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BAYAN (BagongAlyansangMakabayan), a Junk VFA Movement, Bishop Tomas
Millamena (Iglesia Filipina Independiente), Bishop Elmer Bolocan (United Church
of Christ of the Phil.), Dr. Reynaldo Legasca, Md, KilusangMambubukid Ng
Pilipinas, Kilusang Mayo Uno, Gabriela, Prolabor, and The Public Interest Law
Center, petitioners, vs. Executive Secretary Ronaldo Zamora, Foreign Affairs
Secretary Domingo Siazon, Defense Secretary Orlando Mercado, Brig. Gen.
Alexander Aguirre, Senate President Marcelo Fernan, Senator Franklin Drilon,
Senator Blas Ople, Senator Rodolfo Biazon, And Senator Francisco Tatad,
respondents.
Facts: On March 14, 1947, the Philippines and the United States of America forged a
Military Bases Agreement which formalized, among others, the use of installations in the
Philippine territory by United States military personnel. In view of the impending
expiration of the RP-US Military Bases Agreement in 1991, the Philippines and the
United States negotiated for a possible extension of the military bases agreement. On
September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of
Friendship, Cooperation and Security which, in effect, would have extended the
presence of US military bases in the Philippines. On July 18, 1997, the United States
panel, headed by US Defense Deputy Assistant Secretary for Asia Pacific Kurt
Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary
Rodolfo Severino Jr., to exchange notes on “the complementing strategic interests of
the United States and the Philippines in the Asia-Pacific region.” Both sides discussed,
among other things, the possible elements of the Visiting Forces Agreement (VFA for
brevity). Thereafter, then President Fidel V. Ramos approved the VFA, which was
respectively signed by public respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard. On October 5, 1998, President Joseph E. Estrada,
through respondent Secretary of Foreign Affairs, ratified the VFA. On October 6, 1998,
the President, acting through respondent Executive Secretary Ronaldo Zamora,
officially transmitted to the Senate of the Philippines, the Instrument of Ratification, the
letter of the President and the VFA, for concurrence pursuant to Section 21, Article VII of
the 1987 Constitution
Issues (justiciable controversy): (1) Whether or not petitioners have legal standing as
concerned citizens, taxpayers, or legislators to question the constitutionality of the VFA;
(2) whether the VFA is governed by the provisions of Section 21, Article VII or of Section
25, Article XVIII of the Constitution; (3) and whether or not the Supreme Court has
jurisdiction.
Ruling: (1) No. Petitioners failed to show that they have sustained, or are in danger of
sustaining any direct injury as a result of the enforcement of the VFA. As taxpayers,
petitioners have not established that the VFA involves the exercise by Congress of its
taxing or spending powers. On this point, it bears stressing that a taxpayer’s suit refers
to a case where the act complained of directly involves the illegal disbursement of public
funds derived from taxation.

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(2) Yes.The fact that the President referred the VFA to the Senate under Section 21,
Article VII, and that the Senate extended its concurrence under the same provision, is
immaterial. For in either case, whether under Section 21, Article VII or Section 25,
Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is
mandatory to comply with the strict constitutional requirements.
(3) No. In fine, absent any clear showing of grave abuse of discretion on the part of
respondents, the Court as the final arbiter of legal controversies and staunch sentinel of
the rights of the people is then without power to conduct an incursion and meddle with
such affairs purely executive and legislative in character and nature. For the
Constitution no less, maps out the distinct boundaries and limits the metes and bounds
within which each of the three political branches of government may exercise the
powers exclusively and essentially conferred to it by law.

Lim vs. Executive Secretary G.R. No. 151445 April 11, 2002
FACTS :
Beginning 2002, personnel from the armed forces of the United States started arriving in
Mindanao, to take part, in conjunction with the Philippine military, in “Balikatan 02-1”. In
theory, they are a simulation of joint military maneuvers pursuant to the Mutual Defense
Treaty, a bilateral defense agreement entered into by the Philippines and the United
States in 1951.
On Feb. 2002, Lim filed this petition for certiorari and prohibition, praying that
respondents be restrained from proceeding with the so-called “Balikatan 02-1”, and that
after due notice and hearing, judgment be rendered issuing a permanent writ of injuction
and/or prohibition against the deployment of US troops in Basilan and Mindanao for
being illegal and in violation of the Constitution.
Petitioners contend that the RP and the US signed the Mutual Defense Treaty to
provide mutual military assistance in accordance with the “constitutional processes” of
each country only in the case of a armed attack by an external aggressor, meaning a
third country, against one of them. They further argued that it cannot be said that the
Abu Sayyaf in Basilan constitutes an external aggressor to warrant US military
assistance in accordance with MDT of 1951. Another contention was that the VFA of
1999 does not authorize American soldiers to engage in combat operations in Philippine
territory.
ISSUE :
Whether or not the “Balikatan 02-1” activities are covered by the VFA.
RULING :

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Petition is dismissed. The VFA itself permits US personnel to engage on an
impermanent basis, in “activities”, the exact meaning of which is left undefined. The sole
encumbrance placed on its definition is couched in the negative, in that the US
personnel “must abstain from any activity inconsistent with the spirit of this agreement,
and in particular, from any political activity.”
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is
only logical to assume that “Balikatan 02-1” – a mutual anti terrorism advising assisting
and training exercise falls under the umbrella of sanctioned or allowable activities in the
context of the agreement. Both the history and intent of the Mutual Defense Treaty and
the VFA support the conclusion that combat-related activities – as opposed to combat
itself – such as the one subject of the instant petition, are indeed authorized.

Pimentel vs. Executive Sec. Ermita
472 SCRA 587 – Political Law – Commission on Appointment – Ad Interim
Appointments vs Appointments in an Acting Capacity
Law on Public Officers – Modes and Kinds of Appointment
While Congress was in session, due to vacancies in the cabinet, then president Gloria
Macapagal-Arroyo (GMA) appointed Arthur Yap et al as secretaries of their respective
departments. They were appointed in an acting capacity only. Senator Aquilino Pimentel
together with 7 other senators filed a complaint against the appointment of Yap et al.
Pimentel averred that GMA cannot make such appointment without the consent of the
Commission on Appointment; that, in accordance with Section 10, Chapter 2, Book IV of
Executive Order No. 292, only the undersecretary of the respective departments should
be designated in an acting capacity and not anyone else.
On the contrary, then Executive Secretary Eduardo Ermita averred that the president is
empowered by Section 16, Article VII of the 1987 Constitution to issue appointments in
an acting capacity to department secretaries without the consent of the Commission on
Appointments even while Congress is in session. Further, EO 292 itself allows the
president to issue temporary designation to an officer in the civil service provided that
the temporary designation shall not exceed one year.
During the pendency of said case, Congress adjourned and GMA issued ad interim
appointments re-appointing those previously appointed in acting capacity.
ISSUE: Whether or not the appointments made by ex PGMA is valid.
HELD: Yes. The argument raised by Ermita is correct. Further, EO 292 itself provided
the safeguard so that such power will not be abused hence the provision that the
temporary designation shall not exceed one year. In this case, in less than a year after
the initial appointments made by GMA, and when the Congress was in recess, GMA

vs. holds a position of great trust and confidence.4 issued the ad interim appointments – this also proves that the president was in good faith. the WHA adopted several Resolutions to the effect that breastfeeding should be supported. the President may even appoint in an acting capacity a person not yet in the government service. That person may or may not be the permanent appointee. in the guise of prescribing qualifications to an office. and ASSISTANT SECRETARIES DR.1Executive Order No. it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes. Since a department secretary is the alter ego of the President. GALON. AND DR.In 1990. GAKO. HEALTH UNDER SECRETARIES DR. the DOH is deemed impleaded as a co-respondent since respondents issued the questioned RIRR in their capacity as officials of said executive agency. the Philippines ratified the International Convention on the Rights of the Child. EO 292 also provides that the president “may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch. From 1982 to 2006.” Thus. such is allowed. 2007 PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES. ALEXANDER A. It must also be noted that cabinet secretaries are the alter egos of the president. VILLAVERDE. 51 (Milk Code) was issued by President Corazon Aquino on October 28. She cannot be constrained to choose the undersecretary. Congress. She has the option to choose. DEL MUNDO. DAVID J. Anent the issue that GMA appointed “outsiders”. HEALTH SECRETARY FRANCISCO T. a code adopted by the World Health Assembly (WHA) in 1981. ATTY. respondents. For purposes of herein petition. & DR. G. The office of a department secretary may become vacant while Congress is in session. Undersecretaries. FACTS : Named as respondents are the Health Secretary. NIETO. cannot impose on the President who her alter ego should be. LOZADA. An alter ego. JADE F. but practical reasons may make it expedient that the acting appointee will also be the permanent appointee. NEMESIO T. ETHELYN P. the acting appointee to the office must necessarily have the President’s confidence. whether temporary or permanent. 1986 by virtue of the legislative powers granted to the president under the Freedom Constitution. PADILLA. DUQUE III. DR. MARIO C.R. . hence. The choice is the president’s to make and the president normally appoints those whom he/she can trust. and Assistant Secretaries of the Department of Health (DOH). 173034 October 9. DR. MARGARITA M. petitioner. No. One of the preambular clauses of the Milk Code states that the law seeks to give effect to Article 112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS). promoted and protected. as long as the President deems that person competent.

in the same way that conventions or agreements under Article 19 and regulations under Article 21 come into force. international law can become part of the sphere of domestic law either By transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when. Province of North Cotabato vs Government of the Republic of the Philippines Peace Panel The Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD). The provisions of the WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a law enacted by the legislature. This Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement of Peace of 2001 is a codification of . 2006. it must be established that such rule is being followed by states because they consider it obligatory to comply with such rules Under the 1987 Constitution. Article 23 of the WHO Constitution reads: Article 23. legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. 2006. recommendations of the WHA do not come into force for members. by mere constitutional declaration. Consequently. The Health Assembly shall have authority to make recommendations to Members with respect to any matter within the competence of the Organization for an international rule to be considered as customary law. Issue: Whether Administrative Order or the Revised Implementing Rules and Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional. On May 15. Held: YES under Article 23. international law is deemed to have the force of domestic law. and ensure that all segments of society.5 Article 24 of said instrument provides that State Parties should take appropriate measures to diminish infant and child mortality. are informed of the advantages of breastfeeding. specially parents and children. the DOH issued herein assailed RIRR which was to take effect on July 7.

Lanao del Norte in/from the areas covered by the projected Bangsamoro Homeland is a justiciable question. Whether there is a violation of the peoples’ right to information on matters of public concern. the bar. Whether respondent Government of the Republic of the Philippines Peace Panel committed grave abuse of discretion amounting to lack or excess of jurisdiction. Iligan and Isabela. Whether by signing the MOA. In the case at bar. Whether MOA-AD is constitutional Held: Issue 1: The court believes that the petitions in the case at bar provide an exception to the moot and academic principle in view of (a) the grave violation of the Constitution involved.6 consensus points reached between GRP and MILF Peace Panel and of the aspiration of the MILF to have a Bangasmoro Homeland According to the stipulations in the MOA-AD. MOA-AD describes the Bangasmoro people as the first nation with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations. No.O. and the Municipality of Linamon. 3 and the fact that the respondents exceeded their authority by . (b) the exceptional character of the situation and paramount public interest. Ownership of the Bangasmoro Homeland is vested to the Bangasmoro people. 6. 4. The Bangasmoro Juridical Entity (BJE) is granted by the MOA-AD the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangasmoro. and the public. the failure of the respondents to consult the local government units or communities affected amounts to a departure from the mandate under E. Issues: 1. the Government of the Republic of the Philippines would be BINDING itself. 3. Cities of Zamboanga. Issue 2: Yes. Whether the constitutionality and the legality of the MOA is ripe for adjudication. Whether the petitions have become moot and academic 2. It was also stipulated that BJE shall have jurisdiction over all natural resources within its internal waters. (c) the need to formulate controlling principles to guide the bench. and (d) the fact that the case is capable of repetition yet evading review. Any alleged violation of the consti by any branch of the government is a proper matter for judicial review. and 7. Whether the inclusion/exclusion of the Province of North Cotabato. 5.

Issue 4: Yes. particularly the Provinces of North Cotabato. The various explicit legal provisions fly in the face of executive secrecy. as a solution to the Moro Problem.7 the mere act of guaranteeing amendments to the Constitution. in another or any form. The MOA-AD is not a document that can bind the Philippines under international law. and the Municipality of Linamon. respondents effectively waived such defense after it unconditionally disclosed the official copies of the final draft of the MOA-AD. will again be subjected to the same problem in the future as respondents actions are capable of repetition. Zamboanga del Norte and Sultan Kudarat. respondents almost consummated act of guaranteeing amendments to the legal framework is. sufficient to constitute grave abuse of discretion. It would have been signed by representatives of States and international organizations not parties to the Agreement. the creation of a state within a state. Issue 7: Yes.An essential element of this right is to keep a continuing dialogue or process of communication between the government and the people. the Cities of Zamboanga. Issue 6: Yes. The grave abuse lies not in the fact that they considered. These petitions afford a proper venue for the Court to again apply the doctrine immediately referred to as what it had done in a number of landmark cases. Iligan and Isabela. there is a violation of the people’s right to information. but in their brazen willingness to guarantee that Congress and the sovereign Filipino people would give their imprimatur to their solution. The associative relationship between the GRP and the BJE is unconstitutional because the . The invocation of the doctrine of executive privilege as a defense to the general right to information or the specific right to consultation is untenable. The MOA-AD is unconstitutional because it cannot be reconciled with the present constitution. for judicial compliance and public scrutiny. There is a reasonableexpectation that petitioners. this would not have sufficed to vest in it a binding character under international law. rendered the petition ripe for adjudication. Issue 5: No. Issue 3: The MOA-AD not being a document that can bind the Philippines under international law notwithstanding. Not only its specific provisions but the very concept underlying them. by itself.The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In any event.

war crimes. In esse. hereinafter) between the USA and the RP. 2000. now deceased. Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary.GR No. the RP. represented by then DFA Secretary Ople. Ople. the Agreement aims to protect what it refers to and defines as “persons” of the RP and US from frivolous and harassment suits that might be brought against them in international tribunals. crimes against humanity. 2003. RP-US Non-Surrender Agreement On May 9. agreed with and accepted the US proposals embodied under the US Embassy Note adverted to and put in effect the Agreement with the US government.8 It is reflective of the increasing pace of the strategic security and defense partnership between the two countries. by its terms. Via Exchange of Notes No. approval and concurrence process. .” The serious crimes adverted to cover those considered grave under international law. signed the Rome Statute which. Ricciardone sent US Embassy Note No. As of May 2. similar bilateral agreements have been effected by and between the US and 33 other countries. On December 28. and crimes of aggression. Manalo. The Philippines is not among the 92. Romulo . 2003 (E/N BFO-028-03. Respondent Blas F. then Ambassador Francis J. is “subject to ratification. only 92 out of the 139 signatory countries appear to have completed the ratification. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of the nonsurrender bilateral agreement (Agreement. 159618 Case Digest Facts: Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society. hereinafter). BFO-028-037 dated May 13. The court denied the respondent’s motion to dismiss and granted the main and intervening petitions. acceptance or approval” by the signatory states. As of the filing of the instant petition. Rome Statute of the International Criminal Court Having a key determinative bearing on this case is the Rome Statute establishing the International Criminal Court (ICC) with “the power to exercise its jurisdiction over persons for the most serious crimes of international concern x xx and shall be complementary to the national criminal jurisdictions. through Charge d’Affaires Enrique A.8 concept presupposes that the associated entity is a state and implies that the same is on its way to independence. was the Secretary of Foreign Affairs during the period material to this case. 2003. the RP. such as genocide. Bayan Muna vs.

unless such tribunal has been established by the UN Security Council. for the purpose of surrender to or transfer to any international tribunal. absent the express consent of the Government of the [US]. For purposes of this Agreement. or otherwise transfers a person of the Philippines to a third country. absent the express consent of the first Party. or (b) be surrendered or transferred by any means to any other entity or third country. the said agreement did not require the advice and consent of the US Senate.9 The Agreement pertinently provides as follows: 1. The provisions of this Agreement shall continue to apply with respect to any act occurring. “persons” are current or former Government officials. unless such tribunal has been established by the UN Security Council. unless such tribunal has been established by the UN Security Council. and that. surrenders. 2003 that the exchange of diplomatic notes constituted a legally binding agreement under international law. unless such tribunal has been established by the UN Security Council. before the effective date of termination. 2. employees (including contractors). the [US] will not agree to the surrender or transfer of that person by the third country to any international tribunal. under US law. Benipayo on the status of the non-surrender agreement. Ambassador Ricciardone replied in his letter of October 28. (a) be surrendered or transferred by any means to any international tribunal for any purpose. 5. absent the express consent of the Government of the Republic of the Philippines [GRP]. When the [US] extradites. When the [GRP] extradites. Issue: Whether or not the RP-US NON SURRENDER AGREEMENT is void ab initio for contracting obligations that are either immoral or otherwise at variance with universally . 4. the [GRP] will not agree to the surrender or transfer of that person by the third country to any international tribunal. In response to a query of then Solicitor General Alfredo L. or any allegation arising. or expelled to a third country. 3. or at least declared as without force and effect. This Agreement shall remain in force until one year after the date on which one party notifies the other of its intent to terminate the Agreement. Persons of one Party present in the territory of the other shall not. In this proceeding. petitioner imputes grave abuse of discretion to respondents in concluding and ratifying the Agreement and prays that it be struck down as unconstitutional. surrenders. or otherwise transfers a person of the [USA] to a third country. or military personnel or nationals of one Party.

exchange of notes being considered a form of executive agreement that becomes binding through executive action. The Constitutionality of Trade Agreement Acts: The point where ordinary correspondence between this and other governments ends and agreements – whether denominated executive agreements or exchange of notes or otherwise – begin. diplomats or departmental heads. The signatories of the letters may be government Ministers.” which is an internationally accepted form of international agreement. wherein the Philippines adopts the generally accepted principles of international law and international jurisprudence as part of the law of the land and adheres to the policy of peace. and amity with all nations. The technique of exchange of notes is frequently resorted to. Ruling: The petition is bereft of merit. either because of its speedy procedure. On the other hand. An exchange of notes falls “into the category of inter-governmental agreements. its threshold posture being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement. sometimes. to avoid the process of legislative approval. The agreement consists of the exchange of two documents. or as an integral instrument of acceptance thereof or as consent to be bound––is a recognized mode of concluding a legally binding international written contract among nations. Under the usual procedure. the accepting State repeats the text of the offering State to record its assent. x xx It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-Surrender Agreement itself. Sayre observed in his work.’” As former US High Commissioner to the Philippines Francis B. the terms “exchange of notes” and “executive agreements” have been used interchangeably. In another perspective. . executive agreements concluded by the President “sometimes take the form of exchange of notes and at other times that of more formal documents denominated ‘agreements’ or ‘protocols. or. each of the parties being in the possession of the one signed by the representative of the other. practices. and jargons––is untenable. may sometimes be difficult of ready ascertainment. that has many similarities with the private law contract. as expressed in Section 2. One of these is the doctrine of incorporation.10 recognized principles of international law. The United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows: An “exchange of notes” is a record of a routine agreement. Validity of the RP-US Non-Surrender Agreement Petitioner’s initial challenge against the Agreement relates to form. Petitioners’ contention––perhaps taken unaware of certain well-recognized international doctrines. Article II of the Constitution. cooperation.

for the conduct of a feasibility study on . for the nonce. represented by its president. what the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals. as already discussed. assuming. x xx it precludes our country from delivering an American criminal to the [ICC] x x x. entered into a Memorandum of Understanding with the North Luzon Railways Corporation (Northrail). China National Machinery v. by entering into the Agreement. “leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity. before the ICC. virtually abdicated its sovereignty and in the process undermined its treaty obligations under the Rome Statute. The immoral aspect proceeds from the fact that the Agreement. as petitioner would put it. Jr. The Court is not persuaded. “is an assertion by the Philippines of its desire to try and punish crimes under its national law. we believe. that all the formalities necessary to bind both countries to the Rome Statute have been met. Cortes. which. as aptly described by the Solicitor General. like the ICC. x xx The agreement is a recognition of the primacy and competence of the country’s judiciary to try offenses under its national criminal laws and dispense justice fairly and judiciously. there is nothing immoral or violative of international law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered criminal by both Philippine laws and the Rome Statute.” Petitioner. Santamaria Facts : On 14 September 2002. Persons who may have committed acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or in the US. represented by its chairperson. without the consent of the other party. Ren Hongbin. contrary to international law principles. petitioner China National Machinery & Equipment Corp. Jose L. contends that the RP. or with the consent of the RP or the US. This is manifestly incorrect. which may desire to prosecute the crime under its existing laws. labors under the erroneous impression that the Agreement would allow Filipinos and Americans committing high crimes of international concern to escape criminal trial and punishment. Suffice it to state in this regard that the non-surrender agreement. (Group) (CNMEG). With the view we take of things. For perspective.”63 The above argument is a kind of recycling of petitioner’s earlier position.11 Agreement Not Immoral/Not at Variance with Principles of International Law Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being at variance with allegedly universally recognized principles of international law.

On 13 February 2006. Branch 145 (RTC Br.Subsequently. 145 issued an Omnibus Order denying CNMEG‘s Motion to Dismiss and setting the case for summary hearing to determine whether the injunctive reliefs prayed for should be issued. EXIM Bank agreed to extend an amount not exceeding USD 400. the DOF. the Department of Budget and Management. Phase I of the North Luzon Railway System from Caloocan to Malolos on a turnkey basis (the Contract Agreement). respondents filed a Complaint for Annulment of Contract and Injunction with Urgent Motion for Summary Hearing to Determine the Existence of Facts and Circumstances Justifying the Issuance of Writs of Preliminary Prohibitory and Mandatory Injunction and/or TRO against CNMEG. the Office of the Executive Secretary. Petitioners Argument: . 145). (c) Presidential Decree No. On 30 August 2003.000 in favor of the Philippine government in order to finance the construction of Phase I of the Northrail Project.7The contract price for the Northrail Project was pegged at USD 421. CNMEG filed a Motion for Reconsideration. 9184 (R. Under the Aug 30 MOU. with a 5-year grace period.050. National Capital Judicial Region.The Chinese government designated EXIM Bank as the lender.which was denied by the trial court in an Order dated 10 March 2008. BLA 04055 (the Loan Agreement).000. CNMEG then filed a Motion for Reconsideration. 292. payable in 20 years. and (d) Executive Order No. CNMEG filed before the CA a Petition for Certiorari with Prayer for the Issuance of TRO and/or Writ of Preliminary Injunction dated 4 April 2008. In the Complaint. the Philippine government and EXIM Bank entered into a counterpart financial agreement Buyer Credit Loan Agreement No. EXIM Bank agreed to extend Preferential Buyer‘s Credit in the amount of USD 400.In the Loan Agreement.000. otherwise known as the Administrative Code. the Chinese Ambassador to the Philippines. RTC Br.12 a possible railway line from Manila to San Fernando. Wang). the National Economic Development Authority and Northrail. On 15 May 2007. 9184). while the Philippine government named the DOF as the borrower.000 in favor of the DOF. wrote a letter to DOF Secretary Jose Isidro Camacho (Sec. Northrail and CNMEG executed a Contract Agreement for the construction of Section I. La Union (the Northrail Project). Wang Chungui (Amb.which was denied by the CA in a Resolution dated 5 December 2008. On 26 February 2004.Thus. 1445. wherein China agreed to extend Preferential Buyer‘s Credit to the Philippine government to finance the Northrail Project. otherwise known as the Government Procurement Reform Act. (b) Republic Act No. Camacho) informing him of CNMEG‘s designation as the Prime Contractor for the Northrail Project. respondents alleged that the Contract Agreement and the Loan Agreement were void for being contrary to (a) the Constitution. the appellate court dismissed the Petition for Certiorari. On 30 December 2003. the Export Import Bank of China (EXIM Bank) and the Department of Finance of the Philippines (DOF) entered into a Memorandum of Understanding (Aug 30 MOU). Makati City.The case was filed before the Regional Trial Court.A. otherwise known as the Government Auditing Code. On 1 October 2003.000. No. and at the rate of 3% per annum.

Ruling : The instant Petition is DENIED . and not because of any motivation to do business in the Philippines. 9184 (R. (c) Presidential Decree No. 1445. (b) Republic Act No. (Group) is not entitled to immunity from suit. Petitioner China National Machinery & Equipment Corp. According to the classical or absolute theory. a sovereign cannot. Issues : Whether or not petitioner CNMEG is an agent of the sovereign People‘s Republic of China. The Court explained the doctrine of sovereign immunity in Holy See v. According to the newer or restrictive theory. it is clear from the foregoing provisions that the Northrail Project was a purely commercial transaction. No. CNMEG‘s prayer for the issuance of a TRO and/or Writ of Preliminary Injunction is DENIED for being moot and academic. and (d) Executive Order No. Whether or not the Northrail contracts are products of an executive agreement between two sovereign states. to wit: There are two conflicting concepts of sovereign immunity. 292.A. Rosario. without its consent. . otherwise known as the Government Auditing Code. 9184). be made a respondent in the courts of another sovereign. each widely held and firmly established. and the Contract Agreement is not an executive agreement.13 Petitioner claims that the EXIM Bank extended financial assistance to Northrail because the bank was mandated by the Chinese government. otherwise known as the Government Procurement Reform Act. Respondents Argument: respondents alleged that the Contract Agreement and the Loan Agreement were void for being contrary to (a) the Constitution. otherwise known as the Administrative Code.

it is crucial to ascertain the legal nature of the act involved – whether the entity claiming immunity performs governmental. Wang‘s letter dated 1 October 2003. the Loan Agreement was entered into between EXIM Bank and the Philippine government. . which is an inextricable part of the entire undertaking.14 the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state. citations omitted. while the Contract Agreement was between Northrail and CNMEG. Thus. Since the Philippines adheres to the restrictive theory. piecing together the content and tenor of the Contract Agreement. As held in United States of America v. and the Loan Agreement would reveal the desire of CNMEG to construct the Luzon Railways in pursuit of a purely commercial activity performed in the ordinary course of its business. (Emphasis supplied. as opposed to proprietary. nonetheless reveal the intention of the parties to the Northrail Project to classify the whole venture as commercial or proprietary in character. Amb. Although the Contract Agreement is silent on the classification of the legal nature of the transaction. functions. the Memorandum of Understanding dated 14 September 2002. the foregoing provisions of the Loan Agreement. but not with regard to private acts or acts jure gestionis .) As it stands now. The mantle of state immunity cannot be extended to commercial. the application of the doctrine of immunity from suit has been restricted to sovereign or governmental activities ( jure imperii ). private and proprietary acts ( jure gestionis ). Ruiz Admittedly.

Hungary then claimed the right to terminate the treaty. material breach and the emergence of new norms of international environmental law. Even if a state of necessity is established. Hungary submitted that the 1977 . The doctrine of impossibility of performance is encapsulated in Article 61 of the Vienna Convention on the Law of Treaties. as soon as it ceases to exist treaty obligations automatically revive. If the joint investment had been hampered to a point where performance was impossible. Articles 15. simply stating that a state of necessity is not a ground for termination. Furthermore. Czechoslovakia carried out unilateral measures. On 19 May 1992 Hungary purported to terminate the 1977 Treaty as a consequence of Czechoslovakia’s refusal to suspend work during the process of mediation. it was a consequence of Hungary’s abandonment of works. primarily concerned with timing of construction. 19 and 20 of the 1977 Treaty provided the means through which works could be readjusted in accordance with economic and ecological imperatives. the legal regime governing the Gabcíkovo-Nagymaros Project did not cease to exist. After initiating two Protocols. Article 61(2) of the Vienna Convention on the Law of Treaties precludes application of the doctrine where the impossibility complained of is the result of a breach by the terminating Party.The treaty was concluded to facilitate the construction of dams on the Danube River. at which point the dispute was submitted to the International Court of Justice. fundamental change of circumstances. This growing opposition engendered political pressures upon the Hungarian Government. representing two hundred of the River’s two thousand eight hundred and sixty kilometers. Slovakia became a party to the 1977 Treaty as successor to Czechoslovakia. It addressed broad utilization of the natural resources of the Danube between Bratislava and Budapest. Hungary proffered five arguments to validate its actions: a state of necessity. As the Treaty itself did not feature a clause governing termination. Hungary also submitted that it was entitled to terminate the treaty on the ground that Czechoslovakia had violated Articles of the Treaty by undertaking unilateral measures. In response. Article 62 of the Vienna Convention on the Law of Treaties codifies international law in respect of fundamental change of circumstances and treaty relations.15 DANUBE DAM CASE (Hungary v Slovakia) 37 ILM 162 (1998) In 1977. Intense criticism of the construction at Nagymaros centered upon endangerment of the environment and uncertainty of continued economic viability. Hungary suspended works at Nagymaros on 21 July 1989 pending further environmental studies. The Court easily dismissed Hungary’s first claim. Slovakia contested each of these bases. supervening impossibility of performance. which requires the “permanent disappearance or destruction of an object indispensable for the execution of the treaty”. The Treaty between the Hungarian People’s Republic and the Czechoslovak Socialist Republic concerning the Construction and Operation of the Gabcíkovo-Nagymaros System of Locks was concluded on 16 September 1977. culminating in the diversion of the Danube. In this case.

pursuant to the precautionary principle in environmental law. Fundamental changes cited were the displacement of a “single and indivisible operational system” by a unilateral scheme. Article 60(3) of the Vienna Convention on the Law of Treaties recognizes material breach of a treaty as a ground for termination on the part of the injured State. the Court may have clarified the controversial application of the sic utere principle to modify notions of unrestricted sovereignty in the Trail Smelter arbitration. the mutation of a framework treaty into an immutable norm. the preservation of nature and guardianship of fishing interests. As Czechoslovakia dammed the Danube after 19 May 1992. Given that international environmental law is in its formative stages. the obligation not to cause substantive damage to the territory of another State had evolved into an obligation erga omnes (sic utere tuo ut alienum non laedas). . Hungary claimed that Variant C materially breached Articles 15. Extending its reasoning on the principle of approximate application. The Court held that although political changes and diminished economic viability were relevant to the conclusion of a treaty. the emergence of both States into a market economy. they were not so closely linked with the object and purpose of the 1977 Treaty so as to constitute an essential basis of the consent of the Parties. Hungary’s purported termination was premature and thus invalid.16 Treaty was originally intended to be a vehicle for socialist integration. concluding instead that “these new concerns have enhanced the relevance of Articles 15. To that end. As its final basis for the justification of termination. it is unfortunate that the International Court of Justice did not grasp at this opportunity to discuss its role in the governance of relations between States. The Court avoided consideration of these propositions. and the transformation of a treaty consistent with environmental protection into “a prescription for environmental disaster”. 19 and 20”. concerning the protection of water quality. the Court held that a material breach only occurred upon the diversion of the Danube. Hungary advocated that. New developments in the efficacy of environmental knowledge were not unforeseen by the Treaty and cannot be said to represent a fundamental change. The Court did not consider whether the emergence of new environmental norms would catalyze the application of Article 62 in a situation where the terms of a treaty stand abhorrent to new norms. 19 and 20 of the 1977 Treaty. Slovakia countered this argument with the claim that there had been no intervening developments in international environmental law that gave rise to jus cogens norms that would override provisions of the 1977 Treaty.

relatives. Accordingly. Migrino. whether in the active service or retired. Jr. 1 vested the PCGG with the power (a) to conduct investigation as may be necessary in order to accomplish and carry out the purposes of this order and the power (h) to promulgate such rules and regulations as may be necessary to carry out the purpose of this order. Aquino issued Executive Order No. No. EO No. G. then President Corazon C. 2003] Republic of the Philippines. vs. Ramas and Elizabeth Dimaano. created an AFP Anti-Graft Board (AFP Board) tasked to investigate reports of unexplained wealth and corrupt practices by AFP personnel. EO No.R. Sandiganbayan. 89483. Marcos. 2[2] Republic v. the PCGG. for the remand of this case to the Sandiganbayan (First Division) for further proceedings allowing petitioner to complete the presentation of its evidence.2[2] 1[1] Composed of Justices Regino Hermosisima. 1) creating the Presidential Commission on Good Government (PCGG). subordinates and close associates. petitioner.: The Case Before this Court is a petition for review on certiorari seeking to set aside the Resolutions of the Sandiganbayan (First Division)1[1] dated 18 November 1991 and 25 March 1992 in Civil Case No. Antecedent Facts Immediately upon her assumption to office following the successful EDSA Revolution. DECISION CARPIO. while the second Resolution denied petitioners Motion for Reconsideration. 189 SCRA 289. his immediate family. 1 (EO No.. Major General Josephus Q. J. through its then Chairman Jovito R.17 EN BANC [G. Francis Garchitorena and Cipriano del Rosario. 0037. 30 August 1990. No. Petitioner prays for the grant of the reliefs sought in its Amended Complaint. Salonga. 104768. respondents. . or in the alternative. The first Resolution dismissed petitioners Amended Complaint and ordered the return of the confiscated items to respondent Elizabeth Dimaano. July 21.R. 1 primarily tasked the PCGG to recover all ill-gotten wealth of former President Ferdinand E.

000. the raiding team was also able to confiscate money in the amount of P2. Laguna. The equipment/items and communication facilities which were found in the premises of Elizabeth Dimaano and were confiscated by elements of the PC Command of Batangas were all covered by invoice receipt in the name of CAPT. Aside from the military equipment/items and communications equipment.870. Batangas City and when he arrives. The relevant part of the Resolution reads: III.000 US Dollars for she had no visible source of income.000.18 Based on its mandate. Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible means of income and is supported by respondent for she was formerly a mere secretary. On 27 July 1987. RSO Command Coy. Itaas. disclosed that Elizabeth Dimaano is the mistress of respondent. Elizabeth Dimaano embraces and kisses respondent. He is also the owner of a house and lot located in Cebu City.00. 1986 without the consent of respondent. 1986. Were it not for the affidavits of the members of the Military Security Unit . This money was never declared in the Statement of Assets and Liabilities of respondent. he being the Commanding General of the Philippine Army. stationed at Camp Eldridge. Los Baos.00 and $50. These items could not have been in the possession of Elizabeth Dimaano if not given for her use by respondent Commanding General of the Philippine Army. That respondent usually goes and stays and sleeps in the alleged house of Elizabeth Dimaano in Barangay Tengga. a person who rode in a car went to the residence of Elizabeth Dimaano with four (4) attache cases filled with money and owned by MGen Ramas. the AFP Board investigated various reports of alleged unexplained wealth of respondent Major General Josephus Q. That on February 25. the AFP Board issued a Resolution on its findings and recommendation on the reported unexplained wealth of Ramas. Quezon City.00 and $50. PA. La Vista.870.327 square meters. Taking in toto the evidence. Military Security Command. The value of the property located in Quezon City may be estimated modestly at P700. FINDINGS and EVALUATION: Evidence in the record showed that respondent is the owner of a house and lot located at 15Yakan St. EFREN SALIDO. MSC. It is also impossible for Elizabeth Dimaano to claim that she owns the P2. Elizabeth Dimaano could not have used the military equipment/items seized in her house on March 3. Philippine Army. Ramas (Ramas).. The lot has an area of 3.000.000 US Dollars in the house of Elizabeth Dimaano on 3 March 1986. Affidavits of members of the Military Security Unit. There was an intention to cover the existence of these money because these are all ill-gotten and unexplained wealth.

Chavez filed an Amended Complaint naming the Republic of the Philippines (petitioner). Laguna. then Solicitor General Francisco I. Before Ramas could answer the petition.3[3] Thus.134.134. 1379) 4[4] against Ramas. as amended. 5[5] Records. CONCLUSION: In view of the foregoing. Gen.000 US Dollars were not included. on 1 August 1987.) be prosecuted and tried for violation of RA 3019.00 and $50. IV. 14. The Statement of Assets and Liabilities of respondent were also submitted for scrutiny and analysis by the Boards consultant. V. Los Baos. . otherwise known as The Act for the Forfeiture of Unlawfully Acquired Property.00 and $50. the PCGG filed a petition for forfeiture under Republic Act No. The Amended Complaint also impleaded Elizabeth Dimaano (Dimaano) as co-defendant. pp.870. 4[4] An Act Declaring Forfeiture in Favor of the State Any Property Found to Have Been Unlawfully Acquired by Any Public Officer or Employee and Providing for the Proceedings Therefor. as amended.000.5[5] 3[3] Records of the Sandiganbayan [hereinafter Records]. the existence and ownership of these money would have never been known. Dimaano was a confidential agent of the Military Security Unit. otherwise known as Anti-Graft and Corrupt Practices Act and RA 1379. represented by the PCGG.19 assigned at Camp Eldridge. The Amended Complaint further alleged that Ramas acquired funds. The Amended Complaint alleged that Ramas was the Commanding General of the Philippine Army until 1986. as plaintiff and Ramas as defendant. still it was disclosed that respondent has an unexplained wealth of P104. assets and properties manifestly out of proportion to his salary as an army officer and his other income from legitimately acquired property by taking undue advantage of his public office and/or using his power. RECOMMENDATION: Wherefore it is recommended that Maj. p. 60. Although the amount of P2. Ramas (ret. Josephus Q. On the other hand.974. 53-55. assigned as a clerk-typist at the office of Ramas from 1 January 1978 to February 1979. the Board finds that a prima facie case exists against respondent for illgotten and unexplained wealth in the amount of P2.000 US Dollars. Philippine Army. authority and influence as such officer of the Armed Forces of the Philippines and as a subordinate and close associate of the deposed President Ferdinand Marcos. 1379 (RA No.

The Sandiganbayan further stated that the subject matter of the amended complaint was on its face vague and not related to the existing complaint. In his Answer. Ramas contended that his property consisted only of a residential house at La Vista Subdivision.. Dimaano filed her own Answer to the Amended Complaint. the Sandiganbayan proceeded with petitioners presentation of evidence on the ground that the motion for leave to amend complaint did not state when petitioner would file the amended complaint. the forfeiture of respondents properties. 8[8] Ibid. p. funds and equipment in favor of the State.7[7] the court set the case for trial on the merits on 9-11 November 1988. On 9 November 1988. in an order dated 17 April 1989. p. petitioner should proceed to present its evidence. Ramas filed an Answer with Special and/or Affirmative Defenses and Compulsory Counterclaim to the Amended Complaint.8[8] Nevertheless. After presenting only three witnesses. .16. among others. jewelry and land titles taken from her house by the Philippine Constabulary raiding team.6[6] The Amended Complaint prayed for. Dimaano claimed ownership of the monies. 7[7] Ibid.20 The Amended Complaint also alleged that the AFP Board. 286. petitioner asked for a postponement of the trial. found reasonable ground to believe that respondents have violated RA No. 166. The Sandiganbayan also held that due to the time that the case had been pending in court.. which was not out of proportion to his salary and other legitimate income. On 13 April 1989. petitioner filed a motion for leave to amend the complaint in order to charge the delinquent properties with being subject to forfeiture as having been unlawfully acquired by defendant Dimaano alone x x x. 1379. He denied ownership of any mansion in Cebu City and the cash. Admitting her employment as a clerk-typist in the office of Ramas from January-November 1978 only. petitioner asked for a deferment of the hearing due to its lack of preparation for trial and the absence of witnesses and vital documents to support its case. Quezon City. communications equipment. communications equipment and other items confiscated from the house of Dimaano. valued at P700. After termination of the pre-trial.. 6[6] Ibid. after a previous inquiry. The court reset the hearing to 17 and 18 April 1989.000. p.

Moreover. SO ORDERED. This case is also referred to the Commissioner of the Bureau of Internal Revenue for a determination of any tax liability of respondent Elizabeth Dimaano in connection herewith. The Sandiganbayan noted that petitioner had already delayed the case for over a year mainly because of its many postponements. The Sandiganbayan ordered petitioner to prepare for presentation of its additional evidence. petitioner manifested its inability to proceed to trial because of the absence of other witnesses or lack of further evidence to present. but the confiscated sum of money. if any. Ombudsman. on 18 May 1990. No. in the interest of justice. however.A. jewelry and land titles are ordered returned to Elizabeth Dimaano. The Sandiganbayan. During the trial on 23 March 1990. The Sandiganbayan. communications equipment. note 2.9[9] The Court held in Migrino that the PCGG does not have jurisdiction to investigate and prosecute military officers by reason of mere position held without a showing that they are subordinates of former President Marcos. the Sandiganbayan rendered a resolution. the Sandiganbayan reset the trial to 18 May 1990. The counterclaims are likewise dismissed for lack of merit. during the continuation of the trial. The records of this case are hereby remanded and referred to the Hon. However. 9[9] Supra. Again. the dispositive portion of which states: WHEREFORE. Migrino. who has primary jurisdiction over the forfeiture cases under R. judgment is hereby rendered dismissing the Amended Complaint. without pronouncement as to costs. petitioner again admitted its inability to present further evidence. the Sandiganbayan granted petitioner 60 days within which to file an appropriate pleading. petitioner would want the case to revert to its preliminary stage when in fact the case had long been ready for trial. Instead. Giving petitioner one more chance to present further evidence or to amend the complaint to conform to its evidence. petitioner again expressed its inability to proceed to trial because it had no further evidence to present. hinted that the re-setting was without prejudice to any action that private respondents might take under the circumstances. for such appropriate action as the evidence warrants. however.21 On 28 September 1989. 1379. warned petitioner that failure to act would constrain the court to take drastic action. Private respondents then filed their motions to dismiss based on Republic v. petitioner reiterated its motion to amend the complaint to conform to the evidence already presented or to change the averments to show that Dimaano alone unlawfully acquired the monies or properties subject of the forfeiture. On 18 November 1991. .

. 11[11] Supra. 94595. HAVING BEEN RENDERED PRIOR TO THE COMPLETION OF THE PRESENTATION OF THE EVIDENCE OF THE PETITIONER. No. In answer to the Motion for Reconsideration. Migrino11[11] which involve the same issues. petitioner filed its Motion for Reconsideration. (4.) There was an illegal search and seizure of the items confiscated. Jr. 194 SCRA 474. Ruling of the Sandiganbayan The Sandiganbayan dismissed the Amended Complaint on the following grounds: (1. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT PETITIONERS EVIDENCE CANNOT MAKE A CASE FOR FORFEITURE AND THAT THERE WAS NO SHOWING OF CONSPIRACY. private respondents filed a Joint Comment/Opposition to which petitioner filed its Reply on 10 January 1992. 10[10] G. COLLUSION OR RELATIONSHIP BY CONSANGUINITY OR AFFINITY BY AND BETWEEN RESPONDENT RAMAS AND RESPONDENT DIMAANO NOTWITHSTANDING THE FACT THAT SUCH CONCLUSIONS WERE CLEARLY UNFOUNDED AND PREMATURE. On 25 March 1992. the Sandiganbayan rendered a Resolution denying the Motion for Reconsideration.)No previous inquiry similar to preliminary investigations in criminal cases was conducted against Ramas and Dimaano.) The evidence adduced against Ramas does not constitute a prima facie case against him.R.)The actions taken by the PCGG are not in accordance with the rulings of the Supreme Court in Cruz. note 2.22 On 4 December 1991. Sandiganbayan10[10] and Republic v. 26 February 1991. v. (2. (3. The Issues Petitioner raises the following issues: A.

23

B.

C.

RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT
THE ACTIONS TAKEN BY THE PETITIONER, INCLUDING THE
FILING OF THE ORIGINAL COMPLAINT AND THE AMENDED
COMPLAINT, SHOULD BE STRUCK OUT IN LINE WITH THE
RULINGS OF THE SUPREME COURT IN CRUZ, JR. v.
SANDIGANBAYAN, 194 SCRA 474 AND REPUBLIC v. MIGRINO,
189 SCRA 289, NOTWITHSTANDING THE FACT THAT:
1.

The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v.
Migrino, supra, are clearly not applicable to this case;

2.

Any procedural defect in the institution of the complaint in Civil
Case No. 0037 was cured and/or waived by respondents with the
filing of their respective answers with counterclaim; and

3.

The separate motions to dismiss were evidently improper
considering that they were filed after commencement of the
presentation of the evidence of the petitioner and even before the
latter was allowed to formally offer its evidence and rest its case;

RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT
THE ARTICLES AND THINGS SUCH AS SUMS OF MONEY,
COMMUNICATIONS EQUIPMENT, JEWELRY AND LAND TITLES
CONFISCATED FROM THE HOUSE OF RESPONDENT DIMAANO
WERE ILLEGALLY SEIZED AND THEREFORE EXCLUDED AS
EVIDENCE.12[12]

The Courts Ruling
First Issue: PCGGs Jurisdiction to Investigate Private Respondents
This case involves a revisiting of an old issue already decided by this Court in Cruz, Jr. v.
Sandiganbayan13[13] and Republic v. Migrino.14[14]
The primary issue for resolution is whether the PCGG has the jurisdiction to investigate and
cause the filing of a forfeiture petition against Ramas and Dimaano for unexplained wealth under
RA No. 1379.
12[12] Rollo, p. 21.
13[13] Supra, note 10.
14[14] Supra, note 2.

24

We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the unexplained wealth and corrupt practices of
AFP personnel, whether in the active service or retired.15[15] The PCGG tasked the AFP Board to
make the necessary recommendations to appropriate government agencies on the action to be
taken based on its findings.16[16] The PCGG gave this task to the AFP Board pursuant to the
PCGGs power under Section 3 of EO No. 1 to conduct investigation as may be necessary in
order to accomplish and to carry out the purposes of this order. EO No. 1 gave the PCGG
specific responsibilities, to wit:
SEC. 2. The Commission shall be charged with the task of assisting the President in regard to the
following matters:
(a)The recovery of all ill-gotten wealth accumulated by former President Ferdinand E.
Marcos, his immediate family, relatives, subordinates and close associates,
whether located in the Philippines or abroad, including the takeover and
sequestration of all business enterprises and entities owned or controlled by
them, during his administration, directly or through nominees, by taking undue
advantage of their public office and/ or using their powers, authority, influence,
connections or relationship.
(b)

The investigation of such cases of graft and corruption as the President may
assign to the Commission from time to time.

x x x.
The PCGG, through the AFP Board, can only investigate the unexplained wealth and corrupt
practices of AFP personnel who fall under either of the two categories mentioned in Section 2 of
EO No. 1. These are: (1) AFP personnel who have accumulated ill-gotten wealth during the
administration of former President Marcos by being the latters immediate family, relative,
subordinate or close associate, taking undue advantage of their public office or using their
powers, influence x x x;17[17] or (2) AFP personnel involved in other cases of graft and corruption
provided the President assigns their cases to the PCGG.18[18]

15[15] Republic v. Migrino, supra, note 2.
16[16] Supra, note 2.
17[17] Republic v. Migrino, supra, note 2.
18[18] Republic v. Sandiganbayan, G.R. No. 115906, 29 September 1994, 237 SCRA
242.

25

Petitioner, however, does not claim that the President assigned Ramas case to the PCGG.
Therefore, Ramas case should fall under the first category of AFP personnel before the PCGG
could exercise its jurisdiction over him. Petitioner argues that Ramas was undoubtedly a
subordinate of former President Marcos because of his position as the Commanding General of
the Philippine Army. Petitioner claims that Ramas position enabled him to receive orders directly
from his commander-in-chief, undeniably making him a subordinate of former President Marcos.
We hold that Ramas was not a subordinate of former President Marcos in the sense contemplated
under EO No. 1 and its amendments.
Mere position held by a military officer does not automatically make him a subordinate as this
term is used in EO Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed close association
with former President Marcos. Migrino discussed this issue in this wise:
A close reading of EO No. 1 and related executive orders will readily show what is contemplated
within the term subordinate. The Whereas Clauses of EO No. 1 express the urgent need to
recover the ill-gotten wealth amassed by former President Ferdinand E. Marcos, his immediate
family, relatives, and close associates both here and abroad.
EO No. 2 freezes all assets and properties in the Philippines in which former President Marcos
and/or his wife, Mrs. Imelda Marcos, their close relatives, subordinates, business associates,
dummies, agents, or nominees have any interest or participation.
Applying the rule in statutory construction known as ejusdem generis that is[W]here general words follow an enumeration of persons or things by words of a particular and
specific meaning, such general words are not to be construed in their widest extent, but are to be
held as applying only to persons or things of the same kind or class as those specifically
mentioned [Smith, Bell & Co, Ltd. vs. Register of Deeds of Davao, 96 Phil. 53, 58, citing Black
on Interpretation of Laws, 2nd Ed., 203].
[T]he term subordinate as used in EO Nos. 1 & 2 refers to one who enjoys a close association
with former President Marcos and/or his wife, similar to the immediate family member, relative,
and close associate in EO No. 1 and the close relative, business associate, dummy, agent, or
nominee in EO No. 2.
xxx
It does not suffice, as in this case, that the respondent is or was a government official or
employee during the administration of former President Marcos. There must be a prima facie
showing that the respondent unlawfully accumulated wealth by virtue of his close association
or relation with former Pres. Marcos and/or his wife. (Emphasis supplied)

dummies.26 Ramas position alone as Commanding General of the Philippine Army with the rank of Major General19[19] does not suffice to make him a subordinate of former President Marcos for purposes of EO No. 54-55. 1. 1769 Amending PD 360 dated December 30. 1 and its 19[19] Presidential Decree No. it ends with the following recommendation: V. 2. 1379. Gen. AFP Lt. 2. 3019 and 1379 without any relation to EO Nos. AFP Maj. AFP General (0-10) Vice Chief of Staff. Josephus Q. in the same manner that business associates. 14 and 14-A.20[20] Thus. the PCGG failed to do. as amended. Petitioner asserts that there is a presumption that the PCGG was acting within its jurisdiction of investigating crony-related cases of graft and corruption and that Ramas was truly a subordinate of the former President. The PCGG has to provide a prima facie showing that Ramas was a close associate of former President Marcos. Petitioners attempt to differentiate the instant case from Migrino does not convince us. Petitioner argues that unlike in Migrino. General (0-9) Commander of Major Services. 20[20] Records. 14 and 14-A. otherwise known as The Act for the Forfeiture of Unlawfully Acquired Property. the same AFP Board Resolution belies this contention. 1. Ramas (ret. although the PCGG sought to investigate and prosecute private respondents under EO Nos.) be prosecuted and tried for violation of RA 3019. This absence of relation to EO No. 1 and its amendments. Such close association is manifested either by Ramas complicity with former President Marcos in the accumulation of ill-gotten wealth by the deposed President or by former President Marcos acquiescence in Ramas own accumulation of ill-gotten wealth if any. 2. pp. the AFP Board Resolution in the instant case states that the AFP Board conducted the investigation pursuant to EO Nos. the result yielded a finding of violation of Republic Acts Nos. 14 and 14-A in relation to RA No. Although the Resolution begins with such statement. This. as amended. However. . The ranking is as follows:Chief of Staff. RECOMMENDATION: Wherefore it is recommended that Maj. General (0-8) xxx. otherwise known as Anti-Graft and Corrupt Practices Act and RA 1379. 1973 adjusting the authorized grades in the command and staff structure of the AFP dated 12 January 1981. 1. agents or nominees of former President Marcos were close to him.

admits that the AFP Board resolution does not contain a finding that Ramas accumulated his wealth because of his close association with former President Marcos.WHEREAS. 122[22] clearly premises the creation of the PCGG on the urgent need to recover all ill-gotten wealth amassed by former President Marcos. 1.21[21] (Emphasis supplied) Such omission is fatal. in fact. as stated in the above. 2. v. 22[22] WHEREAS. 27.23[23] the Court outlined the cases that fall under the jurisdiction of the PCGG pursuant to EO Nos. The resolution of the Anti-Graft Board should be read in the context of the law creating the same and the objective of the investigation which was. there is an urgent need to recover all ill-gotten wealth. the resolution of the AFP Board and even the Amended Complaint do not show that the properties Ramas allegedly owned were accumulated by him in his capacity as a subordinate of his commander-in-chief. Petitioner merely enumerated the properties Ramas allegedly owned and suggested that these properties were disproportionate to his salary and other legitimate income without showing that Ramas amassed them because of his close association with former President Marcos. While it is true that the resolution of the Anti-Graft Board of the New Armed Forces of the Philippines did not categorically find a prima facie evidence showing that respondent Ramas unlawfully accumulated wealth by virtue of his close association or relation with former President Marcos and/or his wife. In Cruz. Marcos. 1. 2. his immediate family. his immediate family.25[25] 14-A:26[26] 21[21] Rollo. Jr. . note 10. Petitioner. Therefore. relatives. it is submitted that such omission was not fatal. Petitioner forgets that it is precisely a prima facie showing that the illgotten wealth was accumulated by a subordinate of former President Marcos that vests jurisdiction on PCGG. thus: 10. 3019 and 1379 in relation to Executive Order Nos. xxx 23[23] Supra. relatives and close associates both here and abroad. EO No. subordinates and close associates. p. 14 and 14-a. pursuant to Republic Act Nos.24[24] 14. and necessarily its powers must be construed to address such specific and limited purpose. EO No. 1 created the PCGG for a specific and limited purpose. vast resources of the government have been amassed by former President Ferdinand E. Moreover. Sandiganbayan. to say that such omission was not fatal is clearly contrary to the intent behind the creation of the PCGG.27 amendments proves fatal to petitioners case.

and not the PCGG. 1 in relation with Sections 1. and/or Business Associates. while the authority to file the corresponding forfeiture petition rests with the Solicitor General. No. their assistants. Moneys. Dummies. 1. Mrs. Imelda R. the Chief State Prosecutor and his assistants and the state prosecutors. during his administration. (Emphasis supplied) The proper government agencies. G. and Properties Illegally Acquired or Misappropriated by Former President Marcos. including the take-over or sequestration of all business enterprises and entities owned or controlled by them. and (b) the investigation and prosecution of such offenses committed in the acquisition of said ill-gotten wealth as contemplated under Section 2(a) of Executive Order No. 6770) vests in 24[24] Regarding the Funds. Business Associates. 200 SCRA 667. However. Agents or Nominees dated 12 March 1986. 16 August 1991. 14 dated 18 August 1986. relatives. 2 and 3 of Executive Order No. their Close Relatives. other violations of the Anti-Graft and Corrupt Practices Act not otherwise falling under the foregoing categories. authority and influence. Imelda Marcos. 6770 (RA No. Dummies. accumulated by former President Marcos. Close Relatives. Marcos. connections or relationships. 14. 90529. require a previous authority of the President for the respondent PCGG to investigate and prosecute in accordance with Section 2 (b) of Executive Order No. Subordinates. Agents and Nominees dated 7 May 1986. directly or through his nominees. Marcos. Subordinates. Assets. 26[26] Amending Executive Order No. . 1 and its amendments.R. 25[25] Defining the Jurisdiction over Cases Involving the Ill-gotten Wealth of Former President Ferdinand E.27[27] The Ombudsman Act or Republic Act No. shows what the authority of the respondent PCGG to investigate and prosecute covers: (a)the investigation and prosecution of the civil action for the recovery of ill-gotten wealth under Republic Act No. jurisdiction over such cases is vested in the Ombudsman and other duly authorized investigating agencies such as the provincial and city prosecutors. subordinates and close associates. Otherwise. Members of their Immediate Family. should investigate and prosecute forfeiture petitions not falling under EO No.28 A careful reading of Sections 2(a) and 3 of Executive Order No. by taking undue advantage of their public office and/or using their powers. 27[27] Republic v. 1379. Sandiganbayan. The preliminary investigation of unexplained wealth amassed on or before 25 February 1986 falls under the jurisdiction of the Ombudsman. whether located in the Philippines or abroad. 1. Mrs. his immediate family.

Republic v. we hold that there was no waiver of jurisdiction in this case. 348 Phil. The PCGG cannot exercise investigative or prosecutorial powers never granted to it. 190 (1998).R. Thus. As stated in Migrino: [But] in view of the patent lack of authority of the PCGG to investigate and cause the prosecution of private respondent for violation of Rep. Unless given additional assignment by the President.31[31] 28[28] Section 15 (11). PCGGs sole task is only to recover the ill-gotten wealth of the Marcoses. Migrino. G. The AFP Board Resolution and even the Amended Complaint state that there are violations of RA Nos. 30[30] Cudia v.28[28] After the pronouncements of the Court in Cruz. 142501. 3019 and 1379. 6770. No. PCGGs powers are specific and limited. 371 SCRA 664. Estipular. supra.R. 20 July 2000. Nevertheless. Petitioner has no jurisdiction over private respondents. the PCGG still pursued this case despite the absence of a prima facie finding that Ramas was a subordinate of former President Marcos.29 the Ombudsman the power to conduct preliminary investigation and to file forfeiture proceedings involving unexplained wealth amassed after 25 February 1986.29[29] Without these elements. the PCGG cannot claim jurisdiction over a case. 7 December 2001. . No. which explains why private respondents only filed their Motion to Dismiss on 8 October 1990. their relatives and cronies. The petition for forfeiture filed with the Sandiganbayan should be dismissed for lack of authority by the PCGG to investigate respondents since there is no prima facie showing that EO No. Petitioners argument that private respondents have waived any defect in the filing of the forfeiture petition by submitting their respective Answers with counterclaim deserves no merit as well. CA. Zerna. there is no jurisdiction to waive in the first place. note 2. 29[29] Republic v. The rule of law mandates that an agency of government be allowed to exercise only the powers granted to it. This case was decided on 30 August 1990. 1 and its amendments apply to respondents. 136588. 31[31] Monsanto v. the PCGG must also be enjoined from proceeding with the case. RA No. Jurisdiction is vested by law and not by the parties to an action. 336 SCRA 333. without prejudice to any action that may be taken by the proper prosecutory agency. we have held that the parties may raise lack of jurisdiction at any stage of the proceeding. the PCGG should have recommended Ramas case to the Ombudsman who has jurisdiction to conduct the preliminary investigation of ordinary unexplained wealth and graft cases. Acts Nos. G. 3019 and 1379.30[30] Thus. Private respondents questioned the authority and jurisdiction of the PCGG to investigate and prosecute their cases by filing their Motion to Dismiss as soon as they learned of the pronouncement of the Court in Migrino. Thus.

30 Consequently. the Solicitor General may file the forfeiture petition with the Sandiganbayan. The Ombudsman may still conduct the proper preliminary investigation for violation of RA No. we find that petitioner has only itself to blame for non-completion of the presentation of its evidence. petitioner manifested its inability to proceed with the presentation of its evidence. . Based on the findings of the Sandiganbayan and the records of this case. refused to defer the presentation of petitioners evidence since petitioner did not state when it would file the amended complaint. the Sandiganbayan set the continuation of the presentation of evidence on 28-29 September and 9-11 October 1989.. 285. p. however. However.32[32] The right of the State to forfeit unexplained wealth under RA No. G. On 18 April 1989. Migrino. Nos. supra. note 2. v.33[33] Second Issue: Propriety of Dismissal of Case Before Completion of Presentation of Evidence Petitioner also contends that the Sandiganbayan erred in dismissing the case before completion of the presentation of petitioners evidence. We disagree. on 13 April 1989. and if warranted. on 28 September 1989. 1379. to wit: The Court has gone through extended inquiry and a narration of the above events because this case has been ready for trial for over a year and much of the delay hereon has been due to the inability of the government to produce on scheduled dates for pre-trial and for trial documents 32[32] Republic v. this case has been pending for four years before the Sandiganbayan dismissed it. Even before the date set for the presentation of its evidence. Presidential Commission on Good Govt. 190 SCRA 226.34[34] The motion sought to charge the delinquent properties (which comprise most of petitioners evidence) with being subject to forfeiture as having been unlawfully acquired by defendant Dimaano alone x x x. The Sandiganbayan issued an Order expressing its view on the matter.R. First. 34[34] Records. petitioner still delayed the presentation of the rest of its evidence by filing numerous motions for postponements and extensions. Still. the petition should be dismissed for lack of jurisdiction by the PCGG to conduct the preliminary investigation. 2 October 1990. laches or estoppel. The Sandiganbayan. Petitioner filed its Amended Complaint on 11 August 1987. giving petitioner ample time to prepare its evidence. 92319-20. despite this sufficient time. petitioner filed. Jr. 1379 is not subject to prescription. a Motion for Leave to Amend the Complaint. 33[33] Cojuangco. and only began to present its evidence on 17 April 1989. Petitioner had almost two years to prepare its evidence.

petitioner failed to inform the court of the result of the preliminary investigation the PCGG supposedly conducted. p. 1379. Finally. we hold that the Sandiganbayan did not err in dismissing the case before completion of the presentation of petitioners evidence. 38[38] Ibid. 347. This alone would have been sufficient legal basis for the Sandiganbayan to dismiss the forfeiture case against private respondents. when. Of equal interest is the fact that this Court has been held to task in public about its alleged failure to move cases such as this one beyond the preliminary stage. p. on the scheduled date. 36[36] Ibid. 395.38[38] The Sandiganbayan correctly observed that a case already pending for years would revert to its preliminary stage if the court were to accept the Re-Amended Complaint. Third Issue: Legality of the Search and Seizure 35[35] Records.35[35] On 9 October 1989. the PCGG manifested in court that it was conducting a preliminary investigation on the unexplained wealth of private respondents as mandated by RA No. Again. Thus. the Sandiganbayan gave petitioner until 18 May 1990 to continue with the presentation of its evidence and to inform the court of what lies ahead insofar as the status of the case is concerned x x x.31 and witnesses. petitioner filed its ReAmended Complaint. p. p. Moreover. despite a five-month pause where appropriate action could have been undertaken by the plaintiff Republic. allegedly upon the failure of the military to supply them for the preparation of the presentation of evidence thereon. . on 11 July 1990. the pronouncements of the Court in Migrino and Cruz prompted the Sandiganbayan to dismiss the case since the PCGG has no jurisdiction to investigate and prosecute the case against private respondents. The Sandiganbayan overlooked petitioners delays and yet petitioner ended the long-string of delays with the filing of a ReAmended Complaint. 422.. in view of the developments such as those of today.. However.36 [36] The PCGG prayed for an additional four months to conduct the preliminary investigation. this Court is now faced with a situation where a case already in progress will revert back to the preliminary stage. 346. The Sandiganbayan gave petitioner more than sufficient time to finish the presentation of its evidence. which would only prolong even more the disposition of the case. obviously petitioner has only itself to blame for failure to complete the presentation of its evidence. petitioner failed to present its evidence.37[37] Still on the date set.. The Sandiganbayan granted this request and scheduled the presentation of evidence on 26-29 March 1990. 37[37] Ibid. Based on these circumstances.

870. one pistol. 1 announcing that President Aquino and Vice President Laurel were taking power in the name and by the will of the Filipino people.32 Petitioner claims that the Sandiganbayan erred in declaring the properties confiscated from Dimaanos house as illegally seized and therefore inadmissible in evidence. The EDSA Revolution took place on 23-25 February 1986. the new government under President Corazon C.39[39] Petitioner argues that a revolutionary government was operative at that time by virtue of Proclamation No. cash consisting of P2. 3. the date of ratification of the 1987 Constitution. . Petitioner will not have much evidence to support its case against private respondents if these properties are inadmissible in evidence. Petitioner contends that all rights under the Bill of Rights had already reverted to its embryonic stage at the time of the search. Moreover. On 3 March 1986. jewelry. Therefore. and land titles. provides:WHEREAS. 3 dated 25 March 1986. 40[40] Ibid. Dimaano was not present during the raid but Dimaanos cousins witnessed the raid. The raiding team seized the items detailed in the seizure receipt together with other items not included in the search warrant. 34. communications equipment. This issue bears a significant effect on petitioners case since these properties comprise most of petitioners evidence against private respondents. private respondents did not enjoy any constitutional right. 1986 or five days after the successful EDSA revolution. the EDSA Revolution was done in defiance of the provisions of the 1973 Constitution.56 ammunition. caliber . the Constabulary raiding team served at Dimaanos residence a search warrant captioned Illegal Possession of Firearms and Ammunition.41[41] The resulting government was indisputably a 39[39] Rollo. Petitioner is partly right in its arguments. the government may confiscate the monies and items taken from Dimaano and use the same in evidence against her since at the time of their seizure. Provisional Constitution of the Republic of the Philippines. 40 rounds of 5. 41[41] Proclamation No. The raiding team seized these items: one baby armalite rifle with two magazines. Aquino was installed through a direct exercise of the power of the Filipino people assisted by units of the New Armed Forces of the Philippines. As succinctly stated in President Aquinos Proclamation No.000 and US$50. petitioner argues that the exclusionary right arising from an illegal search applies only beginning 2 February 1987.40[40] Petitioner asserts that the revolutionary government effectively withheld the operation of the 1973 Constitution which guaranteed private respondents exclusionary right.000. Petitioner wants the Court to take judicial notice that the raiding team conducted the search and seizure on March 3. p.45.

The correct issues are: (1) whether the revolutionary government was bound by the Bill of Rights of the 1973 Constitution during the interregnum. WHEREAS. No. 42[42] A. 90-11-2697-CA. 356 SCRA 108.M.R. and (2) whether the protection accorded to individuals under the International Covenant on Civil and Political Rights (Covenant) and the Universal Declaration of Human Rights (Declaration) remained in effect during the interregnum.33 revolutionary government bound by no constitution or legal limitations except treaty obligations that the revolutionary government. there was no municipal law higher than the directives and orders of the revolutionary government. 210 SCRA 589. No. 3 April 2001. that is. General Theory of Law and State. Court of Appeals. With the abrogation of the 1973 Constitution by the successful revolution.R. G. a person could not invoke any exclusionary right under a Bill of Rights because there was neither a constitution nor a Bill of Rights during the interregnum. 220 (1997). usually effected with violence or at least some acts of violence. assumed under international law. after the actual and effective take-over of power by the revolutionary government following the cessation of resistance by loyalist forces up to 24 March 1986 (immediately before the adoption of the Provisional Constitution). . the heroic action of the people was done in defiance of the provisions of the 1973 Constitution. (Emphasis supplied) See also Estrada v. radical and fundamental change in the government or political system. As the Court explained in Letter of Associate Justice Reynato S. the directives and orders of the revolutionary government were the supreme law because no constitution limited the extent and scope of such directives and orders. Puno:42[42] A revolution has been defined as the complete overthrow of the established government in any country or state by those who were previously subject to it or as a sudden. Desierto. xxx. during the interregnum. as the de jure government in the Philippines. In Kelsen's book. 29 June 1992. 146710-15 and G. No. it is defined as that which occurs whenever the legal order of a community is nullified and replaced by a new order . 146738. . a way not prescribed by the first order itself. as amended. 345 Phil. However. During the interregnum. Thus. We hold that the Bill of Rights under the 1973 Constitution was not operative during the interregnum. Metro Manila v. of San Juan. Mun. . we rule that the protection accorded to individuals under the Covenant and the Declaration remained in effect during the interregnum.

It has been said that the locus of positive law-making power lies with the people of the state and from there is derived the right of the people to abolish. (Emphasis supplied) To hold that the Bill of Rights under the 1973 Constitution remained operative during the interregnum would render void all sequestration orders issued by the Philippine Commission on Good Government (PCGG) before the adoption of the Freedom Constitution. Thus it can be said that the organization of Mrs. questioned the continued validity of the sequestration orders upon adoption of the Freedom Constitution in view of the due process clause in its Bill of Rights. had ceased to be obeyed by the Filipino. revamp of the Judiciary and the Military signaled the point where the legal system then in effect. L-75885. Presidential Commission on Good Government. vs. upon the adoption of the Freedom Constitution.34 It was through the February 1986 revolution. In Bataan Shipyard & Engineering Co. a relatively peaceful one. This revolution also saw the unprecedented rise to power of the Aquino government. However. No one could validly question the sequestration orders as violative of the Bill of Rights because there was no Bill of Rights during the interregnum. in fact. to reform and to alter any existing form of government without regard to the existing constitution. 150 SCRA 181. . During the interregnum. while conceding there was no Bill of Rights during the interregnum. it was achieved in violation of the provisions of the 1973 Constitution as a Batasang Pambansa resolution had earlier declared Mr. the sequestered companies assailed the sequestration orders as contrary to the Bill of Rights of the Freedom Constitution. which direct the freezing and even the take-over of private property by mere executive issuance without judicial action. Aquinos Government which was met by little resistance and her control of the state evidenced by the appointment of the Cabinet and other key officers of the administration. 27 May 1987. change their policy or effect radical reforms in their system of government or institutions by force or a general uprising when the legal and constitutional methods of making such change have proved inadequate or are so obstructed as to be unavailable. The Court ruled that 43[43] No. Aquinos rise to the presidency was not due to constitutional processes. and more popularly known as the people power revolution that the Filipino people tore themselves away from an existing regime. xxx It is widely known that Mrs. From the natural law point of view.43[43] petitioner Baseco. Marcos as the winner in the 1986 presidential election. The sequestration orders. Inc. would violate the due process and search and seizure clauses of the Bill of Rights. the departure of the Marcos Cabinet officials. the government in power was concededly a revolutionary government bound by no constitution. the right of revolution has been defined as an inherent right of a people to cast out their rulers.

We cannot. and let me elaborate and give three reasons: First. he argues that everything the Commission is doing is traditionally legal. grande y malos remedios. Grandes malos. hence they are asking for protection. 3 dated March 25. thus suggesting that the PCGG should be allowed to make some legal shortcuts. On the other hand. Bernas during the deliberations of the Constitutional Commission is instructive: FR. as the saying stands. BERNAS: Madam President. And as also already adverted to. Hence. I have carefully studied Minister Salongas lecture in the Gregorio Araneta University Foundation. it should be dispelled by the fact that these particular remedies and the authority of the PCGG to issue them have received constitutional approbation and sanction. What they are doing will not stand the test of ordinary due process. the framers of both constitutions had to include specific language recognizing the validity of the sequestration orders. in one breath. On the one hand. and ratifies the authority to issue sequestration or freeze orders under Proclamation No.35 the Freedom Constitution. That is not an allowable extrapolation. and later the 1987 Constitution. another word for niceties or exceptions. As already mentioned. Section 26. Now. thus: If any doubt should still persist in the face of the foregoing considerations as to the validity and propriety of sequestration. Very much at the heart of the constitutional normalization is the full effectivity of the Bill of Rights. for exceptions. This is repeated by Commissioner Romulo also. (r)ecover ill-gotten properties amassed by the leaders and supporters of the previous regime and protect the interest of the people through orders of sequestration or freezing of assets or accounts. For instance. if everything the PCGG is doing is legal. expressly recognized the validity of sequestration orders. of which all of us have been given a copy. but let us not say grandes malos. The framers of both the Freedom Constitution and the 1987 Constitution were fully aware that the sequestration orders would clash with the Bill of Rights. The following discourse by Commissioner Joaquin G. Article XVIII of the 1987 Constitution treats of. he says that in the end what matters are the results and not the legal niceties. grandes remedios. freeze and takeover orders. why is it asking the CONCOM for special protection? The answer is clear. . Thus. ask for constitutional normalization and at the same time ask for a temporary halt to the full . almost as an afterthought. there is something schizophrenic about the arguments in defense of the present amendment. the whole point of the February Revolution and of the work of the CONCOM is to hasten constitutional normalization. we should not give the exceptions asked for. Minister Salonga spends a major portion of his lecture developing that argument. fine. the Provisional or Freedom Constitution recognizes the power and duty of the President to enact measures to achieve the mandate of the people to . . 1986.

If Section 8 is deleted. the search and seizure clause will be sold. If the price is right. it can pursue the Salonga and the Romulo argument that what the PCGG has been doing has been completely within the pale of the law. only if it would become convinced of the values enshrined in the Constitution of a price that is beyond monetary estimation. however. even without the support of Section 8. That would be an unhealthy way of consolidating the gains of a democratic revolution. The argument makes the PCGG an auctioneer. Open your Swiss bank account to us and we will award you the search and seizure clause. If sustained. If not sustained. the PCGG can go on and should be able to go on. that would be a repetition of Marcosian protestation of due process and rule of law. Alternatively. the PCGG has two options. bad deeds repeated become vice. placing the Bill of Rights on the auction block. and repeated verbatim by another staunch Christian like Commissioner Tingson. The committee report asks for extraordinary exceptions from the Bill of Rights for six months after the convening of Congress. The Bill of Rights is not for sale to the highest bidder nor can it be used to ransom captive dollars. the PCGG has only one honorable option. Second. That would be hypocritical. You can keep it in your private safe. The hoarders will release the hidden health if the ransom price is paid and the ransom price is the Bill of Rights. become difficult to shed. Vices. once they become ingrained. there is something positively revolving about either argument. it becomes doubly disturbing and even discombobulating. The practitioners of the vice begin to think that they have a vested right to its practice. This nation will survive and grow strong. First. a Minister. the argument looks on the present government as hostage to the hoarders of hidden wealth. . Third. When it comes from a staunch Christian like Commissioner Salonga. For these reasons. specifically the due process in the search and seizure clauses. and they will fight tooth and nail to keep the franchise. Good deeds repeated ripen into virtue. and Congress may even extend this longer. So. Habits tend to become ingrained. this is really a corollary of the first. it must bow to the majesty of the Bill of Rights. What the committee report is asking for is that we should allow the new government to acquire the vice of disregarding the Bill of Rights. The New Society word for that is backsliding.36 functioning of what is at the heart of constitutionalism. the argument that what matters are the results and not the legal niceties is an argument that is very disturbing. the honorable course for the Constitutional Commission is to delete all of Section 8 of the committee report and allow the new Constitution to take effect in full vigor. It is tragic when we begin to backslide even before we get there.

the revolutionary government had the 44[44] Section 26. Article XVIII of the 1987 Constitution provides: Sec. For those issued after such ratification. even during the interregnum the Filipino people continued to enjoy. Thomas More said. I ask the Commission to give the devil benefit of law for our nations sake. the Constitutional Commission still adopted the amendment as Section 26. The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein provided. Let me conclude with what another Christian replied when asked to toy around with the law. (Emphasis supplied) Despite the impassioned plea by Commissioner Bernas against the amendment excepting sequestration orders from the Bill of Rights. The framers of the Constitution were fully aware that absent Section 26. the Congress may extend said period. The revolutionary government. 3 dated March 25. to rule that the Bill of Rights of the 1973 Constitution remained in force during the interregnum. almost the same rights found in the Bill of Rights of the 1973 Constitution. The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. Nevertheless.44[44] Article XVIII of the 1987 Constitution. Under Article 17(1) of the Covenant. as certified by the President. The authority to issue sequestration or freeze orders under Proclamation No. in the national interest. "I'll give the devil benefit of law for my nations safety sake. From his prison cell. the judicial action or proceeding shall be commenced within six months from the issuance thereof. A sequestration or freeze order shall be issued only upon showing of a prima facie case. under the Covenant and the Declaration. Thus. would clearly render all sequestration orders void during the interregnum. For orders issued before the ratification of this Constitution. assumed responsibility for the States good faith compliance with the Covenant to which the Philippines is a signatory.37 The PCGG extrapolation of the law is defended by staunch Christians. However. 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than eighteen months after the ratification of this Constitution. Article 2(1) of the Covenant requires each signatory State to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights45[45] recognized in the present Covenant. after installing itself as the de jure government. . Thank you. sequestration orders would not stand the test of due process under the Bill of Rights. absent a constitutional provision excepting sequestration orders from such Bill of Rights. Madam President. And we should delete Section 8. the corresponding judicial action or proceeding shall be filed within six months from its ratification. 26.

[Article 7].46[46] Thus. (3) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law. (7) Everyone shall have the right of freedom of thought. to just and favorable conditions of work and to protection against unemployment [Article 23(1)]. including his own. Commissioner of Immigration. Director of Prisons. (11) All persons are equal before the law and are entitled without any discrimination to the equal protection of the law [Article 26]. . 347 (1951). 90 Phil. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release [Article 9(1 & 3)]. inhuman or degrading treatment or punishment. 45[45] Among the rights of individuals recognized in the Covenant are: (1) No one shall be arbitrarily deprived of his life [Article 6(1)]. 46[46] Andreu v. 70 (1951). Everyone shall have the right to freedom of expression [Article 19(1 & 2)]. (2) Everyone has the right to take part in the government of his country. (10) Everyone shall have the right of freedom of association with others [Article 22(1)]. 47[47] Among the rights enshrined in the Declaration are: (1) Everyone has the right to own property alone or in association with others [Article 17(1)]. the Court has interpreted the Declaration as part of the generally accepted principles of international law and binding on the State. to free choice of employment. conscience and religion [Article 18(1)]. Chirskoff v. (3) Everyone has the right to work. Commissioner of Immigration. to which the Philippines is also a signatory. No one shall be subjected to arbitrary arrest or detention. Although the signatories to the Declaration did not intend it as a legally binding document. have the right to liberty of movement and freedom to choose his residence. 90 Phil. within that territory. (8) Everyone shall have the right to hold opinions without interference. The Declaration. being only a declaration. family. at the time of the arrest. Everyone shall be free to leave any country. home or correspondence. No one shall be arbitrarily deprived of the right to enter his own country [Article 12(1. (5) Everyone lawfully within the territory of a State shall. of the reasons for his arrest and shall be promptly informed of the charges against him [Article 9(2)]. (2) No one shall be subjected to torture or to cruel. (6) Everyone charged with a criminal offense shall have the right to be presumed innocent until proved guilty according to law [Article 14(2)]. 2 & 3)]. 90 Phil. 107 (1951). Commissioner of Immigration. 256 (1951). directly or through freely chosen representatives [Article 21(1)]. (4) Anyone who is arrested shall be informed. Borovsky v. (9) The right of peaceful assembly shall be recognized [Article 21]. the revolutionary government was also obligated under international law to observe the rights47[47] of individuals under the Declaration.38 duty to insure that [n]o one shall be subjected to arbitrary or unlawful interference with his privacy. 90 Phil. provides in its Article 17(2) that [n]o one shall be arbitrarily deprived of his property. Mejoff v.

According to the search warrant. Article I of the Provisional Constitution provides: The provisions of xxx ARTICLE IV (Bill of Rights) xxx of the 1973 Constitution. Suffice it to say that the Court considers the Declaration as part of customary international law.39 The revolutionary government did not repudiate the Covenant or the Declaration during the interregnum. sir. As admitted by petitioners witnesses. the revolutionary government could not escape responsibility for the States good faith compliance with its treaty obligations under international law. specified the items to be searched and seized. The directives and orders should not have also violated the Covenant or the Declaration. were seized from the house of Miss Elizabeth Dimaano? A. The fact is the revolutionary government did not repudiate the Covenant or the Declaration in the same way it repudiated the 1973 Constitution. The warrant. the Constabulary raiding team seized items not included in the warrant. As the de jure government. remain in force and effect and are hereby adopted in toto as part of this provisional Constitution. land titles. some jewelries. the revolutionary government presumptively sanctioned the warrant since the revolutionary government did not repudiate it. What else. thus: Direct Examination of Capt. the raiding team confiscated items not included in the warrant. Rodolfo Sebastian AJ AMORES Q. Whether the revolutionary government could have repudiated all its obligations under the Covenant or the Declaration is another matter and is not the issue here. directives and orders issued by government officers were valid so long as these officers did not exceed the authority granted them by the revolutionary government. However. It was only upon the adoption of the Provisional Constitution on 25 March 1986 that the directives and orders of the revolutionary government became subject to a higher municipal law that. aside from the weapons. if contravened. The communications equipment. The Provisional Constitution adopted verbatim the Bill of Rights of the 1973 Constitution.48[48] The Provisional Constitution served as a self-limitation by the revolutionary government to avoid abuses of the absolute powers entrusted to it by the people. you are supposed to seize only for weapons. During the interregnum when no constitution or Bill of Rights existed. rendered such directives and orders void. as amended. issued by a judge upon proper application. (Emphasis supplied) . and that Filipinos as human beings are proper subjects of the rules of international law laid down in the Covenant. 48[48] Section 1. money in Philippine currency and US dollars. The warrant is thus valid with respect to the items specifically described in the warrant. In this case.

Q. Now. Branch 1? A. Do you know the reason why your team also seized other properties not mentioned in said search warrant? A.Were you present when the search warrant in connection with this case was applied before the Municipal Trial Court of Batangas. You said you found money instead of weapons. Believing that the attach cases and the steel safes were containing firearms. Banaag Q. sir.40 Q. xxx AJ AMORES Q. I think the overall team leader and the other two officers assisting him decided to bring along also the money because at that time it was already dark and they felt most secured if they will bring that because they might be suspected also of taking money out of those items. the search warrant speaks only of weapons to be seized from the house of Elizabeth Dimaano. A. Yes. did you conduct surveillance in the house of Miss Elizabeth Dimaano? 49[49] TSN. your Honor. . Before you applied for a search warrant. do you know the reason why your team seized this money instead of weapons? A. sir. and I think three (3) vaults or steel safes. they forced open these containers only to find out that they contained money.49[49] xxx Cross-examination Atty. 115-117. And the search warrant applied for by you was for the search and seizure of five (5) baby armalite rifles M-16 and five (5) boxes of ammunition? Yes. pp. Q. During the conversation right after the conduct of said raid. I was informed that the reason why they also brought the other items not included in the search warrant was because the money and other jewelries were contained in attach cases and cartons with markings Sony Trinitron. 18 April 1989.

Q. A. your Honor. And this party believed there were weapons deposited in the house of Miss Elizabeth Dimaano? Yes.. Q. your Honor. the applicant for the search warrant. I did not include that in the application for search warrant considering that we have not established concrete evidence about that. sir. Yes. However. . Q. Forty. Yes. But they did not mention to you. your Honor. with the fiscals office who charged Elizabeth Dimaano for Illegal Possession of Firearms and Ammunition? A. pp. any other properties or contraband which could be found in the residence of Miss Elizabeth Dimaano? A. The Intelligence Operatives conducted surveillance together with the MSU elements. for instance. They just gave us still unconfirmed report about some hidden items. sir.50[50] xxx Q. your Honor. Q. And they so swore before the Municipal Trial Judge? A. you had reason to believe that only weapons were in the house of Miss Elizabeth Dimaano? A. Q. So that when you applied for search warrant. So when Q. 50[50] Ibid. And this became the subject of your complaint with the issuing Court.45 caliber pistol was seized along with one armalite rifle M-16 and how many ammunition? A.You stated that a . the communications equipment and money. 136-138.41 A. Yes. sir. I think it was dismissed. Do you know what happened to that case? A.

jewelry and land titles that the raiding team confiscated.42 Q. How about the money seized by your raiding team. they were not also included in the search warrant? A. Q. There were other articles seized which were not included in the search warrant. sir. Because the armalite rifle you seized. I do not really know where it was taken but they brought along also these articles. it might get lost also. That holds true also with respect to the other articles that were seized by your raiding team. I think it was the decision of the overall team leader and his assistant to bring along also the jewelries and other items. communications equipment. Why did you seize the jewelries? A. Yes. but in the course of the search the contents turned out to be money. Q. sir. .52[52] Clearly. I do not really know their reason for bringing the same. the raiding team exceeded its authority when it seized these items. jewelries. I think that was the reason. Yes. These attach cases were suspected to be containing pistols or other high powered firearms. as well as the . Yes sir. So the team leader also decided to take this considering that they believed that if they will just leave the money behind. 144-146. but I believe they were also taken considering that the money was discovered to be contained in attach cases. sir. like Transfer Certificates of Title of lands? A.45 caliber pistol had a Memorandum Receipt in the name of Felino Melegrito. sir. pp. 51[51] Ibid.. like for instance.51 xxx [51] It is obvious from the testimony of Captain Sebastian that the warrant did not include the monies. The raiding team had no legal basis to seize these items without showing that these items could be the subject of warrantless search and seizure. The search warrant did not particularly describe these items and the raiding team confiscated them on its own authority. Q. I think they were contained in one of the vaults that were opened. but I just learned that these were taken because they might get lost if they will just leave this behind. Q. is that not correct? A. In the fiscals office? A.

. We thus hold that these items should be returned immediately to Dimaano. I concur with Mr.R. and referring this case to the Commissioner of the Bureau of Internal Revenue for a determination of any tax liability of respondent Elizabeth Dimaano. (People v.R. Davide. 358 SCRA 373. Tinga. Austria-Martinez. I concur in the separate opinion of J. JJ. 53[53] People v. remanding the records of this case to the Ombudsman for such appropriate action as the evidence may warrant. in the result. People. C. 31 May 2001. Del Rosario v..R. (4) customs searches. are AFFIRMED. J. on official leave. G. the petition for certiorari is DISMISSED. 141699.R. SO ORDERED. G. .43 The seizure of these items was therefore void.. Court of Appeals. 15 January 2002. merely that the search and seizure warrant could not be used as basis to seize and withhold these items from the possessor. 5 September 1997. 31 May 2002. The questioned Resolutions of the Sandiganbayan dated 18 November 1991 and 25 March 1992 in Civil Case No. Callejo. concur. J. we do not declare that such person is the lawful owner of these items. No. No. No. (3) seizure of evidence in plain view. Que Ming Kha. 109250. Bellosillo. Ynares-Santiago. Caballes v. JJ. (2) search of moving vehicles. and (5) waiver by the accused themselves of their right against unreasonable search and seizure. 0037.R. People v. 7 August 2002. they must be returned to the person from whom the raiding seized them.J. 133265. Quisumbing and Sandoval-Gutierrez. G.53[53] and they are not. separate opinion reserved. Lacerna. 136292. JJ. WHEREFORE. However. Jr. 278 SCRA 561). in the result. in the result. Lim. and unless these items are contraband per se. 52[52] Five generally accepted exceptions to the rule against warrantless search and seizure have been judicially formulated as follows: (1) search incidental to a lawful arrest... No.. and Azcuna. Corona. Carpio-Morales. Sr. Justice Vitug in his concurring opinion. G. see separate opinion Panganiban. No.. J.. 142295. G. Puno and Vitug. Reynato Puno.

living in the city of Havana. . resolution set aside. 175 U. She had no arms or ammunition on board. Until stopped by the blockading squadron she had no knowledge of the existence of the war or of any blockade. It sailed under the Spanish flag and was owned by a Spanish subject of Cuban birth. Her master and crew had no interest in the vessel. ergo immunity from suit cannot be effectively invoked. 677 (1900) Facts: These are two appeals from decrees of the district court of the United States for the southern district of Florida condemning two fishing vessels and their cargoes as prize of war. Issue: Whether or not petitioner has state of immunity? Decision: Petition granted. and kept and sold alive. but were entitled to share her catch.44 acts: The Republic seeks to nullify and set aside resolutions of the Sandiganbayan ordering PCGG to pay private respondent Roberto Benedicto or his corporations the value of 277 shares of stock of NOGCCI registered in his name. also residing in Havana. put on board as they were caught. nor any resistance at the time of the capture. caught by her crew from the sea. Her cargo consisted of fresh fish. THE PAQUETE HABANA.S. running in and out of Havana. Each vessel was a fishing smack. Petitioner invokes state immunity from suit claiming that the order to pay the value of the delinquent shares would fix monetary liability on a government agency thus necessitating the appropriation of public funds to satisfy the judgment claim. The state itself is no less the plaintiff in the main case. It was commanded by a subject of Spain. and made on attempt to run the blockade after she knew of its existence. and regularly engaged in fishing on the coast of Cuba. PCGG failed to take stock of one of the exemptions to the state immunity when the government itself is the suitor.

says: 'Nevertheless. beginning centuries ago. Peaceful and wholly inoffensive.' De Cussy. A libel for the condemnation of each vessel and her cargo as prize of war was filed. By an ancient usage among civilized nations. since they . they are not subject either to capture or to confiscation. from capture as prize of war. coast fishing vessels. published in 1855. as in principle. custom admits an exception in favor of boats engaged in the coast fishery. after stating the general rule that the vessels and cargoes of subjects of the enemy are lawful prize. however. saying. There was no other evidence in the record of the value of either vessel or of her cargo. with their cargoes and crews. and was warned not to go into Havana. was captured by the United States steamship Dolphin. Both the fishing vessels were brought by their captors into Key West. She then set for Bahia Honda. in truth. 'Enemy ships. for it results from the unanimous accord of the maritime powers that an exception should be made in favor of coast fishermen. may be called the harvesters of the territorial seas. She left Havana and was captured by the United States gunboat Castine. and no commission or license. when near that port. The Lola (2nd vessel) was a schooner and had a crew of six Cubans. including the master. these boats. but on the next morning. in his work on the Phases and Leading Cases of the Maritime Law of Nations. fishing boats are considered as neutral. in their Treatise on Maritime Prizes. wholly pacific. and gradually ripening into a rule of international law. that 'in time of war the freedom of fishing is respected by belligerents. Ortolan. in the fourth edition of his Regles Internationales et Diplomatie de la Mer. affirms in the clearest language the exemption from capture of fishing boats. those who carry it on. who had a fishing license from the Spanish government. The coastfishing industry is. and no other commission or license. She was stopped by the United States steamship Cincinnati. (The case then discussed instances throughout history where fishing vessels were captured. 'are good prize. Each vessel was sold by auction (the Paquete Habana for the sum of $490 and the Lola for the sum of $800). are free from capture and exempt from all hostilities. Issue: Whether or not the fishing smacks were subject to capture during the war with Spain. pursuing their vocation of catching and bringing in fresh fish. including the master.) It will be convenient to refer to some leading French treatises on international law as determined by the general consent of civilized nations. have been recognized as exempt. and of much less importance in regard to the national wealth that it may produce than maritime commerce or the great fisheries. as well as their crews.45 The Paquete Habana (1st vessel) was a sloop and had a crew of three Cubans. in law. Held: No. Such fishermen are respected by the enemy so long as they devote themselves exclusively to fishing. but was told that she would be allowed to land at Bahia Honda. Not all.' say Pistoye and Duverdy.

Nor has the exemption been extended to ships or vessels employed on the high sea in taking whales or seals or cod or other fish which are not brought fresh to market. cargoes and crews. Whatever may have been its origin. (A lot of opinions of other writers were also included which will not be mentioned in this digest) This review of the precedents and authorities on the subject appears to us abundantly to demonstrate that at the present day. it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. To this subject in more than one aspect are singularly applicable the words uttered by Mr. they are for the most part poor families who seek in this calling hardly more than the means of gaining their livelihood. but because it has been generally accepted as a rule of conduct. became of universal obligation. but are salted or otherwise cured and made a regular article of commerce. but which. speaking for this court: 'Undoubtedly no single nation can change the law of the sea. The exemption. Many of the usages which prevail. vessels employed only for the purposes of discovery or science are considered as exempt from the contingencies of war. It has been usual for the government sending out such an expedition to give notice to other powers. and. with their implements and supplies. it is an established rule of international law. or in such a way as to give aid or information to the enemy. The law is of universal obligation and no statute of one or two nations can create obligations for the world. or in the ordinances of maritime states. doubtless originated in the positive prescriptions of some single state. Like all the laws of nations. nor when military or naval operations create a necessity to which all private interests must give way. and independently of any express treaty or other public act. besides. are exempt from capture as prize of war. By the practice of all civilized nations.' Again. that coast fishing vessels. it accords so well with the rule in use in wars on land. and to give effect to. not because it was prescribed by any superior power. but it is not essential. founded on considerations of humanity to a poor and industrious order of men. and which have the force of law. but it has been so often put in practice. to whom coast fishermen may be likened. whether in the usages of navigation. after observing that there are very few solemn public treaties which make mention of the immunity of fishing boats in time of war. It is of force. which were at first of limited effect. does not apply to coast fishermen or their vessels if employed for a warlike purpose. This rule of international law is one which prize courts administering the law of nations are bound to take judicial notice of.' . of course. when generally accepted. and therefore not subject to capture. that it will doubtless continue to be followed in maritime wars to come. he says: 'From another point of view the custom which sanctions this immunity is not so general that it can be considered as making an absolute international rule.46 confine themselves to gathering in the products thereof. in the absence of any treaty or other public act of their own government in relation to the matter. it rests upon the common consent of civilized communities. and of the mutual convenience of belligerent states. Justice Strong. in regard to peasants and husbandmen. by the general consent of the civilized nations of the world. or in both. unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish.

The cargo of each consisted of fresh fish. and not in a commercial adventure. 1949. caught by her crew from the sea. within the rule of international law. each vessel was of a moderate size. had no interest in the vessel. Torre fled to the Colombian Embassy in Lima. Peru. in return for their toil and enterprise. The case was adjudged that the capture was unlawful and without probable cause ordered that the proceeds of the sale of the vessel. in Peru. Subsequently.47 In the case. the other third going to her owner by way of compensation for her use. and was captured when returning along the coast of Cuba. 3 months after the rebellion. accused of taking part in a military rebellion in Peru. such as is not unusual in coast fishing smacks. Each vessel went out from Havana to her fishing ground. Was Columbia entitled to make a unilateral and definitive qualification of the offence (as a political offence) in a manner binding on Peru and was Peru was under a legal obligation to provide safe passage for the Peruvian to leave Peru? Facts of the Case: Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the crime of military rebellion” which took place on October 3. two thirds of her catch. the . be restored to the claimant. Overview: Columbia granted asylum to a Peruvian. The crew of each were few in number. The Colombian Ambassador confirmed that Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru. with damages and costs. we cannot doubt that each was engaged in the coast fishery. Although one of the vessels extended her fishing trip. and was regularly engaged in fishing on the coast of Cuba. together with the proceeds of any sale of her cargo. and received. and kept alive on board.

and on which Colombia relied to justify its unilateral qualification. which accepts the right of unilateral qualification. 12. The court stated that in the normal course of granting diplomatic asylum a diplomatic representative has the competence to make a provisional qualification of the offence (for example. In the Torre’s case. as the territorial State. 15). Questions before the Court: (1) Is Colombia competent. The Convention. Colombia also argued that regional or local customs support the qualification. to unilaterally qualify the offence for the purpose of asylum under treaty law and international law? 1. was Peru. The court had to decide if such a decision was binding on Peru either because of treaty law (in particular the Havana Convention of 1928 and the Montevideo Convention of 1933). as the country that grants asylum. The Montevideo Convention of 1933. to unilaterally qualify the offence for the purpose of asylum under treaty law and international law? (2) In this specific case. other principles of international law or by way of regional or local custom. Peru refused to accept the unilateral qualification and refused to grant safe passage. as the State granting asylum. 2. The court held that the burden of proof on the existence of an alleged customary law rests with the party making the allegation: . 13). The court held that there was no expressed or implied right of unilateral and definitive qualification of the State that grants asylum under the Havana Convention or relevant principles of international law (p. 3. bound to give a guarantee of safe passage? (3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter called the Havana Convention) when it granted asylum and is the continued maintenance of asylum a violation of the treaty? The Court’s Decision: Relevant Findings of the Court: (1) Is Colombia competent. was not binding on Peru and considering the low numbers of ratifications the provisions of the latter Convention cannot be said to reflect customary international law (p. that it is competent to qualify the nature of the offence in a unilateral and definitive manner that is binding on Peru. Colombia has asserted. was not ratified by Peru. as a political offence) and the territorial State has the right to give consent to this qualification.48 Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the same as the Refugee Convention of 1951). as the country that grants asylum. per say.

it would not be binding on Peru. Similarly in the North Sea Continental Shelf Cases the court held ‘in any event the .” 4. 1948 and see also Nicaragua case. The court held that Columbia did not establish the existence of a regional custom because it failed to prove consistent and uniform usage of the alleged custom by relevant States. and the practice has been so much influenced by considerations of political expediency in the various cases.” 5. which were the first to include a rule concerning the qualification of the offence [as “political” in nature] in matters of diplomatic asylum. as the State granting asylum. the lesson on persistent objectors. rule would appear to be inapplicable as against Norway in as much as she had always opposed any attempt to apply it to the Norwegian coast’. . there has been so much inconsistency in the rapid succession of conventions on asylum. The fluctuations and contradictions in State practice did not allow for the uniform usage (see also Mendelson. But it has not shown that the alleged rule of unilateral and definitive qualification was invoked or … that it was.) 6. The court concluded that Columbia. is not competent to qualify the offence by a unilateral and definitive decision.” (See in this regard. the legal impact of fluctuations of State practice). The court held that even if Colombia could prove that such a regional custom existed. has. apart from conventional stipulations. binding on Peru. p. . and that this usage is (3) the expression of a right appertaining to the State granting asylum (Columbia) and (4) a duty incumbent on the territorial State (in this case. This follows from Article 38 of the Statute of the Court. mutually accepted as law. exercised by the States granting asylum as a right appertaining to them and respected by the territorial States as a duty incumbent on them and not merely for reasons of political expediency. on the contrary. repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939. so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on various occasions. 98.49 “The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party… (that) it is in accordance with a (1) constant and uniform usage (2) practiced by the States in question. Peru). The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction. because Peru “far from having by its attitude adhered to it. which refers to international custom “as evidence of a general practice accepted as law(text in brackets added). ratified by some States and rejected by others. with regard to the alleged rule of unilateral and definitive qualification of the offence. . The court also reiterated that the fact that a particular State practice was followed because of political expediency and not because of a belief that the said practice is binding on the State by way of a legal obligation (opinio juris) is detrimental to the formation of a customary law (see North Sea Continental Shelf Cases and Lotus Case for more on opinio juris): “[T]he Colombian Government has referred to a large number of particular cases in which diplomatic asylum was in fact granted and respected. that it is not possible to discern in all this any constant and uniform usage.

military camps or military aircraft. warships. the person-seeking asylum must not be accused of a common crime (for example. as the territorial State. In this case the Peruvian government had not asked that Torre leave Peru. a plain reading of Article 2 results in an obligation on the territorial state (Peru) to grant safe passage only after it requests the asylum granting State (Columbia) to send the person granted asylum outside its national territory (Peru). The court . in other words. The court looked at the possibility of a customary law emerging from State practice where diplomatic agents have requested and been granted safe passage for asylum seekers. Once more. it contested the legality of asylum granted to him and refused to grant safe conduct. bound to give a guarantee of safe passage? 7.50 (2) In this specific case. the presence of “an imminent or persistence of a danger for the person of the refugee”. 11. which the court concluded was not a common crime and as such the granting of asylum complied with Article 1 of the Convention.The accusations that are relevant are those made before the granting of asylum. murder would constitute a common crime. In other words.” 10. The court held that there was no legal obligation on Peru to grant safe passage either because of the Havana Convention or customary law. shall be respected to the extent in which allowed.” 12. Torre’s accusation related to a military rebellion. as a right or through humanitarian toleration. is legally bound to accede to it. An essential pre-requisite for the granting of asylum is the urgency or. Article 1 of the Havana Convention states that “It is not permissible for States to grant asylum… to persons accused or condemned for common crimes… (such persons) shall be surrendered upon request of the local government. before the territorial State could request for his departure. “There exists undoubtedly a practice whereby the diplomatic representative who grants asylum immediately requests a safe conduct without awaiting a request from the territorial state for the departure of the refugee…but this practice does not and cannot mean that the State. to whom such a request for safe-conduct has been addressed. On the contrary. 8. was Peru. Article 2 (2) of the Havana Convention states that “Asylum granted to political offenders in legations. the court held that these practices were a result of a need for expediency and other practice considerations over an existence of a belief that the act amounts to a legal obligation (see paragraph 4 above). while a political offence would not).” (3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum and is the continued maintenance of asylum a violation of the treaty? 9. In the case of the Havana Convention. by the usages. the conventions or the laws of the country in which granted and in accordance with the following provisions: First: Asylum may not be granted except in urgent cases and for the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety.

including the 3 months that passed between the rebellion and the time when asylum was sought. would come into conflict with one of the most firmly established traditions of Latin-America. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. moreover. did not establish the urgency criteria in this case (pp. it is inconceivable that the Havana Convention could have intended the term “urgent cases” to include the danger of regular prosecution to which the citizens of any country lay themselves open by attacking the institutions of that country… In principle. 17. As a result. Torre was not in such a situation at the time when he sought refuge in the Colombian Embassy at Lima. Torre was accused of a crime but he could not be tried in a court because Colombia granted him asylum.” 15.51 held that the facts of the case. arbitrary action is substituted for the rule of law.” (for example during a mob attack where the territorial State is unable to protect the offender). The court held: “In principle. Asylum may be granted on “humanitarian grounds to protect political prisoners against the violent and disorderly action of irresponsible sections of the population. in the guise of justice. An exception to this rule (asylum should not be granted to those facing regular prosecutions) can occur only if. exceptions to this rule are strictly regulated under international law. by Colombia into the internal affairs of another State like Peru]…. The court held that “protection from the operation of regular legal proceedings” was not justified under diplomatic asylum. In other words. The court concluded that the grant of asylum and reasons for its prolongation were not in conformity with Article 2(2) of the Havana Convention (p. Protection thus understood would authorize the diplomatic agent to obstruct the application of the laws of the country whereas it is his duty to respect them… Such a conception. . non-intervention [for example. 14. Such would be the case if the administration of justice were corrupted by measures clearly prompted by political aims. The court held: “In the case of diplomatic asylum the refugee is within the territory of the State. 20 -23). namely. Such a derogation from territorial sovereignty cannot be recognised unless its legal basis is established in each particular case. 25).” 13. 16. the safety which arises out of asylum cannot be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted tribunals. asylum cannot be opposed to the operation of justice. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Asylum protects the political offender against any measures of a manifestly extralegal character which a Government might take or attempt to take against its political opponents… On the other hand.

and in consequence.52 “The grant of asylum is not an instantaneous act which terminates with the admission. Year of Decision: 1969. Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement for forming customary international law – State practice (objective element) and opinio juris (subjective element). Any grant of asylum results in. It elaborated the criteria necessary to establish State practice – widespread and representative participation. and Court: ICJ.” Name of the Case: The North Sea Continental Shelf Cases (Germany/Denmark. at a given moment of a refugee to an embassy or a legation. NB: This post discussed only aspects of the case related to treaty or customary international law. the asylum is granted as long as the continued presence of the refugee in the embassy prolongs this protection. Germany/Netherlands). logically implies. The case highlighted that the State practice . a state of protection.

The case involved the delimitation of the continental shelf areas in the North Sea between Germany and Denmark and Germany and Netherlands beyond the partial boundaries previously agreed upon by these States. The parties disagreed on the applicable principles or rules of delimitation – Netherlands and Denmark relied on the principle of equidistance (the method of determining the boundaries in such a way that every point in the boundary is equidistant from the nearest points of the baselines from which the breath of the territorial sea of each State is measured). the court had to decide if the principles espoused by the parties were binding on the parties either through treaty law or customary international law. It also identified the fact that uniform and consistent practice was necessary to show opinio juris – a belief that the practice amounts to a legal obligation. Germany stated that due to its concave coastline. Contrary to Denmark and Netherlands. Germany sought to get a decision in favour of the notion that the delimitation of the relevant continental shelf is governed by the principle that each coastal state is entitled to a just and equitable share (hereinafter called just and equitable principle/method). The North Sea Continental Self Cases also dispelled the myth that duration of the practice (i. In doing so. The parties requested the ICJ to decide the principles and rules of international law that are applicable to the above delimitation. by agreement. together. after the determination of the ICJ on the applicable principles. contained in Article 6 of the Geneva Convention.53 of importance were of those States whose interests were affected by the custom. the number of years) was an essential factor in forming customary international law. The Court had to decide the principles and rules of international law applicable to this delimitation. The court was not asked to delimit – the parties agreed to delimit the continental shelf as between their countries. these two boundaries would produce an inequitable result for her.e. Germany argued that the principle of equidistance was neither a mandatory rule in delimitation of the continental shelf nor a rule of customary international law that was not binding on Germany. An agreement on further prolongation of the boundary proved difficult because Denmark and Netherlands wished this prolongation to take place based on the equidistance principle (B-E and D-E) where as Germany was of the view that. Questions before the Court (as relevant to this post): Is Germany under a legal obligation to accept the equidistance-special circumstances principle. such a line would result in her loosing out on her share of the continental shelf based on proportionality to the length of its North Sea coastline. either as a customary international law rule or on the basis of the Geneva Convention? The Court’s Decision: . Facts of the Case: Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle (A-B and C-D).

It clearly stipulates that an obligation arises for a third State from a provision of a treaty only if (1) the parties to the treaty intend the provision to create this obligation for the third States. or has recognized it as being generally applicable to the delimitation of continental shelf areas… (2) the Federal Republic had held itself out as so assuming. 3. discusses more fully the obligations of third States to treaties. Relevant Findings of the Court: Nature of the treaty obligation: Is the 1958 Geneva Convention. in such a manner as to cause other States. The Court rejected the first argument. as seen above. and (2) the third State expressly accepts that obligation in writing (A. The latter two States argue that while Germany is not a party to the Convention (not having ratified it). even if one were to assume that Germany had intended to become a party to the Convention. she is still bound by Article 6 of the Convention because: “…(1) by conduct. or has manifested its acceptance of the conventional regime. .e. Germany has signed but not ratified the Geneva Convention. 2. to rely on the attitude thus taken up” (the latter is called the principle of estoppel). by public statements and proclamations. accepting or recognizing. and in other ways. The VCLT was not in force when the ICJ deliberated on this case. the Republic has unilaterally assumed the obligations of the Convention.e. However. (See the relevant provisions of the Vienna Convention on the Law of Treaties). The Court held that Germany had not unilaterally assumed obligations under the Convention. ratification) when the State was ‘at all times fully able and entitled to…’ accept the treaty commitments in a formal manner. she had the option of entering into a reservation on Article 6 following which that particular article would no longer be applicable to Germany (i.54 The use of the equidistance method had not crystallised into customary law and was is not obligatory for the delimitation of the areas in the North Sea related to the present proceedings. It stated that only a ‘very definite very consistent course of conduct on the part of a State’ would allow the court to presume that a State had somehow become bound by a treaty (by a means other than in a formal manner: i. and in particular Denmark and the Netherlands. binding on Germany? 1. The court also took notice of the fact that even if Germany ratified the treaty. the equidistance method would apply (see Article 6). and in particular Article 6. 35 of the VCLT). which came into force in 1980. the ICJ’s position was consistent the VCLT. Article 6 of the Geneva Convention on the Continental Shelf states that unless the parties have agreed on a method for delimitation or unless special circumstances exist. while Netherlands and Denmark are parties to the Convention. it does not presuppose that it would have also undertaken those obligations contained in Article 6). NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT).

did not form a part of existing or emerging customary international law at the time of drafting the Convention. The court held the principle of equidistance. must have equal force for all members of the international community. the court held that Germany had not acted in any way to incur obligations contained in Article 6 of the Geneva Convention. the court examined (1) the status of the principle contained in Article 6 as it stood when the Convention was being drawn up (2) and after the latter came into force. 5. Therefore. by their very nature. Germany is bound by it by way of customary international law. The normal inference would therefore be that any articles that do not figure among those excluded from the faculty of reservation under Article 12. some faculty of making unilateral reservations may. The court also held that the mere fact that Germany may not have specifically objected to the equidistance principle as contained in Article 6 is not sufficient to state that the principle is now binding upon it. The court held: … Article 6 is one of those in respect of which. To decide if the equidistance principle bound Germany by way of customary international law. What was the customary law status of Article 6 at the time of drafting the Convention? 8. within certain limits. The Court supported this finding based on (1) the hesitation expressed by the drafters of the Convention – International Law Commission – on the inclusion of Article 6 (para. and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favor…. were not regarded as declaratory of previously existing or emergent rules of law (see para 65 for a counter argument and the court’s careful differentiation)…” . 62) and (2) the fact reservations to Article 6 was permissible under the Convention (Article 12). Nature of the customary international law obligation: Is Germany bound by the provisions of Article 6 of the Geneva Convention by way of customary international law? 6. In conclusion. under the reservations article of the Convention (Article 12) reservations may be made by any State on signing. The court held that the existence of a situation of estoppel would have allowed Article 6 to become binding on Germany – but held that Germany’s action did not support an argument for estoppel. ratifying or acceding for. 7. it is a characteristic of purely conventional rules and obligations that. as contained in Article 6. in regard to them. speaking generally. whereas this cannot be so in the case of general or customary law rules and obligations which. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of general international law on the subject of continental shelf delimitation’ and existed independently of the Convention. be admitted. The equidistance – special circumstances rule was not binding on Germany by way of treaty.55 4. they argued.

including States whose interests were specially affected (i. Duration 12. an indispensable requirement would be that within the period in question. The number of ratifications and accessions to the convention (39 States) were not adequately representative (including of coastal States – i.e. The court held that Article 6 of the Convention had not attained a customary law status (compare the 1958 Geneva Convention with the four Geneva Conventions on 1949 in the field of international humanitarian law in terms of its authority as a pronouncement of customary international law).. uniform usage and the existence of an opinio juris.e. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case) in so far as those acts or omissions are done following a belief that the said State is obligated by law to act or refrain from acting in a particular way. or because of subsequent State practice (i. State practice. short though it might be. duration) for the formation of a customary law. In the North Sea Continental Shelf cases the court held that the passage of a considerable period of time was unnecessary (i. 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 court held that the first criteria was not met. The court held that duration taken for the customary law rule to emerge is not as important as widespread and representative participation.e. Widespread and representative participation 11. should have been both extensive and virtually uniform in the sense of the provision invoked and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved (text in brackets added). “Although the passage of only a short period of time (in this case. The court then examined whether the rule contained in Article 6 had become customary international law after the Convention entered into force – either due the convention itself (i. For a customary rule to emerge the court held that it needed: (1) very widespread and representative participation in the convention.e. 3 – 5 years) is not necessarily. even if adequate number of States had not ratified the Convention one could find sufficient State practice to meet the criteria below). including that of States whose interests are specially affected.56 Did the provisions in Article 6 on the equidistance principle attain the customary law status after the Convention came into force? 9. if enough States had ratified the Convention in a manner to fulfil the criteria specified below). or of itself. .” Opinio juris 13. generality). those States whose rights are affected) or widespread. opinio juries). 10.e. (For more on opinio juris click here).e.e. consistent and uniform usage) undertaken in a manner that demonstrates (3) a general recognition of the rule of law or legal obligation (i. and (2) virtually uniform practice (i.

after the Convention came into force (paras.e.. but which are motivated only by considerations of courtesy. as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. convenience or tradition. the court held that the use of the equidistance method is not obligatory for the delimitation of the areas concerned in the present proceedings. is implicit in the very notion of the opinio juris sive necessitatis. or even habitual character of the acts is not in itself enough. This is consistent with Article 38 (1) (b) of the Statute of the ICJ. The frequency. There are many international acts. The North Sea Continental Shelf Cases confirmed that both State practice (the objective element) and opinio juris (the subjective element) are essential pre-requisites for the formation of a customary law rule. which are performed almost invariably. 15. in the field of ceremonial and protocol. i. The Court examined 15 cases where States had delimited their boundaries using the equidistance method. The following explains the concept of opinio juris and the difference between customs (i. 75 -77). but they must also be such.e. habits) and customary law: Not only must the acts concerned amount to a settled practice.57 14. the principle had not attained a customary international law status at the time of the entry into force of the Geneva Convention or thereafter. or be carried out in such a way. The court concluded that the equidistance principle was not binding on Germany by way of treaty or customary international law because. As such.g. . even if there were some State practice in favour of the equidistance principle the court could not deduct the necessary opinio juris from this State practice. in the case of the latter. The need for such a belief. the existence of a subjective element. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. and not by any sense of legal duty. The court concluded. e.

Outcome: Yes. demanding that France (D) cease testing immediately. Australia and New Zealand (P) applied to the !. Issue: May declarations made by way of unilateral acts have the effect of creating legal obligations? Rule: declerations made by way of unilateral acts may have the effect of creating legal obligations. Declarations made by way of unilateral acts may have the effect of creating legal obligations. France (D) moved to dismiss the applications. France) case brief Nuclear Tests Case (Australia & New Zealand v.58 Nuclear Tests Case (Australia & New Zealand v. France (D) announced the series of tests was complete and that it did not plan any further such tests. The sole relevant question is whether the language employed in any given declaration reveals a clear intention.C. France (D) completed a series of nuclear tests in the South Pacific. The general nature and characteristics of the statements alone were relevant for evaluation of their legal implications. The statements made by the French authorities are therefore relevant and legally binding. Overview: Australia and New Zealand (P) demanded that France (D) cease atmospheric nuclear tests in the South Pacific. France) Procedural History: Proceeding before the International Court of Justice. While the case was pending. To have legal effect there was no need tor the statements to be directed to any particular state. One of the basic principles governing the creation and performance of legal obligations is the principle of good faith. Analysis: The unilateral statements made by French authorities were first communicated to the government of Australia.). . Applications dismissed. The statements made by the President of the French Republic must be held to constitute an engagement of the State in regard to the circumstances and intention with which they were made.

the United States devised their strategy and directed their tactics and that they were paid for and directly controlled by United States personal. armed. stated that it relied on an inherent right of collective self-defence guaranteed in A. Nicaragua also alleged that some attacks were carried out by United States military – with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan ports and attacks on ports. Initial US support to these groups fighting against the Nicaraguan Government (called “contras”) was covert. equipped and financed the contra forces or encouraged. the United States “decided to plan and undertake activities directed against Nicaragua”. 126. which operated along the border with Costa Rica. after refusing to accept the ICJ’s jurisdiction to decide the case. Nicaragua also alleged that the United States is effectively in control of the contras. which operated along the border with Honduras. In April 1981 it terminated United States aid to Nicaragua and in September 1981. proportionate and appropriate assistance…” to Costa Rica.59 acts 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) . Questions before the Court:  Did the United States breach its customary international law obligation – not to intervene in the affairs of another State – when it trained. 51 of the UN Charter by “providing. according to the United States. oil installations and a naval base. and (2) Alianza Revolucionaria Democratica (ARDE). The United States at the jurisdictional phase of the hearing. however. The armed opposition to the new Government was conducted mainly by (1) Fuerza Democratica Nicaragüense (FDN). supply to the contras in the field and to intimidate the population. The US – initially supportive of the new government – changed its attitude when. according to Nicaragua. upon request. Nicaragua alleged that aircrafts belonging to the United States flew over Nicaraguan territory to gather intelligence. The United States did not appear before the ICJ at the merit stages. Later. supported and aided the military and paramilitary activities against Nicaragua? . (see map of the region). 128). the United States 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”). The new government – installed by FSLN – began to meet armed opposition from supporters of the former Somoza Government and ex-members of the National Guard. Honduras and El Salvador in response to Nicaragua’s alleged acts aggression against those countries (paras. it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador.

On bullet point 3. assisting or participating in acts of civil strife and terrorist acts in another State – when the acts referred to involve a threat or use of force not amounting to an armed attack). . not to intervene in its affairs. The United States could justify its action on collective self-defence.  In a controversial finding the court sub-classified the use of force as: (1) the “most grave forms of the use of force” (i. The court held that the United States breached its customary international law obligation – not to use force against another State: (1) when it directly attacked Nicaragua in 1983 – 1984. if certain criteria were met – this aspect is discussed below. Relevant Findings of the Court: 1. the Court found that the United States could not rely on collective self-defence to justify its use of force against Nicaragua. oil installations and a naval base (see below).e. 4 and 5 above. It violated this prohibition when it attacked Nicaraguan ports. organizing. The Court held that:  The prohibition on the use of force is found in Article 2(4) of the UN Charter and in customary international law.60  Did the United States 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?  If so. and (2) when its activities with the contra forces resulted in the threat or use of force (see paras 187 -201). 2. instigating. 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: The United States violated customary international law in relation to bullet points 1.e.  The United States violated the customary international law prohibition on the use of force when it laid mines in Nicaraguan ports. those that constitute an armed attack) and (2) the “less grave form” (i. can the military and paramilitary activities that the United States undertook in and against Nicaragua be justified as collective selfdefence?  Did the United States 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?  Did the United States breach its customary international law obligations – not to violate the sovereignty of another State.

61  The United States violated the customary international law 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 participated “in acts of civil strife…in another State” when these acts involved the threat or use of force. 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. irregulars or mercenaries. and that that offensive was planned by the United States. only amounted to an act of intervention in the internal affairs of Nicaragua (para 227) – this aspect is discussed below.  The supply of funds to the contras did not violate the prohibition on the use of force. Nicaragua argued that the timing of the offensives against it was determined by the United States: i. the supply of funds. groups. 230).e. The Court held that “…it does not follow that each provision of funds by the United States was made to set in motion a particular offensive. The Court held that an armed attack included: (1) action by regular armed forces across an international border. an offensive could not be launched until the requisite funds were available.  Assistance to rebels in the form of provision of weapons or logistical support did not constitute an armed attack – it can be regarded as a threat or use of force. or its (the State’s) substantial involvement therein” NB: The second point somewhat resembles Article 3 (g) of the UNGA Resolution 3314 (XXIX) on the Definition of Aggression. NB: In in the Case Concerning Oil Platforms and the advisory opinion on the Legal Consequences of of the Construction of a Wall in the Occupied Palestinian Territory (hereinafter called the Palestine wall case) the ICJ upheld the definition of “armed attack” proposed in the .  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. or an intervention in the internal or external affairs of other States (see paras 195.  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). What is an armed attack?  A controversial but interesting aspect of the Court’s judgement was its definition of an armed attack.” The Court held further that while the arming and training of the contras involved the threat or use of force against Nicaragua. in it self. and (2) “the sending by or on behalf of a State of armed bands.

Buergenthal and Kooijmans opposed this narrow view. 2.  When a State claims that it used force in collective self-defence. together with recent State practice relating attacks on terrorists operating from other countries (see legal opinions surrounding the United States attack on Afghanistan). The United States. Articles on State Responsibility. A third State cannot exercise a right of collective self-defence based its (the third State’s) own assessment]. .e. Judges Higgins. In the Palestinian wall case. 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 would 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. envisaged by the ICJ.193). at an earlier stage of the proceedings. and consequently. may have widened the scope of an armed attack. which was acting in self-defence. prepared by the International Law Commission.  Customary international law allows for exceptions to the prohibition on the use of force – including the right to individual or collective self-defence (for a difference between the two forms of self defence. [NB: the assessment whether an armed attack took place nor not is done by the state who was subjected to the attack. corresponds to the requirements of international law (i. provided significant guidance as to when acts of non-State actors may be attributed to States. did it comply with the principles of necessity and proportionality). However. (2) This State must declare itself as a victim of an armed attack.62 Nicaragua case. click here). the attacks from which Israel was claiming self defence originated from non-State actors. The Court held that the United States could not justify its military and paramilitary activities on the basis of collective self-defence. the Court held that Article 51’s inherent right of self defence was available to one State only against another State (para 139). had asserted that the Charter itself acknowledges the existence of this customary international law right when it talks of the “inherent” right of a State under Article 51 of the Charter (para. These articles. the right of 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.

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. The Court concluded that the United States cannot justify its use of force as collective self-defence. Whatever influence the Charter may have had on customary international law in these matters. equipped and financed the contra . if reflected in customary international law. As the Court has observed above (paragraphs 178 and 188). and (2) the United States 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. The Court referred to statements made by El Salvador. may well be so unencumbered with the conditions and modalities surrounding it in the treaty. Honduras and the United States before the Security Council. should have been followed. 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). 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 paras 200.  The criteria with regard to necessity and proportionality. Costa Rica. The Court held that the United States breached its CIL obligation – not to intervene in the affairs of another State – when it trained. 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.63 (4) The State does not. a principle enshrined in a treaty. El Salvador. 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.  The Court looked extensively into the conduct of Nicaragua. Thus for the purpose of enquiry into the customary law position. by which the State claiming to use the right of individual or collective self-defence must report to an international body. “At this point. 232 -236)”. it is to be expected that the conditions of the Charter should be respected. 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). that is necessary when using force in self-defence – was also not fulfilled (para 237). 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 United States in self-defence – at the time when the United States was allegedly acting in collective self-defence. 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. 3. On the other hand. armed. under customary international law.

whether or not the political objective of the State giving such support and assistance is equally far reaching. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted. to decide freely (see paragraph 205 above) . the Court held that the United States did not devise the strategy. that the United States intended. prohibited intervention. which defines. intelligence and logistic support given by the United States to the contras was a breach of the principle of non-interference. either in the direct form of military action. This is a corollary of the principle of sovereign equality of States. training. The Court “…first. social and cultural system.64 forces or encouraged. even if such a request for assistance is made by an opposition group of that State (see para 246 for more).  However.  The principle of non. by its support of the contras.  Nicaragua stated that the overthrow the government economy and weaken the Nicaragua to accept various held: activities of the United States were aimed to of Nicaragua and to substantially damage the political system to coerce the Government of political demands of the United States. which must remain free ones. is particularly obvious in the case of an intervention which uses force. “…no such general right of intervention.intervention means that every State has a right to conduct its affairs without outside interference – i. in support of an opposition within another State. that amounts to an intervention by the one State in the internal affairs of the other. by the principle of State sovereignty.” . Intervention is wrongful when it uses methods of coercion in regard to such choices. if one State. The element of coercion. direct the tactics of the contras or exercise control on them in manner so as to make their acts committed in violation of international law imputable to the United States (see in this respect “Determining US responsibility for contra operations under international law” . and the formulation of foreign policy. in a controversial finding.e it “…forbids States or groups of States to intervene directly or indirectly in internal or external affairs of other States. One of these is the choice of a political. economic. and indeed forms the very essence of. by the principle of State sovereignty to decide freely. supports and assists armed bands in that State whose purpose is to overthrow the government of that State. supported and aided the military and paramilitary activities against Nicaragua. to coerce the Government of Nicaragua in respect of matters in which each State is permitted. or in the indirect form of support for subversive or terrorist armed activities within another State (para 205). with a view to the coercion of another State. and secondly that the intention of the contras themselves was to overthrow the present Government of Nicaragua… The Court considers that in international law. supply of weapons. exists in contemporary international law”.”  The financial support.

if not actually by United States advisers.”  Interesting. cannot be regarded as unlawful intervention. the selection of its military or paramilitary targets. the victim State has a right to intervene in a manner that is short of an armed attack (210). On the other hand. “While an armed attack would give rise to an entitlement to collective self-defence. It is a fortiori unable to determine that the contra force may be equated for legal purposes with the forces of the United States…The Court has taken the view (paragraph 110 above) that United States participation. that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State.  In the event one State intervenes in the affairs of another State. training. would not in themselves mean. could only have justified proportionate counter-measures on the part of . even if preponderant or decisive. supplying and equipping of the contras. for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above. and the planning of the whole of its operation. However. organizing.65 81 AMJIL 86). in the financing. it indicates that in the initial years of United States assistance the contra force was so dependent. however. For this conduct to give rise to legal responsibility of the United States. The Court already indicated that it has insufficient evidence to reach a finding on this point. then at least in close collaboration with them. “In sum. or as in any other way contrary to international law” (para 242).T he Court concluded that “a number of military and paramilitary operations of the contras were decided and planned. and on the basis of the intelligence and logistic support which the United States was able to offer. the Court also held that providing “…humanitarian aid to persons or forces in another country. it would in principle have to be proved that that State had effective control of the military or paramilitary. Such acts could well be committed by members of the contras without the control of the United States. but is insufficient to demonstrate their complete dependence on United States aid. the evidence available to the Court indicates that the various forms of assistance provided to the contras by the United States have been crucial to the pursuit of their activities. produce any entitlement to take collective countermeasures involving the use of force. a use of force of a lesser degree of gravity cannot as the Court has already observed (paragraph 21 1 above). whether the United States Government at any stage devised the strategy and directed the tactics of the contras depends on the extent to which the United States made use of the potential for control inherent in that dependence. particularly the supply aircraft provided to the contras by the United States” but not all contra operations reflected strategy and tactics wholly devised by the United States. is still insufficient in itself. even assuming them to have been established and imputable to that State. whatever their political affiliations or objectives. The acts of which Nicaragua is accused. without further evidence. on the basis of the evidence in the possession of the Court. and even the general control by the respondent State over a force with a high degree of dependency on it.

the United States. namely El Salvador. The United States did not issue any warning on the location or existence of mines and this resulted in injuries and increases in maritime insurance rates. The United States 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. G. its territorial sea and the air space above its territory. complained of as causing sonic booms. They could not justify counter-measures taken by a third State.  The court found that the United States also carried out high-altitude reconnaissance flights over Nicaraguan territory and certain low-altitude flights.  The basic concept of State sovereignty in customary international law is found in Article 2(1) of the UN Charter.” 4.  The ICJ examined evidence and found that in early 1984 mines were laid in or close to ports of the territorial sea or internal waters of Nicaragua “by persons in the pay or acting ion the instructions” of the United States and acting under its supervision with its logistical support. The United States violated customary international law when it laid mines in the territorial sea and internal waters of Nicaragua and when it carried out unauthorised overflights over Nicaraguan airspace by aircrafts that belong to or was under the control of the United States. No. petitioners. and particularly could not justify intervention involving the use of force. vs. . TAÑADA et al. State sovereignty extends to a State’s internal waters. Honduras or Costa Rica. et al. 118295 May 2. respondents.R.66 the State which had been the victim of these acts. EDGARDO ANGARA. 1997 WIGBERTO E.

While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level. cooperation and amity. with all nations. 2.” By the doctrine of incorporation. restrict. The Senate was acting in the proper manner when it concurred with the President’s ratification of the agreement. Held: No. Unquestionably. 1987 Philippine Constitution is ‘vested in the Congress of the Philippines. and impair the Philippine sovereignty. expressly or impliedly. the Constitution “adopts the generally accepted principles of international law as part of the law of the land. the Constitution did not envision a hermit-type isolation of the country from the rest of the world. They contended that WTO agreement violates the mandate of the 1987 Constitution to “develop a self-reliant and independent national economy effectively controlled by Filipinos x x x (to) give preference to qualified Filipinos (and to) promote the preferential use of Filipino labor. as a member of the family of nations. restrict and impair Philippine sovereignty specifically the legislative power which. freedom. it is however subject to restrictions and limitations voluntarily agreed to by the Philippines. particularly the legislative power granted by the Philippine Constitution. Issue: Whether provisions of the Agreement Establishing the World Trade Organization unduly limit. the assignment of public officials and employees. limits and/or impairs” the constitutional powers of both Congress and the Supreme Court. justice.” . “A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties x x x. for brevity) and for the prohibition of its implementation and enforcement through the release and utilization of public funds. A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken. 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 WTO agreement does not unduly limit. Article VI. under Sec. and adheres to the policy of peace. the country is bound by generally accepted principles of international law. One of the oldest and most fundamental rules in international law is pacta sunt servanda — international agreements must be performed in good faith. domestic materials and locally produced goods” as (1) 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. on constitutional grounds.67 Facts: Petitioners prayed for the nullification. which are considered to be automatically part of our own laws. equality. as well as the use of government properties and resources by respondent-heads of various executive offices concerned therewith. In its Declaration of Principles and State Policies.

the sale or cession of territory. the regulation of conduct of hostilities. and in pursuit of mutually covenanted objectives and benefits. The sovereignty of a state therefore cannot in fact and in reality be considered absolute. “Today. no nation can build its destiny alone. Thus. 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.April 12. The age of interdependence is here. Indeed. the lease of naval bases. After all. Filipino managers and Filipino enterprises have shown capability and tenacity to compete internationally. for example. As aptly put by John F.” The WTO reliance on “most favored nation. the settling of claims. the formation of alliances. Kennedy. live with coequals. the termination of war. 2005 . but one in favor of the gradual development of robust industries that can compete with the best in the foreign markets. treaties have been used to record agreements between States concerning such widely diverse matters as.” thereby demonstrating a clear policy against a sheltered domestic trade environment. Aside from envisioning a trade policy based on “equality and reciprocity. treaties really limit or restrict the absoluteness of sovereignty. WHEREFORE. like individuals. 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.68 By their inherent nature. By their voluntary act. they also commonly agree to limit the exercise of their otherwise absolute rights.” 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. the petition is DISMISSED for lack of merit GR No. The age of self-sufficient nationalism is over.” “national treatment. states. nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact.” the fundamental law encourages industries that are “competitive in both domestic and foreign markets. And given a free trade environment. the laying down of rules governing conduct in peace and the establishment of international organizations. 139325 . the regulation of commercial relations.

in his capacity as Presiding Judge of Branch 137. such courts are not vested with such jurisdiction. No. As such. respondents. Jr.00 as docket and filing fees based on Rule 141. Regional Trial Court. namely: Imelda R. filed a MTD alleging the nonpayment of the correct filing fees. the Final Judgment of the US District Court. et al. United States District Court of Hawaii. Makati City. Dollars in compensatory and exemplary damages for tortuous violations of international law in the US District Court of Hawaii. the Petitioners erred in stating that the Final Judgment is incapable of pecuniary estimation because it is so capable. Facts: Invoking the Alien Tort Act. As a consequence. 2005] PRISCILLA C. Petitioners filed a Complaint with the Regional Trial Court of Makati for the enforcement of the Final Judgment. paying Php 410. and the ESTATE OF FERDINAND E.9 Billion U. United States District Court of Hawaii. Issue: Whether or not the amount paid by the Petitioners is the proper filing fee? Ruling: Yes. SR. which Petitioners had not paid.S. This Final Judgment was affirmed by the US Court of Appeals. Section 33 of . The Regional Trial Court of Makati dismissed the Complaint stating that the subject matter was capable of pecuniary estimation as it involved a judgment rendered by a foreign court ordering the payment of a definite sum of money allowing for the easy determination of the value of the foreign judgment. LAMANGAN in their behalf and on behalf of the Class Plaintiffs in Class Action No. MARIANI DIMARANAN. 139325.69 [G. LORETTA ANN P. MDL 840. NARCISO. HON..R. but on a different basis—amount merely corresponds to the same amount required for “other actions not involving property”. On this point. SANTIAGO JAVIER RANADA. The Estate of Marcos however. April 12. MARCOS. petitioners Mijares. The Petitioner’s Complaint was lodged against the Estate of Marcos but it is clearly based on a judgment. petitioners. SFIC. Section 7(b) where the value of the subject matter is incapable of pecuniary estimation. However. all of whom suffered human rights violations during the Marcos era. vs. the proper filing fee was 472 Million Philippine pesos. MeTC. Under Batasang Pambansa 129.*. MIJARES. Marcos and Ferdinand Marcos. and JOEL C. The Regional Trial Court of Makati erred in concluding that the filing fee should be computed on the basis of the total sum claimed or the stated value of the property in litigation. obtained a Final Judgment in their favor against the Estate of the late Ferdinand Marcos amounting to roughly 1. Petitioners state that this might lead to an instance wherein a first level court (MTC. etc. through its court appointed legal representatives in Class Action MDL 840. HILDA B.) would have jurisdiction to enforce a foreign judgment. ROSALES.

Pena-Irala case brief. it is also an action based on judgment against an estate. the Complaint to enforce the US District Court judgment is one capable of pecuniary estimations but at the same time. Thus.” Filartiga v.70 Batasang Pambansa 129 refers to instances wherein the cause of action or subject matter pertains to an assertion of rights over property or a sum of money. But here. involving “other actions not involving property. thus placing it beyond the ambit of Section 7(a) of Rule 141. 630 F. What governs the proper computation of the filing fees over Complaints for the enforcement of foreign judgments is Section7(b)(3).2d 876 (1980) . the subject matter is the foreign judgment itself. Section 16 of Batasang Pambansa 129 reveals that the complaint for enforcement of judgment even if capable of pecuniary estimation would fall under the jurisdiction of the Regional Trial Courts.

"  The Court also noted that the extent of those rights and freedoms is debatable. committed in violation of the law of nations or of a treaty of the United States. but surely includes the right to not to be tortured and killed. o Trial Court found that the "law of nations" as used in the ATS does not govern a State's treatment of its own citizens.   The Court was stating that they did not have jurisdiction over what Paraguayan officials did to Paraguayan citizens on Paraguayan soil. Filartiga appealed. and stated that "the law of nations" should be interpreted as customary international law.S. Filartiga's son was tortured and murdered by a Paraguayan official named Pena-Irala (where does one get a name like that!?) in the state of Paraguay.  Official torture is prohibited by the law of nations. o Filartigia tried to get justice in Paraguay. 677 (1900))]. o The killing was politically motivated. Appellate Court reversed: (looks like he will get some justice after all!) o The Appellate Court looked to [The Paquette Habana (175 U. was unsuccessful. and was sued by Filartiga (who lived in the US) under the ATS. §1350) provides: " the district courts shall have original jurisdiction of any civil action by an alien for a tort only.71 Filartiga v.2d 876 (1980) Alien Tort Statute (ATS) (28 U. and during the 1980s. FACTS Filartiga was a Paraguayan dissident." This law was pretty much never used between the time it was enacted (1789).S.C. there exists a set of "human rights and fundamental freedoms. (Maybe he will get some justice now!) PROCEDURAL HISTORY  The Trial Court dismissed the claim. (this is a good thing!) . o The Court found that under customary international law. Pena-Irala 630 F. :(  Pena-Irala came to the US on vacation.

72 o The Court found that Filartigia actually did have a claim under the ATS since Pena-Iralia was accused of violating the law of nations. .