Navarro, Czarina Louise H.

Public International Law Review

Ocampo vs. Enriquez

G.R. No. 225973; August 08, 2017
Peralta, J.

Facts: This case involves Motions for Reconsideration and Motion or Petition for Exhumation
filed by petitioners challenging the decision of the court allowing the burial of former President
Ferdinand E. Marcos at the Libingan ng mga Bayani. Among the grounds raised here is compliance
with International Human Rights Law and International Humanitarian Law, particularly the Basic
Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law (“Basic Principles and Guidelines”) and Updated Set of Principles for the
Protection and Promotion of Human Rights through Action to Combat Impunity (“UN Principles
on Impunity”). Here, ruling against the grounds raised by petitioners, the Court, in a nine (9) to
five (5) decision, denied with finality the aforesaid motions and petitions.

Issue: Whether the UN Principles on Impunity creates a legally binding obligation and thus can
constrain the presidential prerogative of Duterte to allow the burial of Ferdinand Marcos at
Libingan ng mga Bayani.

Ruling: No. The Basic Principles and Guidelines and the Updated Set of Principles for the
Protection and Promotion of Human Rights through Action to Combat Impunity (“UN Principles
on Impunity”) are neither a treaty nor have attained the status of generally accepted principles of
international law and/or international customs. Justice Arturo D. Brion fittingly observed in his
Separate Concurring Opinion that they do not create legally binding obligations because they are
not international agreements but are considered as “soft law” that cannot be interpreted as
constraints on the exercise of presidential prerogative. Consistent with Pharmaceutical and Health
Care Assoc. of the Phils. v. Health Sec. Duque III, the Basic Principles and Guidelines and the
UN Principles on Impunity are merely expressions of non-binding norms, principles, and practices
that influence state behavior; therefore, they cannot be validly considered as sources of
international law that is binding upon the Philippines under Art. 38(1), Chapter II of the Statute
of the International Court of Justice.

It is evident from the plain text of the Basic Principles and Guidelines and the UN Principles on
Impunity that they are recommendatory in character. The Resolution of the General Assembly
adopting the Basic Principles and Guidelines states:

2. Recommends that States take the Basic Principles and Guidelines into account, promote
respect thereof and bring them to the attention of members of the executive bodies of
government, in particular law enforcement officials and military and security forces,
legislative bodies, the judiciary, victims and their representatives, human rights defenders
and lawyers, the media and the public in general; (Underscoring ours)

As to the UN Principles on Impunity, the concluding portion of its Preamble reads:

Pursuant to the Vienna Declaration and Programme of Action, the following principles
are intended as guidelines to assist States in developing effective measures for combating
impunity. (Underscoring ours)

Had the Congress intended to incorporate the provisions of the Basic Principles and Guidelines
and the UN Principles on Impunity, which was already adopted by the United Nations as early as
2005, it could have done so by expressly mentioning them in the Declaration of Policy under Sec.
Navarro, Czarina Louise H.
Public International Law Review

2 of R.A. No. 10368. During the consideration of S.B. No. 3334 and H.B. No. 5990, petitioners-
movants should have petitioned the Commission on Human Rights to make the necessary
recommendations to the Congress or otherwise directly lobbied to the lawmakers to include the
Basic Principles and Guidelines and the UN Principles on Impunity in the proposed law. They did
not. Nonetheless, they can do so for the enactment of amendatory laws.

While the States have a duty to repair violations of human rights and international humanitarian
law, the modalities of the reparation vary according to the right violated, the gravity of the
violation, the harm done, or the persons affected. The Basic Principles and Guidelines recognizes
that the different forms of reparation may be awarded depending on the facts of each case and
whenever applicable.

Even if the Basic Principles and Guidelines and the UN Principles on Impunity are treated as
binding international laws, they do not prohibit Marcos’ burial at the LNMB. We already noted in
the Decision that they do not derogate against the right to due process of the alleged human rights
violator. Aside from Art. 14, Part III of the ICCPR, XIII (27) of the Basic Principles and
Guidelines and Principle 9 of the UN Principles on Impunity are clear and unequivocal. Certainly,
observance of due process must not be sacrificed in pursuing the HRVVs’ right to full and effective
remedy under the international human rights law. The recognition and protection of a person’s
human rights and dignity must not trample upon that of another who we do not like or those who
are perceived to be against us. Justice and equity demands that there be a balancing of interests in
the enforcement of both. For the Constitution is a law for all classes of men at all times and there
is only one Bill of Rights with the same interpretation for both unloved and despised persons on
one hand and the rest who are not so stigmatized on the other.
Navarro, Czarina Louise H.
Public International Law Review

Government of Hong Kong Special Administrative Region vs. Muñoz

G.R. No. 207342; November 07, 2017
Bersamin, J.

Facts: The Supreme Court denied the petition of Petitioner Government of Hong Kong
(HKSAR) for certiorari and ruled that “respondent Juan Antonio Muñoz could only be extradited
to and tried by the HKSAR for seven (7) counts of conspiracy to defraud, but not for the other
crime of accepting an advantage as an agent. This, because conspiracy to defraud was a public
sector offense, but accepting an advantage as an agent dealt with private sector bribery; hence, the
dual criminality rule embodied in the treaty of extradition has not been met.” Petitioners filed this
Motion for Reconsideration to have the court rule that the extradition for the crime of accepting
advantage as an agent be also allowed, citing B v. The Commissioner of the Independent
Commission Against Corruption, a ruling of the Court of Final Appeal of the HKSAR. The
Supreme Court ruled that it cannot take judicial notice of the ruling of the foreign court, and the
same was not alleged and proved. Thus, the Supreme Court denied the Motion for
Reconsideration.

Issue: Whether Juan Antonio Muñoz can be extradited to and tried by the HKSAR for the crime
of accepting an advantage as an agent.

Ruling: No. Under the rule of specialty in international law, a Requested State shall surrender to
a Requesting State a person to be tried only for a criminal offense specified in their treaty of
extradition. Conformably with the dual criminality rule embodied in the extradition treaty between
the Philippines and the Hong Kong Special Administrative Region (HKSAR), however, the
Philippines as the Requested State is not bound to extradite the respondent to the jurisdiction of
the HKSAR as the Requesting State for the offense of accepting an advantage as an agent
considering that the extradition treaty is forthright in providing that surrender shall only be granted
for an offense coming within the descriptions of offenses in its Article 2 insofar as the offenses
are punishable by imprisonment or other form of detention for more than one year, or by a more
severe penalty according to the laws of both parties.

Foreign judgment and its authenticity must be proven as facts under our rules on evidence,
together with the alien’s applicable national law to show the effect of the judgment on the alien
himself/herself. Despite the admission that Philippine courts lack expertise on the laws of
HKSAR, qualified legal experts on the laws of HKSAR were consulted in the hearing before the
trial court and they shared the same opinion that the offense defined in Section 9 of the POBO
was a private sector offense. In addition, petitioner did not present an official publication of the
ruling or at least a copy of it attested by the proper office having legal custody. Hence, the ruling
was not shown to be a public document under HKSAR.
Navarro, Czarina Louise H.
Public International Law Review

Republic vs. Provincial Government of Palawan

G.R. Nos. 170867 and 185941; December 04, 2018
Tijam, J.

Facts: On December 11, 1990, the Republic of the Philippines entered into Service Contract No.
38 with Shell Philippines Exploration B.V. and Occidental Philippines, Incorporated (collectively
SPEX/OXY) for the exclusive conduct of petroleum operations in the area known as “Camago-
Malampaya” located offshore northwest of Palawan. The exploration led to the drilling of the
Camago-Malampaya natural gas reservoir about 80 kilometers from the main island of Palawan
and 30 kms from the platform.

The said service contract provided for a production sharing scheme entitling the National
Government to sixty percent (60%) of the net proceeds from the sale of petroleum produced from
petroleum operations. The Government of Palawan is thus claiming that it is entitled to 40% of
the National Government’s share pursuant to Sec. 290 of the Local Government Code, since the
reservoir is located within its jurisdiction. The Republic, however, is arguing that a local
government unit’s jurisdiction refers only to its land area, hence the reservoir is outside the
territorial boundaries of Palawan as defined in its Charter. In deciding a petition for declaratory
relief filed by the Government of Palawan, the RTC declared that the province was entitled to
40% share of the national wealth pursuant to the provisions of Sec. 7, Article X of the 1987
Constitution and this right is in accord with the provisions of the Enabling Act, R.A. 7160 (The
Local Government Code of 1991. A petition for review on certiorari under Rule 45 was thus filed
before the Supreme Court, assailing this decision.

During the oral arguments, one of the appointed amici curiae, Dean Raul Pangalangan of the
University of the Philippines, posited that under the United Nations Convention on the Law of
the Sea (UNCLOS) and applying the doctrine of transformation, Palawan’s territorial boundaries
may be considered to include the continental shelf where the Camago-Malampaya reservoir is
located. The court disagreed with the said argument and ruled in favor of the Republic.

Issue: Whether the Province of Palawan has territorial jurisdiction over the Camago-Malampaya
reservoir.

Ruling: No. There is no law clearly granting the Province of Palawan territorial jurisdiction over
the Camago-Malampaya reservoir.

As defined in its organic law, the Province of Palawan is comprised merely of islands. The
continental shelf, where the Camago-Malampaya reservoir is located, was clearly not included in
its territory.

An island, as herein before-mentioned, is defined under Article 121 of the UNCLOS as “a naturally
formed area of land, surrounded by water, which is above water at high tide.” The continental
shelf, on the other hand, is defined in Article 76 of the same Convention as comprising “the seabed
and subsoil of the submarine areas that extend beyond (the coastal State’s) territorial sea
throughout the natural prolongation of its land territory to the outer edge of the continental
margin, or to a distance of 200 nm from the baselines from which the breadth of the territorial sea
is measured where the outer edge of the continental margin does not extend up to that distance.”
Where the continental shelf of the coastal state extends beyond 200 nm, Article 76 allows the State
to claim an extended continental shelf up to 350 nm from the baselines.
Navarro, Czarina Louise H.
Public International Law Review

Under Palawan’s charter, therefore, the Camago-Malampaya reservoir is not located within its
territorial boundaries.

The UNCLOS did not confer on LGUs their own continental shelf.

Dean Pangalangan posited that since the Constitution has incorporated into Philippine law the
concepts of the UNCLOS, including the concept of the continental shelf, Palawan’s “area” could
be construed as including its own continental shelf. The Province of Palawan and Arigo, et al.
accordingly assert that Camago-Malampaya reservoir forms part of Palawan’s continental shelf.

The Court is unconvinced. The Republic was correct in arguing that the concept of continental
shelf under the UNCLOS does not, by the doctrine of transformation, automatically apply to the
LGUs. We quote with approval its disquisition on this issue:

The Batasang Pambansa ratified the UNCLOS through Resolution No. 121 adopted on
February 27, 1984. Through this process, the UNCLOS attained the force and effect of
municipal law. But even if the UNCLOS were to be considered to have been transformed
to be part of the municipal law, after its ratification by the Batasang Pambansa, the
UNCLOS did not automatically amend the Local Government Code and the charters of
the local government units. No such intent is manifest either in the UNCLOS or in
Resolution No. 121. Instead, the UNCLOS, transformed into our municipal laws, should
be applied as it is worded. Verba legis.

It must be stressed that the provisions under the UNCLOS are specific in declaring the rights and
duties of a state, not a local government unit. The UNCLOS confirms the sovereign rights of the
States over the continental shelf and the maritime zones. The UNCLOS did not confer any rights
to the States’ local government units.

At the risk of being repetitive, it is respectfully emphasized that the foregoing indubitably
established that under the express terms of the UNCLOS, the rights and duties over the maritime
zones and continental shelf pertain to the State. No provision was set forth to even suggest any
reference to a local government unit. Simply put, the UNCLOS did not obligate the States to grant
to, much less automatically vest upon, their respective local government units territorial
jurisdiction over the different maritime zones and the continental shelf. Hence, contrary to the
submission of Dean Pangalangan, no such application can be made.
Navarro, Czarina Louise H.
Public International Law Review

Lagman v. Medialdea
G.R. No. 243522; February 19, 2019
Carandang, J.

Facts: These are consolidated petitions filed under Section 18, Article VII of the Constitution,
assailing the constitutionality of the third extension from Jan. 1, 2019 to Dec. 31, 2019, of the
declaration of martial law and suspension of the privilege of the writ of habeas corpus in the entire
Mindanao. On May 23, 2017, President Rodrigo Roa Duterte issued Proclamation No. 216,
declaring a state of martial law and suspending the privilege of the writ of habeas corpus in the
whole of Mindanao to address the rebellion mounted by members of the Maute Group and Abu
Sayyaf Group (“ASG”), for a period not exceeding sixty (60) days.

One of the arguments of the petitioners is that the third extension of martial law will lead to further
violation of citizens' political, civil, and human rights. The respondents contend that the alleged
human rights violations do not warrant the nullification of martial law and the suspension of the
privilege of the writ of habeas corpus. There are sufficient legal safeguards to address human rights
abuses. The Supreme Court held that there were adequate remedies in the ordinary course of law
against abuses and violations of human rights committed by erring public officers in addition to
the safeguards provided by the Constitution by citing the Universal Declaration of Human Rights
(“UDHR”) and other international law instruments relevant to law enforcement.

Issue: Whether the allegations of human rights violations in the implementation of martial law in
Mindanao is not sufficient to warrant a nullification of its extension.

Ruling: No. A declaration of martial law does not suspend fundamental civil rights of individuals
as the Bill of Rights enshrined in the Constitution remain effective. Civil courts and legislative
bodies remain open. While it is recognized that, in the declaration of martial law and the
suspension of the privilege of the writ of habeas corpus, the powers given to officials tasked with
its implementation are susceptible to abuses, these instances have already been taken into
consideration when the pertinent provisions on martial law were drafted. Safeguards within the
1987 Constitution and existing laws are available to protect the people from these abuses.

In Lagman v. Medialdea, the Court emphasized that: It was the collective sentiment of the framers
of the 1987 Constitution that sufficient safeguards against possible misuse and abuse by the
commander-in-chief of his extraordinary powers are already in place and that no further
emasculation of the presidential powers is called for in the guise of additional safeguards.

In addition to the safeguards provided by the Constitution, adequate remedies in the ordinary
course of law against abuses and violations of human rights committed by erring public officers
are available including the following:
1. R.A. No. 7438 (An Act Defining Certain Rights of Persons Arrested, Detained or
Under Custodial Investigation as Well as the Duties of the Arresting, Detaining and
Investigating Officers, and Providing Penalties for Violations Thereof);
2. R.A. No. 9372 or the Human Security Act of 2007;
3. R.A. No. 9745 or the Anti-Torture Act of 2009; and
4. Writs of Amparo (A.M. No. 07-9-12-SC) and Habeas Data (A.M. No. 08- 1-16-SC);
and
5. UDHR.

In relation to the international human rights principles established under the UDHR, the law
enforcement officials are also guided by the principles and safeguards declared in the International
Navarro, Czarina Louise H.
Public International Law Review

Covenant on Civil and Political Rights. Soft law instruments of particular relevance to law
enforcement include United Nations' (“UN”) Basic Principles [o]n the Use of Force and Firearms
by Law Enforcement Officials (“BPUFF”), Code of Conduct for Law Enforcement Officials
(“CCLEO”), Standard Minimum Rules for the Treatment of Prisoners (“SMR”), Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
(“Body of Principles”), and Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power (“Victims Declaration”). These instruments uphold the principles of legality,
proportionality, necessity, and accountability in situations involving the use of force by law
enforcers.
Navarro, Czarina Louise H.
Public International Law Review

Department of Education vs. Rizal Teachers Kilusang Bayan for Credit, Inc.
G.R. No. 202097; July 03, 2019
Lazaro-Javier, J.

Facts: For the benefit of public school teachers, The Department of Education (“DepEd”)
devised and implemented a payroll deduction scheme for the loans they secured from DepEd’s
duly accredited private lenders. Rizal Teachers Kilusang Bayan for Credit, Inc. (“RTKBCI”) was
among DepEd's accredited private lenders which availed of the latter's payroll deduction scheme.
However on July 4, 2001, DepEd Undersecretary Pangan directed that the salary deduction scheme
for RTKBCI be suspended pending resolution of the teachers’ numerous complaints against
RTKBCI’s alleged unauthorized excessive deductions and connivance with some DepEd’s
personnel.

RTKBCI then filed a petition for mandamus before the RTC to compel DepEd to remit to
RTKBCI the loan collections and continue with the salary deduction scheme pursuant to its
standing arrangement to avail of the payroll deduction scheme under Codes 209 and 219. The trial
court granted the writ of mandamus prayed for and ordered DepEd to release to RTKBCI the
collections. The CA affirmed the alleged clear legal right of RTKBCI to receive the payments
which DepEd had already collected through the payroll deduction scheme. The Supreme Court
reversed this holding that there was no practice, continued or otherwise, that would establish and
validate such clear legal duty and clear legal right.

Issue: Whether there is practice that would establish and validate such clear legal duty and clear
legal right.

Ruling: No. Continued practice in domestic legal matters does not rise to the level of a legal
obligation. The first sentence of Article 7 of the Civil Code states, "[l]aws are repealed only by
subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom
or practice to the contrary." There can be no clear legal duty and clear legal right where to do so
would compel DepEd to violate its power, duties, and functions under Section 7 of RA 9155,
specifically toward the protection and promotion of the teachers' welfare. In the latter case, no
practice, continued or otherwise, would establish and validate such clear legal duty and clear legal
right.

In terms of international law where practice could give rise to a legally binding rule, the court
affirmed the ruling in Bayan Muna v. Romulo which explained:

Customary international law or international custom is a source of international law as

stated in the Statute of the ICJ. It is defined as the "general and consistent practice of states
recognized and followed by them from a sense of legal obligation.” In order to establish
the customary status of a particular norm, two elements must concur: State practice, the
objective element; and opinio juris sive necessitates, the subjective element.

State practice refers to the continuous repetition of the same or similar kind of acts or
norms by States. It is demonstrated upon the existence of the following elements: (1)
generality; (2) uniformity and consistency; and (3) duration. While, opinio juris, the
psychological element, requires that the state practice or norm "be carried out in such a
way, as to be evidence of a belief that this practice is rendered obligatory by the existence
of a rule of law requiring it."
Navarro, Czarina Louise H.
Public International Law Review

RTKBCI has failed to show that DepEd's alleged practice of acting as a collector and remitter of
loan payments on its behalf was general and consistent, much less, that DepEd did so as a sense
of legal obligation. DepEd, on the contrary, has been adamant that it acted as collector and remitter
only by way of accommodation and privilege.
Navarro, Czarina Louise H.
Public International Law Review

Commissioner of Internal Revenue vs. Interpublic Group of Companies, Inc.,

G.R. No. 207039; August 14, 2019
Reyes, Jr., J.

Facts: Respondent Interpublic Group of Companies, Inc. (“IGC”) is a non-resident foreign

corporation duly organized and existing under and by virtue of the laws of the State of Delaware,
United States of America. In 2008, the IGC filed an administrative claim for refund or issuance of
tax credit certificate (“TCC”) in the amount of P12M, representing the alleged overpaid FWT on
dividends paid by McCann to IGC. The present case is a petition for review on certiorari filed by
the CIR before the SC arguing that the IGC failed to file a Tax Treaty Relief Application (“TTRA”)
with the International Tax Affairs Division (“ITAD”) of the BIR fifteen days before it paid tax on
dividends in accordance with RMO No. 1-2000. The SC ruled that failure to file the TTRA should
not operate to divest entitlement to the relief as it would constitute a violation of the duty required
by good faith in complying with a tax treaty.

Issue: Whether IGC is entitled to a tax refund.

Ruling: Yes. IGC is entitled to a tax refund or TCC despite non-compliance with the documentary
requirements provided under RMO No. 1-2000.

As it is recognized, the application of the provisions of the National Internal Revenue Code
(“NIRC”) must be subject to the provisions of tax treaties entered into by the Philippines with
foreign countries. It remains only to note that under the Philippines-US Convention "With
Respect to Taxes on Income," the Philippines, by a treaty commitment, reduced the regular rate
of dividend tax to a maximum of 20% of the gross amount of dividends paid to US parent
corporations.

The RP-US Tax Treaty, at the same time, created a treaty obligation on the part of the US that it
"shall allow" to a US parent corporation receiving dividends from its Philippine subsidiary a tax
credit for the appropriate amount of taxes paid or accrued to the Philippines by the said Philippine
subsidiary. The US allowed a "deemed paid" tax credit to US corporations on dividends received
from foreign corporation. xxx

Specifically, the RP-US Tax Treaty is just one of a number of bilateral treaties which the Philippines
has entered into and to which we are expected to observe compliance therewith in good faith. As
explained by the Court, the purpose of these international agreements is to reconcile the national
fiscal legislations of the contracting parties in order to help the taxpayer avoid simultaneous
taxation in two different jurisdictions. More precisely, the tax conventions are drafted with a view
towards the elimination of international juridical double taxation, which is defined as the
imposition of comparable taxes in two or more states on the same taxpayer in respect of the same
subject matter and for identical periods. xxx

The objective of RMO No. 1-2000 in requiring the application for treaty relief with the ITAD
before a party's availment of the preferential rate under a tax treaty is to avert the consequences
of any erroneous interpretation and/or application of treaty provisions, such as claims for
refund/credit for overpayment of taxes, or deficiency tax liabilities for underpayment. The
Supreme Court held that this apparent conflict was previously settled in the case of Deutsche Bank
AG Manila Branch v. Commissioner of Internal Revenue, where the Court lengthily discussed that
the obligation to comply with a tax treaty must take precedence over the objective of RMO No.
1-2000.
Navarro, Czarina Louise H.
Public International Law Review

Since the RP-US Tax Treaty does not provide for any other prerequisite for the availment of the
benefits under the said treaty, to impose additional requirements would negate the availment of
the reliefs provided for under international agreements.

At any rate, the application for a tax treaty relief from the BIR should merely operate to confirm
the entitlement of the taxpayer to the relief. This is only applicable to taxes paid on the basis of
international agreements and treaties. Once it was settled that the taxpayer is entitled to the relief
under the tax treaty, then by all means it could pay its tax liabilities using the tax relief provided by
the treaty. In other words, the requirements under RMO No. 1-2000 applies only to a taxpayer
who is about to pay their taxes on the basis of tax reliefs provided by international agreements and
treaties and to confirm its entitlement to the said reliefs.
Navarro, Czarina Louise H.
Public International Law Review

People of the Philippines v. Sergio and Lacanilao

G.R. No. 240053; October 9, 2019
Hernando, J.

Facts: Maria Cristina P. Sergio (Cristina), and Julius L. Lacanilao (Julius) offered Mary Jane a job
as a domestic helper in Malaysia. In April of 2010, Mary Jane, together with Cristina, eventually
left the Philippines for Malaysia. However, to Mary Jane's dismay, she was informed by Cristina
upon their arrival in Malaysia that the job intended for her was no longer available. Cristina sent
Mary Jane to Indonesia for a seven-day holiday with a promise that she will have a job upon her
return in Malaysia. Cristina gave Mary Jane her plane ticket as well as luggage to bring on her trip.

Upon Mary Jane's arrival at the Airport in Yogyakarta, Indonesia, she was apprehended by the
police officers for allegedly carrying 2.6 kilograms of heroin inside her luggage. Mary Jane was
convicted of drug trafficking and sentenced to death by firing squad but was suspended.

Meanwhile, in the Philippines, Cristina and Julius were arrested and charged with Section 4(a) in
relation to Sections 3 (a) and 6 of Republic Act (R.A.) No. 9208, otherwise known as the Anti-
Trafficking in Persons Act of 2003 and illegal recruitment.

In March of 2015, representatives from the Philippine Drug Enforcement Agency (PDEA), the
Philippine National Police (PNP) Crime Laboratory, and the Department of Foreign Affairs
(DFA) went to Wirugonan Prison to interview Mary Jane. She executed a document known as
"Sinumpaang Salaysay ni Mary Jane Fiesta Veloso."

Pursuant to its obligations under the Treaty on Mutual Legal Assistance in Criminal Matters
entered into by Southeast Asian Nations (ASEAN Mutual Legal Assistance Treaty), the Indonesian
authorities deferred indefinitely the execution of Mary Jane. The Indonesian authorities however
imposed the following conditions relative to the taking of Mary Jane's testimony, viz.:
(a) Mary Jane shall remain in detention in Yogyakarta, Indonesia;
(b) No cameras shall be allowed;
(c) The lawyers of the parties shall not be present; and
(d) The questions to be propounded to Mary Jane shall be in writing.

OSG averred that the taking of Mary Jane's testimony through the use of deposition upon written
interrogatories is allowed under Rule 23 of the Revised Rules of Court because she is out of the
country and will not be able to testify personally before the court due to her imprisonment. The
prosecution also pointed out that Rule 23 of the Rules of Court applies suppletorily in criminal
proceedings and the use of deposition upon written interrogatories in criminal cases is not
expressly prohibited under the Rules of Court.
Cristina and Julius objected to the motion asserting that the deposition should be made before and
not during the trial. The depositions under Rules 23 and 25 of the Rules of Court are not designed
to replace the actual testimony of the witness in open court and the use thereof is confined only
in civil cases.

RTC ruled in favor of the OSG. On appeal, the CA reversed the conditional examination of
witnesses in criminal proceedings that are primarily governed by Rule 119 of the Rules on Criminal
Procedure. According to the appellate court, the State failed to establish a compelling reason to
depart from such rule and to apply instead Rule 23 of the Rules on Civil Procedure which only
applies in civil cases. Thus, pursuant to Rule 119, the taking of deposition of Mary Jane or her
conditional examination must be made not in Indonesia but before the court where the case is
pending.
Navarro, Czarina Louise H.
Public International Law Review

Issue: Whether Mary Jane's testimony may be validly acquired through deposition by written
interrogatories.

Ruling: Yes. Nowhere in the present Rules on Criminal Procedure does it state how a deposition,
of a prosecution witness who is at the same time convicted of a grave offense by final judgment
and imprisoned in a foreign jurisdiction, may be taken to perpetuate the testimony of such witness.
The Rules, in particular, are silent as to how to take a testimony of a witness who is unable to
testify in open court because he is imprisoned in another country.

The extraordinary factual circumstances surrounding the case of Mary Jane warrant the resort to
Rule 23 of the Rules of Court
Depositions, however, are recognized under Rule 23 of the Rules on Civil Procedure. Although
the rule on deposition by written interrogatories is inscribed under the said Rule, the Court holds
that it may be applied suppletorily in criminal proceedings so long as there is compelling reason.

A strict application of the procedural rules will defeat the very purpose for the grant of reprieve
by the Indonesian authorities to Mary Jane. Mary Jane's testimony, being the victim, is vital in the
prosecution of the pending criminal cases that were filed against Cristina and Julius. This has been
recognized by no less than the Indonesian President, His Excellency Joko Widodo, who granted
the reprieve precisely to afford Mary Jane the opportunity to participate in the legal proceedings
obtaining in the Philippines.

Besides, the disallowance of the written interrogatories is not in congruence with the aim of
ASEAN MLAT, that is to render mutual legal assistance in criminal matters among signatory states
including the Philippines. The ASEAN MLAT is enforced precisely to be applied in circumstances
like in the case of Mary Jane. It recognizes the significance of cooperation and coordination among
the states to prevent, investigate and prosecute criminal offenses especially if perpetuated not only
in a single state just like in the case of drug and human trafficking, and illegal recruitment, the very
charges that were filed against respondents.

Verily, in light of the unusual circumstances surrounding the instant case, the Court sees no reason
not to apply suppletorily the provisions of Rule 23 of the Rules on Civil Procedure in the interest
of substantial justice and fairness. Hence, the taking of testimony of Mary Jane through a
deposition by written interrogatories is in order.
Navarro, Czarina Louise H.
Public International Law Review

MIAA v. COA
G.R. No. 218388; 15 October 2019
Bersamin, C.J.

Facts: The Manila International Airport Authority (“MIAA”) and the Aeroports de Paris-Japan
Airport Consultants, Inc. Consortium (Consultant for brevity) entered into an Agreement for
Consulting Services (Agreement for, brevity) for the Ninoy Aquino International Airport
(“NAIA”) Terminal 2 Development Project on Apr.15, 1994. However, the duration of the
services was extended and the number of man months increased, due to a prolonged process of
prequalification, bidding and awarding stages; delayed Department of Environment and Natural
Resources approval and contractor's site possession, as well as numerous additional construction
works. The extension was covered by three (3) Supplementary Agreements (SAs) entered into by
the MIAA and the Consultant. The relevant issue is whether or not Loan Agreement No. PH-136
is equivalent to an executive agreement. The petitioner argues that the loan agreement was
equivalent to an executive agreement based on the ruling in Abaya v. Ebdane (G.R. No. 167919,
February 14, 2007); that as an executive agreement, the loan agreement should control the
determination of payments charged to contingency; that the 5% ceiling for payments charged to
contingency under the National Economic and Development Authority (“NEDA”) Guidelines
did not apply because the normal practice of international financial institutions was to provide a
10% contingency.

Issue: Whether a loan agreement executed in conjunction with an exchange of notes between the
Republic of the Philippines and a foreign government shall be governed by international law, with
the rule on pacta sunt servanda as the guiding principle

Ruling: Yes. PH-136 should be treated as an executive agreement and the parties' intention as to
how the payments would be charged to contingency should govern as it should be construed and
interpreted in accordance with the doctrine of pacta sunt servanda. A similar treatment should be
extended to the three Supplemental Agreements entered into by the petitioner and the ADP JAC
Consortium.

The Supreme Court stated that pursuant to the pronouncement in Abaya v. Ebdane, a loan
agreement executed in conjunction with the Exchange of Notes between the Philippine
Government and a foreign government is an executive agreement, and should be governed by
international law. This pronouncement has been consistently applied in succeeding rulings,
including those in DBM Procurement Service v. Kolonwel Trading, Land Bank of the Philippines
v. Atlanta Industries, Inc., and Mitsubishi Corporation-Manila Branch v. Commissioner of Internal
Revenue.

Consequently, we see no justification to treat Loan Agreement No. PH-136 differently, particularly
as its preambular paragraph expressly made reference to the Exchange of Notes between the
Philippines and Japan on Aug. 16, 1993.

We point out that Loan Agreement No. PH-136, which financed the NAIA Terminal 2
Development Project, stemmed from the Aug. 16, 1993 Exchange of Notes whereby the
Government of Japan agreed to extend loans in favor of the Philippines to promote economic
development and stability. Thusly, the loan agreement was the adjunct of the Exchange of Notes
and should thus be treated as an executive agreement. In other words, international law should
apply in the implementation and construction of the terms and conditions of Loan Agreement
No. PH-136. Accordingly, the Philippine Government was bound to faithfully comply with the
provisions of the loan agreements in accordance with the doctrine of pacta sunt servanda. Needless
Navarro, Czarina Louise H.
Public International Law Review

to indicate, the doctrine has been incorporated in the 1987 Constitution pursuant to Section 2 of
its Article II, which declares:

Sec. 2. The Philippines renounces war as an instrument of national policy, 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.

Logically, the Agreement for Consulting Services (“ACS”) executed by and between the petitioner
and the ADP-JAC Consortium, being a mere accessory of Loan Agreement No. PH-136, should
likewise be treated as an executive agreement, and construed and interpreted in accordance with
the doctrine of pacta sunt servanda.

The Court finds the action of the COA not only erroneous but also in contravention of the
doctrine of pacta sunt servanda and, most importantly, contrary to the intention of the parties in
entering into the supplemental agreements.

To reiterate, the applicable law in interpreting and construing the agreements should be the canons
of international law, particularly the doctrine of pacta sunt servanda. Yet, in affirming the NDs,
the COA proposed that the Government negate its accession to the executive agreements without
any valid justification. Obviously, this approach should not be adopted. In Agustin v. Edu, 47 we
stressed that "[i]t is not for this country to repudiate a commitment to which it had pledged its
word. The concept of pacta sunt servanda stands in the way of such an attitude, which is,
moreover, at war with the principle of international morality."
Navarro, Czarina Louise H.
Public International Law Review

Senator Francis Pangilinan, et. al v. Alan Peter S. Cayetano, et. al.

G.R. Nos. 238875, 239483, 240954, March 16, 2021
Leonen, J.

Facts: This case is composed of consolidated Petitions for Certiorari and Mandamus which seeks
to declare the Philippines' withdrawal from the Rome Statute as invalid or ineffective. The Rome
Statute is a multilateral treaty that established the International Criminal Court, where the gravest
crimes under international law are prosecuted. Since 1996, under President Ramos' presidency, the
Philippines has participated in the court's establishment, taking an active role in the deliberations
as a member of the Drafting Committee. On December 28, 2000, the Philippines, through then
President Estrada, signed the Rome Statute of the International Criminal Court. President
Estrada's act of signing the Rome Statute signified the Philippines' intent to be bound by the
provisions of the treaty, subject to the domestic requirements for its validity and enforceability.
Particularly, Article VII, Section 21 of the 1987 Constitution which requires the concurrence by at
least two-thirds of all members of the Senate for a treaty to be valid, binding, effective, and
enforceable. On December 11, 2009, with Senate concurrence to the Rome Statute still pending,
then President Arroyo signed into law Republic Act No. 9851, otherwise known as the Philippine
Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against
Humanity. Republic Act No. 9851 replicated many of the Rome Statute's provisions. Senate
concurrence to the Rome Statute was obtained following President Aquino's election. On August
23, 2011, the Senate, with a vote of 17-1, passed Resolution No. 546 — enabling the Philippines'
consummate accession to the Rome Statute. On August 30, 2011, the Philippines deposited the
instrument of ratification of the Rome Statute. On November 1, 2011, the Rome Statute entered
into force in the Philippines. The country was the 16th state party to belong to the Group of Asia-
Pacific State Parties in the International Criminal Court.

On June 30, 2016, President Aquino's term ended and President Duterte took his oath as chief
executive.

On April 24, 2017, Atty. Jude Sabio filed a complaint before the International Criminal Court
pertaining to alleged summary killings when President Duterte was the mayor of Davao City. On
June 6, 2017, Senator Trillanes and Representative Alejano filed a "supplemental communication"
before the International Criminal Court with regard to President Duterte's drug war.

On February 8, 2018, the Office of ICTC Prosecutor Fatou Bensouda commenced the preliminary
examination of the atrocities allegedly committed in the Philippines pursuant to the Duterte
administration's "war on drugs." On March 15, 2018, the Philippines announced that it was
withdrawing from the International Criminal Court. President Duterte claimed that the country
never became a state party to the Rome Statute since the treaty was not published in the Official
Gazette. On March 16, 2018, the Philippines formally submitted its Notice of Withdrawal from
the International Criminal Court to the United Nations. Enrique Manelo, the Permanent
Representative of the Republic of the Philippines to the United Nations in New York, deposited
the Note Verbale to Maria Luiza Ribeiro Viotti, Chef de Cabinet of the United Nations'
SecretaryGeneral Antonio Guterres.

On March 17, 2018, the Secretary-General of the United Nations received the notification from
the Philippine government.

On May 16, 2018, a Petition for Certiorari and Mandamus was filed assailing the executive's
unilateral act of withdrawing from the Rome Statute for being unconstitutional. On June 13, 2018
and August 14, 2018, two separate petitions seeking similar reliefs were filed by the Philippine
Navarro, Czarina Louise H.
Public International Law Review

Coalition for the Establishment of the International Criminal Court and the Integrated Bar of the
Philippines respectively.

Issue: Whether the Philippines' withdrawal from the Rome Statue is valid, binding and effectual.

Ruling: Yes. Article 127 of the Rome Statute provides mechanisms on how a state party may
withdraw from it:

a. A State Party may, by written notification addressed to the Secretary-General of the

United Nations, withdraw from this Statute. The withdrawal shall take effect one year after
the date of receipt of the notification, unless the notification specifies a later date.

b. A State shall not be discharged, by reason of its withdrawal, from the obligations arising
from this Statute while it was a Party to the Statute, including any financial obligations
which may have accrued. Its withdrawal shall not affect any cooperation with the Court in
connection with criminal investigations and proceedings in relation to which the
withdrawing State had a duty to cooperate and which were commenced prior to the date
on which the withdrawal became effective, nor shall it prejudice in any way the continued
consideration of any matter which was already under consideration by the Court prior to
the date on which the withdrawal became effective.

The President's withdrawal from the Rome Statute was in accordance with the mechanism
provided in the treaty. The Rome Statute itself contemplated and enabled a State Party's
withdrawal. A state party and its agents cannot be faulted for merely acting within what the Rome
Statute expressly allows.

Treaty-making is a function lodged in the executive branch, which is headed by the president.
Nevertheless, a treaty's effectivity depends on the Senate's concurrence, in accordance with the
Constitution's system of checks and balances.

While Senate concurrence is expressly required to make treaties valid and effective, no similar
express mechanism concerning withdrawal from treaties or international agreements is provided
in the Constitution or any statute. Similarly, no constitutional or statutory provision grants the
president the unilateral power to terminate treaties.

The mirror principle and the Youngstown Framework are suitable starting points in reviewing the
President's acts in the exercise of a power shared with the legislative. However, their concepts and
methods cannot be adopted mechanically and indiscriminately. A compelling wisdom underlies
them, but operationalizing them domestically requires careful consideration and adjustment in
view of circumstances unique to the Philippine context.

Having laid out the parameters and underlying principles of relevant foreign concepts, and
considering our own historical experience and prevailing legal system, this Court adopts the
following guidelines as the modality for evaluating cases concerning the president's withdrawal
from international agreements.

First, the president enjoys some leeway in withdrawing from agreements which he or she
determines to be contrary to the Constitution or statutes. Thus, a valid treaty or international
agreement may be effective just as a statute is effective. It has the force and effect of law. Still,
statutes enjoy pre-eminence over international agreements. In case of conflict between a law and
a treaty, it is the statute that must prevail.
Navarro, Czarina Louise H.
Public International Law Review

Second, the president cannot unilaterally withdraw from agreements which were entered into
pursuant to congressional imprimatur.

Third, the President cannot unilaterally withdraw from international agreements where the Senate
concurred and expressly declared that any withdrawal must also be made with its concurrence.

At no point and under no circumstances does the president enjoy unbridled authority to withdraw
from treaties or international agreements. Any such withdrawal must be anchored on a
determination that they run afoul of the Constitution or a statute. Any such determination must
have clear and definite basis; any wanton, arbitrary, whimsical, or capricious withdrawal is
correctible by judicial review. Moreover, specific circumstances attending Congress's injunction
on the executive to proceed in treaty negotiation, or the Senate's specification of the need for its
concurrence to be obtained in a withdrawal, binds the president and may prevent him or her from
proceeding with withdrawal.

The unfolding of events, including the International Criminal Court's acknowledgment of

withdrawal even before the lapse of one year from initial notice, rendered the Petitions moot,
removing any potential relief from this Court's sphere.

As guide for future cases, this Court recognizes that, as primary architect of foreign policy, the
President enjoys a degree of leeway to withdraw from treaties which are bona fide deemed contrary
to the Constitution or our laws, and to withdraw in keeping with the national policy adopted
pursuant to the Constitution and our laws.

However, the President's discretion to withdraw is qualified by the extent of legislative

involvement on the manner by which a treaty was entered into or came into effect. The President
cannot unilaterally withdraw from treaties that were entered into pursuant to the legislative intent
manifested in prior laws, or subsequently affirmed by succeeding laws.
Navarro, Czarina Louise H.
Public International Law Review

Esmero v. Duterte
G.R. No. 256288. June 29, 2021
Zalameda, J.

Facts: Atty. Romeo M. Esmero (petitioner) sought the issuance of a writ of Mandamus to compel
respondent President Rodrigo R. Duterte (President Duterte) to comply with his constitutional
duty to defend the national territory, which includes the West Philippine Sea, against Chinese
incursions. The petitioner avers that It is a prime duty of the Government to serve and protect the
people and their rights, including those to the national territory; the President's public
pronouncements and actions on the West Philippine Sea must be exercised within the limits
prescribed by the Constitution and are ultimately subject to the power of judicial review; It is the
ministerial duty of the President to defend the national territory which includes the West Philippine
Sea as established by the UN Arbitral Tribunal. The national territory (including the archipelagic
principle) enshrined in the Constitution and the exclusive economic zone are fully recognized in
international law; This petition regarding his inaction/failure to perform his presidential duties
relative to the West Philippine Sea is an exception to the general rule on presidential immunity
from suit; The filing of diplomatic protests against China is not a defense by our country on the
issue of the West Philippine Sea.

Issue: Whether the President may be compelled to sue China in any international courts.

Ruling: No. The President is immune from suit during his incumbency, regardless of the nature
of the suit filed against him. Petitioner named President Duterte as the sole respondent in this
case. For this reason, this suit should be dismissed outright.

Section 3, Rule 65 of the Rules of Court provides that a mandamus petition may be resorted to
when any tribunal, corporation, board, officer or person unlawfully neglects the performance of
an act which the law specifically enjoins as a duty resulting from an office, trust, or station.
Mandamus is used merely to compel action and to coerce the performance of a pre-existing duty;
it does not lie to control discretion.

Indeed, the President is the guardian of the Philippine archipelago, including all the islands and
waters embraced therein and all other territories over which it has sovereignty or jurisdiction. By
constitutional fiat and the intrinsic nature of his office, the President is also the sole organ and
authority in the external affairs of the country.

This rule does not imply, though, that the President is given carte blanche to exercise this
discretion. Although the Chief Executive wields the exclusive authority to conduct our foreign
relations, this power must still be exercised within the context and the parameters set by the
Constitution, as well as by existing domestic and international laws.

The Court thereafter proceeded to list the following constitutional restrictions to the President's
foreign affairs powers:

a. The policy of freedom from nuclear weapons within Philippine territory;

b. The fixing of tariff rates, import and export quotas, tonnage and wharfage dues, and other
duties or imposts, which must be pursuant to the authority granted by Congress;
c. The grant of any tax exemption, which must be pursuant to a law concurred in by a
majority of all the Members of Congress;
d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must
be previously concurred in by the Monetary Board;
Navarro, Czarina Louise H.
Public International Law Review

e. The authorization of the presence of foreign military bases, troops, or facilities in the
country must be in the form of a treaty duly concurred in by the Senate; and
f. For agreements that do not tall under paragraph 5, the concurrence of the Senate is
required, should the form of the government chosen be a treaty.

Petitioner has failed to point to any law that specifically requires the President to go to the UN or
the ICJ to sue China for its incursions into our exclusive economic zone (EEZ). Neither has he
shown a clear and unmistakable constitutional or statutory provision which prescribes how the
President is to respond to any threat (actual or imminent) from another State to our sovereignty
or exercise of our sovereign rights.

Petitioner himself noted that a case had in fact been filed by the Philippines to vindicate its rights
in the West Philippine Sea. In 2013, after years of unsuccessful attempts to reach a settlement
through political and diplomatic channels and amid rising tensions in the region, Former President
Benigno S. Aquino decided to avail of the legal mechanism under the United Nations Convention
on the Law of the Sea (UNCLOS). He was under no obligation, certainly not one coercible via a
writ of mandamus, to file a case against China. Taking China to binding arbitration was risky, as it
could potentially damage relations with a major trading partner. On 12 July 2016, the arbitral
tribunal issued an Award overwhelmingly in favor of claims by the Philippines and ultimately
bringing some clarity to the overlapping claims in the area.

If President Duterte now sees fit to take a different approach with China despite said ruling, this
does not by itself mean that he has, as petitioner suggests, unlawfully abdicated his duty to protect
and defend our national territory, correctible with the issuance by this Court of the extraordinary
writ of mandamus. Being the Head of State, he is free to use his own discretion in this matter,
accountable only to his country in his political character and to his own conscience.

Barring violations of the limits provided by law and the Constitution, we should take care not to
substitute our exercise of discretion for his. As "the branch that knows least about the national
security concerns that the subject entails," we cannot, in the words of Justice Scalia, just simply
"blunder in."