears in the averment that the “ accused… willfully. the following shall constitute corrupt practice of any public officer and are hereby declared to be unlawful: xxxx (e) causing any undue injury to any party. in light of the elements and terms of the offense with which the accused stands charged. the accused caused undue injury to the government by collecting dual compensation from the two incompatible positions he occupied. or if it acts in a manner so patent and gross as to amount to an evasion of positive duty. a public officer being then the Provincial Governor of the Province of Leyte. The Sandiganbayan acts correctly or commits errors of law depending on its conclusions if – based solely on the “four corners” of the information as  jurisprudence mandates.” In short. US Currency or its equivalent amount of Five Million Eight Hundred Six Thousand Seven Hundred Nine Pesos and 50/100 (P5. He must have acted with manifest partiality.” supported further by the particular allegation “thereby enabling himself to collect dual compensation from both the Department of Foreign Affairs and the Provincial Government of Leyte in the amount of Two Hundred Seventy-six thousand Nine Hundred Eleven Dollars and 56/100 (US $276. to the damage and prejudice of the Government in the aforementioned amount of P5. a violation under this provision requires that: 1. – In addition to acts or omissions of public officers already penalized by existing law. The legal provision under which Romuldez stands charged – Section 3 (e) of RA 3019 – on the other hand provides: Sec. As Section 6.911. would establish the essential elements of the offense as defined by law  without considering matters aliunde. To receive compensation for 3. advantage or preference.  Reduced to its elements. or gave a private party unwarranted benefits.348. and hypothetically assuming the truth of all the allegations in the Information – it rules on whether all the elements of the offense as defined by law are present. attended by and as a result of the second element. . Corrupt practices by public officers. the accused was then a public officer discharging official functions. independently of any evidence whether prima facie or conclusive. is without basis. knowing fully well that such appointment and/or assignment is in violation of the existing laws as the Office of the Ambassador or Chief of Mission is incompatible with his position as Governor of the Province of Leyte. while being the elected Governor and in “evident bad faith. .” he had himself appointed to the incompatible position of ambassador. Our reading of the Information. or to action  outside the contemplation of law.50) and Two Hundred Ninety-three Thousand Three Hundred Forty-eight Pesos and 86/100 (P293.709. or giving any private party any unwarranted benefits. absent a showing that the accused did not actually render services for his two concurrent positions. shows us that the first element of the offense is reflected in the allegation that the “accused BENJAMIN ‘KOKOY’ ROMUALDEZ. . The accused must be a public officer discharging administrative. On the other hand. and that (2) [T]he accused alleges in the subject Motion that he actually rendered service to the government. or committed errors of law while in the exercise of its jurisdiction. the Sandiganbayan concluded that (1) “the allegation of damage and prejudice to the Government . the evidentiary and other details can be provided during the trial.The determinative test in appreciating a motion to quash under this rule is the sufficiency of the averments in the information. committing the offense in relation to his Office… . particularly the People’s Republic of China (Peking). or to a virtual refusal to perform the duty enjoined.56). This provision shall apply to officers and employees of offices of government corporations charged with the grant of licenses or permits or other concessions. evident bad faith or gross inexcusable negligence. that is.). while in the performance of his official function. Finally. 2.709.806. In its first Resolution.C. judicial or official functions. 3. .” In plain terms. including the Government. Kingdom of Saudi Arabia (Jeddah). are to be determined based on the application of the standards in evaluating a motion to quash. or gravely abused its discretion in quashing the information. and United States of America (Washington D.86) both Philippine Currencies. or if it rules in an arbitrary or despotic manner by reason of passion or personal hostility. the information only   needs to state the ultimate facts.50. if hypothetically admitted. Rule 117 of the Rules of Criminal Procedure requires. unlawfully and criminally with evident bad faith …” and the more particular averment that “accused public officer being then the elected Provincial Governor of Leyte and without abandoning said position. respectively.
Its conclusions are based on considerations that either not appropriate in evaluating a motion to quash. evident bad faith or gross excusable negligence. the Sandiganbayan saw no basis for the allegation of damage and prejudice for the failure of the Information to state that Romualdez did not render service in the two positions which he occupied. any present. or are statements amounting to rulings on the merits that a court cannot issue before trial. these are legally erroneous assumptions that are contrary to what the then prevailing laws provided. Article XII (B). in the absence of any contention that receipt of such was tantamount to giving unwarranted benefits. hence it cannot  be construed as injury or damage to the government . unless it is alleged that he acted in conspiracy with his  appointing authority …”. the 1973 Constitution likewise has a specific provision – Article XV. are matters of defense that have no place in an Information. without the consent of the Batasang Pambansa. To illustrate. Neither the Sandiganbayan nor Romuladez has pointed to any law. The allegation of “undue injury” in the Information. that it “ finds that accused cannot be held criminally liable. not the finer details of why and how the illegal acts alleged amounted to undue injury or damage – matters that are appropriate for the trial. At most. we are not here primarily engaged in evaluating the motion to quash that Romualdez filed with the Sandiganbayan. we hold that the Sandiganbayan’s actions grossly violated the defined stand ards. but such inefficiency is not enough to hold him criminally liable under the Information charged against him. emolument. Rather.actual services rendered would not come within the ambit of improper or illegal use of funds or properties. the Sandiganbayan concluded: (1) on the allegation that Romualdez had himself appointed as Ambassador while concurrently serving as Provincial Governor. From another perspective. no elective official shall be eligible for appointment to any office or position during his tenure except as Member of the Cabinet. No elective or appointive public officer or employee shall receive additional or double compensation unless specifically authorized by law.  any liability arising from the holding of both positions by the accused may be administrative in nature. receiving compensation is an incident of actual services rendered.” [underscoring supplied] In the second Resolution. Beyond this allegation are matters that are already in excess of what a proper Information requires. At the very least. and we are not aware of any such law. The element of the offense material to the “damage and prejudice” that the Sandiganbayan refers to is the “undue injury” caused to the government by Romualdez’ receipt of compensation for the incompatible positions that he could not simultaneously occupy. that would exempt Romualdez from the prohibition of the above-cited provisions. how the two positions of Romualdez were incompatible with each other and whether or not he can legally receive compensation for his two incompatible positions are matters of detail that the prosecution should adduce at the trial to flesh out the ultimate facts alleged in the Information. To restate the rule. On the other hand. – No elective official shall be eligible for appointment to any office or position during his term of office. the Sandiganbayan’s view that the Information should have alleged that services were not rendered assumes that Romualdez can occupy two government positions and can secure compensation from both positions if services were rendered. not the Information. Section 5 – which states: SEC. Section 4 of the 1973 Constitution provides that: Unless otherwise provided by law. office or title of any kind from any foreign state. Presidential Decree No. Based on these considerations. nor accept. Specifically. should invoke or introduce into the case as a matter of defense. On the matter of double compensation. the appoi ntee only makes a passive participation by entering into the appointment. advantage or preference to any party and to acting with manifest partiality. 807 Providing for the Organization of the Civil Service Commission states in its Section 44 that – Limitation on Appointment. is complete. we are evaluating – on the basis of the standards we have defined above – the propriety of the action of the Sandiganbayan in quashing the Information against Romualdez.” After citing jurisprudence defining evident bad faith and gross negligence. and (2) on the matter of dual compensation. an Information only needs to state the ultimate facts constituting the offense. in the first Resolution. on the other hand.” To put our discussions in perspective. given the elements of the crime and the standards set by the Supreme Court …. whether or not he had himself appointed to the position … because the act of appointment is something that can only be imputed to the appointing authority … Even assuming that the appointee influenced the appointing authority. that the allegation … cannot sustain the theory of the prosecution that the accused caused damage and prejudice to the government.  . it went on to state that (3) the accused may have been inefficient as a public officer by virtue of his holding of two concurrent positions. Whether or not compensation has been earned through proper and commensurate service is a matter in excess of the ultimate facts the Information requires and is one that Romualdez. consisting of the extent of the injury and how it was caused. besides. 5. are evidentiary details not required to be stated in an Information.
any liability a rising from the holding of both  positions by the accused may be administrative in nature. WHEREFORE. R.”. that there was no damage and prejudice since there was no illegality in being compensated for actual services rendered. then President Ferdinand E. whether or not he had himself appointed to the position of the ambassador. 3019 involves. including the government. Thus. or admitted for purposes of the motion to quash. the Sandiganbayan prematurely ruled on at least two matters. all that is required is for this allegation to be an ultimate fact directly providing for an element of the offense.. the legal status of the receipt of compensation for each of two incompatible offices is. the Information is complete solely on the basis of the “undue injury” allegation. and to conclude. legally debatable. the declaration of the nullity of the assailed Sandiganbayan Resolutions is in order. [Romualdez] had himself appointed and/or assigned as Ambassador to foreign countries. . SO ORDERED. For the Sandiganbayan to assume. The same misreading was evident when the Sandiganbayan stated in its second Resolution that “the accused cannot be held criminally liable. that is. at best. following the same line of thought. not being a fact material to the elements of the offense. because the act of appointment is something that can only be imputed to the appointing authority. is an extraneous matter that is inappropriate for the Sandiganbayan to consider for inclusion in the Information.” Thus again. when this is a disputed evidentiary matter that can only be established at the trial. advantage or preference to any party and to acting with manifest partiality. is to pass upon the merits of the case – a task premature for the Sandiganbayan to undertake at the motion-to-quash stage of the case. advantage or preference” is not an element that must necessarily be alleged to complete the recital of how Section 3 (e) is violated because it is only one of two alternative modes of violating this provision. “Giving a private party unwarranted benefits. evident bad faith or gross excusable negligence. Second. The Sandiganbayan is hereby ORDERED TO PROCEED with the trial on the merits of the case on the basis of the Information filed. while concurrent ly holding the position of provincial governor. given the elements of the crime and the standards set by the Supreme Court … At most. CASE NO. but such inefficiency is not enough to hold him criminally liable under the Information charged against him. and as already mentioned above. ” Worse than the premature ruling it made in the above-quoted conclusion was the patent speculation that the Sandiganbayan undertook in considering “inefficiency” and arriving at its conclusion. Even a cursory examination of the Information would show that an allegation of “evident bad faith” was expressly made. the allegation that services were not rendered that the Sandiganbayan wished to require. premises considered. Still much worse was its misreadingof what a violation of Section 3(e).” That no allegation of “giving unwarranted benefits.. we conclude that the Sandiganbayan grossly and egregiously erred in the considerations it made and in the conclusions it arrived at when it quashed the Information against Romualdez. The Sandiganbayan repeated this premature ruling on the merits of the case in its subsequent statement in the first Resolution that “ the accused may have been inefficient as a public officer by virtue of his holding of two concurrent positions. Whether this allegation can be successfully proven by evidence or established through an analysis of the nature of the power of appointment remains to be seen after trial. the Sandiganbayan grossly erred in the same manner it did in the first Resolution. At this earlier stage. complete with a statement of how the bad faith was manifested. the other being causing “undue injury to any party. In light of all these. the Sandiganbayan either assumed as correct. Costs against the private respondent Benjamin “Kokoy” Romualdez. advantage or preference to any party” appears in the Information is due obviously to the fact that this allegation is not necessary. Correctly understood.In the context of ruling on a motion to quash. the defense allegation that Romualdez rendered services. hence it cannot be construed as injury or damage to the government. once more insisted that “receiving compensation is an incident of actual services rendered.A. Marcos. but the causing of undue injury to the governmentthat is at the core of a Section 3(e) violation. to the point of acting outside its jurisdiction through the grave abuse of discretion that attended its actions. That the Sandiganbayan has a fixation on this approach is patent from a reading of the second assailed Resolution when the Sandiganbayan. In so doing.” The Sandiganbayan fared no better and similarly gravely abused its discretion in the second Resolution when it concluded that that there could be no damage and prejudice to the government “in the absence of any contention that receipt of such was tantamount to giving unwarranted benefits. First. Its errors are so patent and gross as to amount to action outside the contemplation of law.” In short. it is not the holding of two concurrent positions or the attendant efficiency in the handling of these positions. “being then the elected Provincial Governor of Leyte and without abandoning such position. too. 26916 entitled People of thePhilippines versus Benjamin “Kokoy” Romualdez. and using his influence with his brother-in-law. we hereby GRANT the petition and accordingly ANNUL the Sandiganbayan’s Resolutions dated 22 June 2004 and 23 November 2004 in CRIM. not at the motion-to-quash stage of the case.
The Court held that: The prohibition on the use of force is a principle that can be found in Article 2(4) of the UN Charter and in customary international law (CIL). supported and aided the military and paramilitary activities against Nicaragua? 2. The Court rejected the US justification of collective selfdefence and held that US violated the prohibition on the use of force. which operated along the border with Costa Rica. The new government – installed by FSLN – began to encounter armed opposition from supporters of the former Somoza Government and ex-members of the National Guard. supply to the contras in the field and to intimidate the population. . Did the US breach its customary international law obligations – not to violate the sovereignty of another State. armed. “…while the arming and training of the contras can certainly be said to involve the threat or use of force against Nicaragua… the Court considers that the mere supply of funds to thecontras. Did the US breach its customary international law obligation – not to use force against another State – when it directly attacked Nicaragua in 1983 – 1984 and when its activities in bullet point 1 above resulted in the use of force? 3. which operated along the border with Honduras. See paras 187 201. the US “ decided to plan and undertake activities directed against Nicaragua”. instigating. Did the US breach its customary international law obligation – not to intervene in the affairs of another State – when it trained. Can the military and paramilitary activities that the US undertook in and against Nicaragua be justified as collective selfdefence? 4. oil installations and a naval base. Nicaragua also alleged that the US is effectively in control of thecontras. 3. according to Nicaragua. it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador. and (2)Alianza Revolucionaria Democratica (ARDE). the force was used in collective self. and (2) “the sending by or on behalf of a State of armed bands. then the US was justified in the use of force (see below on self-defence). while undoubtedly an act of intervention in the internal affairs of Nicaragua… does not in itself amount to a use of force. not to intervene in its affairs. Nicaragua alleged that US aircrafts flew over Nicaraguan territory to gather intelligence. The armed opposition to the new Government was conducted mainly by (1) Fuerza Democratica Nicaragüense (FDN).NICARAGUA VS. 2. assisting or participating in acts of civil strife and terrorist acts i n another State – when the acts referred to involve a threat or use of force). Relevant Findings of the Court: The US breached its customary international law obligation – not to use force against another State: (1) when it directly attacked Nicaragua in 1983 – 1984.e. 4 and 5 above. or its substantial involvement therein” [the second point is taken from Article 3 (g) of the UNGA Resolution 3314 (XXIX) on the Definition of Aggression]. oil installations and a naval base. Use of force can be: (1) “most grave forms of the use of force” (i. equipped and financed the contra forces or encouraged. the US devised their strategy and directed their tactics and that they were paid for and directly controlled by US personal and some attacks were carried out by US military – with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan ports and attacks on ports. Questions before the Court: 1. The US violated the CIL prohibition on the use of force when it laid mines in Nicaraguan ports and attacked its ports. The supply of funds to the contras does not violate the prohibition on the use of force. 3.” (para 227) What is an armed attack? An armed attack includes (1) action by regular armed forces across an international border. which carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces.defence. In April 1981 it terminated US aid to Nicaragua and in September 1981. and (2) when its activities with the contra forces resulted in the threat or use of force. not to use force against another State and not to interrupt peaceful maritime commerce – when it laid mines in the internal waters and the territorial sea of Nicaragua? ICJ decision: US violated CIL in relation to bullet points 2. those that constitute an armed attack) and (2) “less grave forms” of use of force (i. groups. Did the US breach its customary international law obligation – not to violate the sovereignty of another State – when it directed or authorized its aircrafts to fly over Nicaraguan territory and by acts referred to in bullet point 2 above? 5. ICJ REPORTS 1986 Facts of the Case: In July 1979 the Government of President Somoza collapsed following an armed opposition led by the Frente Sandinista de Liberacibn Nacional (FSLN) . according to the US. organizing. The US violated the CIL prohibition on the use of force when it assisted the contras by “organizing or encouraging the organization of irregular forces and armed bands… for incursion into the territory of another state” and “participating in acts of civil strife…in another State” and when these acts involved the threat or use of force. irregulars or mercenaries. the US officially acknowledged its support (for example: In 1983 budgetary legislation enacted by the United States Congress made specific provision for funds to be used by United States intelligence agencies for supporting “directly or indirectly military or paramilitary operations in Nicaragua”). 1. Later. If however. (see map of the region). 5. Initial support to these groups fighting against the Nicaraguan Government (called “ contras”) was covert.e. The US – initially supportive of the new government – changed its attitude when. 4. USA.
US cannot justify its use of force as collective self-defence. When a State claims that it used force in collective self-defence. Costa Rica. The element of coercion. equipped and financed the contra forces or encouraged. Thus for the purpose of enquiry into the customary law position. 1. A third State cannot exercise a right of collective self-defence based its (the third State’s) own assessment]. The Court looked extensively into the conduct of Nicaragua. 4. (4) the State does not. One of these is the choice of a political. that is necessary when using force in self-defence – was also not fulfilled (para 237). armed. The principle of non. 3. Whatever influence the Charter may have had on customary international law in these matters.e. have the same obligation as under Article 51 of the UN Charter to report to the Security Council that an armed attack happened – but “the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence” (see below). may well be so unencumbered with the conditions and modalities surrounding it in the treaty. US asserted that the Charter itself acknowledges the existence of this CIL right when it talks of the “inherent” right of a State (para. or an intervention in the interna1 or external affairs of other States(see para 195. On the other hand. necessity and proportionality). which must remain free ones. either in the direct form of military action. which defines. to coerce the Government of Nicaragua in respect of matters in which each State is permitted. empowered to determine the conformity with international law of the measures which the State is seeking to justify on that basis. it is clear that in customary international law it is not a condition of the lawfulness of the use of force in self-defence that a procedure so closely dependent on the content of a treaty commitment and of the institutions established by it. is particularly obvious in the case of an intervention which uses force. economic. [NB: the assessment whether an armed attack took place nor not is done by the state who was subjected to the attack. 1.intervention means that every State has a right to conduct its affairs without outside interference – I. by which the State claiming to use the right of individual or collective selfdefence must report to an international body. the Court may consider whether in customary international law there is any requirement corresponding to that found in the treaty law of the United Nations Charter. or in the indirect form of support for subversive or terrorist armed activities within another State (para 205). by its support of the contras. None of the countries who were allegedly subject to an armed attack by Nicaragua (1) declared themselves as a victim of an armed attack or request assistance from the US in self-defence – at the time when the US was allegedly acting in collective self-defence. Thus Article 51 of the United Nations Charter requires that measures taken by States in exercise of this right of self-defence must be ”immediately reported” to the Security Council. Under Article 51 of the UN Charter and under CIL – self-defence is only available against a use of force that amounts to an armed attack (para 211).e it “…forbids States or groups of States to intervene directly or indirectly in internal or external affairs of other States. Nicaragua stated that the activities of the US was aimed at (1) overthrowing the government of Nicaragua and (2) substantially damaging the economy and weakening the political system so as to coerce the Government of Nicaragua to accept US political demands. and the formulation of foreign policy. if reflected in customary international law. Assistance to rebels in the form of provision of weapons or logistical support does not constitute an armed attack – it can be regarded as a threat or use of force.” . it is to be expected that the conditions of the Charter should be respected. 2. CIL allows for exceptions to the prohibition on the use of force – including the right of individual or collective self-defence. Para 200: At this point. 2. the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence (emphasis added)(See also paras 232 -236). This is a corollary of the principle of sovereign equality of States. Intervention is wrongful when it uses methods of coercion in regard to such choices. to decide freely (see paragraph 205 above) .193). by the principle of State sovereignty. supported and aided the military and paramilitary activities against Nicaragua. and indeed forms the very essence of. The US breached its CIL obligation – not to intervene in the affairs of another State – when it trained. corresponds to the requirements of international law (i. Honduras and the US before the Security Council. Mere frontier incidents are not considered as an armed attack – unless because of its scale and effects it would have been classified as an armed attack if it was carried out by regular forces. (2) This State must declare itself as a victim of an armed attack. social and cultural system. US cannot justify the military and paramilitary activities that it undertook in and against Nicaragua as collective self-defence. Several criteria must be met for a State to exercise the right of individual or collective self-defence: (1) A State must have been the victim of an armed attack. 230). El Salvador. The criteria with regard to necessity and proportionality. and (3) in the case of collective self-defence – the victim State must request for assistance (“there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack”). The Court referred to statements made by El Salvador. should have been followed. by the principle of State sovereignty to decide freely. that the United States intended. and secondly . and (2) the US did not claim that it was acting under Article 51 of the UN Charter and it did not report that it was so acting to the Security Council. a principle enshrined in a treaty. The Court held: “…first. Costa Rica and Honduras in determining whether an armed attack was undertaken by Nicaragua against the three countries – which in turn would necessitate self-defence (paras 230 236) . As the Court has observed above (paragraphs 178 and 188). under CIL. 5. the Court will look into two aspects : (1) whether the circumstances required for the exercise of self-defence existed and (2) whether the steps taken by the State. which was acting in self-defence. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted. prohibited intervention. if self-defence is advanced as a justification for measures which would otherwise be in breach both of the principle of customary international law and of that contained in the Charter.
5. which . the United States. “While an armed attack would give rise to an entitlement to collective self -defence. supply of weapons. PORTUGAL VS INDIA IN PDF FACTROY AT CHORZOW (GERMANY v POLAND)  The Government of the German Reich. intelligence and logistic support given by the US to the contras was a breach of the principle of non-interference. finished and halfmanufactured products.400. in accordance with Article 35 of the Rules. or as in any other way contrary to international law” (para 242). Interesting.) and the compensation due to the Bayerische Stickstoffwerke Company for the period of exploitation from July 3rd. has submitted to the Permanent Court of International Justice a suit concerning the reparation which.-G. at latest. They could not justify counter-measures taken by a third State. (c) that. training. the payments mentioned under (a)-(c) should be made without deduction to the account of the two Companies with the Deutsche Bank at Berlin. the Applicant amended his conclusions as follows: (1) that by reason of its attitude in respect of the Oberschlesische Stickstoffwerke and Bayerische Stickstoffwerke Companies. however. State sovereignty extends to its internal waters. supports and assists armed bands in that State whose purpose is to overthrow the government of that State. to the date of judgment. by reason of the attitude adopted by that Government towards those Companies at the time when it took possession of the nitrate factory situated at Chorzów. The financial support. a use of force of a lesser degree of gravity cannot as the Court has already observed (paragraph 21 1 above).” 3. (3) in regard to the method of payment: (a) that the Polish Government should pay within one month from the date of judgment. “…no such general right of intervention. whether or not the political objective of the State giving such support and assistance is equally far reaching. 4. whatever their political affiliations or objectives. interest at 6% per annum should be paid by the Polish Government. if one State.-G. territorial sea and the air space above its territory. and particularly could not justify intervention involving the use of force. etc. (hereinafter designated as the Oberschlesische) and Bayerische Stickstoffwerke A. 1928. cannot be regarded as unlawful intervention. is due by the Polish Government to the Oberschlesische Stickstoffwerke A. (hereinafter designated as the Bayerische). (b) that the Polish Government should pay the sums remaining unpaid by April 15th. The acts of which Nicaragua is accused. in the contention of the Government of the Reich. 1926) not to have been in conformity with the provisions of Article 6 and the following articles of the Convention concerning Upper Silesia concluded at Geneva on May 15th. Honduras or Costa Rica. which attitude has been declared by the Court not to have been in conformity with the provisions of Article 6 and the following articles of the Geneva Convention. namely El Salvador. the Polish Government is under an obligation to make good the consequent injury sustained by the aforesaid Companies from July 3rd. that amounts to an intervention by the one State in the internal affairs of the other. 1922.that the intention of the contras themselves was to overthrow the present Government of Nicaragua… The Court considers that in international law. (e) that. to France or to Italy. 1922. which attitude had been declared by the Court in Judgment No. until June 30th. to the United States of America. 1922. stores. with a view to the coercion of another State. in conformity with Article 40 of the Statute and Article 35 of the Rules of Court. even assuming them to have been established and imputable to that State. between Germany and Poland (hereinafter described as the Geneva Convention). (2) that the amount of the compensation to be paid by the Polish Government is 59. no nitrated lime and no nitrate of ammonia should be exported to Germany.  It is submitted in the Application: (1) that by reason of its attitude in respect of the Oberschlesische Stickstoffwerke and Bayerische Stickstoffwerke Companies. from the date of judgment. (d) that. produce any entitlement to take collective countermeasures involving the use of force. until the date of the judgment sought. 1931. the second State has a right to intervene in a manner that is short of an armed attack (210).775.000 Reichsmarks for the injury caused to the Oberschlesische Stickstoffwerke Company and 16. could only have justified proportionate counter-measures on the part of the State which had been the victim of these acts. 1927. the compensation due to the Oberschlesische Stickstoffwerke Company for the taking [p6] possession of the working capital (raw material.” The US breached its customary international law obligation – not to violate the sovereignty of another State – when it directed or authorized its aircrafts to fly over Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its territorial sea.  In the Case filed with the Court on March 2nd. the Court also held that providing “…humanitarian aid to persons or forces in another country. by an Application instituting proceedings filed with the Registry of the Court on February 8th.200 Reichsmarks for the injury to the Bayerische Stickstoffwerke Company. The basic concept of State sovereignty in CIL is found in Article 2(1) of the UN Charter. The US violated CIL when it laid mines in the territorial sea and internal waters of Nicaragua and when it carried out unauthorized overflights over Nicaraguan airspace by aircrafts belong to or under the control of the US. even if such a request for assistance is made by an opposition group of that State (see para 246 for more). 7 (May 25th. 1927. exists in contemporary international law”. In the event one State intervenes in the affairs of another State. in support of an opposition within another State.
000 Reichsmarks for the injury caused to the Bayerische Stickstoffwerke Company. 1927. "without entering into the merits. to the United States of America. even if the Court declined jurisdiction [p8] on the basis of Article 23 of the Geneva Convention.  In accordance with Article 38 of the Rules. 1925-suggested that the five following questions concerning the case of the factory at Chorzów should be referred by mutual consent and by means of a special agreement to the Court: (1) Up to what amount is the Polish Government bound to make compensation for the injury caused by its attitude to the Oberschlesische and Bayerische Companies? (2) Is the German Government justified in claiming. the further proceedings had to be oral. the Court.-G. bills of exchange for the amounts of the instalments. that.000 Reichsmarks. 1915. at latest. filed on June 1st a reply to the Preliminary Objection of the Polish Government. over and above the pecuniary compensation.attitude has been declared by the Court not to have been in conformity with the provisions of Article 6 and the following articles of the Geneva Convention. (b) that the Polish Government should pay the remaining sums by April 15th. and that the payments mentioned under (a)-(c) should be made without any deduction to the account of the two Companies with the Deutsche Bank at Berlin.  The German Government. replies and rejoinder presented by Messrs. or any other claim. until the date of the judgment sought. accompanied by a Preliminary Counter-Case in the suit concerning the factory at Chorzów (indemnities). a contract was concluded between the Chancellor of the German Empire. other things. (4) in regard to the method of payment: (a) that the Polish Government should pay. nitrate of ammonia. Sobolewski and Politis. a written statement setting out its observations and conclusions in regard to the objection to the jurisdiction. to France or to Italy. in accordance with Article 40 of the Statute.179. stores. of Trostberg. be paid in ready money and without deduction?  The text of this memorandum was transmitted on April 29th by the German Minister at The Hague to the Registrar of the Court. etc. that it was unable to share the opinion of the German Government as to the relevance of the Germano-Polish Treaty of arbitration in regard to the present case. declined the proposal made on behalf of the German Government.  Since. T93i. 1922. Agent for the German Government. (3) that until June 30th. 1922. the compensation due to the Oberschlesische Stickstoffwerke Company for the taking [p7] possession of the working capital and the compensation due to the Bayerische Stickstoffwerke Company for the period of exploitation from July 3rd. 1927. therefore.. declare that it had. 1927. 1927. it would have jurisdiction under Article 1 of the Germano-Polish Arbitration Treaty initialled at Locarno on October 16th.  The Application instituting proceedings was. should cease? (3) What are the appropriate methods of payment for the settlement of the indemnity fixed in accordance with (1)? (4) At what rate should the sums in question bear interest until paid in full? (5) Can the Polish Government set off against these sums claims in respect of social insurances in Upper Silesia. The Facts  The facts relevant to the present case are set out as follows in Judgment No. after having received on March 3rd. 1927) and by the Polish Minister at The Hague (note of June 2nd. 24th and 25th. on April 14th. on behalf of the Reich. no jurisdiction". In this memorandum. and the Bayerische Stickstoffwerke A. that the exportation of nitrate of lime. in so far as the payment may be effected in instalments. whereupon that Government. including interest. the German Government was invited to present. (2) that the amount of the compensation to be paid by the Polish Government is 75. 1927). in the course of public sittings held on June 22nd. to the date of judgment. and Kaufmann. interest at 6 % per annum should be paid by the Polish Government.) taken over on July 3rd. before June 1st. no nitrated lime and no nitrate of ammonia should be exported to Germany. the Polish Government.  The Polish Government replied to it by a memorandum dated May 14th. Upper Bavaria. however. 1925:  On March 5th. within one month from the date of judgment. the Polish Government is under an obligation to make good the consequent injury sustained by the aforesaid Companies from July 3rd. 1927. to Germany. within one month from the date of judgment. of which the text was communicated to the Registrar of the Court both by the German Minister (note of June 1st. under Article 38 of the Rules. must the sums to be paid by the Polish Government under (1).  The Preliminary Objection denying the Court's jurisdiction to hear the suit brought before it. heard the statements. that it may not make use of any other set-off against the above-mentioned claim for indemnity. a Preliminary Objection. the Polish Government shall deliver. (3) and (4). plus the present value of the working capital (raw materials. filed with the Registry of the Court in conformity with Articles 34 and 38 of the Rules. the United States of America. the German Case in the suit. by which contract this Company undertook "to establish for the Reich . (d) that the Polish Government is not entitled to set off. (c) that from the date of judgment.920. 1922. communicated to the Polish Government on February 8th. submitted that the Court should. for the injury caused to the Oberschlesische Stickstoffwerke Company and 20. the German Government transmitted to the Polish Government a memorandum in which the former Government – arguing that. etc. observing amongst. 1928. finished and half-manufactured products. 6 given by the Court on August 25th.  On April 25th. France and Italy. Agent and [p9] Counsel respectively for the Polish Government. against the above mentioned claim for indemnity of the German Government. payable on the respective dates on which they fall due to the Oberschlesische Stickstoffwerke Company and to the Bayerische Stickstoffwerke Company. in the alternative. its claim in respect of social insurances in Upper Silesia.
experience gained and contracts.  Furthermore. was to utilize its patents. 1922. which cited Article 256 of the Treaty of Versailles and the Polish law and decree of July 14th. the equivalent value. and also to repay to the Applicant or to the Bayerische Stickstoffwerke Company the amount of the debts collected". which. This decision. within the territories. while stipulating that the liquidation shall be carried out in accordance with the laws of the Allied or Associated State concerned. 1922. The management and working were to remain in the hands of the Bayerische Stickstoffwerke Company. and the Company undertook to manage the factory until March 31st. It called upon that Court "to allow the claim submitted by the Oberschlesische Stickstoffwerke Aktiengesellschaft. except on . to state what debts it had collected. on the morning of July 3rd. experience gained. if the Reich's share of the surplus did not reach a fixed level. The contract could be terminated as early as March 31st. raw material. 1922. the Oberschlesische Stickstoffwerke A. which. for this purpose. commencing on March 31st. Germany filed in the Permanent Court of International Justice an Application praying the Court to adjudge (1) that Articles 2 and 5 of the Polish law of July 14th. etc. a series of legal instruments were signed and legalized at Berlin with a view to the formation of a new Company. in the Chorzów land register.  Article 92 of the Treaty of Versailles. For this purpose a special section of the Company was to be formed.  Article 297 of the Versailles Treaty relates to the liquidation by the Allied and Associated Powers of property. licences. or companies controlled by them. was put into effect the same day.  The suit was admitted to be ready for hearing on October 15th. The Reich had the right. to restore the factory. took possession of the factory and took over the management in accordance with the terms of the decree. and the sale by the Reich to that Company of the factory at Chorzów. when. Ignatz Moscicki. colonies. These relations between the two Companies were confirmed by means of letters dated December 24th and 28th. however. and finally to state (4) what the attitude of Poland should have been under the Treaties mentioned. M. (2) that this liquidation was not in conformity with Articles 92 and 297 of the Peace Treaty of Versailles. still pending.  On November 10th. 1922. that the application made to the Court of Katovice was mainly intended to serve as a basis for claiming. or. at the same time took possession of the movable property. [p11]  In regard to this suit. in undertaking the control of the working of the factory.  On December 24th. to restore to the Applicant or to the Bayerische Stickstoffwerke Company such movable property. [p10]  On July 1st.-G. in accordance with Article 297h of that Treaty. It asked that Court "to order the Respondent to inform the Applicant as to the movable property found at the Chorzów nitrate factories at 11 a. who was delegated with full powers to take charge of the factory at Chorzów by a Polish ministerial decree of June 24th. 1922. under Article 588 of the Geneva Convention. always on condition of fifteen month's notice being given. licences. rights and interests of German nationals shall not be liquidated under Article 297 by the Polish Government. 1923. with all accessories. and that the property rights of the lands in question were to be registered in the name of the Polish Treasury. including territories ceded to them by the Treaty. and June 16th. expressly provides that the property. constituted a measure of liquidation of the property. and to order the Polish Government. the reference of the suit to the Upper Silesian Arbitral Tribunal. that is to say. to a certain extent. The German Government contends and the Polish Government admits that the said delegate. 1919.and to begin forthwith the construction of". which connect the subject with that of reparations. reserves. exchanged between them. at the Amtsgericht of Königshütte. which was. but that the Court rejected this claim.  In its reply to this application. 1920. The necessary lands were to be acquired on behalf of the Reich and entered in its name in the land register.. making use of all patents. rights and interests belonging at the date of the coming into force of the Treaty to German nationals. on May 15th. the Oberschlesische Stickstoffwerke Company brought an action before the Germano-Polish Mixed Arbitral Tribunal at Paris. Article 297 lays down certain rules. 1921. 1919. gave a decision to the effect that the registration in question was null and void and was to be cancelled. to terminate the contract for the management of the factory by the Company on March 31st of any year upon giving fifteen month's notice. that there was no pendency. and. the pre-existing position being restored.  On July 3rd. possessions and protectorates of such Powers. however. which had become Polish. 1920. 1922. as also of all supply and delivery contracts of which it had the benefit. decided on December 7th. 1925. the German Government stated in its "Observations" filed on July 9th. The Oberschlesische Stickstoffwerke Company was duly entered on January 29th. 1920. rights and interests involved. this Court.  This action is still before that Court. 1925. the Oberschlesische Stickstoffwerke Company brought an action before the Civil Court of Kattowitz. 1922 . when the working of those factories was resumed by the Respondent. to make any other reparation which the Court may see fit to fix and to pay the costs of the action". the Respondent in the suit. as notice of the action had not yet been served on the Procurature générale at Warsaw. as owner of the landed property constituting the nitrate factory of Chorzów. innovations and improvements. the Polish Government asked the Court to declare that it had no jurisdiction (in the alternative to non-suit the Applicant).m. patents. the whole of the land. licences. The machinery and equipment were to be in accordance with the patents and licences of the Company and the experience gained by it. 1926. to be subject to the supervision of the Reich which had the right to a share of the surplus resulting from the working of the factory during each financial year. buildings and installations belonging thereto. (3) that it was contrary to Article 6 and subsequent articles of the German-Polish Convention concluded at Geneva on May 15th. a nitrate factory at Chorzów in Upper Silesia. 1923. equipment and stocks. 1941. It is.  These suits were pending. amongst other things. should this be impossible. however.
 Article 6 provides that Poland may expropriate in Upper Silesia major industrial undertakings. 1. may appeal to the German-Polish Mixed Arbitral Tribunal which may provisionally suspend the procedure for expropriation. If the Polish Government reaches the conclusion that the owner is really a German national. the Polish Government asked the Court (1) To non-suit the Applicant as regarded submission No. [p12]  Poland. Should differences of opinion. in accordance with the provisions of Articles 92 and 297 of the Versailles Treaty. The stipulations of Articles 9 to 11 it is unnecessary here to particularize. is satisfied that the conditions of the sale or measures taken by the Polish Government outside its general legislation were unfairly prejudicial to the price obtained.condition (1) that the proceeds of the liquidation shall be paid direct to the owner. in the present instance. arise between the German and the Polish Governments.. and that. decreed by the law of June 16th. on the owner's application. such application was illegal. (2) To find that it was not necessary to decide as to the conformity or non-conformity of the attitude of the Polish Government with Article 6 and the following articles of the Geneva Convention. but that. resulting from the interpretation and the application of Articles 6 to 22. it suffices to say that the Court's jurisdiction was. or an arbitrator appointed by it. 1925. during fifteen years from the date of the transfer of sovereignty. . conformably to the provisions of Articles 7 to 23 of the Convention. consisting of two paragraphs. or that the Company is really controlled by such nationals. the Court was asked to give judgment: (1) That the application of the Polish law of July 14th. rights and interests of German nationals. with this exception. so that. or of companies controlled by them. and if. Articles 12 to 16 relate to the expropriation of large rural estates. "2. Si des divergences d'opinion. invoked upon the stipulations of Article 23 of the Geneva Convention. 1922. which is the sole and authoritative text of the article." -------------------------------------------------------------------------------------------------------------------- On the objection taken by Poland to the Court's jurisdiction. after receiving notice. Il n'est porté aucune atteinte à la compétence du Tribunal arbitral mixte germano -polonais résultant des dispositions du Traité de paix de Versailles [FN1]. did not prevent the Court from exercising its jurisdiction under Article 23. during a month after the date of the notice.  Without repeating provisions of the Statute relating to the jurisdiction of the Court. this measure has been recognized by the Mixed Commission as being indispensable to the maintenance of the exploitation". the Mixed Commission thus referred to being an international tribunal for the establishment of which provision is made by Article 562 of the Convention. any more than to Articles 92 and 297 of the Versailles Treaty. and (2) that if. since no measure of liquidation had been taken by that Government. at Paris. and. the interested Party contends that the facts are not as stated. elles seraient soumises à la décision de la Cour permanente de Justice internationale. the property.  Before proceeding to the judgment later rendered by the Court on the merits. in Polish Upper Silesia. to which the Convention expressly referred. had given judgment. should this be held to be so. "if. [p14] as it did not conform to those articles.  In reply." --------------------------------------------------------------------------------------------------------------------[FN1] This text. on the request of the Polish Government. 6.  After the delivery by the Court of Judgment No.. “2. This article. assures to the Polish Government the right from time to time to inquire into the real ownership of a major industry or a large rural estate. 1920. the latter. Article 8 deals with the subject of expropriation after the fifteen-year period above mentioned. constituted a measure of liquidation within the meaning of Article 6 and the following articles of the Geneva Convention. that the Court would state what attitude would have been in conformity with them. 6. as the submissions finally stood. and into the real control of a company appearing as owner. August 23th. résultant de l'interprétation et de l'application des articles 6 à 22 . (2) That the attitude of the Polish Government towards the Oberschlesische and the Bayerische was not in conformity with the above-mentioned articles of the Geneva Convention. cannot be liquidated. in its Judgment No. (2) That the suits pending before the German-Polish Mixed Arbitral Tribunal at Paris and the Civil Court at Katovice. reads: “1. the Mixed Arbitral Tribunal . paragraph 1. Article 19. s'élevaient entre le Gouvernement allemand et le Gouvernement polonais. (3) That the plea to the jurisdiction should be dismissed. or (2) that the Application could not be entertained until the German-Polish Mixed Arbitral Tribunal. the German Government amended the submissions made in its Application. in answer to the German Application. asked the Court to hold either (1) that it had no jurisdiction of the suit. Judgment on the merits was reserved. held: (1) That the Court's jurisdiction under Article 23 was not affected by the fact that the rights claimed were contested on the strength of provisions of other treaties as well as on those of Articles 6 to 22 of the Geneva Convention. they shall have discretion to award to the owner equitable compensation to be paid by the Polish Government. they should be submitted to the decision of the Permanent Court of International Justice. it is essential briefly to summarize the provisions [p13] of Articles 6 to 22 of the Geneva Convention so far as they are involved in the pending case. the Court. By Article 7 this right of expropriation may be exercised. may be translated into English as follows: "1. The jurisdiction of the German-Polish Mixed Arbitral Tribunal under the provisions of the Peace Treaty of Versailles is in no way impaired.
and had been violated by Poland's action . the ex-Emperor of Germany or other members of reigning houses". whilst. within Part I. The subject matter of this law is the "transfer of the rights of the German Treasury and of members of reigning German houses to the Treasury of the State of Poland". dated October 18th. there was no misuse by Germany of the right of alienation of property in the plebiscite area. Finally. the German Government reserved the right to appeal to the Court in regard to the execution of that judgment. 1918. (3) That the property and operating rights claimed by the Bayerische were also valid'.  The Polish Government. the amount of which to be fixed by direct negotiations between the two Governments. [p15]  The Court held: (1) That Articles 2 and 5 were incompatible with the provisions of the Geneva Convention. Article 2. in the view of the German Government. of the entry of the Oberschlesische in the land register. [p16]  Following upon the judgment of May 25th. 1926. 1920. are analyzed and set forth in detail. Article 5 authorizes the Polish Treasury to require the eviction of persons who. . Head III. and rendered judgment. and that Poland had invoked no title of international law which would permit Articles 2 and 5 of the law of July 14th to be regarded as constituting the exercise of a right overcoming the obligations ensuing from Head III of the Geneva Convention. Believing that it could be said that differences of opinion still existed between the two Governments "in regard to the legal principles established by the Court's judgment" of May 25th. 1920.  In these circumstances. 1926. Issue being thus joined. that the negotiations should be begun at Berlin on November 15th. the German Reich. should these differences of opinion subsist during the negotiations and make such appeal necessary. on June 25th of the same year.  In conclusion. it suggested that it would be better "having regard to the nature of the matter" that representatives of the interested Companies should directly approach the management of the factory and that the two Governments should only intervene if agreement could not be reached in this manner.  In this Judgment – No. it also made reservations as regards the validity. (2) That. The Polish reply was to the effect that the Warsaw Government was disposed "to settle by means of an agreement with the Berlin Government all questions in dispute with regard to the Chorzów factory". the Court held: (1) That the application of Articles 2 and 5 of the law of July 14th. Article 1 directs the Polish Courts automatically to substitute in the land registers of the former Prussian provinces the name of the Polish Treasury for that of "the Crown.  It was on the basis of this decision of the Court that negotiations were undertaken by the two Governments for an amicable settlement of the claims of both Companies by the payment of pecuniary damages. and that the Court had express and definite jurisdiction of the subject matter by Article 23 of that Convention. But the Polish Government stated in regard to the claim for the restoration of the factory that it was unable to comply for reasons of fact and of law. maintaining that the disputed questions were questions of private law. but that the Court was not called upon to state what attitude would have been in conformity with them. In a subsequent note. in the transfer of the factory to the Oberschlesische. the German Government proposed in a note dated October 30th. and could have been disputed only before a competent tribunal. maintained the standpoint taken in its previous notes. and that the application of the law of July 14th.  The Polish Government replied to this note on September 9th. directs the Polish Courts. the German Government. an infraction of Article 6 and the following articles of that Convention. the Polish Government. where such persons or institutions had. of the Geneva Convention. constituted.7 (May 25th. as to German nationals or companies controlled by them. 1922. 1920. comprise three different features: (1) the re-entry in the land registers of the Court of K6nigshiitte of the Oberschlesische as owners of the real estate constituting the Chorzów factory. heard the case on the merits. agreed that delegates of the two Governments should also take part in the negotiations. whilst agreeing to enter into negotiations at Berlin on November 22nd. (4) That expropriation without compensation was contrary to Head III of the Geneva Convention. entered after November 11th. (2) the restoration of the factory as an industrial enterprise to the Bayerische. or requested or consented to the cession. as the result of a contract concluded with one of the persons or institutions mentioned in Article 1 remained in occupation of the property after the law came into force. at its tenth (extraordinary) session. 1926) – the provisions of the Polish law of July 14th. as owners or as possessors of real rights. alienated or charged the landed property. These steps should. the Court. paragraph 1. (2) That the attitude of the Polish Government toward both Companies was not in conformity with those articles. decreed by the law of June 16th. was contrary to Article 6 and subsequent articles of the Geneva Convention. to restore the registers to their condition on that date. (3) the payment to these two Companies of an indemnity. that the alienation was a genuine transaction effected in good faith and was not designed to be detrimental to Poland's rights and that the Oberschlesische's right of ownership must be regarded as established. 1918. in municipal law. after November 11th. cancellation or modification of real rights. the German Government having in the meantime asked the Polish Government whether it did not intend to reply and whether it would prefer that the question should be settled by the institution of new proceedings before the Court. the States of Germany. sent to the Polish Government a note in which it requested that Government "to take the steps necessary to establish a situation conforming to the judgment both in fact and in law". 1926.
as also for the purposes of its future judgment on the merits. solely related to the amount of the indemnities and the method of payment: payment was to be effected by the issue on the date of signature of the agreement. in the view of the Polish Government. a point which. It should be noted that. be set off extrajudicially against any indemnities which may be awarded by the Court in the present case. accepted more or less completely the amounts suggested by the German Government for the indemnities-the Polish Government proposing for the amounts to be paid subsequently to the Bayerische. it possessed claims on the German Government for various amounts. But if not. "had not yet been discussed". the existing differences of opinion would be regarded as disposed of. the Respondent still retains a completely free hand to file preliminary objections-no exception can be taken to it. the German Government has referred to the Germano-Polish. a certain claim which Poland may have against Germany cannot. 1926. that the reason why the German Government had abandoned its original claim for the restitution of the factory was that it had come to the conclusion that the Chorzów factory. in its present condition. appeal to the Court would be inevitable. the German Government also drew attention to the fact that. dated February 1st. for the purposes of this statement of reasons. failing an agreement. throughout the whole of the negotiations. the Court derives jurisdiction. particularly for the reason that. in its reply. For the negotiations in question have not. in his Case on the merits. as acknowledged by the representatives before the Court of the Parties themselves. the Court would have jurisdiction under the Arbitration Treaty of Locarno "if it were applicable in this case". especially having regard to the procedure instituted by the above-mentioned Treaty. declarations which. in his preliminary plea. and that. This reference therefore cannot serve to modify the source from which. according to the Application. the German Delegation had emphasized that.e. have been made without prejudice in the event of the points under discussion forming the subject of judicial proceedings. in the contention of the German Government. moreover. it cannot take account of declarations. Moreover. 1927. and that therefore the German Minister at The Hague had received instructions to file an Application with the Court. as shown by the context. is apart from the above-mentioned provisions of the Statute and Rules of Court. in the event of the payments not being made within the times specified. 1927. as it contended. it being always possible to withdraw the Application.  Since this amendment has been effected in the first document of the written proceedings. in a suit brought by Application-i. to establish that. the submissions as formulated in the Case that the Court has now before it. for this statement which was. holds that the submissions set out above have been laid before it solely under Article 23 of the Geneva Convention. the Polish Government proposed the resumption of negotiations in regard. The negotiations had been in progress since November 22nd. in the judicial proceedings that Government would not of course be bound by the proposals for a compromise which it had made. by a note dated February 8th. leaving aside the question of restitution. should an agreement be reached within a relatively short time. [p20] . The basis of the amended submissions set out in the Case remains unchanged. the Respondent. bills of exchange issued by the Chorzów factory-but it stated that the Polish Government was not willing to meet the wishes of the German Government in regard to the issue of bills of exchange for the Oberschlesische. therefore. but the possibility of further negotiations would not prevent the German Government from referring the existing differences of opinion to the Court. and that the German Government reserved the right. then informed the Polish Government that the points of view of the two Governments seemed so different that it appeared impossible to avoid recourse to an international tribunal. led to an agreement between them. it was essential to set off the respective claims against each other. in this document. To the note was attached a memorandum in regard to the position of negotiations on January 14th. has referred to the Applicant's submissions as formulated in the Case and not as formulated in the Application. the Applicant has.  It is true that. exclusively upon the jurisdictional clause contained in Article 23 of the Geneva Convention. to the "possible filing of an Application with the Court".  The Court. Should the German Government not accept the Polish proposals. therefore. admissions or proposals which the Parties may have made in the course of direct negotiations which have taken place between them. [p19]  The submissions formulated in the Application were based. should the Polish reply to the German proposals be too long delayed. The reply of the Polish Government.  Before proceeding to set out the reasons for which it must overrule the preliminary objection taken by Poland to its jurisdiction to deal with these submissions. to bring the matter before the Court so that it might be included in the list for the Court's twelfth session. according to that Government. the German Government reserved the right once more to have recourse to the Court Should one of the two proposals be accepted. 1925. The only object. which proposals. it concluded.  The German Government. amongst other things. this being so. without the consent of the other Party. Arbitration Treaty initialled at Locarno on October 16th. In its note. made submissions which constitute an amendment of the submissions made in the Application. 1977. It is. of this reference is. at a time when. when. the Court would observe that. however. no longer corresponded to the factory as it was before the taking over in 1922. amongst other things. can hardly have been intended to do more than affirm a more or less theoretical opinion in regard to the interpretation of that Treaty. had been fixed by the League of Nations at 25 million Reichsmarks. this memorandum made it clear. the German Delegation sent to the Polish Delegation a note setting out two alternative proposals for a compromise. in accordance with Article 38 of the Rules. the Polish Government would not consider itself bound by them. The Law  As has already been indicated. one of which. in respect of social insurances in Upper Silesia. of bills of exchange payable at different dates. moreover. on January 19th. the German Government declared itself ready to reopen negotiations. made at a very late stage.  The same reasoning applies a fortiori with regard to the statement made in Court by the Agent for the German Government to the effect that even if the arbitration clause contained in Article 23 of the Geneva Convention does not apply in the present case.
1927. paragraph 1. in support of its contention that paragraph 1 of Article 23 of the Geneva Convention should be restrictively construed. the application of Articles 6 to 22 is or is not correct. 1927. The attainment of this object. which may be due by reason of failure to apply a convention. 1925. that the Geneva Convention has instituted special jurisdictions for claims which private persons might assert in the event of the suppression or diminution of their rights. it had. An active movement was then begun for the conclusion of treaties by which the submission of differences would be made obligatory. has declared not to be in conformity with Articles 6 to 22 of the Geneva Convention. and which the Court. the interested Parties should themselves have recourse to the jurisdictions in question. and (3) treaties and clauses for the arbitration of pecuniary claims. which may arise between the German Government and the Polish Government.  The position of the Polish Government is mainly based on the two following contentions: 1. that is to say. by which the contracting Parties agreed to submit to arbitration any differences as to the interpretation or application of the particular treaties. also covers the new Application of February 8th. are consequently differences relating to its application. On the other hand. the differences concerning which reserves were deemed to be necessary were those relating to legal rights and obligations and not those relating to pecuniary reparation. for they clearly show that.  The Court. for the sake of the argument. that the clause compromissoire was originally interpreted as including claims for reparation.***  It is common ground that the Application of February 8th.7. (2) general treaties for the compulsory arbitration of certain specified categories of disputes. but that they must be construed as covering merely the question whether. which gives the Court jurisdiction for "differences of opinion. 2. was found to be feasible by including only certain classes of questions. has recognized that differences relating to the application of Articles 6 to 22 include not only those relating to the question whether the application of a [p21] particular clause has or has not been correct. of the Geneva Convention. For these . in the opinion of governments. therefore. the clause must now be interpreted as excluding such claims. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself. has traced the development of general treaties of arbitration during the last fifty years. The Court is unable to share this view. the Court holds that. treaties already foreshadowed by Article 19 of the said Convention. therefore. arbitration was not in any case made obligatory. 1927. 1925. upon any act or omission creating a situation contrary to the said articles. the application" in Article 23 cannot have the meaning just indicated. of the Geneva Convention could be construed as including differences of opinion in regard to reparations amongst those relating to the application of Articles 6 to 22. and that the existence of these jurisdictions would affect that of the Court even if Article 23.  Counsel for Poland admitted in Court. and the submissions of the German Case of March 2nd. ever since the end of the XVIIIth century. To say. the Polish Government. which the Court. that the clause compromissoire. *  In the first place. in a given case. concluded at The Hague in 1899. the meaning and scope of paragraph 1 of Article 23 must be considered. to the exclusion of any differences in regard to reparations. must now be restrictively interpreted as excluding pecuniary reparation. but also those bearing upon the applicability of these articles. It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. resulting from . resulting from the interpretation and the application of Articles 6 to 22". Differences relating to reparations. for it is upon this clause – and upon this clause only – that the Court's jurisdiction in the present case rests. in view of the fundamental difference between the nature of arbitration clauses (clauses compromissoire) and the object of the classification of disputes in general arbitration agreements. while confessedly providing for the submission of questions of right and obligation. that Article 23. paragraph 1.  Now. Poland maintains that the words "differences of opinion. 1927.  The classification of international disputes which would be most in point in the present case is undoubtedly the classification adopted in Article 13 of the Covenant of the League of Nations. does not contemplate differences in regard to reparations claimed for violation of those articles. 6. These facts appear to be logically fatal to the inference sought to be drawn from them. would be contrary to the fundamental conceptions by which the movement in favour of general arbitration has been characterized. by Judgment No. . relate to reparations alleged to be due by the Polish Government for acts set out in the German Application of May 15th. decided that it possessed in regard to the above-mentioned Application of May 15th. 6 and 7. by Judgments Nos. comprising (1) the so-called clause compromissoire (arbitration clause) introduced into commercial and other treaties during the last twentyfive years of the XIXth century and subsequently.  Moreover. in Judgment No. Poland denies that the jurisdiction. apart from the question whether expressions used in conventions between other Powers and at different periods can be taken into account in interpreting the intention of the signatories of the Geneva Convention. although no exceptions [p22] were made in the provisions relative to "arbitral justice" included in the first Chapter of Head IV of that Convention. . and subjecting even these to reservations. By the Convention for the Pacific Settlement of International Disputes. no conclusion can be drawn from the terminology of the one class of provisions in respect of the other. concluded since 1900. and the submissions in the Case of March 2nd. so far as concerns general questions of legal right and obligation. but he maintained that. because of later developments. It is needless to say that paragraph 1 of Article 23 is an example of the first of these three classes of agreements. been found to be possible to conclude agreements for the submission of pecuniary claims to arbitration without reserve. and reappearing in Article 36 of the Court's Statute.  In this connection.
In using the expression "differences of opinion resulting from the interpretation and application". . given evidence of an intention contrary to that which is to be presumed when interpreting an arbitration clause in a convention. even if the notion of the application of a convention did not cover reparations for possible violation. Parts or other subdivisions of the Convention. Now it is established by Judgments Nos. and. in the intention of the contracting Parties. is a form of application". but also that "execution . and this would justify the inclusion of differences relating to reparations amongst those concerning the application. do not establish the existence of any such contrary intention. account must be taken not only of the historical development of arbitration treaties. If Article 23. to decide as to the reparation to be made by the Party which may have been responsible for a breach of the provisions of the Convention. But the classification which they contain would.  It follows from what has been said in regard to the meaning and scope of the words "differences of opinion resulting from the interpretation and application of Articles 6 to 22" that the terms of Article 23.i. Whatever may have been the reasons which led the Parties expressly to mention jurisdiction in regard to reparations in addition to that respecting interpretation and application.  This conclusion. by so doing. would leave open the possibility of further disputes. as well as of the terminology of such treaties. could only be defeated. Articles 11 and 12 of this Convention provide for the establishment of an arbitral tribunal to which each High Contracting Party may refer "disputes which may arise either in the interpretation or in the application" of the Convention. more elastic and less rigid term than "execution". instead of settling a dispute once and for all. and Article 22 of the Geneva Convention. covers the disputes mentioned in the first and third categories by the two provisions above mentioned. without being able to lay down the conditions for the re-establishment of the treaty rights affected. by substituting itself for these companies. in the first place. those relating to "the nature or extent of the reparation" . if established. . disputes relating to "the existence of any fact which. would be contrary to what would. in the third place. [p25]  The object of these methods of obtaining redress-and that of Article 23 in particular-seems to be to avert the possibility that. the German Government cannot. It is true that the Covenant and the Statute mention separately. at a time not far removed from the conclusion of the Geneva Convention – in regard to freedom of transit between Eastern Prussia and the rest of Germany. 5 -which has been cited before it in this connection by the said Counsel – it observed not only that "application" is a wider. have.  Having regard to the fact that Counsel for the Polish Government has laid stress on the literal meaning of the word "application". but they also mention.  For the interpretation of Article 23. 6 and 7 that the Court has jurisdiction to decide whether a breach of Articles 6 to 22. lead to the conclusion that the expression "differences of opinion resulting from the interpretation and application" in Article 23 of the Geneva Convention. The decision whether there has been a breach of an engagement involves no doubt a more important jurisdiction than a decision as to the nature or extent of reparation due for a breach of an international engagement the existence of which is already established. 5 cannot be cited to support a restrictive interpretation of the term "application". An interpretation which would confine the Court simply to recording that the Convention had been incorrectly applied or that it had not been applied. which are very close to the Geneva Convention in point of time.instruments.. or by the tact that the Convention had established a special jurisdiction for claims in respect of reparation due for the violation of the provisions in question.. would constitute a breach of an international obligation".. of any arbitration clause. or had made some other arrangement regarding them. and of the grammatical and logical meaning of the words used. the contracting Parties seem to have had in mind not so much the subject of such differences as their source. in the fourth place. "disputes as to the interpretation of a treaty" and. has taken place or not. the fact that a convention explicitly [p24] confirms the conception generally adopted in regard to arbitration clauses. paragraph 1. in the Court’s opinion. Article 23 contains provisions of this kind in so far as concerns Articles 6 to 22 which form the greater portion of Head III of the First Part. when employing in another convention the wording ordinarily used in conventions of this kind. the interests respect for which it is designed to ensure. should be construed as including questions relating to reparations. which constitutes a typical arbitration clause (clause compromissoire). contemplates all differences of opinion resulting from the interpretation and application of a certain number of articles of a convention. for a jurisdiction of this kind. in general. but also and more especially of the function which. The Geneva Convention provides numerous means of redress to secure the observation of its clauses and it does so in ways varying according to the subjects dealt with under the different Heads. acting also in the name of the Free City of Danzig. is to be attributed to this provision. either by the employment of terms sufficiently clear to show a contrary intention on the part of the contracting Parties. the first paragraph of which establishes the jurisdiction just referred to. which is deduced from the object of a clause like Article 23.  It follows from the above that Article 23. contains a special paragraph to the effect that the tribunal will have jurisdiction if necessary. constitute collective treaties of peculiar importance as they mark [p22] a step forward towards the realization of compulsory arbitration. it would be difficult to understand why – failing an express provision to that effect – it should not cover the less important disputes mentioned in the fourth category. as a separate category. first paragraph. be the natural object of the clause. cannot be construed to mean that the same Parties. disturb the jurisdictional system established by the Geneva Convention. It follows that Judgment No. It now remains to consider the scope of Article 23. *  The Polish Government contends in the second place that there are other tribunals before which the injured companies could assert their right to an indemnity and that. she concluded with Germany in 1921. also drawn the Court's attention to the Convention which.  Poland has. prima facie. may be compromised. paragraph 1. in consequence of the existence of a persistent difference of opinion between the contracting Parties as to the interpretation or application of the Convention. paragraph 2. the Court thinks it well to remark that in judgment No. Poland observes that Article 11.e. in these circumstances.
 Some of the reasons for which the Court. might obtain from another tribunal. 7). The measures in question are therefore of a special nature. 1920. of the Geneva Convention. For the act on the part of the Polish Government. whenever possible. 6. thus . It should however be observed that the position is not the same. The Agent and Counsel for the Polish Government spoke sometimes of the one and sometimes of the other of these tribunals. 7 it held that. or failure to observe. 7. assuming that there was one which was competent. in the Court's opinion. as it was a question of an alleged destruction of vested rights.  The tribunals to be taken into account are therefore those contemplated by the Geneva Convention itself. the Court feels called upon to call to mind the following: In Judgment No. It follows that the competent tribunals can only be those provided for by Head Ill. Accordingly. introduced into Polish Upper Silesia by the law of June 16th. not only because Counsel for Poland have cited the general principle with regard to recourse to tribunals accessible to private persons. 1922.claimed. rights and interests belonging to the Oberschlesische and Bayerische was precisely a measure of this kind. The Polish Government indeed submitted that that Application could not be entertained until the Germano-Polish Mixed Arbitral Tribunal had delivered judgment in the case concerning the same factory of Chorzów brought by the Oberschlesische on November 10th. Now the Court. and it is only in relation to those measures. whereas the present Application seeks an indemnity which is not necessarily different from that which the Companies on whose behalf it is . This is also borne out by the fact that the Upper Silesian Arbitral Tribunal. Poland has not argued that the Polish Courts have jurisdiction in regard to reparation. sera directement tranchée par le Tribunal arbitral sur plainte de l'ayant droit. has decided that the dispossession of the Oberschlesische and Bayerische was a violation of Head III and it has decided thus even though it may be true that any violation of this Head. contrary to Head III of the Geneva Convention. This article. the . The Court of Huta Krolewska (Königshütte) effected this application by ordering the entry in the land register of the Polish Treasury as owner of the factory in place of the Oberschlesische. under Article 5. which is the last of Head II of the Convention. which application. rights and interests of German nationals contemplated in Head III and not supported by some special authority having precedence over the Convention. and which oversteps the limits of generally accepted international law. For this reason. the fact remains that this jurisdiction relates to the subject matter dealt with in Head II of the Convention which concerns the protection of vested rights.[p27] more especially in view of the fact that the German Application . may ¬be translated into English as follows: "The question whether and to what extent an indemnity for the suppression or diminution of vested rights must be paid by the State. can only allow pecuniary indemnities. the Upper Silesian Tribunal might have jurisdiction under Article 5 of the Convention. properly speaking. the Court will not be content merely to refer to Judgment No. in the opinion of the Court (Judgment No. is as follows: [p28] “La question de savoir si et dans queue mesure une indemnité pour la suppression ou la diminution de droits acquis doit être payée par l'État. which only the Court could give. [p26]  It must first of all be observed that any Jurisdiction which the Polish Courts may have does not enter into account. is in itself a measure contrary to Article 6 and the following articles of the Convention. is a derogation from the rules generally applied as regards the treatment of foreigners and from the principle of respect for vested rights. without specifying which of them would be competent in the particular case nor whether both of them would be so competent. only asked the Court for a declaratory judgment between States. fall within the expropriations or liquidations regulated under that Head.  The Polish Government argues that the Upper Silesian Tribunal has jurisdiction on the basis of Article 3 of the Geneva Convention." -------------------------------------------------------------------------------------------------------------------- In the Court's opinion. consisted in the application of Articles 2 and 5 of the Polish law of July 14th. Whatever the scope and limits of the jurisdiction conferred on the Upper Silesian Tribunal by this article may be in other respects. The Polish Government also argued that. paragraph 2. which is the sole and authoritative text of the article.  The question whether the jurisdiction of these tribunals might prevent the exercise of the jurisdiction bestowed upon the Court by paragraph 1 of Article 23 of the Geneva Convention was brought up before the Court during the proceedings in regard to the jurisdiction in the suit submitted to the Court by the German Government's Application of May 15th. -any other measure affecting the property. The Court feels that it must consider this point. which the Court has held not to be in conformity with the Geneva Convention. overruled this plea that the suit could not be entertained-for instance the argument relating to the fact that the Parties are not the same-might to some extent be applicable also in the present case. and this derogation is itself of a strictly exceptional character. before that Tribunal. 6 and will once more examine the question in relation to the special conditions in which it presents itself on this occasion. and this in spite of the fact that they do not. and to the regime established in Upper Silesia. is incompatible with the regime established by the Convention. 1922. it is impossible to accept this proposition. the Upper Silesian Arbitral Tribunal and the Germano-Polish Mixed Arbitral Tribunal. but also and more especially in relation to the terms of Article 23. which constitutes an exception to the general principle of respect for vested rights.of May 15th. namely. *FN1+” --------------------------------------------------------------------------------------------------------------------[FN1] This text. as the expropriation allowed under Head III of the Geneva Convention. is at the same time necessarily a violation of Head II also. in Judgment No. The seizure of the property. 1925. restitutio in pristinum is the natural redress of any violation of. that it must be considered whether the dispossessed Companies could apply either to the Upper Silesian Arbitral Tribunal or to the German Polish Mixed Arbitral Tribunal for reparation of the injury sustained.qualified. now it is certain that Head Ill of the Convention is mainly designed to preserve the status quo in Polish Upper Silesia and therefore that. in Judgment No.  Before undertaking this examination. will be directly decided by the Arbitral Tribunal upon the complaint of the interested Party. It is in this sense that the measures taken by the Polish Government in respect of the above-mentioned Companies are. 1925.
7 – that one of the fundamental principles [p31] upon which this Head is based. amongst others. it should be noted that the Polish Government. 1922. paragraph 2. thereafter. Cases of the same kind as those contemplated by the provisions of that Treaty concerning the regime of liquidation are certainly possible. The right to do so is given to the interested Party in the event of the conditions of sale or measures taken by the liquidating government outside its ordinary legislation being unfairly prejudicial to the price . filed a plea to the jurisdiction on the ground. that Article 305 was not considered as applicable in that case.  The jurisdiction of the Germano-Polish Mixed Arbitral Tribunal derived from the Treaty of Peace of Versailles. Consequently. amongst other things. and the jurisdiction given to the Mixed Arbitral Tribunal does not differ from that bestowed upon it by Articles 92 and 297 of the Treaty of Versailles.  It has not escaped the Court that the Oberschlesische supported the action brought by it before the Germano-Polish Mixed Arbitral Tribunal upon. Again. if that procedure had been followed out. Whatever construction in other respects the Mixed Arbitral Tribunals have placed or may place upon this article. paragraph 2. the wrong would perhaps never have occurred. paragraph 1. and of June 16th. these acts constitute special measures [p30] which fall outside the normal operation of Articles 6 to 22 of the Geneva Convention.  This being so. taken place outside the framework of the Geneva Convention. the fact that the contingency contemplated in the article is that of a claim for damages greater than the indemnity fixed. whereas. amongst other things. the possible undertaking of this investigation in order to justify such dispossession after it has taken place. there could be no question of abolishing or diminishing the guarantees given by the Treaty to persons liable to have their property liquidated. in the Polish Government's contention. not of the application of Articles 6 to 22. another reason which the Court feels called upon to invoke in order to show that the jurisdiction of the Mixed Arbitral Tribunal cannot be urged in this case in opposition to the jurisdiction conferred on the Court by Article 23 of the Geneva Convention. assumes the application of those articles. even if measures contrary to the terms of the Treaty of Versailles have been embodied in a judgment. the utmost that the interested Parties could obtain from these tribunals would be reparation for the wrong. for the dispossession of the Companies concerned had. it would observe. In the present case reparation is the outcome. amongst other things.  In order to understand this provision. in regard to the action brought by the Oberschlesische before the Germano-Polish Mixed Arbitral Tribunal on November 10th. whereas the jurisdiction reserved by Article 23. It is certain – having regard to the promulgation by the Polish Government of the laws of July 14th. the Court. That this is the case is proved by. and that some provisions of that Treaty concerning that regime have been expressly declared applicable in Polish Upper Silesia. expressly contemplates acts of the kind for which the German Government claims an indemnity on behalf of the dispossessed Companies. It was therefore natural expressly to reserve the right possessed by private persons to appeal in such cases to the Mixed Arbitral Tribunal : this is what paragraph 2 of Article 23 does. the Tribunal may then grant the interested Party a reasonable indemnity which is to be paid by the liquidating government. however. in regard to the applicability of Article 305 to the situation of the Oberschlesische. might have left some doubt as to whether the means of obtaining redress open to interested Parties under the Treaty of Versailles would remain open notwithstanding. the Polish Government cannot in this particular case require the interested Parties to look for redress of the injury sustained by them to the tribunals which might have been open to them if the Convention had been applied. the liquidation regime instituted by the Treaty of Versailles. there would seem to be no doubt that neither this provision nor Article 23. moreover. and to the application given to those laws-that in this case such a procedure has not been adopted.  The Court has also not omitted to examine Article 22 of the Geneva Convention. besides. or affect the Court's jurisdiction.  A careful examination of the provisions of Head III of the Geneva Convention brings out-as the Court has already had occasion to point out in Judgment No. which has no equivalent under the liquidation regime of the Treaty of Versailles. is that no dispossession may be effected without previous notice to the real or apparent owner. when it has to define its jurisdiction in relation to that of another tribunal.  From what has been said. cannot allow its own competency to give way unless confronted with a clause which it considers sufficiently clear to prevent the. Article 305 of the Treaty of Versailles. as regards procedure.provisions therein contained. but of acts contrary to the provisions of those articles. although it limits in several respects. however. in so far as it bestows jurisdiction upon the Germano-Polish Mixed Arbitral Tribunal. [p29]  These articles. As has already been stated. 1920. This cannot. it should be remembered that Head Ill of the Geneva Convention has not abolished. even in connection with the expropriations or liquidations authorized by the Geneva Convention.  As the Geneva Convention was intended to secure to German nationals in Polish Upper Silesia treatment more favourable than that resulting from the Treaty of Versailles. with which construction the Court wishes in no way to interfere. It is however clear that this article also contemplates regular expropriations effected within the limits fixed by the preceding articles. The aim of Article 305 – to which. the jurisdiction bestowed upon the Court by Article 23. . affording him an opportunity of being heard before the competent tribunal. allow private persons to appeal to the Mixed Arbitral Tribunal. For. is expressly reserved by Article 23. paragraph 2. possibility of a negative conflict of jurisdiction involving the danger of a denial of justice.  There is. the case is therefore one of expropriation. all possible doubt is eliminated . in the proper sense of the term. neither the Agent nor Counsel for the Polish Government have made any allusion – is to secure to interested Parties the possibility of having recourse to the Mixed Arbitral Tribunal. affect the conclusion just arrived at by the Court. cannot undo the fact that a breach of the Geneva Convention has already taken place. 1922. Thus Articles 7 and 8 of the Geneva Convention refer to Articles 92 and 297 of the Treaty. that it is not called upon to decide this point. Furthermore. it follows that once dispossession has taken place without previous investigation of the right of ownership. The Court does not consider that.
H.or when it has automatically to consider the question – only affirm its jurisdiction provided that the force of the arguments militating in favour of it is preponderant.  As regards conclusion No. (Signed) Max Huber. this intention can be demonstrated in a manner convincing to the Court. The Court is not called upon to give a decision on these points at this stage of the proceedings. H. a fortiori is a seizure. as regards the question whether. finally. as well as by municipal courts. (Signed) Å. namely. the Court would be called upon to repeat what it has already had occasion to say not only in Judgment No. the Court's aim is always to ascertain whether an intention on the part of the Parties exists to confer jurisdiction upon it.  The other submissions (Nos. which attitude has been declared by the Court not to have been in conformity with the provisions of Article 6 and the following articles of the Geneva Convention. a principle generally accepted in the jurisprudence of international arbitration. instructs the President to fix the times for the deposit of the Counter-Case.  If. having heard both Parties. in her preliminary Counter-Gase. Ehrlich. The question as to the existence of a doubt nullifying its jurisdiction need not be considered when. until the date of the judgment sought". particularly. It is. 2-4) of the Case relate to the amount of the indemnities to be paid by Poland.  Whilst denying that the Court has jurisdiction to deal with claims seeking reparation for a breach of Articles 6 to 22 of the Geneva Convention. 7. this twenty-sixth day of [p34] July. follows from the fact of its jurisdiction to hear the claim for reparation. against any amount which may be due as reparation. nineteen hundred and twenty-seven. but also in the present Judgment. if the case arise. The fact that weighty arguments can be advanced to support the contention that it has no jurisdiction cannot of itself create a doubt calculated to upset its jurisdiction. without compensation to the interested Parties. is concerned. dismisses the plea made by the Polish Government requesting the Court to declare that it has no jurisdiction to deal with the suit brought by the German Government on February 8th. has in the alternative submitted certain objections in regard. the question whether Poland could. as in the present case. consequently. in three copies. prevented the latter from fulfilling the obligation in question. moreover. to him. has delivered the separate opinion which follows hereafter. and the others to be forwarded to the Agents of the applicant and respondent Parties respectively. The Court's right to deal with these points and to grant or refuse the German Government's claim. [p32]  It has been argued repeatedly in the course of the present proceedings that in case of doubt the Court should decline jurisdiction. existing only in so far as States have accepted it. to [p33] the German submission concerning a prohibition of export and to the other submission to the effect that Poland should not be allowed to set off. a claim which she has against Germany under the decision of the Council of the League of Nations of December 9th. it were contended that the measures taken by the Polish Government in regard to the Oberschlesische and Bayerische did not constitute expropriation within the meaning of Head III of the Geneva Convention. availing himself of the right conferred on him by Article 57 of the Statute. the Court will. [p35] Dissenting Opinion By M. 2. 1.  Done in French and English. in the event of an objection .  Consideration of the question of the forms of reparation which are admissible in this case and of the methods of payment indicated would presuppose that the Court had satisfied itself of the existence of an obligation to make reparation and of the existence. Reply and Rejoinder on the merits. (Initialled) A. 1924. and reserves this suit for judgment on the merits. at the Peace Palace. one of which is to be placed in the archives of the Court. Ehrlich . that one Party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse to some means of redress. they belong to the merits of the suit. It is true that the Court's Jurisdiction is always a limited one. Polish National judge. ****  It follows from the foregoing considerations that the Court affirms its jurisdiction and reserves the suit for judgment on the merits in so far as the first of the submissions of the Case of March 2nd. nature and extent of the injury resulting from an attitude contrary to Articles 6 to 22. 4 (d) of the German Case. that if expropriation in consideration of an indemnity is prohibited by that Head. the French text being authoritative.  M. Registrar. 1922. assert a claim to set off against her debt to Germany any debt due to her by Germany remains therefore entirely reserved. that is to say. against what has just been stated by the Court. Hammarskjöld.  For These Reasons. (Initialled) M. Poland. or from having recourse to the tribunal which would have been open. the method of payment. the Court. "by reason of its attitude in respect of the Oberschlesische and Bayerische. the Polish Government is under an obligation to make good the consequent injury sustained by the aforesaid Companies from July 3rd. President. 1927. The Hague. 1927. if the former Party has. by ten votes to three. When considering whether it has jurisdiction or not. by some illegal act. prohibited. a prohibition of export affecting certain products and.
. This is a consequence of the principle that the violation of an international obligation entails the duty of reparation. [Jurisdiction Over Submissions 2-4]  The judgment which has just been delivered holds that the jurisdiction of the Court to entertain submissions Nos. résultant de l’interprétation et de l'application des articles 6 à 22. it follows that the Court has no jurisdiction where there is no divergence of opinion. they should be submitted to the decision of the Permanent Court of International Justice. 1 appears from the statements of the applicant Government. in principle. I. as distinguished from disputes concerning the existence of a fact which. for these are the logical time limits within which the damage must lie." [FN2] "Ainsi. a lack of such a divergence in the matter of submission No. therefore..[FN2]" --------------------------------------------------------------------------------------------------------------------*FN1+ "Si des divergences d'opinion. it will be in a position to appreciate.[FN1]"'.  Since the jurisdiction of the Court in the present case is based on Article 23. embodied in Article 13 of the Covenant of the League of Nations. there is no special class of disputes as to the duty of making reparation for a breach of an international obligation. par la voie d'une indemnisation pécuniaire. 1 asks for the determination of the time limits of the damage. en principe. without the necessity of an explicit statement. jurisdiction to decide on submission No. II. would constitute a breach of an international obligation: this latter class of disputes obviously includes the former. elles seraient soumises à la décision de la Cour permanente de Justice internationale.  The jurisdiction of the Court in any given case cannot be taken to rest on facts contrary to what is alleged by the Applicant. the Polish Government even suggested that the negotiations be carried on directly with the Companies concerned. In the present case. a principle so generally accepted that in the classification of international disputes of a legal character. 7 in the sense just outlined. the Case says: [Translation] "Thus there is no more a divergence of opinion between the two Governments that the reparation should be made. [Jurisdiction Over Submission 1]  While the Court has. Now. is the classification adopted in Article 13 of the Covenant of the League of Nations. I do not think that the Court can consider that submission in the present case. in principle. in principle. in all or any of the classes of legal disputes concerning: .  It followed from Judgment No. and in Article 36 of the Statute of the Court (of which classification more will be said presently). regret to find myself in disagreement with certain aspects of the judgment which has just been delivered. of the Geneva Convention which stipulates that: [p36] [Translation] "Should divergences of opinion resulting from the interpretation and from the application of Articles 6 to 22 arise between the German Government and the Polish Government. s'élevaient entre le Gouvernement allemand et le Gouvernement polonais. 1. by way of a pecuniary indemnity. whether or not the Court has jurisdiction to estimate it. and a court in estimating damage will consider those of its aspects which. is distinct from jurisdiction to determine the nature and extent of reparation in general and the amount of a pecuniary indemnity in particular. what form reparation should take. 7. follows from the jurisdiction to decide upon the demand for reparation. and. consequently. paragraph 1." -------------------------------------------------------------------------------------------------------------------- The principle of reparation seems. that a violation of an international engagement has taken place and that. as the Case sets out they actually entered into negotiations with a view to determining the reparation due to the two Companies. reparation is due. at the time of estimating. Article 36 of the Statute provides that a State may accept the jurisdiction of the Court: . Nobody can be made responsible for any damage before it has arisen. I. 2-4 of the [p37] Case. if established. that the Polish Government was bound to make reparation for any damage which may actually and unlawfully have been inflicted.  I agree that the classification of international disputes (of a legal character) which would be of most importance in the present case. is a result of the attitude of the Polish Government declared by that judgment not to have been in conformity with certain stipulations of the Geneva Convention. and reappearing in Article 36 of the Statute of the Court. Both the applicant and the respondent Governments appear to have understood Judgment No. admitted.  Yet in international law jurisdiction to decide.  The conclusion to be drawn is not weakened by the fact that submission No. il n'existe plus de divergence d'opinion entre les deux Gouvernements que la réparation doit être faite. for there is not even a divergence of opinion as to the further question.
not on the interpretation of any of Articles 6 to 22 of the Geneva Convention. application. although such a disregard would be a violation of the. is bad application. of a number of disputes. If the treaty contains rules concerning such reparation. "in the matter of". and would not be presumed to accept.  One might be tempted to maintain that since non-application. Convention. (c) the existence of any fact which.(a) the interpretation of a treaty . to have been an established practice long before the adoption of the Covenant of the League of Nations and of the Statute of the Court. Yet non-application is not application. in cases in which an arbitral tribunal was to deal with the questions of the amount of reparation or the mode of payment. (d) the nature or extent of the reparation to be made for the breach of an international obligation. relates only to disputes which would fall. [p39]  Secondly. if established. Disputes concerning interpretation or application are. in one sense. in international law. whether Article 23.  Neither can jurisdiction to decide disputes belonging to one class be deduced from jurisdiction to decide disputes belonging to another class. although different from the words "concerning". interpretation. But if the treaty does not contain such rules. there can be no divergence of opinion in the matter of interpretation or application. or to classes (a) and (c). used in Article 23. as distinguished from . by themselves. in another sense. a divergence of opinion "resulting from" interpretation or application. the Court could probably point the way for the solution. generally used in compromise clauses in connection with the words "interpretation and application". and it must be ascertainable in a way which demonstrates that the force of the arguments militating in favour of the Court's jurisdiction is preponderant. into classes (a) and (c). until each side has arrived at an opinion as a result of the process of interpretation 'or application of the treaty (application in the sense of determining the consequences which the treaty attaches to the occurrence of a fact). like every question of the relative importance of things. is. indeed. For every divergence of opinion "in the matter of" interpretation or application is. without wishing to burden the Court with disputes of less importance. imply such an affirmative answer.  The word "resulting from". since. in a sense.e.  No affirmative answer to the question of the Court's jurisdiction in the matter of submissions 2-4 can be gleaned from Article 23. for instance. In the present case.e. The State in question would not thereby accept. for the question is. jurisdiction under Article 23. the jurisdiction of the Court as to class (d). by estimating the relative importance of both classes. of the Geneva Convention. III. i. therefore divergences of opinion. the answer to the question just formulated turns. For the Parties might purposely have conferred on a courtand most of all on this Court-the competence to settle the most important disputes. therefore. but on the interpretation of Article 23 itself . i. though less important class. while the question of reparation might have to be considered in each individual case. The classes were understood to be distinct. failure to bring about the consequences which a rule attaches to a fact. to specify such powers of the tribunal in the compromis. [Jurisdiction To Assess Damages And Mode of Payment]  While jurisdiction to assess the damages and to fix the mode of payment does not. that of determining the consequences which the rule attaches to the occurrence of a given fact. should follow a fact. The word "resulting" connects [p40] the divergence of opinion with its nearest cause. according to a rule. divergences of opinion in the matter of reparation due for violations of the treaty are divergences of opinion in the matter of general. Articles 6 to 22 of the Geneva Convention do not prescribe any specific consequences which should follow if the Polish Government were to disregard the rule laid down in Article 6. And even if a comparison could be made with [p38] the help of a universally accepted criterion.  Two preliminary remarks must be made."  It is quite possible that a State should accept the optional clause. on the criterion adopted as basis of the comparison.  First. does not give to Article 23 a different meaning. Therefore. should follow in a given case. as to disputes belonging to class (c) only. yet the determination of the nature and the extent of the reparation would not be the settlement of a dispute concerning the interpretation or application of Articles 6 to 22. follow automatically from jurisdiction to establish the fact that a treaty has not been applied. (b) any question of international law. particularly since. is that of determining the meaning of a rule. it could still not be inferred that jurisdiction concerning the more important class of disputes implies jurisdiction concerning a different. consequences which the rule attaches to a fact. while the other. it is necessary to consider whether the Parties to the Geneva Convention did not intend to confer upon the Court that jurisdiction. should be read as conferring on the Court jurisdiction to decide what reparation is due to individuals from the Polish State (this is the correct term used in Article 3 of the Convention) if the Polish Government fails to act in conformity with Articles 6 to 22. for the estimate will depend.. The words "interpretation and application" do not. paragraph 1. which would prevent it from remaining a typical compromise clause. They refer to processes. although it should have been applied. Now. the process of interpretation or application. or prevention. by deciding on the interpretation of a treaty stipulation or on the correctness of its application. as was submitted by the respondent Government. paragraph 1. as distinguished from or in addition to a divergence of opinion as to the interpretation of a treaty or as to a violation of a treaty or of a rule of general international law. and since bad application is a kind of application (in the second sense). would constitute a breach of an international obligation. disputes as to the meaning of a rule or as to whether the.  It seems. and jurisdiction to decide disputes belonging to one class cannot be assumed to imply jurisdiction to decide disputes belonging to another class. application is the action of bringing about the consequences which. of which one. in the matter of reparation to be made for such non-application are divergences of opinion resulting from application. the intention to confer upon the Court such a jurisdiction must be ascertainable either from the wording of the compromise clause or at least from the circumstances in which the clause was drawn up. the determination of such reparation is clearly application (in the first sense) of the treaty.
” -------------------------------------------------------------------------------------------------------- It is to the latter group that belong. [Exclusive Jurisdiction]  Next it must be considered whether the general construction of Part I of the Geneva Convention does not make it imperative to assume that the Court. and no other tribunal. The decision contained in Judgment No. no such deduction can be made from the Postal Convention. The presumption would. not for. therefore. V.*FN1+ while the other group comprises cases in which [Translation] "one State demands from the other that it exercise or do not exercise certain specified attributes of the Sovereign Power. Moreover. which it considers not to be in conformity wit h the law”. even for the cases originally suggested by the Russian project. and in all the history of the proceedings of the committees of the Conference. while maintaining the principle. in international relations a judgment of this Court. the Committee proposals accepted. but which establishes a specific case of responsibility of the postal administrations. to admit that the group of disputes concerning interpretation and application of treaties was supposed to include ipso facto disputes concerning the amount of damages to be paid in case of the violation of such treaties. while in the law of various countries it is possible to observe the development of the institution of declaratory judgments. the consequences which should follow from a given fact have followed. but against deducing that jurisdiction from Article 23. paragraph 1. of the judgment now delivered. It is possible. some of which were enumerated in the Russian project itself. where as not to deduce such a jurisdiction from that article would imply the natural and not a restrictive interpretation.” *FN2+ “Un Etat demande a un autre d’exercer ou de ne pas exercer certaines attributions déterminées du Pouvoir souverain. In other words. one of them comprising cases in which [Translation] "one State demands from another an indemnity of a material kind for damages and losses caused to itself or to its nationals by the acts of the defendant State or of its nationals. during the last quarter of the nineteenth or in the twentieth century. but it is not a priori necessary to suppose that the general remedies under Head II. of the Geneva Convention as conferring upon the Court jurisdiction to decide only (1) how an article should be interpreted and (2) whether. to which reference was made. 6 is of course binding. While ultimately the Conference of 1899 did not adopt the principle of obligatory arbitration.  Since. between States. the meaning of the compromise clause was generally understood to be such as the clause has now been declared to have. the Russian division. [p41]  On the other hand. establishing the fact that a violation of a treaty has occurred. [p43]  Both interpretations being admissible. without making that protection depend on a decision of the government. there seems to be nothing to suggest that the division outlined in the Russian explanatory note was not considered correct.conventional. has jurisdiction in cases like the present. when it dealt with the question of declaratory judgments. up to the time of the Geneva Convention. and (2) diminishes the amount of litigation. IV. It is difficult. Head Il lays down the general principle of respect for acquired rights.III of Part I of the Convention form one whole. which lays down the rule. As to the question which has now been raised. containing a compromise clause similar to that of Article 23 of the Geneva Convention. . in principle. a presumption must be taken to exist. be defeated if it could be shown that at the time of the Geneva Convention. de faire ou de ne pas faire certains actes détermines ne touchant pas a des intérêts d’ordre matériel. the disputes concerning the interpretation and application of treaties. and therefore of disputes. without giving the Court the further power of deciding what reparation is due and in what way it should be made. while admitting exceptions. will have to be interpreted in the light of this judgment. it is not easy to defeat the inference from the Russian Explanatory Memorandum which accompanied the Russian project for an arbitration convention in 1899 and which divides all possible international conflicts into two groups. the words "interpretation and application" do not necessarily relate to the determination of the nature and extent of reparation for the violation of a treaty. which. therefore. has no less power of settling a dispute than a subsequent judgment determining the amount of damages to be paid. however. which was then before the Court. But nothing has been brought to the attention of the Court to prove conclusively that the clause "interpretation and application" was considered in the practice of nations. any treaty henceforward concluded. [FN2] --------------------------------------------------------------------------------------------------------*FN1+ “Un Etat demande a un autre une indemnisation matérielle pour dommages et pertes causes a lui -même ou a ses ressortissants par des actes de l’Etat défendeur ou de ses ressortissants qu’il juge n’être pas conformes au droit. In particular. among other disputes. should not be available in cases falling under Head III. [Jurisdiction to Interpret an Article and a Consequence of a Fact]  The question arises whether it is permissible to interpret Article 23. it follows that to base such a jurisdiction on Article 23 would require an extensive interpretation. so far as the question. [p42]  In view. The answer to this question was given by the Court in Judgment No. is concerned. confirms the same rule. 7. it seems that Heads I . that it do or do not do certain specified acts which do not relate to material interests". permits of certain exceptions. international law. it seems that there is a presumption in favour of that interpretation which (1) allows the individual to apply to a tribunal for the protection of his rights. to comprise jurisdiction in the matter of the determination of the nature and extent of reparation for the violation of the treaty in question. or shortly before that time. of course. in a given case. Head III.
"The Tribunal shall decide all disputes on the basis of the provisions of this Convention. supplemented the statement of the jurisdiction conferred on the tribunal in question. for this reason. the Netherlands and Denmark wanted to determine where the maritime borders of their countries were. [Jurisdiction Inferred From Contemporanea Expositio]  It remains to consider whether an intention of the Parties to the Geneva Convention to confer the jurisdiction in question on the Court may not be inferred from a contemporanea expositio. Applying the equidistance principle would cut off ocean access to West Germany while greatly increasing the area under Danish and Dutch control. . What principles and rules of international law are applicable to the delimitation of the continental shelf in the North Sea between the parties? Decision Equidistance principle is not customary law. VI. and of equity. in the earlier. The inference from this attitude of both Parties is that they had at the time of the conclusion of the Geneva Convention no intention to give to Article 23 a meaning such as is now suggested. was to produce. which is valuable as an indication of the views of the Parties regarding the clause in question and as calculated to throw light on the intention of the Parties at the time of the conclusion of the Convention. therefore. that in the question of the jurisdiction of the Court and of the tribunals of the Geneva Convention. [p44] seems to convey an indication that the omission was intentional and that it was not desired to produce the effects which the clause inserted in the earlier. i. was stated. the fact of the omission in the later Convention of a clause which. 1921. 6 and 7. but not in the later Convention. it did not desire to burden its Application with this delicate problem. FEDERAL REPUBLIC OF GERMANY v DENMARK AND v NETHERLANDS Facts West Germany.. in the pleadings.. Nothing has been alleged before the Court in the present proceedings to suggest that the Polish Government has admitted the correctness of such an interpretation of Article 23. not to demand restitution or indemnity and to have been limited to a demand for a declaration. about a year before the conclusion of the Geneva Convention. if any. on behalf of the German Government.  As to the attitude of the Parties after the conclusion of the Geneva Convention. and followed soon after the making of the treaty.  It would appear. and thus the parties must come to an equitable settlement of the appropriate boundaries. It was added that while the German Government believed that in principle such a jurisdiction should be considered as established. of compensation to be made to the injured Party by the Party found guilty of any infraction of the provisions of this Convention. an inference may be drawn from the fact that the action which was brought by the German Government against the Polish Government in 1925 and which led to judgments Nos. the judgment now passed must be considered as determining the question in a way which could only be changed by a new agreement of both Parties.. that doubts might possibly arise whether the Jurisdiction under Article 23 relative to divergences of opinion "concerning" the interpretation and application of certain stipulations would also comprise reparation on account of an interpretation or application not in conformity with those stipulations. "It shall be competent to decide the amount. from now on."  Since both Conventions were concluded by the same Parties within a short space of time.  On behalf of the respondent Government. (Signed) Ludwik Ehrlich.e. and on the general principles of law. from the acts of the Parties which preceded. however. among others. attention was drawn to Article II of a Convention concluded by Poland with Germany on April 21st. that as late as 1925 the German Government was not convinced of the undeniable correctness of the interpretation now suggested. Issue 1. to the decision of a permanent tribunal of arbitration . Of course. the present judgment will henceforth be binding.  I agree. to be gathered. That article provides that: "Each High Contracting Party shall be entitled to refer any disputes which may arise either as to the interpretation or the application of the present Convention. in the words of Sir Robert Phillimore. West Germany wanted to use the just and equitable idea and the Netherlands and Denmark wanted to use the equidistance/special circumstances principals in the 1958 Geneva Convention on the Continental Shelf. accompanied.
The dispute. but of delimiting them.that the Federal Republic. Finding then that equidistance was not a rule of customary law. The Court also rejected the contentions of the Federal Republic in so far as these sought acceptance of the principle of an apportionment of the continental shelf into just and equitable shares. was not legally bound by the provisions of Article 6. the Parties undertaking in their respective Special Agreements to effect such delimitation by agreement in pursuance of the Court's decision. The Court delivered judgment. the provision must be a settled practice based on the acts of state actors. and it indicated certain factors to be taken into consideration for that purpose. 2.The Court was not asked actually to delimit the further boundaries involved. They also identify three elements necessary for an element to constitute a customary rule of law: 1. as to be evidence of a subjective belief that this practice is rendered obligatory by the existence of a rule of law requiring it. 1-17 of the Judgment) The two Special Agreements had asked the Court to declare the principles and rules of international law applicable to the delimitation as between the Parties of the areas of the North Sea continental shelf appertaining to each of them beyond the partial boundaries in the immediate vicinity of the coast already determined between the Federal Republic and the Netherlands by an agreement of 1 December 1964 and between the Federal Republic and Denmark by an agreement of 9 June 1965. They stressed strongly. together with Judges Tanaka. The Court rejected the contention of Denmark and the Netherlands to the effect that the delimitations in question had to be carried out in accordance with the principle of equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental Shelf. more than half between states subject to the Convention. The Court found that the boundary lines in question were to be drawn by agreement between the Parties and in accordance with equitable principles. appended dissenting opinions. the whole seabed. which seemed to contradict the idea of it as a general rule of law. The Parties asked the Court to state the principles and rules of international law applicable. the provision must be of a norm-creating character such that it could be regarded as forming the basis of a general rule of law. Article 6 of the Convention stated that equidistance was the secondary method to be used in delimitation.Reasons Majority The majority spent a significant amount of the decision considering what constitutes a customary rule of law. relating to the delimitation as between the Parties of the areas of the North Sea continental shelf appertaining to each of them. It was now for the Parties to negotiate on the basis of such principles. the Court joined the proceedings in the two cases. the rule predated the Convention and was simply codified. and undertook thereafter to carry out the delimitations on that basis. and between the Federal Republic of Germany and the Netherlands on the other.e. but they both felt the law had crystallized when the Convention came into force. consisting of continental shelf at a depth of less than 200 metres. which had not ratified the Convention. both Denmark and the Netherlands had admitted at the hearing that the law in this area had not yet settled at the time of the Convention. 3. They considered three ways the equidistance rule could be customary law: 1. a declaration of his dissent was appended by Judge Bengzon. On subsequent state practice. Amongst the Members of the Court concurring in the Judgment. It was not a question of apportioning or sharing out those areas. and President Bustamante y Rivero and Judges Jessup. In its Judgment. By an Order of 26 April 1968. opinio juris. plus there was a facility for making reservations to Article 6. making it difficult to conclude it was now crystallized by the Convention. The proceedings. or be carried out in such a way. that even were there far more examples of the use of equidistance. the Convention crystallized equidistance as a rule of customary law. the majority found fifteen examples where equidistance was used. The Court decided the two cases in a single Judgment. or the rule became custom in light of subsequent state practice. It held that each Party had an original right to those areas of the continental shelf which constituted the natural prolongation of its land territory into and under the sea. however. in the North Sea Continental Shelf cases. between Denmark and the Federal Republic and the Federal Republic and the Netherlands respectively. holding: . Applying this reasoning to the facts. In the case of the non-concurring Judges. The Federal Republic . i. by 11 votes to 6. which it adopted by eleven votes to six. except for the Norwegian Trough. Padilla Nervo and Ammoun appended separate opinions. . related to the delimitation of the continental shelf between the Federal Republic of Germany and Denmark on the one hand.that the equidistance principle was not a necessary consequence of the general concept of continental shelf rights. and the provision must be such. The waters of the North Sea were shallow. Most of it had already been delimited between the coastal States concerned. which was submitted to the Court on 20 February 1967. were instituted on 20 February 1967 by the communication to the Registry of the Court of two Special Agreements. 3. The Facts and the Contentions of the Parties (paras. and Judge ad hoc Sorensen. 2. as they have agreed to do. Morelli and Lachs. and was not a rule of customary international law. the majority ruled that equitable principles must be utilized in negotiations between the parties to delineate the boundaries. the subjective belief that the states were doing so out of obligation must be present. Judge Sir Muhammad Zafrulla Khan appended a declaration. the Court examined in the context of the delimitations concerned the problems relating to the legal r �gime of the continental shelf raised by the contentions of the Parties. and Vice-President Koretsky.
Furthermore. applicable to the delimitations involved in the present proceedings. in proportion to the length of its sea-frontage. such as were. those factors did not suffice of themselves to convert what was a method into a rule of law. The doctrine of the just and equitable share was wholly at variance with the most fundamental of all the rules of law relating to the continental shelf. thus having a widening tendency on the area of continental shelf off that coast. by virtue of its sovereignty over the land. the Federal Republic had claimed that if the equidistance method were held to bc applicable. the effect of the equidistance method was to pull the line of the boundary inwards. that the rights of the coastal State in respect of the area of continental shelf constituting a natural prolongation of its land territory under the sea existed ipso facto and ab initio. That rule was to the effect that in the absence of agreement by the parties to employ another method. to be carried out without reference to the other. if the curvature were pronounced. detrimentally to change position or suffer some prejudice. in principle. if the Federal Republic were now precluded from denying the applicability of the conventional r �gime. although one of the signatories of the Convention. to a moderate extent. Accordingly. A boundary based on the equidistance principle. by reason of the faculty to do so conferred by Article 12 of the Convention. an "equidistance line". as such. no special legal acts had to be performed. appertaining to the coastal State and not the determination de novo of such an area.an element regarded by Denmark and the Netherlands as irrelevant to what they viewed as being two separate delimitations. for either of the two boundary lines concerned. inevitably meet at a relatively short distance from the coast.e.and Denmark and the Netherlands. it was not lightly to be presumed that a State which had not carried out those formalities had nevertheless somehow become bound in another way. at any rate in such circumstances as those of the North Sea. because. namely.. for its part. Only the existence of a situation of estoppel could lend substance to the contention of Denmark and the Netherlands . only if that State had also subsequently ratified it. in reliance on such conduct. since the use of that method was a rule of general or customary international law. but the Federal Republic. was one according to which each of the States concerned should have a "just and equitable share" of the available continental shelf. a special circumstance. it was in force for any individual State that had signed it within the time-limit provided. very consistent course of conduct on the part of a State in the situation of the Federal Republic could justify upholding those contentions. the configuration of the German North Sea coast constituted a special circumstance such as to justify a departure from that method of delimitation in this particular case. 37-59 of the Judgment) It had been maintained by Denmark and the Netherlands that the Federal Republic was in any event. But it was contended that the r �gime of Article 6 of the Convention had become binding on the Federal Republic. It was clear that only a very definite. Alternatively.i. the Republic had assumed the obligations of the Convention. reflecting the language of Article 6 of the Geneva Convention on the Continental Shelf of 29 April 1958. the effect of convex or outwardly curving coasts. and in other ways. whereas the Federal Republic had considered that it would unduly curtail what the Federal Republic believed should be its proper share of continental shelf area. by reason of past conduct. automatically binding on the Federal Republic. When a number of States drew up a convention specifically providing for a particular method by which the intention to become bound by the r�gime of the convention was to be manifested. had the Federal Republic ratified the Geneva Convention. but only both of them together . Neither of the boundaries in question would by itself produce this effect. or at least extending to its median line. been unable to agree on the prolongation of the partial boundaries referred to above. Consequently. was to cause the equidistance lines to leave the coasts on divergent courses. in the particular form it had taken. however. The first question to be considered was whether the 1958 Geneva Convention on the Continental Shelf was binding for all the Parties in the case.e. The Apportionment Theory Rejected (paras. In contrast. as such. It had been contended on behalf of Denmark and the Netherlands that the whole matter was governed by a mandatory rule of law which. 21-36 of the Judgment) The Court then turned to the question whether in delimiting those areas the Federal Republic was under a legal obligation to accept the application of the equidistance principle. 18-20 of the Judgment) The Court felt unable to accept. they would. respectively. by conduct. and was consequently not a party. It had also contended that in a sea shaped as is the North Sea. i. by public statements and proclamations. Its task was to delimit. it could have entered a reservation to Article 6. declarations. That right was inherent. had contended that the correct rule. thus "cutting off" the coastal State from the area of the continental shelf outside. and quite apart from the Geneva Convention. It was admitted on behalf of Denmark and the Netherlands that in the circumstances the Convention could not. In order to exercise it. According to Denmark and the Netherlands. Article 6 of the Geneva Convention was not. Non-Applicability of Article 6 of the 1958 Continental Shelf Convention (paras. Denmark and the Netherlands had both signed and ratified the Convention and were parties to it. had. not to apportion the areas concerned. was designated by them as the "equidistance-special circumstances" rule. mainly because Denmark and the Netherlands had wished this prolongation to be effected on the basis of the equidistance principle. The Federal Republic. It followed that the notion of apportioning an as yet undelimited area considered as a whole (which underlay the doctrine of the just and equitable share) was inconsistent with the basic concept of continental shelf entitlement. the configuration of the German North Sea coast did not of itself constitute. where two equidistance lines were drawn. The process of delimitation involved establishing the boundaries of an area already. left to each of the Parties concerned all those portions of the continental shelf that were nearer to a point on its own coast than they were to any point on the coast of the other Party. the first contention put forward on behalf of the Federal Republic. all continental shelf boundaries had to be drawn by means of an equidistance line unless "special circumstances" were recognized to exist. Such a method would have to draw its legal force from other factors than the existence of those advantages. each of the States concerned was entitled to a continental shelf area extending up to the central point of that sea. . bound to accept delimitation on an equidistance basis. which not only clearly and consistently evinced acceptance of that r �gime.. Of this there was no evidence. The Equidistance Principle Not Inherent in the Basic Doctrine of the Continental Shelf (paras. While it was probably true that no other method of delimitation had the same combination of practical convenience and certainty of application. but also had caused Denmark or the Netherlands. in the direction of the concavity.. had never ratified it. etc. In the case of a concave or recessing coast such as that of the Federal Republic on the North Sea. be binding on the Federal Republic. on the basis of proportionality to the length of its North Sea coastline. those of Denmark and the Netherlands. Under the formal provisions of the Convention.
and the chief doctrine it enunciated. Furthermore. started from the position that the rights of the coastal State to its continental shelf areas were based on its sovereignty over the land domain. including that of States whose interests were specially affected. it might not necessarily be the only. it was indispensable that State practice during that period. related directly to continental shelf rights as such. the latter was rather a rationalization of the former The Equidistance Principle Not a Rule of Customary International Law (paras. ratifying or acceding to the Convention. natural and exclusive right to the continental shelf off its shores. unlike Articles 1. although relating to matters that lay within the field of received customary law. which the Court accepted. such a rule had nevertheless come into being since the Convention. were also not excluded from the faculty of reservation. they all related to rules of general maritime law very considerably antedating the Convention which were only incidental to continental shelf rights as such. 60-82 of the Judgment) The question remained whether through positive law processes the equidistance principle must now be regarded as a rule of customary international law. Submarine areas did not appertain to the coastal State merely because they were near it. . however. at all events potentially. since the use of the equidistance method would frequently cause areas which were the natural prolongation of the territory of one State to be attributed to another. had come to prevail over all others and was now reflected in the1958 Geneva Convention. Even if proximity might afford one of the tests to be applied. Denmark and the Netherlands claimed that the test of appurtenance must be "proximity": all those parts of the shelf being considered as appurtenant to a particular coastal State which were closer to it than they were to any point on the coast of another State. and since it was not excluded from the faculty of reservation. partly because of its own impact. should have been both extensive and virtually uniform in the sense of the provision invoked and should have occurred in such a way as to show a general recognition that a rule of law was involved. in the present case the number of ratifications and accessions so far was hardly sufficient. and State practice up to date had equally been insufficient for the purpose. It had been largely on the recommendation of a committee of experts that the principle of equidistance for the delimitation of continental shelf boundaries had been accepted by the United Nations International Law Commission in the text it had laid before the Geneva Conference of 1958 on the Law of the Sea which had adopted the Continental Shelf Convention. one. the notion of equidistance was not an inescapable a priori accompaniment of basic continental shelf doctrine. A review of the genesis of the equidistance method of delimitation confirmed the foregoing conclusion. which was a somewhat fluid one. These two concepts. which might be termed the a priori argument. Moreover. had underlain all the subsequent history of the subject. delimitation had to be effected by a method which would leave to each one of the States concerned all those areas that were nearest to its own coast. It had been argued on behalf of Denmark and the Netherlands that even if at the date of the Geneva Convention no rule of customary international law existed in favour of the equidistance principle. The Court consequently considered that Denmark and the Netherlands inverted the true order of things and that. This was confirmed by the fact that any State might make reservations in respect of Article 6. Article 6 was so framed. while a very widespread and representative participation in a convention might show that a conventional rule had become a general rule of international law. In order for this process to occur it was necessary that Article 6 of the Convention should. nor in all circumstances the most appropriate. on signing. What conferred the ipso jure title was the fact that the submarine areas concerned might be deemed to be actually part of its territory in the sense that they were a prolongation of its land territory under the sea.One argument advanced by them in support of this contention. As only an equidistance line would do this. Furthermore. Hence. but there was no evidence that they had so acted because they had felt legally compelled to draw them in that way by reason of a rule of customary law. Article 6. The "Truman Proclamation" issued by the Government of the United States on 28 September 1945 could be regarded as a starting point of the positive law on the subject. With regard to the delimitation of boundaries between the continental shelves of adjacent States. nor did their appurtenance depend on any certainty of delimitation as to their boundaries. its subsequent effect had not been constitutive of such a rule. that the coastal State had an original. as it figured in Article 6 of the Geneva Convention. the greater part of a State's continental shelf areas would normally in fact be nearer to its coasts than to any other. While certain other provisions of the Convention. although the passage of only a short period of time was not necessarily a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule. the part played by the notion of special circumstances in relation to the principle of equidistance. the article adopted by the Commission had given priority to delimitation by agreement and had contained an exception in favour of "special circumstances". as to put the obligation to make use of the equidistance method after a primary obligation to effect delimitation by agreement. Rejecting the contentions of Denmark and the Netherlands. only such a line could be valid. that the coastal State's rights existed ipso facto and ab initio. however. The Court consequently concluded that the Geneva Convention was not in its origins or inception declaratory of a mandatory rule of customary international law enjoining the use of the equidistance principle. and partly on the basis of subsequent State practice. the controversies as to the exact meaning and scope of that notion. From this notion of appurtenance was derived the view. But the real issue was whether it followed that every part of the area concerned must be placed in that way. The cases cited were inconclusive and insufficient evidence of a settled practice. it was contended. It could legitimately be assumed that the experts had been actuated by considerations not of legal theory but of practical convenience and cartography. and had been mentioned in the Convention simply to ensure that they were not prejudiced by the exercise of continental shelf rights. Hence. This Article could not be said to have reflected or crystallized such a rule. far from an equidistance rule having been generated by an antecedent principle of proximity inherent in the whole concept of continental shelf appurtenance. This view had much force. of delimitation by mutual agreement and delimitation in accordance with equitable principles. As regards the time element. had not been proposed by the International Law Commission as an emerging rule of customary international law. of which the shelf area was the natural prolongation under the sea. it was a legitimate inference that it was not considered to reflect emergent customary law. The Court did not consider this to follow from the notion of proximity. be of a norm-creating character. More fundamental was the concept of the continental shelf as being the natural prolongation of the land domain. Some 15 cases had been cited in which the States concerned had agreed to draw or had drawn the boundaries concerned according to the principle of equidistance. the Court considered that the principle of equidistance. and an important one in the right conditions. the Truman Proclamation had stated that such boundaries "shall be determined by the United States and the State concerned in accordance with equitable principles". 2 and 3. and the faculty of making reservations to Article 6 must all raise doubts as to the potentially norm-creating character of that Article. Equidistance clearly could not be identified with the notion of natural prolongation.
It remained for the Court. annulled and set aside the order of the  Metropolitan Trial Court dismissing the criminal cases. that delimitation was to be effected by agreement in accordance with equitable principles and taking account of all relevant circumstances. On April 13. actual or prospective. the Court found in each case that the use of the equidistance method of delimitation was not obligatory as between the Parties. It was precisely a rule of law that called for the application of equitable principles. taking into account the effects. Cabal.  . they were to be divided between the Parties in agreed proportions. On January 28. or exploitation. Branch 160. 2000 ERRONEOUSLY MADE A FINDING OF FACT ON THE MERITS. that the immunity granted to officers and staff of the ADB is not absolute. a Chinese national who was employed as an Economist by the Asian Development Bank (ADB). failing agreement. and taking all the circumstances into account. without encroachment on the natural prolongation of the land territory of the other. 2000.The Principles and Rules of Law Applicable (paras. This case has its origin in two criminal Informations for grave oral defamation filed against petitioner. equitable principles were applied. as well as the presence of any special or unusual features. RESOLUTION YNARES-SANTIAGO. 4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO REBUT THE DFA PROTOCOL. petitioner. of any other continental shelf delimitations in the same region. according to the areas involved. NAMELY. the element of a reasonable degree of proportionality between the extent of the continental shelf areas appertaining to each State and the length of its coast measured in the general direction of the coastline. or. they were so to conduct themselves that the negotiations were meaningful. in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constituted a natural prolongation of its land territory. The Motion is anchored on the following arguments: 1) THE DFA’S DETERMINATION OF IMMUNITY IS A POLITICAL QUESTION TO BE MADE BY THE EXECUTIVE BRANCH OF THE GOVERNMENT AND IS CONCLUSIVE UPON THE COURTS. so far as known or readily ascertainable. vs. PEOPLE OF THE PHILIPPINES. 83-101 of the Judgment) The legal situation was that the Parties were under no obligation to apply the equidistance principle either under the 1958 Convention or as a rule of general or customary international law. There was no question of the Court's decision being ex aequo et bono. and in such cases as the present ones the equidistance method could unquestionably lead to inequity. unless they decided on a regime of joint jurisdiction. that no other single method of delimitation was in all circumstances obligatory. This obligation was merely a special application of a principle underlying all international relations. the parties were directed to submit their respective memorandum. 3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN DEVELOPMENT BANK (ADB). JEFFREY LIANG (HUEFENG). respondent. the oral arguments of the parties were heard. a member of the clerical staff of ADB. if such delimitation produced overlapping areas. thus. denying the petition for review. THE SLANDERING OF A PERSON WHICH PREJUDGED PETITIONER’S CASE BEFORE THE METROPOLITAN TRIAL COURT (MTC) MANDALUYONG. we rendered the assailed Decision denying the petition for review. user. J. On a petition for certiorari and mandamus filed by the People. alleging that on separate occasions on January 28 and January 31. which would not be the case when one of them insisted upon its own position without contemplating any modification of it. the Regional Trial Court of Pasig City. 2000. Although the Parties intended themselves to apply the principles and rules laid down by the Court some indication was called for of the possible ways in which they might apply them. The Parties were under an obligation to act in such a way that in the particular case. we held that the immunity cannot cover the commission of a crime such as slander or oral defamation in the name of official duty. it is limited to acts performed in an official capacity. On October 18. were that it must be the object of agreement between the States concerned and that such agreement must be arrived at in accordance with equitable principles. The Parties were under an obligation to enter into negotiations with a view to arriving at an agreement and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement. however. brought a petition for review with this Court. to indicate to the Parties the principles and rules of law in the light of which delimitation was to be effected. 1994. The basic principles in the matter of delimitation. 2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS ABSOLUTE. Other methods existed and might be employed. alone or in combination. 2000. This Court also granted the Motion for Intervention of the Department of Foreign Affairs. which was moreover recognized in Article 33 of the Charter of the United Nations as one of the methods for the peaceful settlement of international disputes. the factors to be taken into account were to include: the general configuration of the coasts of the Parties. 6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT APPLICABLE TO THIS CASE. the Metropolitan Trial Court of Mandaluyong City. Furthermore.: This resolves petitioner’s Motion for Reconsideration of our Decision dated January 28. In the course of negotiations. It consequently became unnecessary for the Court to consider whether or not the configuration of the German North Sea coast constituted a "special circumstance". and that. equally. 1994. Thereafter. in essence. For all the foregoing reasons. dismissed the criminal Informations against him. petitioner allegedly uttered defamatory words to Joyce V. We ruled. 5) THE DECISION OF JANUARY 28. acting pursuant to an advice from the Department of Foreign Affairs that petitioner enjoyed immunity from legal processes. the physical and geological structure and natural resources of the continental shelf areas involved. deriving from the Truman Proclamation. Petitioner.
Being purely a statutory right. the slander of a person. Hence. We wish to stress that it did not. HELD: (1) NO. After the motion for reconsideration was denied. he was charged before the MeTC of Mandaluyong City with two counts of oral defamation. INC. including for the purpose of this Article experts and consultants performing missions for the Bank. Based on the said protocol communication that petitioner is immune from suit. The petitioner’s case is not covered by the immunity. JR. ROSARIO. The issue in this case. shall enjoy the following privileges and immunities: (a) Immunity from legal process with respect to acts performed by them in their official capacity except when the Bank waives the immunity. The issue of whether or not petitioner’s utterances constituted oral d efamation is still for the trial court to determine.” to wit: Officers ands staff of the Bank. Secondly. cannot be considered as falling within the purview of the immunity granted to ADB officers and personnel. After fixing petitioner’s bail. ERIBERTO U. by any stretch. the MeTC judge received an “office of protocol” from the DFA stating that petitioner is c overed by immunity from legal process under section 45 of the Agreement between the ADB and the Philippine Government regarding the Headquarters of the ADB in the country. Branch 61 and STARBRIGHT SALES ENTERPRISES. (2) Whether or not the conduct of preliminary investigation was imperative. slandering a person could not possibly be covered by the immunity agreement because our laws do not allow the commission of a crime. The latter filed a motion for reconsideration which was opposed by the DFA. The rule on criminal procedure is clear that no preliminary investigation is required in cases falling within the jurisdiction of the MeTC.For the most part. petitioner. What we merely stated therein is that slander. in order for this case to fall squarely under the provisions of Section 45 (a) of the “Agreement Between the Asian Development Bank and the Government of the Republic of the Philippines Regarding the Headquarters of the Asian Development Bank. 2000. in general. its officials and staff. but subject to the exception that the acts must be done in “official capacity”. 101949 December 1. respondents. the MeTC released him to the custody of the Security Officer of ADB. in view of the foregoing. Petitioner was arrested by virtue of a warrant issued by the MeTC. even remotely. the petitioner elevated the case to the SC via a petition for review arguing that he is covered by immunity under the Agreement and that no preliminary investigation was held before the criminal case. boils down to whether or not the statements allegedly made by petitioner were uttered while in the performance of his official functions.R.. the immunity under Section 45 of the Agreement is not absolute. After a careful deliberation of the arguments raised in petitioner’s and intervenor’s Motions for Reconsideration. vs. Hence. It should be made clear that nowhere in the assailed Decision is diplomatic immunity denied. as Presiding Judge of the Regional Trial Court of Makati. in the name of official duty. the prosecution filed a petition for certiorari and mandamus with the RTC of Pasig City which set aside the MeTC rulings and ordered the latter court to enforce the warrant of arrest it earlier issued. 1994 THE HOLY SEE. preliminary investigation may be invoked only when specifically granted by law. The court needs to protect the right to due process not only of the accused but also of the prosecution. Preliminary Investigation is not a matter of right in cases cognizable by the MeTC such as this case. as well as the constitutional and political bases thereof. FACTS: Petitioner is an economist working with the Asian Development Bank (ADB). Courts cannot blindly adhere to the communication from the DFA that the petitioner is covered by any immunity. cannot be considered as an act performed in an official capacity. from legal and judicial processes in the Philippines. Petitioner argues that the Decision had the effect of prejudging the criminal case for oral defamation against him. for allegedly uttering defamatory words against fellow ADB worker Joyce Cabal. such as defamation. It has no binding effect in courts. When its motion was denied. petitioner’s Motion for Reconsideration deals with the diplomatic immunity of the ADB. SO ORDERED. As we have stated therein. Sometime in 1994. The next day. No. THE HON. the Motions for Reconsideration filed by petitioner and intervenor Department of Foreign Affairs are DENIED with FINALITY.. WHEREFORE. (2) NO. the MeTC judge without notice to the prosecution dismissed the criminal cases. . SC denied the petition. G. we find no cogent reason to disturb our Decision of January 28. rather. ISSUES: (1) Whether or not the petitioner’s case is covered with immunity from legal process with regard to Section 45 of the Agreement between the ADB and the Philippine Gov’t.
petitioner moved for reconsideration of the order. Branch 61. Later.000. 1990. 1991 of the Regional Trial Court. (9) Tropicana induced petitioner and the PRC to sell the lots to it and thus enriched itself at the expense of private respondent. Jr. but later discovered that on March 30.000 square meters (Lot 5-A. Domingo A. and Tropicana on the other.240. (8) private respondent sent the earnest money back to the sellers. however.000. 90-183. Starbright Sales Enterprises. Jr. Private respondent. Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title Nos. On July 12. sold the lots to Tropicana. Transfer Certificate of Title No. 1990. 20-21).00 per square meter.. to no avail. acting as agent to the sellers. Cirilos that the sellers fulfill their undertaking and clear the property of squatters. Inc. Complicating the relations of the parties was the sale by petitioner of Lot 5-A to Tropicana Properties and Development Corporation (Tropicana). Cirilos returned the earnest money of P100. through Msgr. Metro Manila for annulment of the sale of the three parcels of land. and three other defendants: namely. 1991 denied the motion of petitioner to dismiss the complaint in Civil Case No. Cirilos. .240. petitioner prayed that a hearing be conducted to allow it to establish certain facts upon which the said defense is based.. Branch 61. but in view of the sellers' breach. 271108 and 265388 respectively and registered in the name of the Philippine Realty Corporation (PRC). I On January 23. Makati. Makati.000. Msgr. (6) private respondent counterproposed that if it would undertake the eviction of the squatters. (5) thereafter. The complaint alleged that: (1) on April 17. while the Order dated September 19. An opposition to the motion was filed by private respondent. proposing instead either that private respondent undertake the eviction or that the earnest money be returned to the latter. Cirilos informed private respondent of the squatters' refusal to vacate the lots. Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome. private respondent demanded from Msgr. In view of the refusal of the squatters to vacate the lots sold to private respondent. 1991. On June 20. and Msgr.00 be paid by Licup to the sellers.00 per square meters.00.QUIASON. as evidenced by two separate Deeds of Sale. and (11) private respondent is willing and able to comply with the terms of the contract to sell and has actually made plans to develop the lots into a townhouse project. and (4) damages. Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and the PRC on the one hand. without notice to private respondent. Domingo A. 1991. Cirilos separately moved to dismiss the complaint — petitioner for lack of jurisdiction based on sovereign immunity from suit. and specific performance and damages against petitioner. 1988. 90-183. agreed to sell to Ramon Licup Lots 5-A. This petition arose from a controversy over a parcel of land consisting of 6.00 to P1.150. private respondent filed a complaint with the Regional Trial Court. and is represented in the Philippines by the Papal Nuncio.00 and wrote private respondent giving it seven days from receipt of the letter to pay the original purchase price in cash. petitioner and the PRC. (2) the reconveyance of the lots in question. 1991. On June 8. 1991 and September 19.. Licup assigned his rights over the property to private respondent and informed the sellers of the said assignment. The three lots were sold to Ramon Licup. and another over Lots 5-B and 5-D. petitioner's motion to dismiss after finding that petitioner "shed off [its] sovereign immunity by entering into the business contract in question" ( Rollo. 90-183). The Order dated June 20. Cirilos for being an improper party. (7) Msgr. represented by the Papal Nuncio. Cirilos. Cirilos. and that the sellers clear the said lots of squatters who were then occupying the same. (2) the agreement to sell was made on the condition that earnest money of P100. (4) in the same month. Jr. one over Lot 5-A. it lost profits of not less than P30. transferred and registered in the name of Tropicana. Italy. On August 30. Metro Manila in Civil Case No.: This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside the Orders dated June 20. the trial court issued an order denying. pp. 1991 denied the motion for reconsideration of the June 20. among others. Private respondent opposed this motion as well as the motion for reconsideration. on behalf of petitioner and the PRC. the PRC and Tropicana (Civil Case No. 5-B and 5-D at the price of P1. Metro Manila and registered in the name of petitioner. Msgr. J.1991 Order. and that the sellers' transfer certificate of title over the lots were cancelled. (3) Licup paid the earnest money to Msgr. petitioner filed a "Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation for claim of Immunity as a Jurisdictional Defense. Msgr.. (10) private respondent demanded the rescission of the sale to Tropicana and the reconveyance of the lots.000. 390440) located in the Municipality of Parañaque. the purchase price of the lots should be reduced from P1. 1989. is a domestic corporation engaged in the real estate business. (3) specific performance of the agreement to sell between it and the owners of the lots. a dispute arose as to who of the parties has the responsibility of evicting and clearing the land of squatters." So as to facilitate the determination of its defense of sovereign immunity. Licup assigned his rights to the sale to private respondent. Cirilos. petitioner and Msgr.
it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to immunity. a brief look into its status as a sovereign state is in order. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to make. In some cases. Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance with the resolution of this Court. being a foreign state enjoying sovereign immunity. 22). In England. 87). On the other hand. through the Office of Legal Affairs moved with this Court to be allowed to intervene on the side of petitioner. The Holy See Before we determine the issue of petitioner's non-suability. the remedy of the movant being to file his answer and to proceed with the hearing before the trial court. the Secretary of Foreign Affairs sent the trial court a telegram to that effect. 75 Phil. 50 Yale Law Journal 1088 ). 1991. Calleja . in turn. The general rule is that an order denying a motion to dismiss is not reviewable by the appellate courts. the courts can inquire into the facts and make their own determination as to the nature of the acts and transactions involved. In Public International Law. only the Foreign Office issues a certification to that effect instead of submitting a "suggestion" (O'Connell. the procedure followed is the process of "suggestion. 262 . when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court. Guinto. the Papal Nuncio. the trial court issued an order deferring the resolution on the motion for reconsideration until after trial on the merits and directing petitioner to file its answer (Rollo.S. Aquino. p. 216 SCRA 114 . the practice is for the foreign government or the international organization to first secure an executive endorsement of its claim of sovereign or diplomatic immunity. In Baer v. asks the Attorney General to submit to the court a "suggestion" that the defendant is entitled to immunity.On October 1. and one of these is when it is very clear in the records that the trial court has no alternative but to dismiss the complaint (Philippine National Bank v. 57 SCRA 1 (1974). informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity. Zambales. But how the Philippine Foreign Office conveys its endorsement to the courts varies. III The burden of the petition is that respondent trial court has no jurisdiction over petitioner. In the Philippines. of its own free will. Tizon. a Motion for Intervention was filed before us by the Department of Foreign Affairs." where the foreign state or the international organization sued in an American court requests the Secretary of State to make a determination as to whether it is entitled to immunity. it entered into a commercial transaction for the sale of a parcel of land located in the Philippines. But the general rule admits of exceptions. claiming that it has a legal interest in the outcome of the case as regards the diplomatic immunity of petitioner. In International Catholic Migration Commission v. II A preliminary matter to be threshed out is the procedural issue of whether the petition for certiorari under Rule 65 of the Revised Rules of Court can be availed of to question the order denying petitioner's motion to dismiss. Zagada v. petitioner invokes the privilege of sovereign immunity only on its own behalf and on behalf of its official representative. the defense of sovereign immunity was submitted directly to the local courts by the respondents through their private counsels (Raquiza v. the Department of Foreign Affairs. Miquiabas v. Philippine-Ryukyus Command. A. p. 186-190). 190 SCRA 130 (1990). Bradford. . the allegations contained in the petition of the Holy See insofar as they refer to arguments relative to its claim of sovereign immunity from suit" (Rollo. The Court allowed the said Department to file its memorandum in support of petitioner's claim of sovereign immunity. Florendo. If the Secretary of State finds that the defendant is immune from suit. 182 SCRA 644  and companion cases). The other procedural question raised by private respondent is the personality or legal interest of the Department of Foreign Affairs to intervene in the case in behalf of the Holy See (Rollo. 80 Phil. In cases where the foreign states bypass the Foreign Office. In its petition. Petitioner forthwith elevated the matter to us. private respondent insists that the doctrine of non-suability is not anymore absolute and that petitioner has divested itself of such a cloak when. 1991. In such a case. On December 9. it would be a sheer waste of time and energy to require the parties to undergo the rigors of a trial. United States of America v. pp. he. In the United States. a similar procedure is followed. The Solicitor General embodied the "suggestion" in a Manifestation and Memorandum as amicus curiae. the U. 50 . both parties and the Department of Foreign Affairs submitted their respective memoranda. a "suggestion" to respondent Judge. Civil Service Commission. Note: Immunity from Suit of Foreign Sovereign Instrumentalities and Obligations. In the case at bench. I International Law 130 . 206 SCRA 582 . 48 SCRA 242 (1972). and that it "adopts by reference. in behalf of the Commander of the United States Naval Base at Olongapo City. InWorld Health Organization v. the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment.
we have adopted the generally accepted principles of International Law. International Law 124-125 . the position of the Holy See in International Law became controversial (Salonga and Yap. the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state. The Act defines a "commercial activity" as any particular transaction. Some writers even suggested that the treaty created two international persons — the Holy See and Vatican City (Salonga and Yap. Despite its size and object. 312 . Even without this affirmation. with the Pope. 84 Phil. which defines a commercial activity as "either a regular course of commercial conduct or a particular commercial transaction or act. According to the newer or restrictive theory. has had diplomatic representations with the Philippine government since 1957 ( Rollo. This Court has considered the following transactions by a foreign state with private parties as acts jure imperii: (1) the lease by a foreign government of apartment buildings for use of its military officers (Syquia v. to send its own diplomats to foreign countries. supra. Questions and Problems In International Law. such principles of International Law are deemed incorporated as part of the law of the land as a condition and consequence of our admission in the society of nations (United States of America v. According to the classical or absolute theory. 37). the Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects. In view of the wordings of the Lateran Treaty. The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of international relations" (O'Connell. the law declared that the "commercial character of the activity shall be determined by reference to the nature of the course of conduct or particular transaction or act. Public and Private 81 ). and to enter into treaties according to International Law (Garcia. rather than by reference to its purpose. and the attribution to it of "sovereignty" must be made in a sense different from that in which it is applied to other states (Fenwick. The Status of the Holy See in International Law. (2) the conduct of . but not with regard to private acts or acts jure gestionis (United States of America v. through its Ambassador. Guinto. as the Holy See. Public International Law 36-37 ).Before the annexation of the Papal States by Italy in 1870. 87). and the demands of its mission in the world. who is also head of the Roman Catholic Church. Sovereign Immunity As expressed in Section 2 of Article II of the 1987 Constitution. where Italy recognized the exclusive dominion and sovereign jurisdiction of the Holy See over the Vatican City. 182 SCRA 644 ). I International Law 311 ). has created problems of its own. Indeed. be made a respondent in the courts of another sovereign. The Holy See. Ruiz. One authority wrote that the recognition of the Vatican City as a state has significant implication — that it is possible for any entity pursuing objects essentially different from those pursued by states to be invested with international personality (Kunz. Coquia and Defensor-Santiago. With the loss of the Papal States and the limitation of the territory under the Holy See to an area of 108. The United States passed the Foreign Sovereign Immunities Act of 1976. was considered a subject of International Law. 46 The American Journal of International Law 308 ). is of a "commercial character. it is difficult to determine whether the statehood is vested in the Holy See or in the Vatican City. as the Holy See or Head of State. the Vatican City has an independent government of its own. the Papal Nuncio. without its consent. There are two conflicting concepts of sovereign immunity. It also recognized the right of the Holy See to receive foreign diplomats. the Pope was the monarch and he. it is the Holy See that is the international person." The Canadian Parliament enacted in 1982 an Act to Provide For State Immunity in Canadian Courts. This appears to be the universal practice in international relations. Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the Vatican City. supra." Furthermore. 125. Some states passed legislation to serve as guidelines for the executive or judicial determination when an act may be considered as jure gestionis. act or conduct or any regular course of conduct that by reason of its nature. International Law 37 ). The Vatican City fits into none of the established categories of states.7 acres. In 1929. in conformity with its traditions. the world-wide interests and activities of the Vatican City are such as to make it in a sense an "international state" (Fenwick. Public International Law 194 ). This is particularly true with respect to the Communist states which took control of nationalized business activities and international trading. a sovereign cannot. Legal treatises and the decisions in countries which follow the restrictive theory have difficulty in characterizing whether a contract of a sovereign state with a private party is an act jure gestionis or an act jure imperii.. The restrictive theory came about because of the entry of sovereign states into purely commercial activities remotely connected with the discharge of governmental functions. In a community of national states. p. each widely held and firmly established. 136 SCRA 487 ." The restrictive theory. Lopez. The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. Cruz. one can conclude that in the Pope's own view. Kelsen. which is intended to be a solution to the host of problems involving the issue of sovereign immunity. B. Italy and the Holy See entered into the Lateran Treaty. Principles of International Law 160 ).
The determination of the executive arm of government that a state or instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts (International Catholic Migration Commission v. it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government in conducting the country's foreign relations (World Health Organization v. surely the said transaction can be categorized as an act jure gestionis. 190 SCRA 130 ). then it is an act jure imperii. particularly the admission of private respondent. pp. Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. the Department of Foreign Affairs has formally intervened in this case and officially certified that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction and entitled to all the rights. a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the mission. Rodrigo. Ltd. will be deemed to have impliedly waived its non-suability if it has entered into a contract in its proprietary or private capacity. but for the use of petitioner to construct thereon the official place of residence of the Papal Nuncio. 109645. It merely wanted to dispose off the same because the squatters living thereon made it almost impossible for petitioner to use it for the purpose of the donation. 182 SCRA 644 ). real or personal. a cafeteria. In the case at bench. and that they stubbornly refuse to leave the premises. 3). However. Aquino. Private respondent failed to dispute said claim. the United States government impliedly divested itself of its sovereign immunity from suit. It is only when the contract involves its sovereign or governmental capacity that no such waiver may be implied. Such an act can only be the start of the inquiry. petitioner has denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. a store. As held in United States of America v. Certainly. Petitioner did not sell Lot 5-A for profit or gain. 20-22). In Article 31(a) of the Convention. The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character. Besides. 1994). The right of a foreign sovereign to acquire property. Book IV. to cater to American servicemen and the general public (United States of America v. and (3) the change of employment status of base employees (Sanders v. if petitioner has bought and sold lands in the ordinary course of a real estate business. with all the more reason should immunity be recognized as regards the sovereign itself. 182 SCRA 644 ). As the department tasked with the conduct of the Philippines' foreign relations (Administrative Code of 1987. we have to come out with our own guidelines. the procedure would be to remand the case and order the trial court to conduct a hearing to establish the facts alleged by petitioner in its motion. The logical question is whether the foreign state is engaged in the activity in the regular course of business. The donation was made not for commercial purpose. As in International Catholic Migration Commission and in World Health Organization. supra. On the other hand. 156-157). Ruiz. this Court has considered the following transactions by a foreign state with private parties as acts jure gestionis: (1) the hiring of a cook in the recreation center. in a receiving state. or an incident thereof. The fact that squatters have occupied and are still occupying the lot. Calleja. IV . (supra): There is no question that the United States of America. Sec. Title I. The operation of the restaurants and other facilities open to the general public is undoubtedly for profit as a commercial and not a governmental activity. and a coffee and pastry shop at the John Hay Air Station in Baguio City. which in this case is the Holy See. the privilege of sovereign immunity in this case was sufficiently established by the Memorandum and Certification of the Department of Foreign Affairs. Judge Tirso Velasco. 48 SCRA 242 ). Where the plea of immunity is recognized and affirmed by the executive branch. necessary for the creation and maintenance of its diplomatic mission. Ordinarily. This treaty was concurred in by the Philippine Senate and entered into force in the Philippines on November 15. Veridiano. pp. 1965. Partnership v. such procedure would however be pointless and unduly circuitous (Ortigas & Co. the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. a bakery. In the absence of legislation defining what activities and transactions shall be considered "commercial" and as constituting acts jure gestionis. 26. and (2) the bidding for the operation of barber shops in Clark Air Base in Angeles City (United States of America v. If the foreign state is not engaged regularly in a business or trade. If the act is in pursuit of a sovereign activity. consisting of three restaurants.public bidding for the repair of a wharf at a United States Naval Station (United States of America v. Guinto. the particular act or transaction must then be tested by its nature. has been admitted by private respondent in its complaint ( Rollo.R. By entering into the employment contract with the cook in the discharge of its proprietary function.). is recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. tentative they may be. The issue of petitioner's non-suability can be determined by the trial court without going to trial in the light of the pleadings. If this immunity is provided for a diplomatic envoy. privileges and immunities of a diplomatic mission or embassy in this country (Rollo. In view of said certification. 27). Guinto. July 25. like any other state. we abide by the certification of the Department of Foreign Affairs. especially when it is not undertaken for gain or profit. 162 SCRA 88 ). No. G.
According to the Permanent Court of International Justice. in the meantime. CONCEPCION. 265. that. the petition for certiorari is GRANTED and the complaint in Civil Case No. L-9836 [November 18. 1954. Pascual. filed by the same. respect for the rules of international law (The Mavrommatis Palestine Concessions. the latter ceases to be a private cause. said decision was affirmed by the Commissioner of Customs on December 27..: Petition for review of a judgment of the Court of Tax Appeals reversing a decision of the Commissioner of Customs. that the shipments in question are in the nature of "no-dollar" imports.vs.Valentin Gutierrez for respondent. 1959]. declaring said goods forfeited to the Government and—the goods having been. In as much as none of the shipments had the certificate required by Central Bank Circulars Nos. in the person of its subjects. it believed. owing to the influence and effect that the same may and do have upon the stability of our peso and its international value. 1956. Remedies of Private Claimants Against Foreign States. petitioners. 328. but. and the Alto Surety & Insurance Co. in Civil Cases Nos. World Court Reports 293. under section 2 of Republic Act No. The latter is based upon the following premises. under its charter. Commissioner of Customs vs. Selected Readings on Protection by Law of Private Foreign Investments 905. Office of the Solicitor General for petitioners. a State is in reality asserting its own rights — its right to ensure. Hence. because there is no governmental agency authorized to issue the import license required by the aforementioned executive order. SO ORDERED. as such. that. In due course. insofar as a Central Bank license and a certificate authorizing the importation or release of the goods under consideration are required by Central Bank Circulars Nos. 1956. by said principal and surety. 44 and 45 for the release thereof. WHEREFORE. EASTERN SEA TRADING.R. 1960]). respondent. 90-183 against petitioner is DISMISSED. which reversed the decision of the Commissioner of Customs and ordered that the aforementioned bonds be cancelled and withdrawn. 919 ). the Foreign Office shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See (Young.. the latter are null and void. as principal. 1959]. as surety. to the Bureau of Customs. to maintain our monetary stability and to preserve the international value of our currency. the Collector of Customs of Manila rendered a decision on September 4. Acting Commissioner of Customs vs. Once the Philippine government decides to espouse the claim. 1 Hudson. not only because the same seeks to implement an executive agreement —extending the effectivity of our Trades and Financial Agreements with Japan—which (executive agreement). and that the seizure and forfeiture of the goods imported from Japan cannot be justified under Executive Order No. Serree Investment Co. 1961 THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF CUSTOMS. 302 ). Inc. Serree Investment Co. the forerunner of the International Court of Justice: By taking up the case of one of its subjects and by reporting to diplomatic action or international judicial proceedings on his behalf. to espouse its claims against the Holy See. Private respondent can ask the Philippine government. On appeal taken by the consignee. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its claims. Commissioner of Customs vs. 1960]. and 45 have already been passed upon and repeatedly upheld by this Court (Pascual vs. The authority of the Central Bank to regulate no-dollar imports and the validity of the aforementioned Circulars Nos. in compliance with orders of the Court of First Instance of Manila. released to the consignees on surety bonds. G. is of dubious validity. Commissioner of Customs. within thirty (30) days from notice. L-10979 [June 30. namely: that the Central Bank has no authority to regulate transactions not involving foreign exchange. also. L-14279 October 31. 1959] Commissioner of Customs vs. the aforementioned shipments do not involve foreign exchange. jointly and severally. in relation to the aforementioned circularsof the Central Bank. the present petition of the Commissioner of Customs for review of the decision of the Court of Tax Appeals. for the reason that the broad powers of the Central Bank.. Under both Public International Law and Transnational Law. in relation to section 14 of said Act— authorizing the bank to issue such rules and regulations as it may consider necessary for the effective discharge of the responsibilities and the exercise of the powers assigned to the Monetary Board and to the Central Bank— connote the authority to regulate no-dollar imports. Leuterio. a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels. L-9142 [October 17.. through the Foreign Office. . Of course. Respondent Eastern Sea Trading was the consignee of several shipments of onion and garlic which arrived at the Port of Manila from August 25 to September 7. the goods thus imported were seized and subjected to forfeiture proceedings for alleged violations of section 1363(f) of the Revised Administrative Code. L-14274[November 29. 23942 and 23852 thereof —directing that the amounts of said bonds be paid. Subsequently. Some shipments came from Japan and others from Hong Kong.Private respondent is not left without any legal remedy for the redress of its grievances. the consignee sought a review of the decision of said two(2) officers by the Court of Tax Appeals. 44 and 45. J. L-12007 [May 16. No. 44.
also. pp. Hyde on International Law[Revised Edition]. parcel post. Article VII. and commercial relations generally. V. former U. 1405. 324. 612). and that they have abundant precedent in our history. patent rights. High Commissioner to the Philippines. xxx xxx xxx International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. money orders. which are.502). 1792(1 Stat. Willoughby on the U.S. vs. Vol. along the lines of the one with Rumania previously referred to. 1134. I [2d ed. 537-540. . 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. 1881 (21 Stat. Hundreds of executive agreements. 81 L.S.Hackworth. Section 10). the admission of civil aircraft. made without the concurrence of twothirds (2/3) of the Senate of the United States. may sometimes be difficult of ready ascertainment. have been concluded by the Postmaster General with various countries under authorization by Congress beginning with the Act of February 20. This conclusion is untenable. the so-called Parity Rights provided for in the Ordinance Appended to our Constitution were. .The Court of Tax Appeals entertained doubts on the legality of the executive agreement sought to be implemented by Executive Order No. Indeed. 15. postal and navigation arrangements and the settlement of claims. 203. xxx xxx xxx Furthermore. Ozanic vs. But international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangementsof a more or less temporary nature usually take the form of executive agreements. 188 F. 755. . the United States Supreme Court has expressly recognized the validity and constitutionality of executive agreements entered into without Senate approval. pp. 151. It would seem to be sufficient. Vol. Constitutional Law.) The validity of the executive agreement in question is thus patent. Sayre. while still others. 753-754) (See." which may be validly entered into without such concurrence. which otherwise had to be undertaken by these two (2) agencies. pp. and nine such agreements were entered into under the Dingley Tariff Act 1897 (30 Stat. ed. to refer to certain classes of agreements heretofore entered into by the Executive without the approval of the Senate. xxx xxx xxx . Upon the abolition of said Commission. 210-218.315 U. 304. pp. They sometimes take the form of exchanges of notes and at other times that of more formal documents denominated "agreements" time or "protocols". trademark and copyright protection. Postal conventions regulating the reciprocal treatment of mail matters." (39Columbia Law Review. 239). the right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage.S.) In this connection. customs matters. It would be useless to undertake to discuss here the large variety of executive agreements as such. U. 670675. Lastly. the latter was created only to perform the task of implementing certain objectives of the Monetary Board and the Central Bank. particularly those with respect of the settlement of claims against foreign governments. ed. International Law Digest. Vol. pp. 81 L. Curtis-Wright Export Corporation.S. The validity of these has never been seriously questioned by our courts. said court believed. 301 U.299 U. no agency authorized to issue the aforementioned license. Vol. for the authority to issue the aforementioned licenses was not vested exclusively upon the Import Control Commission or Administration. 651. . 203. such as tariff acts.1905-1906.S. Treaties are formal documents which require ratification with the approval of two thirds of the Senate. Belmont. the duty to provide means and ways for the accomplishment of said . xxx xxx xxx Agreements with respect to the registration of trade-marks have been concluded by the Executive with various countries under the Act of Congress of March 3. pp. A very much larger number of agreements. 232. 288. however. 328provided for export or import licenses "from the Central Bank of the Philippines or the Import Control Administration" or Commission. distinct and different from "executive agreements. concluded from time to time.S.. pp. there was. Yale Law Journal. 214). 2. hence. (39Columbia Law Review. U. 86 L. postal matters. 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. 1416-1418. Executive Order No. 390-407). The concurrence of said House of Congress is required by our fundamental law in the making of "treaties" (Constitution of the Philippines. 255. were concluded independently of any legislation.. In fact. 796. 328. . pp.S. income tax on shipping profits. U. prior thereto.S. owing to the fact that our Senate had not concurred in the making of said executive agreement. Vol. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations. in order to show that the trade agreements under the act of 1934are not anomalous in character. 567. that they are not treaties.]. Vol. other than those entered into under the trade-agreements act. the subject of an executive agreement. They cover such subjects as the inspection of vessels. Francis B. the registration of trademarks and copyrights. International Law Digest. navigation dues. 25. international claims. have been negotiated with foreign governments. ed. etc. California Law Review. 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.S. Moore. vs. most-favored-nation rights. U. etcetera. Ten executive agreements were concluded by the President pursuant to the McKinley Tariff Act of 1890 (26 Stat. 2d. The point where ordinary correspondence between this and other governments ends and agreements—whether denominated executive agreements or exchanges of notes or otherwise—begin. (Emphasis supplied. vs. V. Executive agreements become binding through executive action without the need of a vote by the Senate or by Congress. not by direction of the Act but in harmony with it. providing for most-favored-nation treatment in customs and related matters have been entered into since the passage of the Tariff Act of 1922. Pink.
With the expiration of the RP-US Military Bases Agreement. THE EXECUTIVE SECRETARY. SENATOR FRANKLIN DRILON.. On October 5. To further strengthen their defense and security relationship. KILUSANG MAYO UNO. the Philippine Senate rejected the proposed RP-US Treaty of Friendship. SENATOR BLAS F. DRILON. Negotiations by both panels on the VFA led to a consolidated  draft text. which in turn resulted to a final series of conferences and negotiations that culminated in Manila on January 12 and 13. HON. would have extended the presence of US military  bases in the Philippines. 1947.(PHILCONSA). JR. October 10. AQUINO.. ARROYO.” Both sides discussed. BLAS F. the Philippines and the United States of America forged a Military Bases Agreement which formalized. 1998. THE SECRETARY OF FOREIGN AFFAIRS. AND ALL OTHER PERSONS ACTING THEIR CONTROL. SOCORRO I. even if the aforementioned Executive Order had been silent thereon. ORLANDO MERCADO. JR. which was respectively signed by public respondent Secretary Siazon and Unites States Ambassador Thomas Hubbard on February 10. No. AND RAMON A. 138587. PROLABOR. SUPERVISION. RENE A. DEFENSE SECRETARY ORLANDO MERCADO. No. respondents. 2000] BAYAN (Bagong Alyansang Makabayan). Under the treaty. petitioners.). No. October 10. the United States panel. with cost against respondents defendant-appellee. JR. Estrada. MERCADO. On March 14. SENATOR RODOLFO BIAZON. AMADOGAT INCIONG. SENATOR BLAS OPLE. 1997. KILOSBAYAN. BISHOP ELMER BOLOCAN (United Church of Christ of the Phil. KILUSANG MAMBUBUKID NG PILIPINAS. ZAMORA. EXECUTIVE SECRETARY RONALDO ZAMORA. ESTRADA. 138698. met with the Philippine panel. BIAZON. petitioners. among others. THE SECRETARY OF NATIONAL DEFENSE. MOVEMENT OF ATTORNEYS FOR BROTHERHOOD. petitioners. a JUNK VFA MOVEMENT. JOSEPH E. 1951. October 10. the decision appealed from is hereby reversed and another one shall be entered affirming that of the Commissioner of Customs. vs. FOREIGN AFFAIRS SECRETARY DOMINGO SIAZON. SENATE PRESIDENT MARCELO FERNAN. In view of the impending expiration of the RP-US Military Bases Agreement in 1991. the parties agreed to respond to any external armed attack on their territory. October 10.R. and borne by. Republic of the Philippines. J. Represented by its National President. 1998. Cooperation and Security which. DOMINGO L.R. No. EXEQUIEL B. as Executive Secretary. 2000] TEOFISTO T. petitioners.: Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition are issues relating to. GABRIELA. ROLANDO SIMBULAN. ALEXANDER AGUIRRE. then President Fidel V. [G. (MABINI). ORLANDO B. [G. GONZALES. the periodic military exercises conducted between the two countries were held in abeyance. AGAPITO A. PABLITO V. FERNAN. and the PUBLIC INTEREST LAW CENTER. respondents. GEN. On September 16. ZENAIDA QUEZON-AVENCEÑA. ROCO. through respondent Secretary of Foreign Affairs. DOMINGO L. GARCIA. No. respondents. Eastern Sea Trading.V. SIAZON. RAUL S. in effect. public vessels. [G. MD. OSMEÑA III. [G.  . as Secretary of Foreign Affairs. SAGUISAG. the Philippines and the United States entered into a Mutual Defense Treaty on August 30.respondents. among other things. RONALDO B. 138680. Ramos approved the VFA. the Philippines and the United States negotiated for a possible extension of the military bases agreement.. BIAZON. Jose Aguila Grapilon. in his capacity as Secretary of Foreign Affairs. 138572. President Joseph E. 2000] INTEGRATED BAR OF THE PHILIPPINES. SIAZON. and  aircraft. WIGBERTO TAÑADA. armed forces. BRIG. as Secretary of National Defense. GUINGONA. 2000] JOVITO R. an agreement forged in the turn of the last century between the Republic of the Philippines and the United States of America -the Visiting Forces Agreement. and SENATOR FRANCISCO TATAD .. Thereafter. petitioners. 1991. vs. It is so ordered. On July 18. DR. ratified the VFA. headed by Foreign Affairs Undersecretary Rodolfo Severino Jr. INC. vs. BISHOP TOMAS MILLAMENA (Iglesia Filipina Independiente). CAMILO L. RONALDO B. MARCELO B. SENATOR RODOLFO G. The antecedents unfold.R.objectives had merely to be discharged directly by the Monetary Board and the Central Bank. vs. and HON. FERNAN. and HON. the defense and security relationship between the Philippines and the United States of America continued pursuant to the Mutual Defense Treaty. 138570. the possible elements of the Visiting Forces Agreement (VFA for brevity). REYNALDO LEGASCA. FRANCISCO C. 1998.R. DIRECTION. SENATE PRESIDENT MARCELO B. vs. DOMINGO SIAZON. OPLE and RODOLFO G. JOSEPH EJERCITO ESTRADA. OPLE. SABIO. to exchange notes on “the complemen ting strategic interests of the United States and the Philippines in the Asia-Pacific region. October 10. DECISION BUENA. headed by US Defense Deputy Assistant Secretary for Asia Pacific Kurt Campbell. in his capacity as President.R. DIOKNO. RIVERA JR.. 2000] PHILIPPINE CONSTITUTION ASSOCIATION. WHEREFORE. ZAMORA. the use of installations in the Philippine territory by United States military personnel. INC. respondents. [G. INTEGRITY AND NATIONALISM. HON. AND INSTRUCTION IN RELATION TO THE VISITING FORCES AGREEMENT (VFA). and SERGIO R. MA. SANIDAD. Notwithstanding. SALONGA. JOKER P. FRANKLIN M.
and. 1999. Proposed Senate Resolution No. Ople. 18. Biazon. 443 recommending the concurrence of the Senate to the VFA and the creation of a Legislative Oversight Committee to oversee its implementation. joint public hearings were held by the two Committees. the letter of the President and the VFA. United States military personnel shall be exempt from passport and visa regulations upon entering and departing the Philippines. the United States authorities shall be responsible for receiving the person concerned within its own territory or otherwise disposing of said person outside of the Philippines. 443 was approved by the Senate. for their joint  consideration and recommendation. The term ‘military personnel’ refers to military members of the United States Army. Thereafter. from any political activity in the Philippines. The Senate. Debates then ensued. which shall be presented on demand. rank or grade and service number (if any). and is quoted in its full text. Philippine authorities shall accept as valid. date of birth. 1999. the VFA officially entered into force after an Exchange of Notes between respondent Secretary Siazon and United States Ambassador Hubbard. “Within this definition: “1. “2. and its Committee on National Defense and Security. and “(c) the commanding officer of a military aircraft or vessel shall present a declaration of health. the President. and when required by the cognizant representative of the Government of the Philippines. valid passports upon entry and departure of the Philippines. nor ordinary residents in the Philippines and who are employed by the United States armed forces or who are accompanying the United States armed forces. “2. such as employees of the American Red Cross and the United Services Organization.On October 6. “4. Navy. ‘United States personnel’ means United States military and civilian personnel temporarily in the Philippines in connection with activities approved by the Philippine Government. The Government of the United States shall take all measures within its authority to ensure that this is done. “Article II Respect for Law “It is the duty of the United States personnel to respect the laws of the Republic of the Philippines and to abstain from any activity inconsistent with the spirit of this agreement. Vehicles owned by the Government of the United States need not be regis tered. Air Force. upon demand. If the Government of the Philippines has requested the removal of any United States personnel from its territory. “2. chaired by Senator Blas F. The term ‘civilian personnel’ refers to individuals who are neither nationals of. Marine Corps. referred the VFA to its Committee on Foreign Relations. branch of service and photograph. provides for the mechanism for regulating the circumstances and conditions under which US Armed Forces and defense personnel may be present in the Philippines. The VFA. Article VII of the 1987 Constitution. but shall have appropriate markings. “Article V   . in particular. for concurrence pursuant to Section 21. the Instrument of Ratification. officially transmitted to   the Senate of the Philippines. by a two-thirds (2/3) vote of its  members. authorizing the travel or visit and identifying the individual or group as United States military personnel. The following documents only. “Article III Entry and Departure “1. 1999. On May 27. a driving permit or license issued by the appropriate United States authority to United States personnel for the operation of military or official vehicles. The Government of the Philippines shall facilitate the admission of United States personnel and their departure from the Philippines in connection with activities covered by this agreement. shall be required in respect of United States military personnel who enter the Philippines: “(a) personal identity card issued by the appropriate United States authority showing full name. “3. On June 1. shall conduct a quarantine inspection and will certify that the aircraft or vessel is free from quarantinable diseases. Any quarantine inspection of United States aircraft or United States vessels or cargoes thereon shall be conducted by the United States commanding officer in accordance with the international health regulations as promulgated by the World Health Organization. Senate Resolution No. United States civilian personnel shall be exempt from visa requirements but shall present. hereunder: “Article I Definitions “As used in this Agreement. and mutually agreed procedures. in turn. without test or fee. “(b) individual or collective document issued by the appropriate United States au thority. acting through respondent Executive Secretary Ronaldo Zamora. On May 3. 443 was then re-numbered as Senate Resolution No. 1998. chaired by Senator Rodolfo G. and Coast Guard. “Article IV Driving and Vehicle Registration “1. “5. which consists of a Preamble and nine (9) Articles. the Committees submitted Proposed Senate Resolution No.
after timely notification by Philippine authorities to arrange for the presence of the accused. “6. the commander will issue a certificate setting forth such determination. Also. and (2) offenses arising out of any act or omission done in performance of official duty. (c) The authorities of either government may request the authorities of the other government to waive their primary right to exercise jurisdiction in a particular case. including seizure and. waive their primary right to exercise jurisdiction except in cases of particular importance to the Philippines. This certificate will be transmitted to the appropriate authorities of the Philippines and will constitute sufficient proof of performance of official duty for the purposes of paragraph 3(b)(2) of this Article. In the event Philippine judicial proceedings are not completed within one year. an offense relating to security means: (1) treason. (d) Recognizing the responsibility of the United States military authorities to maintain good order and discipline among their forces. or have had their sentence remitted or suspended. (b) United States authorities exercise exclusive jurisdiction over United States personnel with respect to offenses. the United States shall be relieved of any obligations under this paragraph. (2) sabotage. United States military authorities will take disciplinary or other action against offenders in official duty cases. United States and Philippine authorities shall assist each other in the carrying out of all necessary investigation into offenses and shall cooperate in providing for the attendance of witnesses and in the collection and production of evidence. upon formal notification by the Philippine authorities and without delay. the delivery of objects connected with an offense. In those cases where the Government of the Philippines believes the circumstances of the case require a review of the duty certificate. but not under the laws of the United States. Subject to the provisions of this article: (a) Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines.Criminal Jurisdiction “1. “5. Philippine authorities will. which the United States Government shall take into full account. (b) United States military authorities shall have the right to exercise within the Philippines all criminal and disciplinary jurisdiction conferred on them by the military law of the United States over United States personnel in the Philippines. United States military authorities shall promptly notify Philippine authorities of the arrest or detention of United States personnel who are subject of Philippine primary or exclusive jurisdiction. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect to offenses. and 3 (b) of this Article. 2 (b). Within the scope of their legal compet ence. including offenses relating to the security of the United States. Where appropriate. if they so request. and notify the Government of the Philippines of the actions taken. (c) For the purposes of this paragraph and paragraph 3 of this article. punishable under the laws of the United States. “7. make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged in extraordinary cases. the one-year period will not include any time during which scheduled trial procedures are delayed because United States authorities. In cases where the right to exercise jurisdiction is concurrent. the Philippine Government shall present its position to the United States Government regarding custody. (f) If the government having the primary right does not exercise jurisdiction. they may not be tried again for the same offense in the Philippines. the following rules shall apply: (a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses committed by United States personnel. “4. punishable under the laws of the Philippines. “2. or have served their sentence. (b) United States military authorities shall have the primary right to exercise jurisdiction over United States personnel subject to the military law of the United States in relation to. If the Government of the Philippines determines that the case is of particular importance. Within the scope of their legal authority. fail to do so. including offenses relating to the security of the Philippines. (1) offenses solely against the property or security of the United States or offenses solely against the property or person of United States personnel. it shall notify the authorities of the other government as soon as possible. “3. or have been pardoned. upon request by the United States. (g) The authorities of the Philippines and the United States shall notify each other of the disposition of all cases in which both the authorities of the Philippines and the United States have the right to exercise jurisdiction. (e) When the United States military commander determines that an offense charged by authorities of the Philippines against United states personnel arises out of an act or omission done in the performance of official duty. in proper cases. except in cases provided for in paragraphs 1(b). When United States personnel have been tried in accordance with the provisions of this Article and have been acquitted or have been convicted and are serving. United States military authorities shall take full account of the Philippine position. “8. espionage or violation of any law relating to national defense. United States military authorities and Philippine authorities shall consult immediately. Nothing in . The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities. but not under the laws of the Philippines. it shall communicate such determination to the United States authorities within twenty (20) days after the Philippine authorities receive the United States request. the authorities of the Philippines and United States shall assist each other in the arrest of United States personnel in the Philippines and in handling them over to authorities who are to exercise jurisdiction in accordance with the provisions of this article. United States military authorities shall. Philippine authorities at the highest levels may also present any information bearing on its validity. from the commission of the offense until completion of all judicial proceedings. The one-year period will not include the time necessary to appeal. Philippine authorities shall promptly notify United States military authorities of the arrest or detention of any United States personnel.
“3. “2. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction. Transfers to persons or entities in the Philippines not entitled to import privileges may only be made upon prior approval of the appropriate Philippine authorities including payment by the recipient of applicable duties and taxes imposed in accordance with the laws of the Philippines. The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities. loss or destruction to property of each other’s armed forces or for death or injury to their military and civilian personnel arising from activities to which this agreement applies. excludes persons who have no role in the proceedings. in accordance with United States law regarding foreign claims. navigation or over flight charges. or other similar charges which would otherwise be assessed upon such property after importation into. and other similar charges. personal effects. Reasonable quantities of personal baggage. The exportation of such property and of property acquired in the Philippines by United States personnel shall be free of all Philippine duties. caused by acts or omissions of United States personnel. “Article VII Importation and Exportation “1. United States Government equipment. they shall be accorded all procedural safeguards established by the law of the Philippines. shall prevent United States military authorities from trying United States personnel for any violation of rules of discipline arising from the act or omission which constituted an offense for which they were tried by Philippine authorities. including light and harbor dues. and to have such authorities present at all judicial proceedings. “2. (f) To have the service of a competent interpreter. other than contractual claims and those to which paragraph 1 applies. personal injury or death. Vessels operated by or for the United States armed forces may enter the Philippines upon approval of the Government of the Philippines. tax. and (g) To communicate promptly with and to be visited regularly by United States authorities. and such agreed implementing arrangements as necessary. The movement of vessels shall be in accordance with international custom and practice governing such vessels. taken into custody. Vehicles. When United States personnel are detained. Aircraft operated by or for the United States armed forces shall observe local air traffic control regulations while in the Philippines. and aircraft operated by or for the United States armed forces shall not be subject to the payment of landing or port fees. Such property may be removed from the Philippines. or disposed of therein. including United States foreign military sales letters of offer and acceptance and leases of military equipment. free from export duties. “Article VIII Movement of Vessels and Aircraft “1. taxes. or tolls or other use charges. provided that disposition of such property in the Philippines to persons or entities not entitled to exemption from applicable taxes and duties shall be subject to payment of such taxes. both governments waive any and all claims against each other for damage. (e) To have free and assisted legal representation of their own choice on the same basis as nationals of the Philippines. taxes. or acquisition within. loss. supplies. which may remove such property from the Philippines at any time. and shall not be subject to the jurisdiction of Philippine military or religious courts. vessels. Title to such property shall remain with the United States. “11. (c) To be confronted with witnesses against them and to cross examine such witnesses. United States personnel shall be entitled: (a) To a prompt and speedy trial. and other property for the personal use of United States personnel may be imported into and used in the Philippines free of all duties. and other property imported into or acquired in the Philippines by or on behalf of the United States armed forces in connection with activities to which this agreement applies. For claims against the United States. the United States Government. (b) To be informed in advance of trial of the specific charge or charges made against them and to have reasonable time to prepare a defense. while in the Philippines. “9. shall be free of all Philippine duties. materials. At the minimum. taxes and other similar charges. taxes and other similar charges during the period of their temporary stay in the Philippines. “Article VI Claims “1. “2. United States Personnel serving sentences in the Philippines shall have the right to visits and material assistance. the Philippines. “10. however. in accordance with Philippine laws. or prosecuted by Philippine authorities. The exemptions provided in this paragraph shall also extend to any duty.this paragraph. These proceedings shall be public unless the court. (d) To present evidence in their defense and to have compulsory process for obtaining witnesses. Except for contractual arrangements. and other similar charges. and duties and prior approval of the Philippine Government. Vessels owned or operated by the United States solely on United States Government non-commercial service shall not be subject to compulsory pilotage at Philippine ports. Aircraft operated by or for the United States armed forces may enter the Philippines upon approval of the Government of the Philippines in accordance with procedures stipulated in implementing arrangements. “Article IX Duration and Termination . or otherwise incident to the non-combat activities of the United States forces. will pay just and reasonable compensation in settlement of meritorious claims for damage.
and in the absence of any allegation by petitioners that public funds are being misspent or illegally expended. in the absence of a clear showing of any direct injury to their person or to th e institution to which they belong. it bears stressing that a taxpayer’s suit refers to a  case where the act complained of directly involves the illegal disbursement of public funds derived from taxation. such as the delegation of the power of Congress to grant tax exemptions. Constitution Association vs. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion perpetua or higher? IV Does the VFA violate: a. A party bringing a suit challenging the constitutionality of a law. Article XVIII of the Constitution? III Does the VFA constitute an abdication of Philippine sovereignty? a. Agapito Aquino and Joker Arroyo. respondents challenge petitioner’s standing to sue. to the satisfaction of this Court. he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of the enforcement of the questioned statute or contract. vs.assail the constitutionality of the VFA and impute to herein respondents grave abuse of discretion in ratifying the agreement. taxpayers.as legislators. counter that the validity or invalidity of the VFA is a matter of transcendental  importance which justifies their standing. similarly uphold petitioners’ standing as members of Congress. Section 28 (4). sustained the legal standing of a member of the Senate and the House of Representatives to question the validity of a presidential veto or a condition imposed on an item in an appropriation bull. citizens and taxpayers . Laron . we held: “x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by the judgment or entitled to the avails of the suit as a real party in interest. Similarly. or statute must show “not only that the law is inval id. act. and not merely that he suffers thereby in some indefinite way. have no legal standing to assail the legality of the VFA. While this Court. as taxpayers. Petitioners. are more apparent than real. and that petitioners failed to substantiate that they have sustained. or imminent danger of sustaining some direct injury as a result of its enforcement. or legislators to question the constitutionality of the VFA? II Is the VFA governed by the provisions of Section 21. or are in danger of sustaining any direct injury as a result of the enforcement of the VFA. petitioners have not established that the VFA  involves the exercise by Congress of its taxing or spending powers. petitioners. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by US military personnel? b. Beyond this. do not possess the requisite locus standi to maintain the present suit. We have simplified the issues raised by the petitioners into the following: I Do petitioners have legal standing as concerned citizens. Article III of the Constitution? b. . or will sustain direct injury as a result of the operation  of the VFA. on the ground that the latter have not shown any interest in the case. Thus. the IBP lacks the legal capacity to bring this suit in the absence of a board resolution from its Board of  Governors authorizing its National President to commence the present action. Representatives Wigberto Tañada. In the case before us. on the other hand. of the US Armed Forces? LOCUS STANDI At the outset. As aptly observed by the Solicitor General. at this instance. in Phil.” Clearly. As taxpayers. the Prohibition against nuclear weapons under Article II. Article VII or of Section 25. Section 8? c. On this point. It is not sufficient that he has merely a general interest common to all members of the public. we cannot. non-governmental organizations.” He must show that he has been. in Bugnay  Const. & Development Corp. petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these cases. or that he is about to be subjected to some burdens or penalties by reason of the statute  complained of. petitioners . While it may be true that petitioners pointed to provisions of the VFA which allegedly impair their legislative powers. denied some right or privilege to which he is lawfully entitled. inasmuch as no public funds raised by taxation are involved in this case.“This agreement shall enter into force on the date on which the parties have notified each other in writing t hrough the diplomatic channel that they have completed their constitutional requirements for entry into force. Before he can invoke the power of judicial review. or is about to be. Salvador  Enriquez. In the same vein.”  Via these consolidated petitions for certiorari and prohibition. This agreement shall remain in force until the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement. or on behalf. as petitioners-legislators. Hon. that they have sustained. petitioners failed however to sufficiently show that they have in fact suffered direct injury. the equal protection clause under Section 1. materials supplies and other properties imported into or acquired in the Philippines by. but also that he has sustained or in is in immediate. the allegations of impairment of legislative power. petitioners failed to show. Article VI of the Constitution granting the exemption from taxes and duties for the equipment.
Singson. Article VII deals with treatise or international agreements in general. the fact that the President referred the VFA to the Senate under Section 21. Section 25. x x x” Again. when the Congress so requires. Article XVIII. and further defines the rights of the United . and recognized as a treaty by the other contracting State. the Court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review. Article VII. troops. Article VII should apply inasmuch as the VFA is not a basing arrangement but an agreement which involves merely the temporary visits of United States personnel engaged in joint military exercises. where we had occasion to rule: “x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were involving only an indirect and general interest shared in common with the public. such as. requires the concurrence of the Senate to be valid and effective.” Additionally. valid and binding on the part of the Philippines. but not limited to. Under this provision. maintain that Section 21. Article VII. with regard to the exercise by the senate of its constitutional power to concur with the VFA. Jr. as we  have done in the early Emergency Powers Cases. troops or facilities in the Philippines. technicalities of procedure. brushes aside the procedural barrier and takes cognizance of the petitions. ’ We have since then applied the exception in many other cases. 175 SCRA 343). Phil. or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the senate and. on the contrary. if we must. the concurrence of at least twothirds (2/3) of all the Members of the Senate is required to make the subject treaty. It provides for the guidelines to govern such visits of military personnel. the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress. COMELEC. Petitioners argue that Section 25. actually share some common ground. (Association of Small Landowners in the Philippines. Article XVIII further requires that “foreign military bases. Respondents. troops. Inc. whether under Section 21.  Amusement and Gaming Corporation. Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers. coverage. under the 1987 Constitution. in which case. Article VII or Section 25. For in either case. the fundamental law is crystalline that the concurrence of the Senate is mandatory to comply with the strict constitutional requirements.” (Underscoring Supplied) This principle was reiterated in the subsequent cases of Gonzales vs. These constitutional provisions both embody phrases in the negative and thus. and recognized as such by the other contracting state. the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. In contrast. In particular. are deemed prohibitory in mandate and character. This provision lays down the general rule on treatise or international agreements and applies to any form of treaty with a wide variety of subject matter. All treaties or international agreements entered into by the Philippines. Article XVIII. On the whole. this Court nevertheless resolves to take cognizance of the instant petitions. It is our considered view that both constitutional provisions. the Court has brushed aside technicalities of procedure and has taken cognizance of this petition.  which enjoins upon the departments of the government a becoming respect for each others’ acts. thisCourt ruled that in cases of transcendental importance. Section 21 opens with the clause “No treaty x x x. brushing aside. is immaterial. Guingona. v. Section 25. and that the Senate extended its concurrence under the same provision. regardless of subject matter. foreign military bases.. Section 21. of Agrarian Reform. The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on treaties or international agreements. Article XVIII is a special provision that applies to treaties which involve the presence of foreign military bases. The Court dismissed the objection that they were not proper parties and ruled that ‘transcendental importance to the public of these cases demands that they be settled promptly and definitely.” and Section 25 contains the phrase “shall not be allowed. extradition or tax treatise or those economic in nature. in view of the paramount importance and the constitutional significance of the issues raised in the petitions. To our mind. Daza vs. and in keeping with the Court’s duty. far from contradicting each other.” Section 25. the concurrence of the Senate is indispensable to render the treaty or international agreement valid and effective. this Court. APPLICABLE CONSTITUTIONAL PROVISION    One focal point of inquiry in this controversy is the determination of which provision of the Constitution applies.Notwithstanding. Sec. ratified by a majority of the votes cast by the people in a national referendum held for that purpose. where we emphatically held: “Considering however the importance to the public of the case at bar. or particular designation or appellation.” Section 21. in both instances. which herein respondents invoke. to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them. or facilities” may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate. Article XVIII is applicable considering that the VFA has for its subject the presence of foreign military troops in the Philippines. or international agreement. in the more recent case of Kilosbayan vs. reads: “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. in the exercise of its sound discretion. and Basco vs. provides: “After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America conce rning Military Bases.
There is no dispute as to the presence of the first two requisites in the case of the VFA. In Leveriza vs. the requirement will be the same. the Constitution makes no distinction between “transient’ and “permanent”. when so required by congress. troops or facilities-or could the treaty entered into cover only one or two? FR. Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the Senate. I cannot find any reason why the government can enter into a treaty covering only troops. Undoubtedly. Whether it covers only one or it covers three. such that. or facilities in the country. MAAMBONG. The use of comma and the disjunctive word  “or” clearly signifies disassociation and independence of one thing from the others included in the enumeration. must it cover the three-bases. viz: (a) it must be under a treaty. movement of vessel and aircraft. troops.Ubi lex non distinguit nec nos distinguire debemos. and generally be so interpreted as to embrace only cases in which the special provisions are not applicable (Sto. it is specious to argue that Section 25. MAAMBONG. 83 SCRA 38). BERNAS. the provisions of section 21. My first question is: If the country does enter into such kind of a treaty. the intention of the framers of the Charter. or (c) foreign facilities . unless the following conditions are sufficiently met. On this score. or facilities.” Stated differently.” Moreover. a perusal of said constitutional provision reveals that the proscription covers “foreign military bases. materials and supplies. but merely foreign troops and facilities. troops. MR.States and the Philippine government in the matter of criminal jurisdiction. Baluyot. The concurrence handed by the Senate through Resolution No. is consistent with this interpretation: “MR. To this end. we do not subscribe to the argument that Section 25. should apply in the instant case. Yes. Certainly. the particular enactment must be operative. 18 is in accordance with the provisions of the Constitution. vs. At this juncture. de los Angeles. and (c) recognized as a treaty by the other contracting state. the Court should not distinguish. (b) foreign troops. Article XVIII disallows foreign military bases. Domingo vs. 96 SCRA 139). Article XVIII. however. Why not? Probably if we stretch our imagination a little bit more. BERNAS. would include what is embraced in the former. In like manner. People. Thus. are involved in the VFA. MAAMBONG. ratified by a majority of the votes cast by the people in a national referendum. it can cover only one.” (Underscoring Supplied) Moreover. troops. Definitely. military bases established within the territory of another state is no longer viable because of the alternatives offered by new means and weapons of warfare such as nuclear weapons. which specifically deals with treaties involving foreign military bases. the one designed therefor specially should prevail (Wil Wilhensen Inc. I just want to address a question or two to Commissioner Bernas. Article XVIII. In other words. or the specific mandate mentioned in Section 25.any of the three standing alone places it under the coverage of Section 25. Intermediate Appellate Court. we will find some. These military warships are actually used as substitutes for a land-home base not only of military aircraft but also of military personnel and facilities. this prohibition is not limited to the entry of troops and facilities without any foreign bases being established. and the general enactment must be taken to affect only such cases within its general language which are not within the provision of the particular  enactment. troops or facilities. Article XVIII is not controlling since no foreign military bases. the Philippine government can enter into a treaty covering not bases but merely troops? FR. the provision contemplates three different situations . MR. we find nothing in Section 25. Article XVIII is inapplicable to mere transient agreements for the reason that there is no permanent placing of structure for the establishment of a military base. Article XVIII. 120 SCRA 760) and that where two statutes are of equal theoretical application to a particular case. we enunciated: “x x x that another basic principle of statutory construction mandates that general legislation must giv e way to a special legislation on the same subject. guided missiles as well as huge sea vessels that can stay afloat in the sea even for months and years without returning to their home country. To a certain extent and in a limited sense. (b) the treaty must be duly concurred in by the Senate and. Lex specialis derogat generali. troops. or facilities. It is a rudiment in legal hermenuetics that when no distinction is made by law. Article VII. importation and exportation of equipment. the provision in the latter article requiring ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it. or facilities” collectively but treats them as separate and independent subjects. that a specific statute prevails over a general statute (De Jesus vs. Notably.a military treaty the subject of which could be either (a) foreign bases. Section 25.  . as manifested during the deliberations of the 1986 Constitutional Commission. as will be further discussed hereunder. vessels are mobile as compared to a land-based military headquarters. whether under the general requirement in Section 21. FR. in its most comprehensive sense. Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines. We just want to cover  everything. we shall then resolve the issue of whether or not the requirements of Section 25 were complied with when the Senate gave its concurrence to the VFA. where there is in the same statute a particular enactment and also a general one which. Section 25. The clause does not refer to “foreign military bases. It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one. Besides. This formulation speaks of three things: foreign military bases. BERNAS.
concordat.As to the matter of voting. to  submit the VFA to the United States Senate for concurrence pursuant to its Constitution. pact. agreement. Article XVIII must not be treated in isolation to section 21. Moreover. Article 2(2) of the Vienna Convention provides that “the provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms. VII. have pointed out that the names or titles of international agreements included under the general term treaty have little or no legal significance. there is no difference between treaties and executive agreements in their binding effect upon states  concerned. Article VII. respondents argue that the letter of United States Ambassador Hubbard stating that the VFA is binding on the United States Government is conclusive. trademark and copyright protection. In opposition. Petitioners content that the phrase “recognized as a treaty. among other things. All writers. the concurrence of the Senate contemplated under Section 25. under  international law. Article VII. To require the other contracting state. in international law. or at least 16 favorable votes. as long as the VFA possesses the elements of an agreement under international law. means that the VFA shoul d have the advice and consent of the United States Senate pursuant to its own constitutional process. In our jurisdiction. the said agreement is to be taken equally as a treaty. that the treaty-the VFA. in the instant case-be “duly concurred in by the Senate. favorably acting on the proposal is an unquestionable compliance with the requisite number of votes mentioned in Section 21 of Article VII. A treaty. “x x x x x x x x x  . the charter provides that the Senate shall be composed of twenty-four (24) Senators. requires that the concurrence of a treaty. The validity of these has never been seriously questioned by our courts . a two-thirds vote of all the members of the Senate is clearly required so that the concurrence contemplated by law may be validly obtained and deemed present. must be concurred in by at least two-thirds of all the members of the Senate. The fact that there were  actually twenty-three (23) incumbent Senators at the time the voting was made. but they furnish  little more than mere description. must only be accepted as a treaty by the United States. International law continues to make no  distinction between treaties and executive agreements: they are equally binding obligations upon nations. Article XVIII are present. Under these circumstances. On the other hand. Article XVIII requires. This Court is of the firm view that the phrase “recognized as a treaty” means that the other contracting party accepts or  acknowledges the agreement as a treaty. it is inconsequential whether the United States treats the VFA only as an executive agreement because. or international agreement. Certain terms are useful. be made by a two -thirds vote of all the members of the Senate. Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed. Section 25. most-favored-nation rights. will not alter in any significant way the circumstance that more than two-thirds of the members of the Senate concurred with the proposed VFA. In Commissioner of Customs vs. Article. Article XVIII simply provides that the treaty be “duly concurred in by the Senate. Article XVIII. some of which are: act. charter and modus vivendi. two-thirds (2/3) of this figure. postal and navigation arrangements and the settlement of claims. and whatever its particular designation. or not less than sixteen (16) members. Section 25.” it is very true however that said provision must be related and viewed in light of the clear mandate embodied in Section 21. the “concurrence requirement” under Section 25. convention. is “an international instrument concluded between States in written form and governed by international law. we had occasion to pronounce: “x x x the right of the Executive to enter into binding agreements without the necessity of subsequent congressional approval has been confirmed by long usage. Having resolved that the first two requisites prescribed in Section 25. suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the subject treaty. an executive agreement is as binding as a treaty. even if the two-thirds vote requirement is based on this figure of actual members (23). As noted. or to the meanings which may be given to them in the internal law of the State. on the point that the VFA is recognized as a treaty by the United States of America. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations.” Thus. is to accord strict meaning to the phrase. to be valid and effective. While it is true that Section 25. in which case the significance thus attached to them prevails. To be sure. we have recognized the binding effect of executive agreements even without the concurrence of the Senate  or Congress. Article XVIII means that at least two-thirds of all the members of the Senate favorably vote to concur with the treaty-the VFA in the instant case. protocol. Its language should be understood in  the sense they have in common use. Article XVIII must be construed in relation to the provisions of Section 21.Indeed. as defined by the Vienna Convention on the Law of Treaties. declaration. In this regard. from Hugo Grotius onward. we shall now pass upon and delve on the requirement that the VFA should be recognized as a treaty by the United States of America. Eastern Sea Trading. to be binding. patent rights. the fundamental law is clear that two-thirds of the 24 Senators.” There are many other terms used for a treaty or international agreement. whether embodied in a single instrument or in two or more related  instruments. which in more specific terms. Section 21. In a more particular language. the VFA. According to respondents. statute. Article VII particularly requires that a treaty or international agreement. compromis d’ arbitrage. the United States of America in this case. and that it should not be considered merely an executive agreement by the United States. Without a tinge of doubt.” Applying the foregoing constitutional provisions.” embodied in section 25. exchange of notes. as long as the negotiating functionaries have remained within their powers.
there is indeed marked compliance with the mandate of the Constitution. 81 L. 537-540. By constitutional fiat and by the intrinsic nature of his office. in effect. Thus. freedom. International Law Digest. or was expressed during the negotiation. which is equivalent to final acceptance. also. With the ratification of the VFA. or (d) the intention of the State to sign the treaty subject to  ratification appears from the full powers of its representative. pp. Vol. Hyde on International Law [revised Edition]. U. institution. and with the exchange of notes between the Philippines and the United States of America. Ozanic vs. or individual member of its government. then as far  as we are concerned. ed. The role of  the Senate is limited only to giving or withholding its consent.S. the Philippines is nonetheless responsible for violations committed by any branch or subdivision of its government or any official thereof. that is entirely their concern under their own laws.” Equally important is Article 26 of the convention which provides that “Every treaty in force is binding upon the parties to it and must be performed by them in good faith. (Italics Supplied)” (Emphasis Ours) The deliberations of the Constitutional Commission which drafted the 1987 Constitution is enlightening and highly-instructive: “MR." . Vol. as commonly believed. is the sole organ and authority in the external affairs of the country. has stated that the United  States government has fully committed to living up to the terms of the VFA. to the ratification. Hackworth. FR. equality. Belmont. 1405. when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility.].S. Hence. vs. Hubbard. Yale Law Journal.S. (c) the representative of the State has signed the treaty subject to ratification. V.“Furthermore. 304. Of course it goes without saying that as far as ratification of the other state is concerned. as head of State. his “dominance in  the field of foreign relations is (then) conceded. Pink. to be bound by the terms of the agreement. and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.S. Article VII of the Constitution.” Wielding vast powers an influence. 670-675. Ratification is generally held to be an executive act. petitioners in these consolidated cases impute grave abuse of discretion on the part of the chief Executive in ratifying the VFA. vs. pp.S. is “executive altogether. BERNAS. On this particular matter. as Jefferson describes. declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace. As an integral part of the community of nations. or concurrence. (b) it is otherwise established that the negotiating States agreed that ratification should be required. 301 U. Vol. V.S. Vol. grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. we cannot readily plead the Constitution as a convenient excuse for non-compliance with our obligations. 255. Vol. MAAMBONG. as the case may  be. of the VFA and the concurrence of the Senate should be taken as a clear an unequivocal expression of our nation’s consent to be bound by said treaty. 210-218. his conduct in the external affairs of the  nation. U. Constitution Law. 1416-1418. the President. Moore. Article II of the Constitution. 203. For as long as the united States of America accepts or acknowledges the VFA as a treaty. the President. U. the United States Supreme Court has expressly recognized the validity and constitutionality of executive agreem ents entered into without Senate approval. is heavily faulted for exercising a power and performing a task conferred upon him by the Constitution-the power to enter into and ratify treaties. 299 U. 2. As a member of the family of nations. with the concomitant duty to uphold the obligations and responsibilities embodied thereunder. 188 F. it now becomes obligatory and incumbent on our part. 390-407). 15 pp. 315 U. justice. 25. Beyond this. In many ways. A State may provide in its domestic legislation the process of ratification of a treaty. pp. undertaken by the head of the state or of the government. California Law Review. duties and responsibilities under international law. Curtis Wright Export Corporation. or. under the principles of  international law. willoughby on the U. 81 L. pp. Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 provides: “Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of inter national  law. pp.” The records reveal that the United States Government. 753-754) (See. Yes. the power to ratify is vested in the President and not.S. While the international obligation devolves upon the state and not upon any particular branch. and referring the same to the Senate pursuant to the provisions of Section 21. in the legislature. 1134. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such ratification. by the President. U. but we will accept whatever they say. ed. 2d. the Philippines agrees to be bound by generally accepted rules for the conduct of its international relations. is that the ratification. NO GRAVE ABUSE OF DISCRETION In the instant controversy. ed. pp. we are responsible to assure  that our government. 1905-1906. International Law Digest. 796. supported by the jurisprudence of  international tribunals. 86 L. Constitution and laws will carry out our international obligation. the President is the chief architect of the nation’s foreign policy. no less than Section 2. through which the formal acceptance of the treaty is proclaimed. we will accept it as a treaty. Vol.S. vs.  and it must be so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of law. (39 Columbia Law Review. Worth stressing too. 324. and binds itself further to comply with its obligations under the treaty. through Ambassador Thomas C. In our jurisdiction. 288. I [2d ed.” This is known as the principle of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most fundamental principles of positive international law. Through the expediency of Rule 65 of the Rules of Court. cooperation and amity with all nations. If they say that we have done everything to make it a treaty.
much less a grave. acted within the confines and limits of the powers vested in him by the Constitution. Section 1. The Constitution thus animates. may be imputed to the President in his act of ratifying the VFA and referring the same to the Senate for the purpose of complying with the concurrence requirement embodied in the fundamental law. the constitution lodges the same with the Senate alone. 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. in the exercise of its discretion and acting within the limits of such power. role in keeping the principles of separation of powers and of checks and balances alive and vigilantly ensures that these cherished rudiments remain true to their form in a democratic government such as ours. no abuse of discretion. and Congress itself is powerless to invade it . The agreement was treated as a treaty by the Philippine government and was ratified by then-President Joseph Estrada with the concurrence of 2/3 of the total membership of the Philippine Senate. troops and personnel visiting the Philippines. “is merely (to) check whether or not the governmental branch or agency has gone beyond the constitutional limits of its jurisdiction. THE ISSUE Was the VFA unconstitutional? . Petitioners argued. it has not altogether done away with  political questions such as those which arise in the field of foreign relations. as an independent body possessed of its own erudite mind. In this sense.is then without power to conduct an incursion and meddle with such affairs purely executive and legislative in character and nature.” As to the power to concur with treaties. Article VII of the Constitution.S. the Senate. which provides that “ foreign military bases. the President merely performed a constitutional task and exercised a prerogative that chiefly pertains to the functions of his office. in the absence of clear showing of grave abuse of power or discretion. THE FACTS  The Republic of the Philippines and the United States of America entered into an agreement called the Visiting Forces Agreement (VFA). much less calibrated by this Court. or exercises its prerogative within the boundaries prescribed by the Constitution. True enough. and the Philippine governments in the matter of criminal jurisdiction. still. yet delicate. In this light. in like manner. The High Tribunal’s function.squarely fall within the sphere of his constitutional powers and thus. may not be validly struck down. I. materials and supplies. in ratifying the VFA and in submitting the same to the Senate for concurrence. WHEREFORE. much less be adjudged guilty of committing an abuse of discretion in some patent. not that it erred or has a different view. For the Constitution no less. this Court. and capricious manner. much less grave abuse thereof. It provides for the guidelines to govern such visits. The VFA defines the treatment of U. that the VFA violates §25. Thus. . Section 1. there is no occasion for the Court to exercise its corrective power…It has no power to look into what it thin ks is  apparent error. or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate . gross. Corollarily. once the  Senate performs that power. may not be similarly faulted for having simply performed a task conferred and sanctioned by no less than the fundamental law. inter alia. as sanctioned by Article VIII. has the prerogative to either accept or reject the proposed agreement. In fine. through this treaty-concurring power of the Senate. the President may not be faulted or scarred. Consequently. of the Constitution has broadened the scope of judicial inquiry into areas normally left to the political departments to decide. instead of Section 25 of Article XVIII of the Constitution. in the exercise of his wide latitude of discretion and in the honest belief that the VFA falls within the ambit of Section 21. It is of no moment that the President. For the role of the Senate in relation to treaties is essentially legislative in character. importation and exportation of equipment. Into the field of negotiation the  Senate cannot intrude. For while it is conceded that Article VIII. 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. pertains to the wisdom rather than the legality of the act. patent and whimsical abuse of judgment. troops. in light of the foregoing disquisitions.S. Even if he erred in submitting the VFA to the Senate for concurrence under the provisions of Section 21 of Article VII. In the absence of a showing… (of) grave abuse of discretion amounting to lack of jurisdiction. a healthy system of checks and balances indispensable toward our nation’s pursuit of political maturity and growth. and further defines the rights of the U. It is the Court’s considered view that the President. and whatever action it takes in the exercise of its wide latitude of discretion. the Senate partakes a principal. Article XVIII of the 1987 Constitution. the negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts which pertain solely to the President.” II. the instant petitions are hereby DISMISSED. the Senate. In doing so.as the final arbiter of legal controversies and staunch sentinel of the rights of the people . . the Constitution vests the same in the President. subject only to the concurrence of at least two-thirds vote of all the members of the Senate. the concurrence cannot. referred the VFA to the Senate for concurrence under the aforementioned provision. such as those relating to national security. movement of vessel and aircraft. Certainly. absent any clear showing of grave abuse of discretion on the part of respondents.As regards the power to enter into treaties or international agreements. be viewed to constitute an abuse of power. and recognized as a treaty by the other contracting State. the acts or judgment calls of the President involving the VFA-specifically the acts of ratification and entering into a treaty and those necessary or incidental to the exercise of such principal acts . SO ORDERED. in the lawful exercise of his vast executive and diplomatic powers granted him no less than by the fundamental law itself.
The federal government has both constitutional and inherent authority to conduct foreign affairs as it sees fit. Facts. The President has confidential information as well as consular. The concurrence handed by the Senate through Resolution No. the provision in [in §25. troops. To require the other contracting state. an executive agreement is as binding as a treaty. the VFA is not unconstitutional. There is no dispute as to the presence of the first two requisites in the case of the VFA. The Defendant was indicted for conspiracy to sell fifteen machine guns to Bolivia in violation of the Joint Resolution and the Executive Order. Issue. viz: (a) it must be under a treaty. xxx xxx xxx The records reveal that the United States Government. May Congress delegate law-making authority to the President in matters of foreign affairs? Held. and sustained the constitutionality of the VFA. Discussion. the President is better a ble than Congress to judge conditions that exist in foreign nations and is afforded substantial discretion and wide latitude in those decisions. it is inconsequential whether the United States treats the VFA only as an executive agreement because. to submit the VFA to the United States Senate for concurrence pursuant to its Constitution. Curtiss-Wright (Defendant). a weapons manufacturer. . There is a fundamental difference in the role of government in foreign affairs and domestic affairs. . Synopsis of Rule of Law. there is indeed marked compliance with the mandate of the Constitution. unless the following conditions are sufficiently met.] NO. was convicted of selling arms to warring nations in South America in violation of an Executive Order that was made pursuant to a Joint Resolution of Congress. the United States of America in this case. To be sure. Hubbard. Congress passed a Joint Resolution authorizing the President to ban the sales of arms to countries involved in the border dispute between Bolivia and Paraguay. Curtiss-Wright Export Corp Brief Fact Summary. The President is the United States’ sole representative to foreign nations. and (c) recognized as a treaty by the other contracting state. the President has broad authority to conduct foreign affairs. Section 25. the said agreement is to be taken equally as a treaty. in which case the significance thus attached to them prevails. 18 is in accordance with the provisions of the Constitution . THE RULING [The Court DISMISSED the consolidated petitions.III. through Ambassador Thomas C. and binds itself further to comply with its obligations under the treaty. is to accord strict meaning to the phrase. xxx xxx xxx This Court is of the firm view that the phrase “recognized as a treaty” means that the other contracting party accepts or acknowledges the agreement as a treaty. has stated that the United States government has fully committed to living up to the terms of the VFA. Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed. . In order to achieve the United States’ foreign policy aims. when so required by congress. under international law. Yes. United States v. For as long as the United States of America accepts or acknowledges the VFA as a treaty. Article XVIII] requiring ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it. Moreover. held that the petitioners did not commit grave abuse of discretion. ratified by a majority of the votes cast by the people in a national referendum. The President immediately made an Executive Order banning such sales. as long as the VFA possesses the elements of an agreement under international law. diplomatic and foreign affairs officers to help in his decision. (b) the treaty must be duly concurred in by the Senate and. Its language should be understood in the sense they have in common use. The Defendant. or facilities in the country. The non-delegation doctrine does not bar Congress from delegating great authority and discretion to the President of the United States (the President) in the conduct of foreign affairs. Article XVIII disallows foreign military bases.
RAUL MANGLAPUS (177 SCRA 668) Case Digest Facts: After Ferdinand Marcos was deposed from the presidency.” Nor. promote their welfare and advance national interest. acting through the Government. Now in his deathbed. may the President impair their right to travel because no law has authorized her to do so. under the Constitution to protect the people. but is also tasked with day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. HON. . Petitioners contend under the provision of the Bill of Rights that the President is without power to impair their liberty of abode because only a court may do so “within the limits prescribed by law. The petition is DISMISSED. Issue: Does the president have the power to bar the Marcoses from returning to the Philippines? Ruling: The President has the obligation. is not precluded from taking preemptive actions against threats to its existence if. The State. petitioners are asking the court to order the respondents to issue their travel documents and enjoin the implementation of the President’s decision to bar their return to the Philippines. The Supreme Court held that the President did not act arbitrarily or with grave abuse of discretion in determining the return of the petitioners at the present time and under present circumstances poses a serious threat to national interest and welfare prohibiting their return to the Philippines. The documented history of the efforts of the Marcoses and their followers to destabilize the country bolsters the conclusion that their return at this time would only exacerbate and intensify the violence directed against the state and instigate more chaos.FERDINAND E. This case calls for the exercise of the President’s power as protector of the p eace. MARCOS vs. according to the petitioners. The president is not only clothed with extraordinary powers in times of emergency. though still nascent they are perceived as apt to become serious and direct protection of the people is the essence of the duty of the government. he and his family fled to Hawaii.
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