Risos-Vidal vs.

Comelec

Facts:

In September 12, 2007, the Sandiganbayan convicted former President Estrada for the crime of plunder
and was sentenced to suffer the penalty of Reclusion Perpetua and the accessory penalties of civil
interdiction during the period of sentence and perpetual absolute disqualification. On October 25, 2007,
however, former President Gloria Macapagal Arroyo extended executive clemency, by way of pardon, to
former President Estrada, explicitly stating that he is restored to his civil and political rights.

In 2009, Estrada filed a Certificate of Candidacy for the position of President. None of the disqualification
cases against him prospered but he only placed second in the results.

In 2012, Estrada once more ventured into the political arena, and filed a Certificate of Candidacy, this
time vying for a local elective post, that of the Mayor of the City of Manila.

Petitioner Risos-Vidal filed a Petition for Disqualification against Estrada before the Comelec stating
that Estrada is disqualified to run for public office because of his conviction for plunder sentencing him
to suffer the penalty of reclusion perpetua with perpetual absolute disqualification. Petitioner relied on
Section 40 of the Local Government Code (LGC), in relation to Section 12 of the Omnibus Election Code
(OEC). 

The Comelec dismissed the petition for disqualification holding that President Estrada’s right to seek
public office has been effectively restored by the pardon vested upon him by former President Gloria M.
Arroyo.

Estrada won the mayoralty race in May 13, 2013 elections. Alfredo Lim, who garnered the second
highest votes, intervened and sought to disqualify Estrada for the same ground as the contention of
Risos-Vidal and praying that he be proclaimed as Mayor of Manila.

Issue:

May former President Joseph Estrada run for public office despite having been convicted of the crime of
plunder which carried an accessory penalty of perpetual disqualification to hold public office?
Held:

Yes. Estrada was granted an absolute pardon that fully restored all his civil and political rights, which
naturally includes the right to seek public elective office, the focal point of this controversy. The wording
of the pardon extended to former President Estrada is complete, unambiguous, and unqualified. It is
likewise unfettered by Articles 36 and 41 of the Revised Penal Code. The only reasonable, objective, and
constitutional interpretation of the language of the pardon is that the same in fact conforms to Articles
36 and 41 of the Revised Penal Code. 

It is insisted that, since a textual examination of the pardon given to and accepted by former President
Estrada does not actually specify which political right is restored, it could be inferred that former
President Arroyo did not deliberately intend to restore former President Estrada’s rights of suffrage and
to hold public office, orto otherwise remit the penalty of perpetual absolute disqualification. Even if her
intention was the contrary, the same cannot be upheld based on the pardon’s text.

The pardoning power of the President cannot be limited by legislative action.

The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-C, provides that the
President of the Philippines possesses the power to grant pardons, along with other acts of executive
clemency, to wit:

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President
may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by
final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of
the Congress.

xxxx

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and
regulations shall be granted by the President without the favorable recommendation of the Commission.

It is apparent from the foregoing constitutional provisions that the only instances in which the President
may not extend pardon remain to be in: (1) impeachment cases; (2) cases that have not yet resulted in a
final conviction; and (3) cases involving violations of election laws, rules and regulations in which there
was no favorable recommendation coming from the COMELEC. Therefore, it can be argued that any act
of Congress by way of statute cannot operate to delimit the pardoning power of the President.
The proper interpretation of Articles 36 and 41 of the Revised Penal Code.

A close scrutiny of the text of the pardon extended to former President Estrada shows that both the
principal penalty of reclusion perpetua and its accessory penalties are included in the pardon. The
sentence which states that “(h)e is hereby restored to his civil and political rights,” expressly remitted
the accessory penalties that attached to the principal penalty of reclusion perpetua. Hence, even if we
apply Articles 36 and 41 of the Revised Penal Code, it is indubitable from the text of the pardon that the
accessory penalties of civil interdiction and perpetual absolute disqualification were expressly remitted
together with the principal penalty of reclusion perpetua.

The disqualification of former President Estrada under Section 40 of the LGC in relation to Section 12
of the OEC was removed by his acceptance of the absolute pardon granted to him

While it may be apparent that the proscription in Section 40(a) of the LGC is worded in absolute terms,
Section 12 of the OEC provides a legal escape from the prohibition – a plenary pardon or amnesty. In
other words, the latter provision allows any person who has been granted plenary pardon or amnesty
after conviction by final judgment of an offense involving moral turpitude, inter alia, to run for and hold
any public office, whether local or national position.

The third preambular clause of the pardon did not operate to make the pardon conditional.

Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e., "[w]hereas, Joseph
Ejercito Estrada has publicly committed to no longer seek any elective position or office," neither makes
the pardon conditional, nor militate against the conclusion that former President Estrada’s rights to
suffrage and to seek public elective office have been restored.

This is especially true as the pardon itself does not explicitly impose a condition or limitation,
considering the unqualified use of the term "civil and political rights"as being restored. Jurisprudence
educates that a preamble is not an essential part of an act as it is an introductory or preparatory clause
that explains the reasons for the enactment, usually introduced by the word "whereas." Whereas
clauses do not form part of a statute because, strictly speaking, they are not part of the operative
language of the statute. In this case, the whereas clause at issue is not an integral part of the decree of
the pardon, and therefore, does not by itself alone operate to make the pardon conditional or to make
its effectivity contingent upon the fulfilment of the aforementioned commitment nor to limit the scope
of the pardon.

Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its intent
or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is clear
and unambiguous, the preamble can neither expand nor restrict its operation much less prevail over its
text.
If former President Arroyo intended for the pardon to be conditional on Respondent’s promise never to
seek a public office again, the former ought to have explicitly stated the same in the text of the pardon
itself. Since former President Arroyo did not make this an integral part of the decree of pardon, the
Commission is constrained to rule that the 3rd preambular clause cannot be interpreted as a condition
to the pardon extended to former President Estrada. (Risos-Vidal vs. Comelec,  G.R. No. 206666, January
21, 2015)
People’s Movement for Press Freedom vs. Manglapus

GR 84642, September 13, 1988

FACTS:

Petitioners, consisted of members of the mass media, were seeking

information from the Presidents representatives on the state of the then on-

going negotiations of the RP-US Military Bases Agreement.

A collision between governmental power over the conduct of foreign affairs

and the citizen’s right to information.

ISSUE:

Whether the information sought by the petitioners are of public concern and are still

covered by the doctrine of executive privilege?

HELD:

The Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp. that the

President is the sole organ of the nation in its negotiations with foreign countries.

The Court denied the petition, stressing that "secrecy of negotiations with foreign

countries is not violative of the constitutional provisions of freedom of speech or of

the press nor of the freedom of access to information."

PIMENTEL vs ERMITA

GR No. 164978, October 13, 2005

Power of Congress to prescribe qualifications/disqualifications

CARPIO, J.:

FACTS:

Due to the vacancies in the cabinet, then President Gloria Macapagal Arroyo appointed secretaries in
the different executive departments. Their appointment was in an acting capacity only.

Meanwhile, Senator Aquilino Pimentel and seven other senators filed a complaint against the
appointees and Executive Secretary Eduardo Ermita, on the ground that the President cannot make such
appointment without the consent of the Commission on Appointments; 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 the appointments made by PGMA without the consent of the Commission of Appointments
and while the Congress is in session are constitutional.

RULING:

Yes, the essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap

measure intended to fill an office for a limited time until the appointment of a permanent occupant to
the office.16 In case of vacancy in an office occupied by an alter ego of the President, such as the office of
a department secretary, the President must necessarily appoint an alter ego of her choice as acting
secretary before the permanent appointee of her choice could assume office.

Congress, through a law, cannot impose on the President the obligation to appoint automatically the
undersecretary as her temporary alter ego. An alter ego, whether tem        porary or permanent, holds a
position of great trust and confidence. Congress, in the guise of prescribing qualifications to an office,
cannot impose on the President who her alter ego  should be.

The office of a department secretary may become vacant while Congress is in session. Since a
department secretary is the alter ego of the President, the acting appointee to the office must
necessarily have the President’s confidence. Thus, by the very nature of the office of a department
secretary, the President must appoint in an acting capacity a person of her choice even while Congress is
in session. That person may or may not be the permanent appointee, but practical reasons may make it
expedient that the acting appointee will also be the permanent appointee.

The law expressly allows the President to make such acting appointment. Section 17, Chapter 5, Title I,
Book III of EO 292 states that "[t]he 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." Thus, the President may even appoint in an acting capacity a person not yet in the
government service, as long as the President deems that person competent.

Petitioners assert that Section 17 does not apply to appointments vested in the President by the
Constitution, because it only applies to appointments vested in the President by law. Petitioners forget
that Congress is not the only source of law. "Law" refers to the Constitution, statutes or acts of
Congress, municipal ordinances, implementing rules issued pursuant to law, and judicial decisions. 17

Finally, petitioners claim that the issuance of appointments in an acting capacity is susceptible to abuse.
Petitioners fail to consider that acting appointments cannot exceed one year as expressly provided in
Section 17(3), Chapter 5, Title I, Book III of EO 292. The law has incorporated this safeguard to prevent
abuses, like the use of acting appointments as a way to circumvent confirmation by the Commission on
Appointments.

Wherefore, the petition is denied.

NOTE: Ad Interim Appointments vs Appointments in an Acting Capacity

Ad-interim appointments must be distinguished from appointments in an acting capacity. Both of them
are effective upon acceptance. But ad-interim appointments are extended only during a recess of
Congress, whereas acting appointments may be extended any time there is a vacancy. Moreover ad-
interim appointments are submitted to the Commission on Appointments for confirmation or rejection;
acting appointments are not submitted to the Commission on Appointments. Acting appointments are a
way of temporarily filling important offices but, if abused, they can also be a way of circumventing the
need for confirmation by the Commission on Appointments.
AKBAYAN vs. Aquino

 on 11:38 AM  in Case Digests, Political Law 

 0

G.R. No. 170516, July 16, 2008

o JPEPA

o Diplomatic Negotiations are Privileged

o Executive Privilege, an Exception to Congress' Power of Inquiry

o Treaty-making Power

o Executive Privilege vs. People's Right to Information

FACTS:

This is regarding the JPEPA, the bilateral free trade agreement ratified by the President with Japan,
concerning trade in goods, rules of origin, customs procedures, paperless trading, trade in services,
investment, etc.

Prior to President’s signing of JPEPA in Sept. 2006, petitioners – non-government organizations,

Congresspersons, citizens and taxpayers – sought via petition for mandamus and prohibition to obtain
from respondents the full text of the JPEPA, including the Philippine and Japanese offers submitted
during the negotiation process and all pertinent attachments and annexes thereto. Particularly,
Congress through the House Committee are calling for an inquiry into the JPEPA, but at the same time,
the Executive is refusing to give them the said copies until the negotiation is completed.

ISSUES:

o Whether or not petitioners have legal standing

o Whether or not the Philippine and Japanese offers during the negotiation process are privileged

o Whether or not the President can validly exclude Congress, exercising its power of inquiry and
power to concur in treaties, from the negotiation process

RULING:

Standing
In a petition anchored upon the right of the people to information on matters of public concern, which is
a public right by its very nature, petitioners need not show that they have any legal or special interest in
the result, it being sufficient to show that they are citizens and, therefore, part of the general public
which possesses the right. As the present petition is anchored on the right to information and
petitioners are all suing in their capacity as citizens and groups of citizens including petitioners-members
of the House of Representatives who additionally are suing in their capacity as such, the standing of
petitioners to file the present suit is grounded in jurisprudence.

JPEPA, A Matter of Public Concern

To be covered by the right to information, the information sought must meet the threshold requirement
that it be a matter of public concern xxx

From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and
Japanese offers submitted during the negotiations towards its execution are matters of public concern.
This, respondents do not dispute. They only claim that diplomatic negotiations are covered by the
doctrine of executive privilege, thus constituting an exception to the right to information and the policy
of full public disclosure.

Privileged Character of Diplomatic Negotiations Recognized

The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing
valid limitations on the right to information, the Court in Chavez v. PCGG held that “information on
inter-government exchanges prior to the conclusion of treaties and executive agreements may be
subject to reasonable safeguards for the sake of national interest.”

Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA
may not be kept perpetually confidential – since there should be “ample opportunity for discussion
before [a treaty] is approved” – the offers exchanged by the parties during the negotiations continue to
be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese
representatives submitted their offers with the understanding that “historic confidentiality” would
govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with
Japan but with other foreign governments in future negotiations.

A ruling that Philippine offers in treaty negotiations should not be open to public scrutiny would
discourage future Philippine representatives from frankly expressing their views during negotiations.
While, on first impression, it appears wise to deter Philippine representatives from entering into
compromises, it bears noting that treaty negotiations, or any negotiation for that matter, normally
involve a process of quid pro quo, and oftentimes negotiators have to be willing to grant concessions in
an area of lesser importance in order to obtain more favorable terms in an area of greater national
interest.

Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA
negotiations constituting no exception. It bears emphasis, however, that such privilege is only
presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not
mean that it will be considered privileged in all instances. Only after a consideration of the context in
which the claim is made may it be determined if there is a public interest that calls for the disclosure of
the desired information, strong enough to overcome its traditionally privileged status.

Does the exception apply even though JPEPA is primarily economic and does not involve national
security?

While there are certainly privileges grounded on the necessity of safeguarding national security such as
those involving military secrets, not all are founded thereon. One example is the “informer’s privilege,”
or the privilege of the Government not to disclose the identity of a person or persons who furnish
information of violations of law to officers charged with the enforcement of that law. The suspect
involved need not be so notorious as to be a threat to national security for this privilege to apply in any
given instance. Otherwise, the privilege would be inapplicable in all but the most high-profile cases, in
which case not only would this be contrary to long-standing practice. It would also be highly prejudicial
to law enforcement efforts in general.

Also illustrative is the privileged accorded to presidential communications, which are presumed
privileged without distinguishing between those which involve matters of national security and those
which do not, the rationale for the privilege being that a frank exchange of exploratory ideas and
assessments, free from the glare of publicity and pressure by interested parties, is essential to protect
the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial
power.

In the same way that the privilege for judicial deliberations does not depend on the nature of the case
deliberated upon, so presidential communications are privileged whether they involve matters of
national security.

It bears emphasis, however, that the privilege accorded to presidential communications is not absolute,
one significant qualification being that “the Executive cannot, any more than the other branches of
government, invoke a general confidentiality privilege to shield its officials and employees from
investigations by the proper governmental institutions into possible criminal wrongdoing.” This
qualification applies whether the privilege is being invoked in the context of a judicial trial or a
congressional investigation conducted in aid of legislation.

Closely related to the “presidential communications” privilege is the deliberative process privilege
recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co,
deliberative process covers documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are formulated. Notably, the
privileged status of such documents rests, not on the need to protect national security but, on the
“obvious realization that officials will not communicate candidly among themselves if each remark is a
potential item of discovery and front page news,” the objective of the privilege being to enhance the
quality of agency decisions.
The diplomatic negotiations privilege bears a close resemblance to the deliberative process and
presidential communications privilege. It may be readily perceived that the rationale for the confidential
character of diplomatic negotiations, deliberative process, and presidential communications is similar, if
not identical.

The earlier discussion on PMPF v. Manglapus shows that the privilege for diplomatic negotiations is
meant to encourage a frank exchange of exploratory ideas between the negotiating parties by shielding
such negotiations from public view. Similar to the privilege for presidential communications, the
diplomatic negotiations privilege seeks, through the same means, to protect the independence in
decision-making of the President, particularly in its capacity as “the sole organ of the nation in its
external relations, and its sole representative with foreign nations.” And, as with the deliberative
process privilege, the privilege accorded to diplomatic negotiations arises, not on account of the content
of the information per se, but because the information is part of a process of deliberation which, in
pursuit of the public interest, must be presumed confidential.

Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the
privileged character of the deliberative process.

Does diplomatic privilege only apply to certain stages of the negotiation process?

In Chavez v. PEA and Chavez v. PCGG, the Court held that with regard to the duty to disclose “definite
propositions of the government,” such duty does not include recognized exceptions like privileged
information, military and diplomatic secrets and similar matters affecting national security and public
order.

Treaty-making power of the President

xxx they (petitioners) argue that the President cannot exclude Congress from the JPEPA negotiations
since whatever power and authority the President has to negotiate international trade agreements is
derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of the Constitution and
Sections 401 and 402 of Presidential Decree No. 1464.

The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and
international agreements, but the power to fix tariff rates, import and export quotas, and other taxes
xxx.

As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII – the
article on the Executive Department.

xxx

While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by
the President only be delegation of that body, it has long been recognized that the power to enter into
treaties is vested directly and exclusively in the President, subject only to the concurrence of at least
two-thirds of all the Members of the Senate for the validity of the treaty. In this light, the authority of
the President to enter into trade agreements with foreign nations provided under P.D. 1464 may be
interpreted as an acknowledgment of a power already inherent in its office. It may not be used as basis
to hold the President or its representatives accountable to Congress for the conduct of treaty
negotiations.

This is not to say, of course, that the President’s power to enter into treaties is unlimited but for the
requirement of Senate concurrence, since the President must still enure that all treaties will
substantively conform to all the relevant provisions of the Constitution.

It follows from the above discussion that Congress, while possessing vast legislative powers, may not
interfere in the field of treaty negotiations. While Article VII, Section 21 provides for Senate
concurrence, such pertains only to the validity of the treaty under consideration, not to the conduct of
negotiations attendant to its conclusion. Moreover, it is not even Congress as a while that has been
given the authority to concur as a means of checking the treaty-making power of the President, but only
the Senate.

Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members of the
House of Representatives fail to present a “sufficient showing of need” that the information sought is
critical to the performance of the functions of Congress, functions that do not include treaty-
negotiation.

Did the respondent’s alleged failure to timely claim executive privilege constitute waiver of such
privilege?

That respondent invoked the privilege for the first time only in their Comment to the present petition
does not mean that the claim of privilege should not be credited. Petitioner’s position presupposes that
an assertion of the privilege should have been made during the House Committee investigations, failing
which respondents are deemed to have waived it.

xxx (but) Respondent’s failure to claim the privilege during the House Committee hearings may not,
however, be construed as a waiver thereof by the Executive branch. xxx what respondents received
from the House Committee and petitioner-Congressman Aguja were mere requests for information. And
as priorly stated, the House Committee itself refrained from pursuing its earlier resolution to issue a
subpoena duces tecum on account of then Speaker Jose de Venecia’s alleged request to Committee
Chairperson Congressman Teves to hold the same in abeyance.

The privilege is an exemption to Congress’ power of inquiry. So long as Congress itself finds no cause to
enforce such power, there is no strict necessity to assert the privilege. In this light, respondent’s failure
to invoke the privilege during the House Committee investigations did not amount to waiver thereof.

“Showing of Need” Test

In executive privilege controversies, the requirement that parties present a “sufficient showing of need”
only means, in substance, that they should show a public interest in favor of disclosure sufficient in
degree to overcome the claim of privilege. Verily, the Court in such cases engages in a balancing of
interests. Such a balancing of interests is certainly not new in constitutional adjudication involving
fundamental rights.

xxx However, when the Executive has – as in this case – invoked the privilege, and it has been
established that the subject information is indeed covered by the privilege being claimed, can a party
overcome the same by merely asserting that the information being demanded is a matter of public
concern, without any further showing required? Certainly not, for that would render the doctrine of
executive privilege of no force and effect whatsoever as a limitation on the right to information, because
then the sole test in such controversies would be whether an information is a matter of public concern.

Right to information vis-a-vis Executive Privilege

xxx the Court holds that, in determining whether an information is covered by the right to information, a
specific “showing of need” for such information is not a relevant consideration, but only whether the
same is a matter of public concern. When, however, the government has claimed executive privilege,
and it has established that the information is indeed covered by the same, then the party demanding it,
if it is to overcome the privilege, must show that that information is vital, not simply for the satisfaction
of its curiosity, but for its ability to effectively and reasonably participate in social, political, and
economic decision-making.
BAYAN MUNA VS. ROMULO

MARCH 30, 2013 ~ VBDIAZ

Bayan Muna vs Romulo

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

Facts:

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

Rome Statute of the International Criminal Court

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

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

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP,
represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under
the US Embassy Note adverted to and put in effect the Agreement with the US government. In esse, the
Agreement aims to protect what it refers to and defines as “persons” of the RP and US from frivolous
and harassment suits that might be brought against them in international tribunals.8 It is reflective of
the increasing pace of the strategic security and defense partnership between the two countries. As of
May 2, 2003, similar bilateral agreements have been effected by and between the US and 33 other
countries.

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, “persons” are current or former Government officials, employees
(including contractors), or military personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall not, absent the express consent of the
first Party,

(a) be surrendered or transferred by any means to any international tribunal for any purpose, unless
such tribunal has been established by the UN Security Council, or

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

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

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

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

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

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

Ruling: The petition is bereft of merit.

Validity of the RP-US Non-Surrender Agreement

Petitioner’s initial challenge against the Agreement relates to form, its threshold posture being that E/N
BFO-028-03 cannot be a valid medium for concluding the Agreement.

Petitioners’ contention––perhaps taken unaware of certain well-recognized international doctrines,

practices, and jargons––is untenable. One of these is the doctrine of incorporation, as expressed in
Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted principles
of international law and international jurisprudence as part of the law of the land and adheres to the
policy of peace, cooperation, and amity with all nations. An exchange of notes falls “into the category of
inter-governmental agreements,” which is an internationally accepted form of international agreement.
The United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows:

An “exchange of notes” is a record of a routine agreement, that has many similarities with the private
law contract. The agreement consists of the exchange of two documents, each of the parties being in
the possession of the one signed by the representative of the other. Under the usual procedure, the
accepting State repeats the text of the offering State to record its assent. The signatories of the letters
may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is
frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of
legislative approval.

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

The point where ordinary correspondence between this and other governments ends and agreements –
whether denominated executive agreements or exchange of notes or otherwise – begin, may sometimes
be difficult of ready ascertainment. x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-Surrender
Agreement itself, or as an integral instrument of acceptance thereof or as consent to be bound––is a
recognized mode of concluding a legally binding international written contract among nations.

Agreement Not Immoral/Not at Variance

with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations
and/or being at variance with allegedly universally recognized principles of international law. The
immoral aspect proceeds from the fact that the Agreement, as petitioner would put it, “leaves criminals
immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity; x
x x it precludes our country from delivering an American criminal to the [ICC] x x x.”63

The above argument is a kind of recycling of petitioner’s earlier position, which, as already discussed,
contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the
process undermined its treaty obligations under the Rome Statute, contrary to international law
principles.

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly
described by the Solicitor General, “is an assertion by the Philippines of its desire to try and punish
crimes under its national law. x x x The agreement is a recognition of the primacy and competence of
the country’s judiciary to try offenses under its national criminal laws and dispense justice fairly and
judiciously.”

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos
and Americans committing high crimes of international concern to escape criminal trial and punishment.
This is manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute
can be prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the US,
before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries to the
Rome Statute have been met. For perspective, what the Agreement contextually prohibits is the
surrender by either party of individuals to international tribunals, like the ICC, without the consent of
the other party, which may desire to prosecute the crime under its existing laws. With the view we take
of things, there is nothing immoral or violative of international law concepts in the act of the Philippines
of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered
criminal by both Philippine laws and the Rome Statute.
RENE A.V. SAGUISAG v. EXECUTIVE SECRETARY PAQUITO N. OCHOA, GR No. 212426, 2016-07-26

Facts:

petitioners respectfully pray that the Honorable Court RECONSIDER, REVERSE, AND SET - ASIDE its
Decision dated January 12, 2016, and issue a new Decision GRANTING the instant consolidated petitions
by declaring the Enhanced Defense Cooperation Agreement (EDCA) entered into by the respondents for
the Philippine government, with the United States of America, UNCONSTITUTIONAL AND INVALID and to
permanently enjoin its implementation.

petitioners claim this Court erred when it ruled that EDCA was not a treaty.[5] In connection to this,
petitioners move that EDCA must be in the form of a treaty in order to comply with the constitutional
restriction under Section 25, Article XVIII of the 1987 Constitution on foreign military bases, troops, and
facilities.[6] Additionally, they reiterate their arguments on the issues of telecommunications, taxation,
and nuclear weapons.[7]

Petitioners assert that this Court contradicted itself when it interpreted the word "allowed in" to refer to
the initial entry of foreign bases, troops, and facilities, based on the fact that the plain meaning of the
provision in question referred to prohibiting the return of foreign bases, troops, and facilities except
under a treaty concurred in by the Senate

Secondly, by interpreting "allowed in" as referring to an initial entry, the Court has simply applied the
plain meaning of the words in the particular provision.[10] Necessarily, once entry has been established
by a subsisting treaty, latter instances of entry need not be embodied by a separate treaty. After all, the
Constitution did not state that foreign military bases, troops, and facilities shall not subsist or exist in the
Philippines.

Issues:

constitutionality of the Enhanced Defense Cooperation Agreement (EDCA) between the Republic of the
Philippines and the United States of America (U.S.)

Ruling:

we find that EDCA did not go beyond the framework. The entry of US troops has long been authorized
under a valid and subsisting treaty, which is the Visiting Forces Agreement (VFA).[14] Reading the VFA
along with the longstanding Mutual Defense Treaty (MDT)[15] led this Court to the conclusion that an
executive agreement such as the EDCA was well within the bounds of the obligations imposed by both
treaties.

Thus, we find no reason for EDCA to be declared unconstitutional. It fully conforms to the Philippines'
legal regime through the MDT and VFA. It also fully conforms to the government's continued policy to
enhance our military capability in the face of various military and humanitarian issues that may arise.
This Motion for Reconsideration has not raised any additional legal arguments that warrant revisiting
the Decision.

Principles:

On verba legis interpretation... verba legis

Petitioners' own interpretation and application of the verba legis rule will in fact result in an absurdity,
which legal construction strictly abhors.

The settled rule is that the plain, clear and unambiguous language of the Constitution should be
construed as such and should not be given a construction that changes its meaning

With due respect, the Honorable Chief Justice Maria Lourdes P. A. Sereno's theory of "initial entry"
mentioned above ventured into a construction of the provisions of Section 25, Article XVIII of the
Constitution which is patently contrary to the plain language and meaning of the said constitutional
provision.
President should augment only deficient items, SC told

JUL 21, 2014 7:59 PM PHT

BUENA BERNAL

Petitioners against the much-debated DAP ask the SC to review its ruling and declare illegal
augmentations of budget items with sufficient funds

MANILA, Philippines – President Benigno Aquino III has been transferring alleged government savings of
the executive department to projects, activities, and programs (PAPs) that did not have any deficiency in
terms of funding.

This was the claim of petitioners against the controversial Disbursement Acceleration Program (DAP)
who want the Supreme Court (SC) to reconsider its ruling on the spending program.

In a motion for partial reconsideration filed Monday, July 21, before the SC, petitioners said the
President should not be able to augment appropriation items that "did not have actual deficiencies."

The petitioners were led by former Manila City councilor and 2013 senatorial candidate Greco Belgica
through his lawyers from the Roque and Butuyan Law Offices.

Belgica said there is "a need for a definitive ruling from the Supreme Court on the power of the
President to augment the funds to cover a deficit in a program for which public funds had been
earmarked under the annual appropriations law."

The General Appropriations Act (GAA), the annual law on the national budget, sets limits on the funding
of budget items including PAPs. If and when the current funding for an item has yet to reach the said
limit, it is considered deficient.

Belgica said the President would be overstepping his bounds if and when he is allowed to fund projects
in excess of the Congress-enacted GAA.

"To allow him to use more money than he initially determined would be required for a certain project
would be to disregard the process of budgeting required to be observed under law," their motion read.

DAP-funded projects with sufficient funds

"President Aquino on many occasions augmented or added funds from government savings for projects
in amounts that exceeded many times the original funding for them under the GAA," Belgica added.

Petitioners cited 3 items in the national budget as having received additional funds through DAP, which
exceeded their original allotment.
The petitioners cited the following: the DREAM project of the Department of Science and Technology
which received an additional P1.6 billion; funding for personal services and maintenance and other
operating expenses which were augmented 260%, equivalent to P300 million; and, the repair and
rehabilitation of the Philippine National Police Crime Laboratory.

The SC declared on July 1 key acts under DAP unconstitutional, including the declaration of government
savings – contrary to the definition of the GAA, the transfer of the executive branch's savings to projects
of another branch of government, and the transfer of savings to items not outlined in the GAA.

Leonen's opinion on DAP

Justice Marvic Leonen touched on the same issue in his separate but concurring opinion on DAP.

"The legislature has the power to authorize a maximum amount to spend per item, and the executive
has the power to spend for the item up to the amount limited in the appropriations act," Leonen wrote.

He explained that transferring funds to another project but still within the limits set by the GAA for that
project is considered mere realignment.

"The limits defined in this case only pertain to the power of the President – and by implication, other
constitutional offices – to augment items of appropriation. There is also the power of the President to
realign allocations of funds to another item – without augmenting that item whenever revenues are
insufficient in order to meet the priorities of government," he said.

He added that augmentation or transferring funds to items that are not deficient is essentially
transferring the very appropriation.

"Any expenditure beyond the maximum amount provided for the item in the appropriations act is an
augmentation of that item. It amounts to a transfer of appropriation," he further explained.

COA notices of disallowance

Belgica likewise wrote the Commission on Audit (COA) on Monday, asking COA to audit transactions
under DAP and issue notices of disallowance (NDs) accordingly.

The NDs will effectively order the return of the unlawful disbursements to the national treasury. It refers
to the civil liability of the erring officer, but it can still be appealed by the said officer.

The criminal liability of the officer would have to be determined by the Ombudsman, who will then
greenlight the filing of charges before a court.

"It is of utmost importance that an audit be made on all DAP transactions. As directed by the Supreme
Court, investigation and prosecution filed in its proper venue must be done. But without concrete
evidence which only your office can unearth, none will ever prosper," the letter read.

Belgica said the failure of the COA to audit the disbursements under DAP would result in "grave
injustice" against "millions of our countrymen" who "feel betrayed by this breach of conduct." –
Rappler.com