Abella, Ma. Kiana M.

2E-PIL
2020400161

Tanada, et al. v. Angara, et al. G.R. No. 118295, 02 May 1997

Doctrine:
The WTO reliance on "most favored nation", "national treatment", and "trade
without discrimination" cannot be struck down as unconstitutional as in fact they
are rules of equality and reciprocity, that apply to all WTO members. Aside from
envisioning a trade policy based on "equality and reciprocal", the fundamental law
encourages industries that are "competitive in both domestic and foreign markets,"
thereby demonstrating a clear policy against a sheltered domestic trade
environment, but one in favor of the gradual development of robust industries that
can compete with the best in the foreign markets. Indeed, Filipino managers and
Filipino enterprises have shown capability and tenacity to compete internationally.
And given a free trade environment, Filipino entrepreneurs and managers in
Hongkong have demonstrated the Filipino capacity to grow and to prosper against
the best offered under a policy of laissez faire.

Facts:
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of the Department
of Trade and Industry (Secretary Navarro, for brevity), representing the
Government of the Republic of the Philippines, signed in Marrakesh, Morocco, the
Final Act Embodying the Results of the Uruguay Round of Multilateral
Negotiations (Final Act, for brevity).

By signing the Final Act, 2 Secretary Navarro on behalf of the Republic of the
Philippines, agreed:jgc:chanrobles.com.ph

"(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities, with a view to seeking approval of the Agreement
in accordance with their procedures; and

(b) to adopt the Ministerial Declarations and Decisions."

On August 12, 1994, the members of the Philippine Senate received a letter dated
August 11, 1994 from the President of the Philippines, 3 stating among others that
"the Uruguay Round Final Act is hereby submitted to the Senate for its concurrence
pursuant to Section 21, Article VII of the Constitution."cralaw
On August 13, 1994, the members of the Philippine Senate received another letter
from the President of the Philippines 4 likewise dated August 11, 1994, which
stated among others that "the Uruguay Round Final Act, the Agreement
Establishing the World Trade Organization, the Ministerial Declarations and
Decisions, and the Understanding on Commitments in Financial Services are
hereby submitted to the Senate for its concurrence pursuant to Section 21, Article
VII of the Constitution."c

On December 9, 1994, the President of the Philippines certified the necessity of the
immediate adoption of P.S. 1083, a resolution entitled "Concurring in the
Ratification of the Agreement Establishing the World Trade Organization." 5

On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which
"Resolved, as it is hereby resolved, that the Senate concur, as it hereby concurs, in
the ratification by the President of the Philippines of the Agreement Establishing
the World Trade Organization." 6 The text of the WTO Agreement is written on
pages 137 et seq. of Volume I of the 36-volume Uruguay Round of Multilateral
Trade Negotiations and includes various agreements and associated legal
instruments (identified in the said Agreement as Annexes 1, 2 and 3 thereto and
collectively referred to as Multilateral Trade Agreements, for brevity) as
follows:jgc:chanrobles.com.ph

"ANNEX I

Annex 1A: Multilateral Agreement on Trade in Goods

General Agreement on Tariffs and Trade 1994

Agreement on Agriculture
Agreement on the Application of Sanitary and Phytosanitary

Measures

Agreement on Textiles and Clothing

Agreement on Technical Barriers to Trade

Agreement on Trade-Related Investment Measures

Agreement on Implementation of Article VI of the General

Agreement on Tariffs and Trade 1994

Agreement on Implementation of Article VII of the General

on Tariffs and Trade 1994

Agreement on Pre-Shipment Inspection

Agreement on Rules of Origin

Agreement on Imports Licensing Procedures

Agreement on Subsidies and Coordinating Measures

Agreement on Safeguards

Annex 1B: General Agreement on Trade in Services and Annexes

Annex 1C: Agreement on Trade-Related Aspects of Intellectual

Property Rights

ANNEX 2
Understanding on Rules and Procedures Governing the

Settlement of Disputes

ANNEX 3

Trade Policy Review Mechanism"

On December 16, 1994, the President of the Philippines signed 7 the Instrument of
Ratification, declaring:jgc:chanrobles.com.ph

"NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the

Republic of the Philippines, after having seen and considered the aforementioned
Agreement Establishing the World Trade Organization and the agreements and
associated legal instruments included in Annexes one (1), two (2) and three (3) of
that Agreement which are integral parts thereof, signed at Marrakesh, Morocco on
15 April 1994, do hereby ratify and confirm the same and every Article and Clause
thereof."
To emphasize, the WTO Agreement ratified by the President of the Philippines is
composed of the Agreement Proper and "the associated legal instruments included
in Annexes one (1), two (2) and three (3) of that Agreement which are integral
parts thereof."ary

On the other hand, the Final Act signed by Secretary Navarro embodies not only
the WTO Agreement (and its integral annexes aforementioned) but also (1) the
Ministerial Declarations and Decisions and (2) the Understanding on Commitments
in Financial Services. In his Memorandum dated May 13, 1996, 8 the Solicitor
General describes these two latter documents as follows:jgc:chanrobles.com.ph

"The Ministerial Decisions and Declarations are twenty-five declarations and

decisions on a wide range of matters, such as measures in favor of least developed
countries, notification procedures, relationship of WTO with the International
Monetary Fund (IMF), and agreements on technical barriers to trade and on dispute
settlement.
The Understanding on Commitments in Financial Services dwell on, among other
things, standstill or limitations and qualifications of commitments to existing non-
conforming measures, market access, national treatment, and definitions of non-
resident supplier of financial services, commercial presence and new financial
service." cdti

On December 29, 1994, the present petition was filed. After careful deliberation on
respondents’ comment and petitioners’ reply thereto, the Court resolved on
December 12, 1995, to give due course to the petition, and the parties thereafter
filed their respective memoranda. The Court also requested the Honorable Lilia R.
Bautista, the Philippine Ambassador to the United Nations stationed in Geneva,
Switzerland, to submit a paper, hereafter referred to as "Bautista Paper," 9 for
brevity, (1) providing a historical background of and (2) summarizing the said
agreements.

During the Oral Argument held on August 27, 1996, the Court
directed:jgc:chanrobles.com.ph

"(a) the petitioners to submit the (1) Senate Committee Report on the matter in
controversy and (2) the transcript of proceedings/hearings in the Senate; and

(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine
treaties signed prior to the Philippine adherence to the WTO Agreement, which
derogate from Philippine sovereignty and (2) copies of the multi-volume WTO
Agreement and other documents mentioned in the Final Act, as soon as possible."

After receipt of the foregoing documents, the Court said it would consider the case
submitted for resolution. In a Compliance dated September 16, 1996, the Solicitor
General submitted a printed copy of the 36-volume Uruguay Round of Multilateral
Trade Negotiations, and in another Compliance dated October 24, 1996, he listed
the various "bilateral or multilateral treaties or international instruments involving
derogation of Philippine sovereignty." Petitioners, on the other hand, submitted
their Compliance dated January 28, 1997, on January 30, 1997.
Issue:
Whether the petitioner members of the Senate who participated in the deliberations
and voting leading to the concurrence are estopped from impugning the validity of
the Agreement Establishing the World Trade Organization or of the validity or of
the concurrence

Ruling:
This is the lis mota, the main issue, raised by the petition.

Petitioners vigorously argue that the "letter, spirit and intent" of the Constitution
mandating "economic nationalism" are violated by the so-called "parity provisions"
and "national treatment" clauses scattered in various parts not only of the WTO
Agreement and its annexes but also in the Ministerial Decisions and Declarations
and in the Understanding on Commitments in Financial Services.

Specifically, the "flagship" constitutional provisions referred to are Sec. 19, Article
II, and Secs. 10 and 12, Article XII, of the Constitution, which are worded as
follows:jgc:chanrobles.com.ph

"Article II

DECLARATION OF PRINCIPLES AND STATE POLICIES

x x x

Sec. 19. The State shall develop a self-reliant and independent national economy
effectively controlled by Filipinos.

x x x

Article XII

NATIONAL ECONOMY AND PATRIMONY

x x x

Sec. 10 . . . The Congress shall enact measures that will encourage the formation
and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy
and patrimony, the State shall give preference to qualified Filipinos.

x x x

Sec. 12. The State shall promote the preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt measures that help make them
competitive."

Petitioners aver that these sacred constitutional principles are desecrated by the
following WTO provisions quoted in their memorandum: 19

"a) In the area of investment measures related to trade in goods (TRIMS, for
brevity):jgc:chanrobles.com.ph

"Article 2

National Treatment and Quantitative Restrictions.

1. Without prejudice to other rights and obligations under GATT 1994. No Member
shall apply any TRIM that is inconsistent with the provisions of Article III or
Article XI of GATT 1994.

2. An Illustrative list of TRIMS that are inconsistent with the obligations of general
elimination of quantitative restrictions provided for in paragraph I of Article XI of
GATT 1994 is contained in the Annex to this Agreement." (Agreement on Trade-
Related Investment Measures, Vol. 27, Uruguay Round, Legal Instruments, p.
22121, Emphasis supplied).

The Annex referred to reads as follows:jgc:chanrobles.com.ph

"ANNEX

Illustrative List

1. TRIMS that are inconsistent with the obligation of national treatment provided
for in paragraph 4 of Article III of GATT 1994 include those which are mandatory
or enforceable under domestic law or under administrative rulings, or compliance
with which is necessary to obtain an advantage, and which require:virtual 1aw
library

(a) the purchase or use by an enterprise of products of domestic origin or from any
domestic source, whether specified in terms of particular products, in terms of
volume or value of products, or in terms of proportion of volume or value of its
local production; or

(b) that an enterprise’s purchases or use of imported products be limited to an

amount related to the volume or value of local products that it exports.
2. TRIMS that are inconsistent with the obligations of general elimination of
quantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994
include those which are mandatory or enforceable under domestic laws or under
administrative rulings, or compliance with which is necessary to obtain an
advantage, and which restrict:

(a) the importation by an enterprise of products used in or related to the local

production that it exports;

(b) the importation by an enterprise of products used in or related to its local

production by restricting its access to foreign exchange inflows attributable to the
enterprise; or
(c) the exportation or sale for export specified in terms of particular products, in
terms of volume or value of products, or in terms of a preparation of volume or
value of its local production." (Annex to the Agreement on Trade-Related
Investment Measures, Vol. 27, Uruguay Round Legal Documents, p. 22125,
Emphasis supplied).

The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:

The products of the territory of any contracting party imported into the territory of
any other contracting party shall be accorded treatment no less favorable than that
accorded to like products of national origin in respect of laws, regulations and
requirements affecting their internal sale, offering for sale, purchase, transportation,
distribution or use. The provisions of this paragraph shall not prevent the
application of differential internal transportation charges which are based
exclusively on the economic operation of the means of transport and not on the
nationality of the product." (Article III, GATT 1947, as amended by the Protocol
Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62 UMTS 82-
84 in relation to paragraph 1 (a) of the General Agreement on Tariffs and Trade
1994, Vol. 1, Uruguay Round, Legal Instruments p. 177, Emphasis supplied).

"b) In the area of trade-related aspects of intellectual property rights (TRIPS, for
brevity):
Each Member shall accord to the nationals of other Members treatment no less
favourable than that it accords to its own nationals with regard to the protection of
intellectual property . . . (par. 1, Article 3, Agreement on Trade-Related Aspect of
Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments, p. 25432
(Emphasis supplied)

"(c) In the area of the General Agreement on Trade in Services:

National Treatment

1. In the sectors inscribed in its schedule, and subject to any conditions and
qualifications set out therein, each Member shall accord to services and service
suppliers of any other Member, in respect of all measures affecting the supply of
services, treatment no less favourable than it accords to its own like services and
service suppliers.

2. A Member may meet the requirement of paragraph I by according to services

and service suppliers of any other Member, either formally identical treatment or
formally different treatment to that it accords to its own like services and service
suppliers.

3. Formally identical or formally different treatment shall be considered to be less

favourable if it modifies the conditions of completion in favour of services or
service suppliers of the Member compared to like services or service suppliers of
any other Member. (Article XVII, General Agreement on Trade in Services, Vol.
28, Uruguay Round Legal Instruments, p. 22610 Emphasis supplied).
It is petitioners’ position that the foregoing "national treatment" and "parity
provisions" of the WTO Agreement "place nationals and products of member
countries on the same footing as Filipinos and local products," in contravention of
the "Filipino First" policy of the Constitution. They allegedly render meaningless
the phrase "effectively controlled by Filipinos." The constitutional conflict becomes
more manifest when viewed in the context of the clear duty imposed on the
Philippines as a WTO member to ensure the conformity of its laws, regulations and
administrative procedures with its obligations as provided in the annexed
agreements. 20 Petitioners further argue that these provisions contravene
constitutional limitations on the role exports play in national development and
negate the preferential treatment accorded to Filipino labor, domestic materials and
locally produced goods.

On the other hand, respondents through the Solicitor General counter (1) that such
Charter provisions are not self-executing and merely set out general policies; (2)
that these nationalistic portions of the Constitution invoked by petitioners should
not be read in isolation but should be related to other relevant provisions of Art.
XII, particularly Secs. 1 and 13 thereof; (3) that read properly, the cited WTO
clauses do not conflict with the Constitution; and (4) that the WTO Agreement
contains sufficient provisions to protect developing countries like the Philippines
from the harshness of sudden trade liberalization.chanrobles law library
We shall now discuss and rule on these arguments.

Bayan, et al. v. Zamora, et al. G.R. No. 138570, 10 Oct 2000.

Doctrine:
The records reveal that the United States Government, through Ambassador
Thomas C. Hubbard, has stated that the United States government has fully
committed to living up to the terms of the VFA. For as long as the United States of
America accepts or acknowledges the VFA as a treaty, and binds itself further to
comply with its obligations under the treaty, there is indeed marked 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 an 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. With the ratification of the VFA, which is equivalent to final
acceptance, and with the exchange of notes between the Philippines and the United
States of America, it now becomes obligatory and incumbent on our part, under the
principles of international law, to be bound by the terms of the agreement. Thus, no
less than Section 2, Article II of the Constitution, 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. As a member of the family of nations, the Philippines
agrees to be bound by generally accepted rules for the conduct of its international
relations. While the international obligation devolves upon the state and not upon
any particular branch, institution, or individual member of its government, the
Philippines is nonetheless responsible for violations committed by any branch or
subdivision of its government or any official thereof. As an integral part of the
community of nations, we are responsible to assure that our government,
Constitution and laws will carry out our international obligation. . . Article 26 of
the Convention provides that "Every treaty in force is binding upon the parties to it
and must be performed by them in good faith." This is known as the principle of
pacta sunt servanda which preserves the sanctity of treaties and have been one of
the most fundamental principles of positive international law, supported by the
jurisprudence of international tribunals.
Facts:
The Republic of the Philippines and the United States of America entered into an
agreement called the Visiting Forces Agreement (VFA). The agreement was treated
as a treaty by the Philippine government and was ratified by then-President Joseph
Estrada with the concurrence of 2/3 of the total membership of the Philippine
Senate.

The VFA defines the treatment of U.S. troops and personnel visiting the
Philippines. It provides for the guidelines to govern such visits, and further defines
the rights of the U.S. and the Philippine governments in the matter of criminal
jurisdiction, movement of vessel and aircraft, importation and exportation of
equipment, materials and supplies.

Petitioners argued, inter alia, that the VFA violates §25, Article XVIII of the 1987
Constitution, which provides that “foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty duly concurred in by the
Senate . . . and recognized as a treaty by the other contracting State.”

Issue:
Was the VFA unconstitutional?

Ruling:
NO, the VFA is not unconstitutional.

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in
the country, unless the following conditions are sufficiently met, viz: (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 provisions of the Constitution . . . the provision in [in §25,
Article XVIII] requiring ratification by a majority of the votes cast in a national
referendum being unnecessary since Congress has not required it.

xxx xxx xxx

This Court is of the firm view that the phrase “recognized as a treaty” means that
the other contracting party accepts or acknowledges the agreement as a treaty. To
require the other contracting state, the United States of America in this case, to
submit the VFA to the United States 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.

Moreover, 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. To be sure, as long as the VFA possesses the elements of an
agreement under international law, the said agreement is to be taken equally as a
treaty.

xxx xxx xxx

The records reveal that the United States Government, through Ambassador
Thomas C. Hubbard, has stated that the United States government has fully
committed to living up to the terms of the VFA. For as long as the United States of
America accepts or acknowledges the VFA as a treaty, and binds itself further to
comply with its obligations under the treaty, there is indeed marked compliance
with the mandate of the Constitution.

Bayan Muna, et al. v. Romulo, et al. G.R. No. 159618, 01 Feb 2011
Doctrine:
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.

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.
Ang Ladlad LGBT Party v. COMELEC, G.R. No. 190582, 08 Apr 2010
Doctrine:
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a
declaration formulated by various international law professors, are — at best — de
lege ferenda — and do not constitute binding obligations on the Philippines.
Indeed, so much of contemporary international law is characterized by the "soft
law" nomenclature, i.e., international law is full of principles that promote
international cooperation, harmony, and respect for human rights, most of which
amount to no more than well-meaning desires, without the support of either State
practice or opinio juris.|||
Facts:
The COMELEC (Second Division)dismissed the Petition for registration of the
petitioner on moral grounds that petitioner tolerates immorality which offends
religious beliefs, and advocates sexual immorality. Petitioner should likewise be
denied accreditation not only for advocating immoral doctrines but likewise for not
being truthful when it said that it ³ or any of its nominees/party-list representatives
have not violated or failed to comply with laws, rules, or regulations relating to the
elections. Furthermore, states COMELEC, Ang Ladlad will be exposing our youth
to an environment that does not conform to the teachings of our faith.

Issue:
1. Whether or not the denial of accreditation by COMELEC, violated the
constitutional guarantees against the establishment of religion. insofar as it justified
the exclusion by using religious dogma.
2. Whether or not the Assailed Resolutions contravened

Ruling:
Comelec’s citation of the Bible and the Koran in denying petitioner’s application
was a violation of the non-establishment clause laid down in Article 3 section 5 of
the Constitution. The proscription by law relative to acts against morality must be
for a secular purpose (that is, the conduct prohibited or sought to be repressed is
“detrimental or dangerous to those conditions upon which depend the existence and
progress of human society"), rather than out of religious conformity. The Comelec
failed to substantiate their allegation that allowing registration to Ladlad would be
detrimental to society. The LGBT community is not exempted from the exercise of
its constitutionally vested rights on the basis of their sexual orientation. Laws of
general application should apply with equal force to LGBTs, and they deserve to
participate in the party-list system on the same basis as other marginalized and
under-represented sectors. Discrimination based on sexual orientation is not
tolerated ---not by our own laws nor by any international laws to which we adhere.
Province of North Cotabato, et al. v. Government of the Republic of the
Philippines Peace Panel on Ancestral Domain, G.R. No. 183591, 14 Oct 2008
Doctrine:
In general, the objections against the MOA-AD center on the extent of the powers
conceded therein to the BJE. Petitioners assert that the powers granted to the BJE
exceed those granted to any local government under present laws, and even go
beyond those of the present ARMM. Before assessing some of the specific powers
that would have been vested in the BJE, however, it would be useful to turn first to
a general idea that serves as a unifying link to the different provisions of the MOA-
AD, namely, the international law concept of association. Significantly, the MOA-
AD explicitly alludes to this concept, indicating that the Parties actually framed its
provisions with it in mind.

Facts:
President Gloria Macapagal-Arroyo, in line with the government‘s policy of
pursuing peace negotiations with the Moro Islamic Liberation Front (MILF), asked
Prime Minister Mahathir Mohammad to convince the MILF to continue negotiating
with the government. MILF, thereafter, convened its Central Committee and
decided to meet with the Government of the Republic of the Philippines (GRP).
Formal peace talks were held in Libya which resulted to the crafting of the GRP-
MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) which consists of
three (3) aspects: a.) security aspect; b.) rehabilitation aspect; and c.) ancestral
domain aspect. Various negotiations were held which led to the finalization of the
Memorandum of Agreement on the Ancestral Domain (MOA-AD). The said
memorandum was set to be signed last August 5, 2008. In its body, it grants ―the
authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the
Bangsamoro to the Bangsamoro Juridical Entity (BJE). The latter, in addition, has
the freedom to enter into any economic cooperation and trade relation with foreign
countries. ―The sharing between the Central Government and the BJE of total
production pertaining to natural resources is to be 75:25 in favor of the BJE. The
MOA-AD further provides for the extent of the territory of the Bangsamoro. It
describes it as ―the land mass as well as the maritime, terrestrial, fluvial and
alluvial domains, including the aerial domain and the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region. With regard to
governance, on the other hand, a shared responsibility and authority between the
Central Government and BJE was provided. The relationship was described as
―associative. With the formulation of the MOA-AD, petitioners aver that the
negotiation and finalization of the MOA-AD violates constitutional and statutory
provisions on public consultation, as mandated by Executive Order No. 3, and right
to information. They further contend that it violates the Constitution and laws.
Hence, the filing of the petition.

Issues:
1) Whether or not the MOA-AD violates constitutional and statutory provisions on
public consultation and right to information
2) Whether or not the MOA-AD violates the Constitution and the laws.

Ruling:

The MOA-AD subject of the present cases is of public concern, involving as it does
the sovereignty and territorial integrity of the State, which directly affects the lives
of the public at large. Intended as a ―splendid symmetry to the right to information
under the Bill of Rights is the policy of public disclosure under Section 28, Article
II of the Constitution which provides that subject to reasonable conditions
prescribed by law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest. Moreover, the policy of
full public disclosure enunciated in above-quoted Section 28 complements the right
of access to information on matters of public concern found in the Bill of Rights.
The right to information guarantees the right of the people to demand information,
while Section 28 recognizes the duty of officialdom to give information even if
nobody demands. The policy of public disclosure establishes a concrete ethical
principle for the conduct of public affairs in a genuinely open democracy, with the
people‘s right to know as the centerpiece. It is a mandate of the State to be
accountable by following such policy. These provisions are vital to the exercise of
the freedom of expression and essential to hold public officials at all times
accountable to the people. Indubitably, the effectivity of the policy of public
disclosure need not await the passing of a statute. As Congress cannot revoke this
principle, it is merely directed to provide for ―reasonable safeguards.‖ The
complete and effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same self-executory
nature. Since both provisions go hand-in-hand, it is absurd to say that the broader
right to information on matters of public concern is already enforceable while the
correlative duty of the State to disclose its transactions involving public interest is
not enforceable until there is an enabling law. Respondents cannot thus point to the
absence of an implementing legislation as an excuse in not effecting such policy.
An essential element of these freedoms is to keep open a continuing dialogue or
process of communication between the government and the people. It is in the
interest of the State that the channels for free political discussion be maintained to
the end that the government may perceive and be responsive to the people‘s will.
Envisioned to be corollary to the twin rights to information and disclosure is the
design for feedback mechanisms. The imperative of a public consultation, as a
species of the right to information, is evident in the ―marching orders‖ to
respondents. The mechanics for the duty to disclose information and to conduct
public consultation regarding the peace agenda and process is manifestly provided
by E.O. No. 3. The preambulatory clause of E.O. No. 3 declares that there is a need
to further enhance the contribution of civil society to the comprehensive peace
process by institutionalizing the people‘s participation. One of the three underlying
principles of the comprehensive peace process is that it ―should be community-
based, reflecting the sentiments, values and principles important to all Filipinos and
―shall be defined not by the government alone, nor by the different contending
groups only, but by all Filipinos as one community. Included as a component of the
comprehensive peace process is consensus-building and empowerment for peace,
which includes ―continuing consultations on both national and local levels to
build consensus for a peace agenda and process, and the mobilization and
facilitation of people‘s participation in the peace process.Clearly, E.O. No. 3
contemplates not just the conduct of a plebiscite to effectuate “continuing”
consultations, contrary to respondents’ position that plebiscite is “more than
sufficient consultation.Further, E.O. No. 3 enumerates the functions and
responsibilities of the PAPP, one of which is to ―conduct regular dialogues with
the National Peace Forum (NPF) and other peace partners to seek relevant
information, comments, recommendations as well as to render appropriate and
timely reports on the progress of the comprehensive peace process. E.O. No. 3
mandates the establishment of the NPF to be ―the principal forum for the
Presidential Adviser on Peace Progress (PAPP) to consult with and seek advi[c]e
from the peace advocates, peace partners and concerned sectors of society on both
national and local levels, on the implementation of the comprehensive peace
process, as well as for government[-]civil society dialogue and consensus-building
on peace agenda and initiatives. In fine, E.O. No. 3 establishes petitioners’ right to
be consulted on the peace agenda, as a corollary to the constitutional right to
information and disclosure. In general, the objections against the MOA-AD center
on the extent of the powers conceded therein to the BJE. Petitioners assert that the
powers granted to the BJE exceed those granted to any local government under
present laws, and even go beyond those of the present ARMM. Before assessing
some of the specific powers that would have been vested in the BJE, however, it
would be useful to turn first to a general idea that serves as a unifying link to the
different provisions of the MOA-AD, namely, the international law concept of
association. Significantly, the MOA-AD explicitly alludes to this concept,
indicating that the Parties actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned
provision, however, that the MOA-AD most clearly uses it to describe the
envisioned relationship between the BJE and the Central Government.

4. The relationship between the Central Government and the Bangsamoro juridical
entity shall be associative characterized by shared authority and responsibility with
a structure of governance based on executive, legislative, judicial and
administrative institutions with defined powers and functions in the comprehensive
compact. A period of transition shall be established in a comprehensive peace
compact specifying the relationship between the Central Government and the BJE.
The nature of the ―associative relationship may have been intended to be defined
more precisely in the still to be forged Comprehensive Compact. Nonetheless,
given that there is a concept of ―association in international law, and the MOA-
AD – by its inclusion of international law instruments in its TOR– placed itself in
an international legal context, that concept of association may be brought to bear in
understanding the use of the term ―associative in the MOA-AD. The MOA-AD
contains many provisions which are consistent with the international legal concept
of association, specifically the following: the BJE‘s capacity to enter into economic
and trade relations with foreign countries, the commitment of the Central
Government to ensure the BJE‘s participation in meetings and events in the
ASEAN and the specialized UN agencies, and the continuing responsibility of the
Central Government over external defense. Moreover, the BJE‘s right to participate
in Philippine official missions bearing on negotiation of border agreements,
environmental protection, and sharing of revenues pertaining to the bodies of water
adjacent to or between the islands forming part of the ancestral domain, resembles
the right of the governments of FSM and the Marshall Islands to be consulted by
the U.S. government on any foreign affairs matter affecting them. These provisions
of the MOA indicate, among other things, that the Parties aimed to vest in the BJE
the status of an associated state or, at any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution. No
province, city, or municipality, not even the ARMM, is recognized under our laws
as having an ―associative‖ relationship with the national government. Indeed, the
concept implies powers that go beyond anything ever granted by the Constitution to
any local or regional government. It also implies the recognition of the associated
entity as a state. The Constitution, however, does not contemplate any state in this
jurisdiction other than the Philippine State, much less does it provide for a
transitory status that aims to prepare any part of Philippine territory for
independence.

Even the mere concept animating many of the MOA-AD‘s provisions, therefore,
already requires for its validity the amendment of constitutional provisions,
specifically the following provisions of Article X:

SECTION 1. The territorial and political subdivisions of the Republic of the

Philippines are the provinces, cities, municipalities, and barangays. There shall be
autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter
provided. SECTION 15. There shall be created autonomous regions in Muslim
Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and
geographical areas sharing common and distinctive historical and cultural heritage,
economic and social structures, and other relevant characteristics within the
framework of this Constitution and the national sovereignty as well as territorial
integrity of the Republic of the Philippines.

It is not merely an expanded version of the ARMM, the status of its relationship
with the national government being fundamentally different from that of the
ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid
down in the Montevideo Convention, namely, a permanent population, a defined
territory, a government, and a capacity to enter into relations with other states.

The defining concept underlying the relationship between the national government
and the BJE being itself contrary to the present Constitution, it is not surprising that
many of the specific provisions of the M OA-AD on the formation and powers of
the BJE are in conflict with the Constitution and the laws. Article X, Section 18 of
the Constitution provides that ―[t]he creation of the autonomous region shall be
effective when approved by a majority of the votes cast by the constituent units in a
plebiscite called for the purpose, provided that only provinces, cities, and
geographic areas voting favorably in such plebiscite shall be included in the
autonomous region.
The BJE is more of a state than an autonomous region. But even assuming that it is
covered by the term ―autonomous region in the constitutional provision just
quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c) on
TERRITORY in relation to 2(d) and 2(e), the present geographic area of the
ARMM and, in addition, the municipalities of Lanao del Norte which voted for
inclusion in the ARMM during the 2001 plebiscite – Baloi, Munai, Nunungan,
Pantar, Tagoloan and Tangkal – are automatically part of the BJE without need of
another plebiscite, in contrast to the areas under Categories A and B mentioned
earlier in the overview. That the present components of the ARMM and the above-
mentioned municipalities voted for inclusion therein in 2001, however, does not
render another plebiscite unnecessary under the Constitution, precisely because
what these areas voted for then was their inclusion in the ARMM, not the BJE.

Article II, Section 22 of the Constitution must also be amended if the scheme
envisioned in the MOA-AD is to be effected. That constitutional provision states:
―The State recognizes and promotes the rights of indigenous cultural communities
within the framework of national unity and development. An associative
arrangement does not uphold national unity. While there may be a semblance of
unity because of the associative ties between the BJE and the national government,
the act of placing a portion of Philippine territory in a status which, in international
practice, has generally been a preparation for independence, is certainly not
conducive to national unity.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not
only its specific provisions but the very concept underlying them, namely, the
associative relationship envisioned between the GRP and the BJE, are
unconstitutional, for the concept presupposes that the associated entity is a state and
implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the provisions thereof
inconsistent with the present legal framework will not be effective until that
framework is amended, the same does not cure its defect. The inclusion of
provisions in the MOA-AD establishing an associative relationship between the
BJE and the Central Government is, itself, a violation of the Memorandum of
Instructions from the President dated March 1, 2001, addressed to the government
peace panel. Moreover, as the clause is worded, it virtually guarantees that the
necessary amendments to the Constitution and the laws will eventually be put in
place. Neither the GRP Peace Panel nor the President herself is authorized to make
such a guarantee. Upholding such an act would amount to authorizing a usurpation
of the constituent powers vested only in Congress, a Constitutional Convention, or
the people themselves through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment process is through an undue
influence or interference with that process.

Poe-Llamanzares v. COMELEC, G.R. No. 221697, 08 Mar 2016

Doctrine:
Since the 1935 Constitution, and the 1973 and 1987 Constitutions thereafter,
consistently subscribe to the jus sanguinis principle, it is axiomatic that no
international agreement or generally-accepted principle of international law —
even assuming that there is a binding one which supports petitioner's averred
presumption — could contravene the same. "Under the 1987 Constitution,
international law can become part of the sphere of domestic law either by
transformation or incorporation." 96 Thus, in our legal hierarchy, treaties and
international principles belong to the same plane as domestic laws and, hence,
cannot prevail over the Constitution.|||
Facts:
In her COC for Presidency on the May 2016 elections, Grace Poe declared that she
is a natural-born citizen of the Philippines and that her residence up today before
May 9, 2016 would be 10 years and 11 months counted from May 24, 2005.
Grace Poe was born in 1968., found as newborn infant in Jaro,Iloilo and was
legally adopted by RONALD ALLAN KELLY POE (FPJ) and JESUS SONORA
POE (SUSAN ROCES) in 1974. She immigrated to the US in 1991 after her
marriage to Theodore Llamanzares who was then based at he US. Grace Poe then
became a naturalized American citizen in 2001.

On December 2004, he returned to the Philippines due to his father’s deteriorating

medical condition, who then eventually demise on February 3,2005. She then
quitted her job in the US to be with her grieving mother and finally went home for
good to the Philippines on MAY 24, 2005.

On JULY 18, 2006, the BI granted her petition declaring that she had reacquired
her Filipino citizenship under RA 9225. She registered as a voter and obtained a
new Philippine Passport.

In 2010, before assuming her post as appointed Chairperson of the MTRCB , she
renounced her American citizenship to satisfy the RA 9225 requirements as to
Reacquisition of Filipino Citizenship. From then on, she stopped using her
American passport.

Petitions were filed before the COMELEC to deny or cancel her candidacy on the
ground particularly among others, that she cannot be considered a natural born
Filipino citizen since she was a FOUNDLING and that her biological parents
cannot be proved as Filipinos. The Comelec en banc cancelled her candidacy on
the ground that she is in want of citizenship and residence requirements and that
she committed misrepresentation in her COC.

On CERTIORARI, the SUPREME COURT, reversed the ruling and held a vote of
9-6 that POE is qualified as candidate for Presidency.

Issues:

(1) Whether or not Grace Poe- Llamanzares is a natural- born Filipino citizen

(2) Whether or not Poe satisfies the 10-year residency requirement.

Held:

YES. GRACE POE is considerably a natural-born Filipino Citizen. For that, she
satisfied the constitutional requirement that only natural-born Filipinos may run for
Presidency.

(1) there is high probability that Poe’s parents are Filipinos, as being shown in her
physical features which are typical of Filipinos, aside from the fact that she was
found as an infant in Jaro, Iloilo, a municipality wherein there is 99% probability
that residents there are Filipinos, consequently providing 99% chance that Poe’s
biological parents are Filipinos. Said probability and circumstantial evidence are
admissible under Rule 128, Sec 4 of the Rules on Evidence.

(2) The SC pronounced that FOUNDLINGS are as a class, natural born- citizens as
based on the deliberations of the 1935 Constitutional Convention, wherein though
its enumeration is silent as to foundlings, there is no restrictive language either to
definitely exclude the foundlings to be natural born citizens.

(3) That Foundlings are automatically conferred with the natural-born citizenship
as to the country where they are being found, as covered and supported by the UN
Convention Law.

As to the residency issue, Grace Poe satisfied the 10-year residency because she
satisfied the requirements of ANIMUS MANENDI (intent to remain permanently)
coupled with ANIMUS NON REVERTENDI (intent of not returning to US) in
acquiring a new domicile in the Philippines. Starting May 24,2005, upon returning
to the Philippines, Grace Poe presented overwhelming evidence of her actual stay
and intent to abandon permanently her domicile in the US, coupled with her
eventual application to reacquire Filipino Citizenship under RA 9225. Hence, her
candidacy for Presidency was granted by the SC.