NICOLAS Y SOMBILON v. ROMULO, G.R. No.

175888, 176051, 176222 (February 11, 2009)

FACTS:
Respondent Lance Corporal Daniel Smith, a member of the US Armed Forces, was charged
w/ the crime of rape committed against petitioner, a Filipina. Suzette Nicolas filed a complaint
accusing Daniel Smith and 4 others of the crime of Rape under Art. 266-A of the RPC, as amended by
RA 8353: That on/about the 1st of Nov. 2005, inside the Subic Bay Freeport Zone, Olongapo City, the
accused being members of the US Marine Corps. (except Soriano, Jr.) conspired w/ lewd design and
by means of force/threat/intimidation w/ abuse of superior strength and taking advantage of the
intoxication of the victim, sexually abused and had sexual intercourse w/ or carnal knowledge of
Suzette Nicolas, 22 y/o, unmarried, inside a Starex Van driven by accused Soriano, Jr., against
Suzette’s will and consent.
Pursuant to the Visiting Forces Agreement (VFA) between PH & US, the latter was granted
custody of accused Smith pending proceedings. During trial (transferred from RTC Zambales to RTC
Makati for security), US Gov. complied w/ its undertaking to bring defendant Smith to the trial court
when his presence was required. RTC found Smith guilty of Rape (reclusion perpetua + accessory
penalties in Art. 41 RPC, 50K compensatory damages, 50K moral damages), while the other 3
defendants and all of the US Marine Corps. assigned at the USS Essex were acquitted for failure of
the prosecution to adduce sufficient evidence.
Smith shall serve his sentence in the facilities agreed upon by appropriate PH & US
authorities pursuant to Art. V par. 10 of the VFA. Pending agreement on such facilities, SMITH is
temporarily committed to the Makati City Jail. However, Smith was taken out of the Makati jail by
enforcement agents purportedly under orders of DILG, and brought to a facility for detention under the
control of the US Gov. under new agreements between PH & US, the Romulo-Kenney Agreement.
Said agreement provides: (1) the two gov. agree in accordance w/ the VFA that US Marine Corps.
Smith would be returned to US Military Custody at the US Embassy in Manila and (2) upon transfer of
Smith from the Makati City Jail, he will be detained at the Rowe (JUSMAG) Building, U.S. Embassy
Compound, guarded by US Military personnel. PH police & jail authorities under the direct supervision
of DILG will have access to the place of detention to ensure US compliance w/ the VFA.
On appeal to CA, the same was dismissed for having become moot. Hence the petitions for
certiorari, etc. as special civil actions and/or for review of CA Decision. Petitioners contend that PH
should have custody of Smith because the VFA is void and unconstitutional.
ISSUE:
W/N the Visiting Forces Agreement is void and unconstitutional – NO
W/N the presence of US Armed Forces in PH territory pursuant to the VFA is allowed "under a treaty
duly concurred in by the Senate xxx and recognized as a treaty by the other contracting State - YES
RULING:
The petitions are PARTLY GRANTED: VFA upheld as constitutional, the Romulo-Kenney Agreements
declared not in accordance w/ VFA
Constitutional Provision Aims to Bind both States in Agreements Allowing Presence of
Foreign Troops on PH Soil; Equal Protection Clause Respected
Sec. 25, Art. XVIII of the Constitution provides: After the expiration in 1991 of the Agreement
between the Philippines and the United States of America concerning Military Bases, foreign military
bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred
in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a treaty by the other
contracting State. The provision is designed to ensure that any agreement allowing foreign military
bases/troops/OR facilities in PH territory are equally binding to PH and the other state involved,
thereby preventing a recurrence of the situation in which foreign armed forces in our territory were
binding upon us but not upon the foreign State.
The equal protection clause is not violated as there is a substantial basis for a different
treatment of a member of a foreign military armed forces allowed to enter our territory and all other
accused. While foreign armed forces allowed to enter another’s territory are immune from local
jurisdiction, the receiving State can exercise jurisdiction over the forces of the sending State only to
the extent agreed upon by the parties. The laws of one State do not apply except to the extent agreed
upon to subjects of another State due to the recognition of extraterritorial immunity given to such
bodies as visiting foreign armed forces. The Constitution does not prohibit agreements recognizing
immunity from jurisdiction or some of its aspects (custody), like in the case of Heads of State,
diplomats and members of the armed forces contingents of a foreign State allowed to enter another
State’s territory.
VFA concurred by the Senate and Recognized as Treaty by US in Bayan v. Zamora; Relation
between VFA & RP-US Mutual Defense Treaty
While VFA was not submitted for advice/consent of the US Senate does not detract from its
status as a binding international agreement/treaty recognized by the said State. For this is a matter of
internal United States law. Notice can be taken of the internationally known practice by the US of
submitting to its Senate for advice & consent agreements concerning policymaking, while those that
implement these policymaking agreements are merely submitted to Congress under the provisions of
the Case–Zablocki Act, within 60 days from ratification.
A perusal of the RP-US MDT would tell us that joint RP-US military exercises for the purpose
of developing the capability to resist an armed attack fall squarely under the provisions of the RP-US
MDT. The VFA, which is the instrument agreed upon to provide for the joint RP-US military exercises,
is simply an implementing agreement to the main RP-US Military Defense Treaty. However, by
applying the VFA, there is a different treatment when it comes to detention as against custody.
Detention shall be carried out in facilities agreed on by both parties, and that the detention shall be
"by PH authorities." Hence, the Romulo-Kenney Agreements are not in accord w/ the VFA as the
detention is not by PH authorities.
The SC also held on to these points after deliberation: (1) the VFA is a self-executing
Agreement, its provisions enforceable; and (2) the VFA is covered by implementing legislation,
namely, the Case-Zablocki Act, USC Sec. 112(b), where executive agreements registered under this
Act within 60 days from their ratification be immediately implemented. In sum, the VFA differs from the
Vienna Convention and the Avena decision of the ICJ, subject matter of the Medellin decision. The
latter two are not self-executing and are not registrable under the Case-Zablocki Act, and thus lacking
implementation. Finally, the RP-US MDT was advised and consented to by the US Senate. The
framers of the Constitution did not envision to require the other contracting State to convert their
system to achieve alignment and parity with ours. It was simply required that the treaty be recognized
as a treaty by the other contracting State. With that, it becomes for both parties a binding international
obligation and the enforcement of that obligation is left to the normal recourse and processes under
international law. As there are 3 types of Treaties in the American System, namely (1) Art. II, Sec. 2
treaties, (2) Executive–Congressional Agreements, and (3) Sole Executive Agreements, the US SC in
Weinberger v. Rossi held that an executive agreement is a "treaty" within the meaning of that word in
international law and constitutes enforceable domestic law vis-à-vis the US.
 SECRETARY OF JUSTICE v. LANTION, G.R. No. 139465 (January 18, 2000)
FACTS:
On January 13, 1977, former Pres. Marcos issued PD 1069 "Prescribing the Procedure for
the Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decree is
founded on several points such as the doctrine of incorporation, the concern for the suppression of
crime in the state where it was committed and the state where the criminal may have escaped; the
extradition treaty w/ Indonesia and PH intention to enter into similar treaties with other countries; and
rules to guide the executive department and the courts in the proper implementation of said treaties.
On November 13, 1994, former Sec. of Justice Drilon (representing PH Gov.) signed the RP-
US Extradition Treaty. The Senate by Resolution No. 11, concurred in its ratification and the
Diplomatic Notes. On June 18, 1999, the DOJ received from the DFA U.S. Note Verbale No. 0522
containing a request for the extradition of private respondent Jimenez to US. Attached were the Grand
Jury Indictment, the warrant of arrest issued by the U.S. District Court (Florida), and other supporting
documents for said extradition, charged w/ violations of the US Code. On the same day, petitioner
issued Dep. Order No. 249 designating/authorizing a panel of attorneys to handle the case pursuant
to Section 5(1) of PD 1069.
After technical evaluation and assessment of the extradition request and the documents in
support thereof, the panel found that the official English translation of some documents in Spanish
were not attached to the request and other matters. Private respondent in a letter requested to
petitioner copies of the official extradition request from the US Gov., including all documents/papers
and that he be given ample time to comment on the request after receipt of the copies (and for the
proceedings to be held in abeyance for the meantime). Private respondent denied the request in a
reply-letter for: (1) premature furnishing of extradition request/other supporting documents under the
Extradition Treaty establishing procedures for document submission/receipt as Department evaluation
is not akin to preliminary investigation, there must be a petition for extradition; (2) document request
includes grand jury information covered by Strict Secrecy Rules under US Law; and (3) the Dep,
cannot hold in abeyance proceedings in connection w/ an extradition request under Art. 26 of the
Vienna Convention, that every treaty in force is binding upon the parties to it and must be performed
by them in good faith, extradition being a tool of criminal law enforcement requiring expeditious
requests for extradition.
Private respondent filed a petition for mandamus against the petitioners to compel them to
furnish the extradition documents. Court orders that petitioners maintain the status quo/refrain from
conducting further proceedings in connection w/ request of US Gov. for extradition of the petitioner,
among others. Hence this petition.
ISSUE:
W/N the evaluation procedure is not a preliminary investigation nor akin to preliminary investigation of
criminal cases – NO
W/N the silence of the Decree as to the twin basic due process rights of Notice and Hearing (right to
be furnished a copy of the complaint, the affidavits, and other supporting documents and the right to
submit counter-affidavits and other supporting documents within 10 days from receipt) entails
unavailability of these rights - NO

W/N the right of the people to information on matters of public concern is violated – NO

RULING:
The instant petition is DISMISSED for lack of merit.
Evaluation Process Partakes of the Nature of a Criminal Investigation
Similar to the evaluation stage of extradition proceedings, a preliminary investigation (may
result in the filing of an information), may lead to arrest and to the deprivation of liberty. The
characterization of a treaty in Wright was in reference to the applicability of the prohibition against an
ex post facto law which had nothing to do with the denial of the right to notice, information, and
hearing. Here, the extradition request was delivered to the DOJ (the following day the Department of
Justice received the request). Hence, the DFA failed to discharge its duty of evaluating the same and
its accompanying documents. Notably, the RP-US Extradition Treaty put into force the implementing
provisions of PD 1069 (PH Extradition Law), which defines extradition as "the removal of an accused
from the Philippines with the object of placing him at the disposal of foreign authorities to enable the
requesting state or government to hold him in connection with any criminal investigation directed
against him or the execution of a penalty imposed on him under the penal or criminal law of the
requesting state or government." Said Decree contained pertinent provisions relevant to the instant
case involving a charged but not convicted individual, laying down that the executive authority given
the task of evaluating the sufficiency of the request and the supporting documents is the Secretary of
Foreign Affairs, while provisions of the RP-US Extradition Treaty define the coverage of this task.
Upon finding that the extradition request/supporting documents are sufficient/complete in form, Sec. of
Foreign Affairs must deliver the same to Sec. of Justice who shall designate an attorney to take
charge of the case. The judge of the RTC shall then issue upon receipt of the petition for extradition
an order summoning the extradite to appear and answer. The Extradition Hearing is to be conducted,
to determine whether or not the offense mentioned in the petition is extraditable based on the
application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US
Extradition Treaty. The trial court also determines whether or not the offense for which extradition is
requested is a political one.
Neither the Treaty Nor the Decree Precludes the Twin Rights of Notice and Hearing from a
Prospective Extradite; Constitutional Guarantees are Respected in Enforcement of a Treaty
The rule of pacta sunt servanda (International Law Maxim) requires the parties to a treaty to
keep their agreement in good faith. Under the doctrine of incorporation, rules of international law form
part of the law of the and land. In the absence of a law or principle of law, we must apply the rules of
fair play. Petitioner contends that US requested the PH Gov. to prevent unauthorized disclosure of
confidential information. Such argument though has been overturned by admission of petitioner that
everything it refuses to make available at this stage would be obtainable during trial. If the
information is truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition
proceedings. Private respondent's due process rights, although not guaranteed by statute or by
treaty, are protected by constitutional guarantees. In the instant case, with the meticulous nature of
the evaluation, which cannot just be completed in an abbreviated period due to its intricacies and
certain problems in the extradition papers cannot to be said to be urgent. Therefore, notice and
hearing requirements of administrative due process cannot be dispensed with and shelved aside.
No Official Gov. Action is done during the Evaluation Procedure
The papers requested by private respondent pertain to official government action from US
Gov. No official action from our country has yet been taken. Hence, the invocation of the right is
premature. Later, and in contrast, records of the extradition hearing would already fall under matters
of public concern, because our government by then shall have already made an official decision to
grant the extradition request.
PANGILINAN v. CAYETANO, G.R. No. 238875/G.R. No. 239483/G.R. No. 240954 (March 16, 2021)
FACTS:
On March 15, 2018, PH announced its withdrawal from the International Criminal Court (ICC).
Having formally submitted the Notice of Withdrawal through a Note Verbale to the UN Secretary-
General's Chef de Cabinet Guterres, the SG of UN received the communication the following day. PH
complied w/ all the requisites of withdrawal consistent and in compliance w/ the Rome Statute.
Hence, these petition by Sen. Pangilinan et al for certiorari and mandamus, assailing the
executive’s unilateral act of withdrawing from the Rome Statute (for being unconstitutional). The
petitioners-senators argue that, as a treaty that the Philippines validly entered into, the Rome Statute
"has the same status as an enactment of Congress” as a “law in the Philippines”. The President
cannot repeal a law, and the withdrawal from a Treaty requires at least 2/3 concurrence of the Senate.
Respondents counter that petitioners do not have locus standi, as not representing the official stand of
the Senate body.
The Philippine Coalition for the Establishment of the International Criminal Court and its
members filed a petition for certiorari and mandamus. They assert that their rights to life, personal
security, and dignity were impaired by the withdrawal from the Rome Statute. In reference to a South
African Court case, they contend that the ratification of and withdrawal from a multilateral treaty
require the Senate's concurrence. Contrary to the President's assertion, the Rome Statute is effective
in PH jurisdiction by virtue of the Constitution's incorporation clause, despite lack of publication.
Respondents counter that petitioners have no standing to question "the wisdom of the President's
sovereign power to withdraw from the Rome Statute, absent any proof of actual/ immediate danger of
sustaining a direct injury as a result of said withdrawal." Mandamus cannot lie against a discretionary
act of a president, much less an act which is not enjoined as a duty such as the ratification of a treaty.
Additionally, they claim that withdrawal from a treaty is a political question, being a policy
determination delegated to the "wisdom of the executive."
Finally, the Integrated Bar of the Philippines filed its own Petition and an omnibus ex-parte
motion for consolidation and for inclusion in the oral arguments. However, the ICC acknowledged PH
action as soon as it had withdrawn. Therefore, the petitions were moot upon filing.
ISSUE:
W/N treaties are different from executive agreements – In our jurisdiction, YES, in International
Law, NO
W/N the executive can unilaterally withdraw from a treaty - NO
W/N the PH withdrawal from the Rome Statute places it in breach of its obligations under international
law - NO
RULING:
The consolidated Petitions in G.R. Nos. 238875, 239483, and 240954 are DISMISSED for being
moot.
Vienna Convention on the Law of Treaties; Difference Immaterial in International Law; Treaties
Versus Generally Accepted Principles of International Law
Treaties are international agreements concluded between states in written form & governed
by international law, whether embodied in a single instrument or in two or more related instruments
and whatever its particular designation. In PH law, we characterize treaties as "international
agreements entered into by the PH requiring legislative concurrence after executive ratification. This
term may include compacts like conventions, declarations, covenants and acts." Treaties under the
Vienna Convention include all written international agreements, regardless of their nomenclature. In
international law, no difference exists in the agreements' binding effect on states, regardless of how
nations would call the document. However, Philippine law distinguishes treaties from executive
agreements. Treaties and executive agreements are equally binding on the Philippines. However, an
executive agreement does not require legislative concurrence, it being less formal and deals w/ a
narrower range of subject matters. This difference however is immaterial in International Law.
(1) Article II, Section 2, which embodies the incorporation method; and (2) Article VII, Section
21, which covers the transformation method, incorporate portions of international law to national law.
The sources of international law are treated differently in our jurisdiction. In a separate opinion in Gov.
of US v. Purganan, Justice Vitug underscored that as a source of international law, general principles
of law are only secondary to international conventions and international customs. He stressed that
while international conventions and customs are "based on the consent of nations," general principles
of law have yet to have a binding definition. Justice Morales in Rubrico v. Arroyo conceded that the
Constitution's mention of generally accepted principles of international law was "not quite the same"
as, and was not specifically included in Article 38's "general principles of law recognized by civilized
nations. International customs and general principles of law recognized by civilized nations form part
of the law of the land. Therefore, generally accepted principles of international law include
international customs and general principles of law. Under the incorporation clause, these principles
form part of the law of the land. And, "by mere constitutional declaration, international law is deemed
to have the force of domestic law."
No Provision Granting Unilateral Power to Terminate Treaties vis-à-vis No Express Mechanism
Allowing Withdrawal with Senate Concurrence
The provision on treaty-making is under Art. VII of the Constitution, which concerns the
executive department. Having an option does not necessarily translate to absolute discretion on the
choice of international agreement. Certain national interest issues and policies covered by all sorts of
international agreements exist which may not be dealt with by the President alone. To say that the
executive has unlimited discretion to determine if an agreement requires senate concurrence not only
runs contrary to the principle of checks and balances, it likewise renders the constitutional
requirement of senate concurrence meaningless. Treaties follow a different process to become part of
the law of the land. Their differentiation from generally accepted principles of international law was
deliberate and so was the use of different terminologies and mechanisms in rendering them valid and
effective.
For this, the Youngstown Framework is favorably considered: (1) when the President acts
pursuant to an express/implied authorization of Congress, his authority is at its maximum, for it
includes all that he possesses in his own right plus all that Congress can delegate; (2) when the
President acts in absence of either a congressional grant/denial of authority, he can only rely upon his
own independent powers, but there is a zone of twilight in which he and Congress may have
concurrent authority, or in which its distribution is uncertain; (3) when the President takes measures
incompatible with the expressed or implied will of Congress, his power is at his lowest ebb, for then
he can rely only upon his own constitutional powers minus any constitutional powers of Congress
over the matter.
Overall, the President's discretion to withdraw is qualified by the extent of legislative
involvement on the manner by which a treaty was put 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. Treaties where Senate concurrence for accession is
expressly premised on the same concurrence for withdrawal likewise cannot be the subject of
unilateral withdrawal. The imposition of Senate concurrence as a condition may be made piecemeal,
through individual. Senate resolutions pertaining to specific treaties, or through encompassing
legislative action, such as a law, a joint resolution by Congress, or a comprehensive Senate
resolution.
No Violation of Article 26 of the Vienna Convention
Pacta sunt servanda is a generally accepted principle of international law that preserves the
sanctity of treaties. This principle is expressed in this article of the Vienna Convention. Every treaty in
force is binding upon the parties to it and must be performed by them in good faith. A state party may
not invoke the provisions of its internal law to justify its failure to perform a treaty. Under international
law, we cannot plead our own laws to excuse our noncompliance with our obligations. The decision to
withdraw is the Philippines' principled stand against those who politicize and weaponize human rights,
even as its independent and well-functioning organs and agencies continue to exercise jurisdiction
over complaints, issues, problems and concerns arising from its efforts to protect its people. There
cannot be a violation of pacta sunt servanda when the executive acted precisely in accordance with
the procedure laid out by that treaty.