Rene A.V. Saguisag v.
Executive Secretary Paquito traditions and those involving arrangements of a more
Ochoa
G.R. No. 212426 & 212444; January 12, 2016
Ponente: C.J. Sereno
FACTS: The Enhanced Defense Cooperation
Agreement (EDCA) is an executive agreement that
gives U.S. troops, planes and ships increased
rotational presence in Philippine military bases and
allows the U.S. to build facilities to store fuel and
equipment there. It was signed against the backdrop
of the Philippines' maritime dispute with China over
the West Philippine Sea.
The US embassy and DFA exchanged diplomatic
notes confirming all necessary requirements for the
agreement to take force. The agreement was signed
on April 2014. President Benigno Aquino III ratified the
same on June 2014. It was not submitted to Congress
on the understanding that to do so was no longer
necessary.
Petitions for Certiorari were filed before the Supreme
Court assailing the constitutionality of the agreement.
Herein petitioners now contend that it should have
been concurred by the senate as it is not an
executive agreement. The Senate issued Senate
Resolution No. 105 expressing a strong sense that in
order for EDCA to be valid and binding, it must first be
transmitted to the Senate for deliberation and
concurrence.
ISSUE: Whether or not the EDCA between the
Philippines and the U.S. is constitutional.
RULING: YES. The EDCA is an executive agreement
and does not need the Senate's concurrence. As an
executive agreement, it remains consistent with
existing laws and treaties that it purports to
implement.
Petitioners contend that the EDCA must be in the form
of a treaty duly concurred by Senate. They hinge their
argument under the following Constitutional
provisions:
• Sec. 21, Art. VII: “No treaty or international
agreement shall be valid and effective unless
concurred in by at least 2/3rds of all the Members of
the Senate.”
• Section 25, Article XVIII: “xxx Military Bases,
foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly
concurred in by the Senate xxx”
The President, however, may enter into an executive
agreement on foreign military bases, troops, or
facilities, if (a) it is not the instrument that allows the
presence of foreign military bases, troops, or facilities;
or (b) it merely aims to implement an existing law or
treaty
In Commissioner of Customs v. Eastern Sea Trading:
Executive Agreements are defined as international
agreements embodying adjustments of detail
carrying out well-established national policies and
or less temporary nature.
Treaties are formal documents which require
ratification with the approval of two-thirds of the
Senate. The right of the Executive to enter into binding
agreements without the necessity of subsequent
Congressional approval has been confirmed by long
usage.
The Visiting Forces Agreement – a treaty ratified by
the Senate in 1999 – already allowed the return of US
troops. EDCA is consistent with the content, purpose,
and framework of the Mutual Defense Treaty and the
VFA. The practice of resorting to executive
agreements in adjusting the details of a law or a
treaty that already deals with the presence of foreign
military forces is not at all unusual in this jurisdiction.
In order to keep the peace in its archipelago and to
sustain itself at the same time against the destructive
forces of nature, the Philippines will need friends. Who
they are, and what form the friendships will take, are
for the President to decide. The only restriction is what
the Constitution itself expressly prohibits. EDCA is not
constitutionally infirm. As an executive agreement, it
remains consistent with existing laws and treaties that
it purports to implement.
Petition is DISMISSED.
G. R. No. 138570 October 10, 2000
Bayan vs. Zamora
FACTS:
The United States panel met with the Philippine panel
to discussed, among others, the possible elements of
the Visiting Forces Agreement (VFA). This resulted to a
series of conferences and negotiations which
culminated on January 12 and 13, 1998. Thereafter,
President Fidel Ramos approved the VFA, which was
respectively signed by Secretary Siazon and United
States Ambassador Thomas Hubbard.
Pres. Joseph Estrada ratified the VFA on October 5,
1998 and on May 27, 1999, the senate approved it by
(2/3) votes.
Cause of Action:
Petitioners, among others, assert that Sec. 25, Art XVIII
of the 1987 constitution is applicable and not Section
21, Article VII.
Following the argument of the petitioner, under the
provision cited, the “foreign military bases, troops, or
facilities” may be allowed in the Philippines unless the
following conditions are sufficiently met:
a) It must be a treaty,
b) It must be duly concurred in by the senate, ratified
by a majority of the votes cast in a national
referendum held for that purpose if so required by
congress, and
c) Recognized as such by the other contracting state.
Respondents, on the other hand, argue that Section
21 Article VII is applicable so that, what is requires for
such treaty to be valid and effective is the
concurrence in by at least two-thirds of all the
members of the senate.
ISSUE:
Is the VFA governed by the provisions of Section 21,
Art VII or of Section 25, Article XVIII of the Constitution?
HELD:
Section 25, Article XVIII, which specifically deals with
treaties involving foreign military bases, troops or
facilities, should apply in the instant case. To a certain
extent and in a limited sense, however, the provisions
of section 21, Article VII will find applicability with
regard to the issue and for the sole purpose of
determining the number of votes required to obtain
the valid concurrence of the senate.
The Constitution makes no distinction between
“transient” and “permanent.” We find nothing in
section 25, Article XVIII that requires foreign troops or
facilities to be stationed or placed permanently in the
Philippines.
It is inconsequential whether the United States treats
the VFA only as an executive agreement because,
under international law, an executive agreement is as
binding as a treaty.
EXECUTIVE SUMMARY
The Visiting Forces Agreement, for which Senate
concurrence was sought and received on May 27,
1999, is the subject of a number of Constitutional
challenges.
Issue 1: Do the Petitioners have legal standing as
concerned citizens, taxpayers, or legislators to
question the constitutionality of the VFA?
Petitioners Bayan Muna, etc. have no standing. A
party bringing a suit challenging the
Constitutionality of a law must show not only that the
law is invalid, but that he has sustained or is in
immediate danger of sustaining some direct injury as
a result of its enforcement, and not merely that he
suffers thereby in some indefinite way. Petitioners
have failed to show that they are in any danger of
direct injury as a result of the VFA.
As taxpayers, they have failed to establish that the
VFA involves the exercise by Congress of its taxing or
spending powers. A taxpayer’s suit refers to a case
where the act complained of directly involves the
illegal disbursement of public funds derived from
taxation. Before he can invoke the power of judicial
review, he must specifically prove that he has
sufficient interest in preventing the illegal expenditure
of money raised by taxation and that he will sustain a
direct injury as a result of the enforcement of the
questioned statute or contract. It is not sufficient that
he has merely a general interest common to all
members of the public. Clearly, inasmuch as no
public funds raised by taxation are involved in this
case, and in the absence of any allegation by
petitioners that public funds are being misspent or
illegally expended, petitioners, as taxpayers, have no
legal standing to assail the legality of the VFA.
Similarly, the petitioner-legislators (Tanada, Arroyo,
etc.) do not possess the requisite locus standi to sue.
In the absence of a clear showing of any direct injury
to their person or to the institution to which they
belong, they cannot sue. The Integrated Bar of the
Philippines (IBP) is also stripped of standing in these
cases. The IBP lacks the legal capacity to bring this suit
in the absence of a board resolution from its Board of
Governors authorizing its National President to
commence the present action.
Notwithstanding, in view of the paramount
importance and the constitutional significance of the
issues raised, the Court may brush aside the
procedural barrier and takes cognizance of the
petitions.
Issue 2: Is the VFA governed by section 21, Art. VII, or
section 25, Art. XVIII of the Constitution
Section 25, Art XVIII, not section 21, Art. VII applies, as
the VFA involves the presence of foreign military
troops in the Philippines.
The Constitution contains two provisions requiring the
concurrence of the Senate on treaties or international
agreements. Section 21, Article VII reads: “[n]o treaty
or international agreement shall be valid and
effective unless concurred in by at least two-thirds of
all the Members of the Senate.”
Section 25, Article XVIII, provides:”[a]fter the expiration
in 1991 of the Agreement between the
Republic of the Philippines and the United States of
America concerning Military Bases, foreign military
bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by
the Senate and, when the Congress so requires,
ratified by a majority of the votes cast by the people
in a national referendum held for that purpose, and
recognized as a treaty by the other contracting
State.”
Section 21, Article VII deals with treaties or
international agreements in general, in which case,
the concurrence of at least two-thirds (2/3) of all the
Members of the Senate is required to make the treaty
valid and binding to the Philippines. This provision lays
down the general rule on treaties. All treaties,
regardless of subject matter, coverage, or particular
designation or appellation, requires the concurrence
of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special
provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities in
the Philippines. Under this provision, the concurrence
of the Senate is only one of the requisites to render
compliance with the constitutional requirements and
to consider the agreement binding on the Philippines.
Sec 25 further requires that “foreign military bases,
troops, or facilities” may be allowed in the Philippines
only by virtue of a treaty duly concurred in by the
Senate, ratified by a majority of the votes cast in a
national referendum held for that purpose if so
required by Congress, and recognized as such by the
other contracting state.
On the whole, the VFA is an agreement which defines
the treatment of US troops visiting the
Philippines. It provides for the guidelines to govern
such visits of military personnel, and further defines the
rights of the US and RP government in the matter of
criminal jurisdiction, movement of vessel and aircraft,
import and export of equipment, materials and
supplies.
Undoubtedly, Section 25, Article XVIII, which
specifically deals with treaties involving foreign military
bases, troops, or facilities, should apply in the instant
case. To a certain extent, however, the provisions of
Section 21, Article VII will find applicability with regard
to determining the number of votes required to obtain
the valid concurrence of the Senate.
It is specious to argue that Section 25, Article XVIII is
inapplicable to mere transient agreements for the
reason that there is no permanent placing of structure
for the establishment of a military base.
The Constitution makes no distinction between
“transient” and “permanent”. We find nothing in
Section 25, Article XVIII that requires foreign troops or
facilities to be stationed or placed permanently in the
Philippines. When no distinction is made by law; the
Court should not distinguish. We do not subscribe to
the argument that Section 25, Article XVIII is not
controlling since no foreign military bases, but merely
foreign troops and facilities, are involved in the VFA.
The proscription covers “foreign military bases, troops,
or facilities.” Stated differently, this prohibition is not
limited to the entry of troops and facilities without any
foreign bases being established. The clause does not
refer to “foreign military bases, troops, or facilities”
collectively but treats them as separate and
independent subjects, such that three different
situations are contemplated — a military treaty the
subject of which could be either (a) foreign bases, (b)
foreign troops, or (c) foreign facilities — any of the
three standing alone places it under the coverage of
Section 25, Article XVIII.
Issue 3: Was Sec 25 Art XVIII’s requisites satisfied to
make the VFA effective?
Section 25, Article XVIII disallows foreign military bases,
troops, or facilities in the country, unless the following
conditions are sufficiently met: (a) it must be under a
treaty; (b) the treaty must be duly concurred in by the
Senate and, when so required by Congress, ratified
by a majority of the votes cast by the people in a
national referendum; and (c) recognized as a treaty
by the other contracting state. There is no dispute as
to the presence of the first two requisites in the case
of the VFA. The concurrence handed by the Senate
through Resolution No. 18 is in accordance with the
Constitution, as there were at least 16 Senators that
concurred.
As to condition (c), the Court held that the phrase
“recognized as a treaty” means that the other
contracting party accepts or acknowledges the
agreement as a treaty. To require the US to submit the
VFA to the US Senate for concurrence pursuant to its
Constitution is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in
the Constitution are to be given their ordinary
meaning except where technical terms are
employed, in which case the significance thus
attached to them prevails. Its language should be
understood in the sense they have in common use.
The records reveal that the US Government, through
Ambassador Hubbard, has stated that the US has fully
committed to living up to the terms of the VFA. For as
long as the US accepts or acknowledges the VFA as a
treaty, and binds itself further to comply with its treaty
obligations, there is indeed compliance with the
mandate of the Constitution.
Worth stressing too, is that the ratification by the
President of the VFA, and the concurrence of the
Senate, should be taken as a clear and unequivocal
expression of our nation’s consent to be bound by
said treaty, with the concomitant duty to uphold the
obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act,
undertaken by the head of the state, through which
the formal acceptance of the treaty is proclaimed. A
State may provide in its domestic legislation the
process of ratification of a treaty. In our jurisdiction,
the power to ratify is vested in the President and not,
as commonly believed, in the legislature. The role of
the Senate is limited only to giving or withholding its
consent, or concurrence, to the ratification.
With the ratification of the VFA it now becomes
obligatory and incumbent on our part, under
principles of international law (pacta sunt servanda),
to be bound by the terms of the agreement.
Thus, no less than Section 2, Article II declares that the
Philippines adopts the generally accepted principles
of international law as part of the law of the land and
adheres to the policy of peace, equality, justice,
freedom, cooperation and amity with all nations.
G.R. No. 151445 Lim vs Executive Secretary 151445
FACTS:
In the beginning of 2002, the personnel of Armed
Forces of the United States started to arrive in the
Philippines which will participate in the Balikatan 02-1
pursuant to the VFA (Visitig Forces Agreement) signed
in 1999. The Balikatan 02-1 is a simulation of joint
military maneuvers or exercises of Filipino and
American which was pursuant to MDT (Mutual
Defense Treaty) a bilateral agreement entered into by
the Philippine Government and United States
Government in 1951. The entry of the American troops
in the Philippines is partly rooted from the campaign
of US President George W. Bush against international
terrorism as a result of terrorist attacks in United States
which was the cause of numerous loss of lives.
The petitioners, Arthur D. Lim and Paulino P. Ersando,
as citizens, lawyers, and taxpayers, filed a petition for
certiorari and prohibition and attacking the
constitutionality of Balikatan 02-1 or the joint exercise.
Subsequently, they were joined by SANLAKAS and
Partido ng Manggagawa by filing a petition-in-
intervention, the claimed that some of their members
were situated in the places were the exercise are
being conducted.
However the Solicitor General, claimed that there
were lack of locus standi, does not invlve tax
spending, and there is no proof of direct personal
injury.
ISSUE:
WON the Balikatan02-1 is covered by the VFA.
WON the VFA is constitutional.
HELD:
The VFA permits the US personnel to engage, on an
impermanent basis, in activities, the exact meaning of
which was undefined. The permit under VFA grants US
personnel a wide scope of undertaking subject only
to approval of the Philippine Government. In general
US personnel must abstain from any activities
inconsistent with the agreement, and in particular,
from an political activities. All other activities, in other
words, are fair game.
In aid of the case at bar, the Vienna Convention on
the Law of Treaties Article 31 and 32 which contains
the provisions governing the interpretation of
international agreements. The cardinal rule of
interpretation must involve an examination of the text,
which is presume to verbalise the intentions of the
parties.
The word activities in the view of the court it was
deliberately made that way to give both parties a
leeway for negotiations. In this manner, the US forces
may sojourn in the territory of the Philippines for
purposes other than military. 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 context of the
agreement.
From the facts obtaining, the court find that the
Balikatan 02-1 joint military exercises has not intruded
into that penumbra of error that would otherwise call
for correction on the part of the court. The
respondents did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction.
Wherefore, the petition and petition-in-intervention
are hereby dismissed without prejudice to the filing of
new petition sufficient in form and substance in the
proper regional trial court.
Sen. Pimentel vs Executive Secretary , G.R. No.
158088, July 6, 2005
FACTS:
This is a petition of Senator Aquilino Pimentel and the
other parties to ask the Supreme Court to require the
Executive Department to transmit the Rome Statute
which established the International
Criminal Court for the Senate’s concurrence in
accordance with Sec 21, Art VII of the 1987
Constitution. Petitioners contend that that ratification
of a treaty, under both domestic law and
international law, is a function of the Senate. That
under the treaty law and customary international law,
Philippines has a ministerial duty to ratify the Rome
Statute. Respondents on the other hand, questioned
the legal standing of herein petitioners and argued
that executive department has no duty to transmit
the Rome Statute to the Senate for concurrence.
ISSUES:
Whether or not petitioners have the legal standing to
file the instant suit
Whether or not the Executive Secretary and the
Department of Foreign Affairs have the ministerial
duty to transmit to the Senate the copy of the Rome
Statute signed by the Philippine Member to the United
Nations even without the signature of the President
RULING:
Only Senator Pimentel has a legal standing to the
extent of his power as member of Congress. Other
petitioners have not shown that they have sustained a
direct injury from the non-transmittal and that they
can seek redress in our domestic courts.
Petitioners’ interpretation of the Constitution is
incorrect. The power to ratify treaties does not belong
to the Senate. Under E.O. 459, the Department of
Foreign Affairs (DFA) prepares the ratification papers
and forward the signed copy to the President for
ratification. After the President has ratified it, DFA shall
submit the same to the Senate for concurrence. The
President has the sole authority to negotiate and
enter into treaties, the Constitution provides a
limitation to his power by requiring the concurrence of
2/3 of all the members of the Senate for the validity of
the treaty entered into by him. Section 21, Article VII
of the 1987 Constitution provides that
“no treaty or international agreement shall be valid
and effective unless concurred in by at least two-
thirds of all the Members of the Senate.” The
participation of the legislative branch in the treaty
-making process was deemed essential to provide a
check on the executive in the field of foreign
relations. It should be emphasized that under the
Constitution the power to ratify is vested in the
President subject to the concurrence of the Senate.
The President has the discretion even after the signing
of the treaty by the Philippine representative whether
or not to ratify a treaty. The signature does not signify
final consent, it is ratification that binds the state to
the provisions of the treaty and renders it effective.
Senate is limited only to giving or withholding its
consent, concurrence to the ratification. It is within
the President to refuse to submit a treaty to the
Senate or having secured its consent for its
ratification, refuse to ratify it. Such decision is within
the competence of the President alone, which
cannot be encroached by this court via writ of
mandamus. Thus, the petition is DISMISSED.
CONSTANTINO v. CUISA
FACTS: During the Aquino regime, her administration
came up w/ a scheme to reduce the country’s
external debt. The solution resorted to was to incur
foreign debts. Three restructuring programs were
sought to initiate the program for foreign debts – they
are basically buyback programs & bond-conversion
programs). Constantino as a taxpayer and in behalf
of his minor children who are Filipino citizens, together
w/ FFDC averred that the buyback and bond-
conversion schemes are onerous and they do not
constitute the loan “contract” or “guarantee”
contemplated in Sec. 20, Art. 7 of the Constitution.
And assuming that the President has such power
unlike other powers which may be validly delegated
by the President, the power to incur foreign debts is
expressly reserved by the Constitution in the person of
the President. They argue that the gravity by which
the exercise of the power will affect the Filipino nation
requires that the President alone must exercise this
power. They argue that the requirement of prior
concurrence of an entity specifically named by the
Constitution–the Monetary Board–reinforces the
submission that not respondents but the President
“alone and personally” can validly bind the country.
Hence, they would like Cuisia et al to stop acting
pursuant to the scheme.
ISSUE: Whether or not the president can validly
delegate her debt power to the respondents.
HELD: There is no question that the president has
borrowing powers and that the president may
contract or guarantee foreign loans in behalf of this
country w/ prior concurrence of the Monetary Board.
It makes no distinction whatsoever and the fact that a
debt or a loan may be onerous is irrelevant. On the
other hand, the president can delegate this power to
her direct subordinates. The evident exigency of
having the Secretary of Finance implement the
decision of the President to execute the debt-relief
contracts is made manifest by the fact that the
process of establishing and executing a strategy for
managing the government’s debt is deep within the
realm of the expertise of the Department of Finance,
primed as it is to raise the required amount of funding,
achieve its risk and cost objectives, and meet any
other sovereign debt management goals. If the
President were to personally exercise every aspect of
the foreign borrowing power, he/she would have to
pause from running the country long enough to focus
on a welter of time-consuming detailed activities–the
propriety of incurring/guaranteeing loans, studying
and choosing among the many methods that may be
taken toward this end, meeting countless times with
creditor representatives to negotiate, obtaining the
concurrence of the Monetary Board, explaining and
defending the negotiated deal to the public, and
more often than not, flying to the agreed place of
execution to sign the documents. This sort of
constitutional interpretation would negate the very
existence of cabinet positions and the respective
expertise which the holders thereof are accorded
and would unduly hamper the President’s effectivity
in running the government. The act of the
respondents are not unconstitutional.
Exception
There are certain acts which, by their very nature,
cannot be validated by subsequent approval or
ratification by the President. There are certain
constitutional powers and prerogatives of the Chief
Executive of the Nation which must be exercised by
him in person and no amount of approval or
ratification will validate the exercise of any of those
powers by any other person. Such, for instance, in his
power to suspend the writ of habeas corpus and
proclaim martial law and the exercise by him of the
benign prerogative of pardon (mercy).
There are certain presidential powers which arise out
of exceptional circumstances, and if exercised, would
involve the suspension of fundamental freedoms, or at
least call for the supersedence of executive
prerogatives over those exercised by co-equal
branches of government. The declaration of martial
law, the suspension of the writ of habeas corpus, and
the exercise of the pardoning power notwithstanding
the judicial determination of guilt of the accused, all
fall within this special class that demands the
exclusive exercise by the President of the
constitutionally vested power. The list is by no means
exclusive, but there must be a showing that the
executive power in question is of similar gravitas and
exceptional import.
ISSUE
:WON the President can delegate thepower to incur
foreign debts to other executive agencies .WON the
President can borrow to meet public expenditures in
the form of bonds.
RATIO/DOCTRINE
: Yes, based on the Doctrine of Qualified Political
Agency. Each head of the department is and must
be, the President’s alter ego in the matters of that
department where the President is required by law to
exercise authority.
Abaya vs. Ebdane G.R. No. 167919 Feb. 14, 2007
July 25, 2009 at 11:12 am (1)
FACTS:
This is a petition for certiorari and prohibition to set
aside and nullify Res. No. PJHL-A-04-012 dated May
27, 2004 issued by the Bids and Action Committee
(BAC) of the DPWH. This resolution recommended the
award to private respondent China Road and Bridge
Corporation of the contract which consist of the
improvement and rehabilitation of a 79.818-km road
in the island of Catanduanes.
Based on an Exchange of Notes, Japan and the
Philippines have reached an understanding that
Japanese loans are to be extended to the country
with the aim of promoting economic stabilization and
development efforts.
In accordance with the established prequalification
criteria, eight contractors were evaluated or
considered eligible to bid as concurred by the JBIC.
Prior to the opening of the respective bid proposals, it
was announced that the Approved Budget for the
Contract (ABC) was in the amount of P738,710,563.67.
Consequently, the bid goes to private respondent in
the amount of P952,564,821.71 (with a variance of
25.98% from the ABC). Hence this petition on the
contention that it violates Sec. 31 of RA 9184 which
provides that:
Sec. 31 – Ceiling for Bid Prices. – The ABC shall be the
upper limit or ceiling for the bid prices. Bid prices that
exceed this ceiling shall be disqualified outright from
further participating in the proceeding. There shall be
no lower limit to the amount of the award.
The petitioners further contends that the Loan
Agreement between Japan and the Philippines is
neither an international nor an executive agreement
that would bar the application of RA9184. They
pointed out that to be considered as such, the parties
must be two (2) sovereigns or states whereas in this
loan agreement, the parties were the Philippine
government and the JBIC, a banking agency of
Japan, which has a separate juridical personality from
the Japanese government.
ISSUE:
Whether or not the assailed resolution violates RA 9184
RULING:
The petition is dismissed. Under the fundamental
principle of international law of pacta sunt servanda,
which is in fact, embodied is Section 4 of RA9184,
“any treaty or international or executive agreement
affecting the subject matter of this Act to which the
Philippine government is a signatory, shall be
observed”. The DPWH, as the executing agency of
the project financed by the Loan Agreement rightfully
awarded the contract to private respondent China
Road and Bridge Corporation.
The Loan Agreement was executed and declared
that it was so entered by the parties “in the light of the
contents of the Exchange of Notes between the
government of Japan and the government of the
Philippines dated Dec. 27, 1999.” Under the
circumstances, the JBIC may well be considered an
adjunct of the Japanese government. The JBIC
procurement guidelines absolutely prohibits the
imposition of ceilings and bids.
G.R. No. 159618 February 1, 2011
BAYAN MUNA, as represented by Rep. SATUR
OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L.
MAZA, Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive
Secretary, and BLAS F. OPLE, in his capacity as
Secretary of Foreign Affairs, Respondents.
VELASCO, JR., J.:
FACTS:
Petitioner Bayan Muna is a duly registered party-list
group established to represent the marginalized
sectors of society. Respondent Blas F. Ople, now
deceased, was the Secretary of Foreign Affairs during
the period material to this case. Respondent Alberto
Romulo was impleaded in his capacity as then
Executive Secretary.
Rome Statute of the International Criminal Court.
Having a key determinative bearing on this case is the
Rome Statute establishing the International Criminal
Court (ICC) with the power to exercise its jurisdiction
over persons for the most serious crimes of
international concern and shall be complementary to
the national criminal jurisdictions
The serious crimes adverted to cover those
considered grave under international law, such as
genocide, crimes against humanity, war crimes, and
crimes of aggression. On December 28, 2000, the RP,
through Charge d’ Affaires
Enrique A. Manalo, signed the Rome Statute which,
by its terms, is subject to ratification, acceptance or
approval by the signatory states. As of the filing of the
instant petition, only 92 out of the 139 signatory
countries appear to have completed the ratification,
approval and concurrence process. The Philippines is
not among the 92.
ISSUE: Whether or not the RP-US Non Surrender
Agreement is void ab initio for contracting obligations
that are either immoral or otherwise at variance with
universally recognized principles of international law.
HELD:
No. Petitioner urges that the Agreement be struck
down as void ab initio for imposing immoral
obligations and/or being at variance with allegedly
universally recognized principles of international law.
The immoral aspect proceeds from the fact that the
Agreement, as petitioner would put it, leaves criminals
immune from responsibility for unimaginable atrocities
that deeply shock the conscience of humanity; it
precludes our country from delivering an American
criminal to the ICC.
The above argument is a kind of recycling of
petitioners earlier position, which, as already
discussed, contends that the RP, by entering into the
Agreement, virtually abdicated its sovereignty and in
the process undermined its treaty obligations under
the Rome Statute, contrary to international law
principles.
The Court is not persuaded. Suffice it to state in this
regard that the non-surrender agreement, as aptly
described by the Solicitor General, is an assertion by
the Philippines of its desire to try and punish crimes
under its national law. The agreement is a recognition
of the primacy and competence of the country’s
judiciary to try offenses under its national criminal laws
and dispense justice fairly and judiciously. Petitioner,
labors under the erroneous impression that the
Agreement would allow Filipinos and Americans
committing high crimes of international concern to
escape criminal trial and punishment. This is manifestly
incorrect. Persons who may have committed acts
penalized under the Rome Statute can be
prosecuted and punished in the Philippines or in the
US; or with the consent of the RP or the US, before the
ICC, assuming that all the formalities necessary to
bind both countries to the Rome Statute have been
met.
Perspective wise, what the Agreement contextually
prohibits is the surrender by either party of individuals
to international tribunals, like the ICC, without the
consent of the other party, which may desire to
prosecute the crime under its existing laws. With this
view, 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.
International Agreements; treaties and executive
agreements. Under international law, there is no
difference between treaties and executive
agreements in terms of their binding effects on the
contracting states concerned, as long as the
negotiating functionaries have remained within their
powers. However, a treaty has greater “dignity” than
an executive agreement, because its constitutional
efficacy is beyond doubt, a treaty having behind it
the authority of the President, the Senate, and the
people; a ratified treaty, unlike an executive
agreement, takes precedence over any prior
statutory enactment. Petitioner, in this case, argues
that the Non-Surrender Agreement between the
Philippines and the US is of dubious validity, partaking
as it does of the nature of a treaty; hence, it must be
duly concurred in by the Senate. Petitioner relies on
the case, Commissioner of Customs v. Eastern Sea
Trading, in which the Court stated: international
agreements involving political issues or changes of
national policy and those involving international
arrangements of a permanent character usually take
the form of treaties; while those embodying
adjustments of detail carrying out well established
national policies and traditions and those involving
arrangements of a more or less temporary nature take
the form of executive agreements. According to
petitioner, the subject of the Agreement does not fall
under any of the subject-categories that are
enumerated in the Eastern Sea Trading case that may
be covered by an executive agreement, such as
commercial/consular relations, most-favored nation
rights, patent rights, trademark and copyright
protection, postal and navigation arrangements and
settlement of claims. The Supreme Court held,
however, that the categorization of subject matters
that may be covered by international agreements
mentioned in Eastern Sea Trading is not cast in stone.
There are no hard and fast rules on the propriety of
entering, on a given subject, into a treaty or an
executive agreement as an instrument of
international relations. The primary consideration in
the choice of the form of agreement is the parties’
intent and desire to craft an international agreement
in the form they so wish to further their respective
interests. The matter of form takes a back seat when it
comes to effectiveness and binding effect of the
enforcement of a treaty or an executive agreement,
as the parties in either international agreement each
labor under the pacta sunt servanda principle.
International Agreements; limitations on sovereignty.
The RP, by entering into the Agreement, does thereby
abdicate its sovereignty, abdication being done by its
waiving or abandoning its right to seek recourse
through the Rome Statute of the ICC for erring
Americans committing international crimes in the
country. As it were, the Agreement is but a form of
affirmance and confirmation of the Philippines’
national criminal jurisdiction. National criminal
jurisdiction being primary, it is always the responsibility
and within the prerogative of the RP either to
prosecute criminal offenses equally covered by the
Rome Statute or to accede to the jurisdiction of the
ICC. Thus, the Philippines may decide to try “persons”
of the US, as the term is understood in the Agreement,
under our national criminal justice system; or it may
opt not to exercise its criminal jurisdiction over its
erring citizens or over US “persons” committing high
crimes in the country and defer to the secondary
criminal jurisdiction of the ICC over them. In the same
breath, the US must extend the same privilege to the
Philippines with respect to “persons” of the RP
committing high crimes within US territorial jurisdiction.
By their nature, treaties and international agreements
actually have a limiting effect on the otherwise
encompassing and absolute nature of sovereignty. By
their voluntary act, nations may decide to surrender
or waive some aspects of their state power or agree
to limit the exercise of their otherwise exclusive and
absolute jurisdiction. The usual underlying
consideration in this partial surrender may be the
greater benefits derived from a pact or a reciprocal
undertaking of one contracting party to grant the
same privileges or immunities to the other.
China National Machinery & Equipment Corp. v. Hon.
Cesar D. Santa Maria
FACTS:
On 14 September 2002, petitioner China National
Machinery & Equipment Corp. (Group) (CNMEG),
represented by its chairperson, Ren Hongbin, entered
into a Memorandum of Understanding with the North
Luzon Railways Corporation (Northrail), represented
by its president, Jose L. Cortes, Jr. for the conduct of a
feasibility study on a possible railway line from Manila
to San Fernando, La Union (the Northrail Project).
On 30 August 2003, the Export Import Bank of China
(EXIM Bank) and the Department of Finance of the
Philippines (DOF) entered into a Memorandum of
Understanding (Aug 30MOU), wherein China agreed
to extend Preferential Buyer‘s Credit to the Philippine
government to finance the Northrail Project. The
Chinese government designated EXIM Bank as the
lender, while the Philippine government named the
DOF as the borrower. Under the Aug 30 MOU, EXIM
Bank agreed to extend an amount not exceeding
USD 400,000,000 in favor of the DOF, payable in 20
years, with a 5-year grace period, and at the rate of
3% per annum. On 1 October 2003, the Chinese
Ambassador to the Philippines, Wang Chungui (Amb.
Wang), wrote a letter to DOF Secretary Jose Isidro
Camacho (Sec. Camacho) informing him of
CNMEG‘s designation as the Prime Contractor for the
Northrail Project. On 30 December 2003, Northrail and
CNMEG executed a Contract Agreement for the
construction of Section I, Phase I of the North Luzon
Railway System from Caloocan to Malolos on a
turnkey basis (the Contract Agreement). The contract
price for the Northrail Project was pegged at USD
421,050,000. On 26 February 2004, the Philippine
government and EXIM Bank entered into a
counterpart financial agreement–Buyer Credit Loan
Agreement No. BLA 04055 (the Loan Agreement).
In the Loan Agreement, EXIM Bank agreed to extend
Preferential Buyer‘s Credit in the amount of USD
400,000,000 in favor of the Philippine government in
order to finance the construction of Phase I of the
Northrail Project. On 13 February 2006, respondents
filed a Complaint for Annulment of Contract and
Injunction with Urgent Motion for Summary Hearing to
Determine the Existence of Facts and Circumstances
Justifying the Issuance of Writs of Preliminary
Prohibitory and Mandatory Injunction and/or TRO
against CNMEG, the Office of the Executive
Secretary, the DOF, the Department of Budget and
Management, the National Economic Development
Authority and Northrail.
The case was filed before the Regional Trial Court,
National Capital Judicial Region, Makati City, Branch
145 (RTC Br. 145). In the Complaint, respondents
alleged that the Contract Agreement and the Loan
Agreement were void for being contrary to (a) the
Constitution; (b) Republic Act No. 9184 (R.A. No.
9184), otherwise known as the Government
Procurement Reform Act; (c) Presidential Decree No.
1445, otherwise known as the Government Auditing
Code; and (d) Executive Order No. 292, otherwise
known as the Administrative Code. On 15 May 2007,
RTC Br. 145 issued an Omnibus Order denying
CNMEG‘s Motion to Dismiss and setting the case for
summary hearing to determine whether the injunctive
reliefs prayed for should be issued.
CNMEG then filed a Motion for Reconsideration,
which was denied by the trial court in an Order dated
10 March 2008. Thus, CNMEG filed before the CA a
Petition for Certiorari with Prayer for the Issuance of
TRO and/or Writ of Preliminary Injunction dated 4 April
2008. the appellate court dismissed the Petition for
Certiorari.
Subsequently, CNMEG filed a Motion for
Reconsideration, which was denied by the CA in a
Resolution dated 5 December 2008.
Petitioners Argument:
Petitioner claims that the EXIM Bank extended
financial assistance to Northrail because the bank
was mandated by the Chinese government, and not
because of any motivation to do business in the
Philippines, it is clear from the foregoing provisions that
the Northrail Project was a purely commercial
transaction.
Respondents Argument:
respondents alleged that the Contract Agreement
and the Loan Agreement were void for being
contrary to (a) the Constitution; (b) Republic Act No.
9184 (R.A. No. 9184),otherwise known as the
Government Procurement Reform Act; (c) Presidential
Decree No. 1445, otherwise known as the
Government Auditing Code; and (d) Executive Order
No. 292, otherwise known as the Administrative Code.
ISSUES:
Whether or not petitioner CNMEG is an agent of the
Sovereign People‘s Republic of China.
Whether or not the Northrail contracts are products of
an executive agreement between two sovereign
states
RULING:
The instant Petition is DENIED. Petitioner China
National Machinery & Equipment Corp. (Group) is not
entitled to immunity from suit, and the Contract
Agreement is not an executive agreement. CNMEG‘s
prayer for the issuance of a TRO and/or Writ of
Preliminary Injunction is DENIED for being moot and
academic. The Court explained the doctrine of
sovereign immunity in Holy See v. Rosario, to wit: There
are two conflicting concepts of sovereign immunity,
each widely held and firmly established. According to
the classical or absolute theory, a sovereign cannot,
without its consent, be made a respondent in the
courts of another sovereign. According to the newer
or restrictive theory, the immunity of the sovereign is
recognized only with regard to public acts or acts jure
imperii of a state, but not with regard to private acts
or acts jure gestionis. As it stands now, the application
of the doctrine of immunity from suit has been
restricted to sovereign or governmental activities (jure
imperii). The mantle of state immunity cannot be
extended to commercial, private and proprietary
acts (jure gestionis).
Since the Philippines adheres to the restrictive theory,
it is crucial to ascertain the legal nature of the act
involved–whether the entity claiming immunity
performs governmental, as opposed to proprietary,
functions. As held in United States of America v. Ruiz
Admittedly, the Loan Agreement was entered into
between EXIM Bank and the Philippine government,
while the Contract Agreement was between North
rail and CNMEG. Although the Contract Agreement is
silent on the classification of the legal nature of the
transaction, the foregoing provisions of the Loan
Agreement, which is an inextricable part of the entire
undertaking, nonetheless reveal the intention of the
parties to the North rail Project to classify the whole
venture as commercial or proprietary in character.
Thus, piecing together the content and tenor of the
Contract Agreement, the Memorandum of
Understanding dated 14 September 2002, Amb.
Wang‘s letter dated 1 October 2003, and the Loan
Agreement would reveal the desire of CNMEG to
construct the Luzon Railways in pursuit of a purely
commercial activity performed in the ordinary course
of its business.