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VIENNA CONVENTION ABAYA V. SEC. EBDANE DBM v. KOLONWEL TRADING; VIBAL v. KOLONWEL; DEPED v. KOLONWEL (8 June 2007) [3 consolidated cases] Petitioners: Dept. of Budget and Management Procurement Service (DBM-PS) and the Inter-Agency Bids and Awards Committee (IABAC) Petitioners: Vibal Publishing House, Inc., LG & M Corp., and SD Publications, Inc. Petitioner: Department of Education Respondent: Kolonwel Trading Nature: Petitions for review with a prayer for a temporary restraining order Ponente: Garcia, J. SUBJECT OF THE CONTROVERSY: the bidding and eventual contract awards for the supply and delivery of some 17.5 million copies of Makabayan (social studies) textbooks and teacher’s manuals, a DepEd project which was to be jointly funded by the World Bank (WB)1 and the Asian Development Bank (ADB)2. In the middle of 2005, the DepEd requested the DBM-PS to undertake this project. According to the Exec. Director of the Government Procurement Policy Board (GPPB), “the procurement(s) for MAKABAYAN… textbooks were funds therefore (sic) are sourced from WB Loan shall be governed by the applicable procurement guidelines for the foreign lending institution. The 2005 Call for Submission of Textbooks and Teacher’s Manuals shall be viewed vis-à-vis relevant WB guidelines.” CALL FOR BIDS. On Oct. 27, 2005, the DBM-PS IABAC called for a bidding for the supply of the Makabayan textbooks and manuals, divided into 3 lots3. 11 bidders submitted proposals for the different lots: Watana Phanit Printing & Publishing Co., Ltd., (Thailand); Vibal Publishing House, Inc.; Daewoo International Corporation (South Korea); and Kolonwel. IABAS’S RES. NO. 001-20064 recommended to the WB and ADB the failure of bids for all the lots due to disqualifications, non-compliance, and DepEd’s reservations. The reasons stated: conflict of interest with respect to Watana and Vibal; failure in cover stock testing for Kolonwel; and DepEd’s reservation. WB5 LETTER TO THE DEPED, DBM-PS, & IABAC: (1) disagreed with the finding of conflict of interest (Vibal and Watana); (2) upheld the other
disqualifications; and (3) asked the IABAC to review its evaluation and to provide the WB with the revised Bid Evaluation Report, taking into account the Dec. 31, 2006 RP-IBRD Loan closing date. MAY 11, 2006, KOLONWEL WAS INFORMED OF ITS BID’S FAILURE TO QUALIFY. KOLONWEL ASKED THAT ITS DISQUALIFICATION BE RECONSIDERED AND SET ASIDE VIA LETTERS6. This, and a second request for reconsideration,were denied. IABAC’S RES. NO. 001-2006-A was issued, recommending to the WV the contract award to Vibal7, Watana8, and Daewoo9. The notices of award were issued and the Purchaser-Supplier contracts were executed on Sept. 12, 2006. KOLONWEL FILED WITH THE RTC OF MANILA A SPECIAL CIVIL ACTION FOR CERTIORARI AND PROHIBITION, with a prayer for a temporary restraining order and/or a writ of preliminary injunction, on Oct. 12, 2006, in order to nullify the 2 IABAC resolutions and to set aside the contract awards in favor of Vibal and Watana. To support the TRO application, Kolonwel alleged that the supply-awardees were rushing with the implementation of the void contracts to beat the loan closingdate deadline. A 20-day TRO was granted. MOTIONS TO DISMISS FILED BY VIBAL, DEPED: want of jurisdiction and lack of cause of action for failure to comply with the protest procedure prescribed by RA 9184, the “Government Procurement Reform Act.” RTC FOUND FOR KOLONWEL: “…the court grants the petition for certiorari and prohibition. The IABAC Res. No. 001-2006-A… is annulled and set aside. IABAC Res. No. 001-2006 is declared validly and regularly issued… All subsequent actions of the respondents resulting from the issuance of IABAC Res. 001-2006-A are consequently nullified and set aside. This court grants a final injunction….”
Through the Second Social Expenditure Management Program (SEMP2) of the Philippines – International Bank for Reconstruction and Development (IBRD) Loan Agreement No. 7118PH (Loan No. 7118-PH) dated Sept. 12, 2002.
2 3 4
5 6 7 8 9
Through its Regional Senior Economist, Ms. Rekha Menon. Dated May 18 and June 28. Of Sibika 1 & 3. Sibika 2 and HeKaSi 4 & 5. Sibika 3.
Through the SEDIP Loan No. 1654-PHI.
Lot 1, for Sibika Grades 1-3. Lot 2, for HeKaSi Grades 4-6. Lot 3, for Araling Panlipunan Years IIV. Submitted to the WB on March 15, 2006.
FOR THE PETITIONERS: RTC erred in assuming jurisdiction despite the failure to observe the protest mechanism under Sec. 5510 in relation to Secs. 5711 and 5812 of RA 9184. FOR KOLONWEL: (1) the judicial window was already opened under the exhaustion of available administrative remedies principle, considering that its request for reconsideration was denied twice; and (2) it was prevented from filing a protest as the government hadn’t yet issued the IRR of RA 9184, to render its protest mechanism operative for foreign-funded projects. ISSUE: WON the RTC lacked jurisdiction due to the failure to comply with the protest mechanism. HELD: YES. 3 PROTEST REQUIREMENTS UNDER SEC. 55: 1) the protest must be in writing, in the form of a verified position paper; 2) the protest must be submitted to the head of the procuring entity; and 3) the payment of a non-refundable protest fee. Under Sec. 58, courts would have jurisdiction only if the protest procedure has already been completed. KOLONWEL’S LETTERS FOR RECONSIDERATION FAILED TO COMPLY WITH SEC. 55: (1) letters weren’t addressed to the head of the procuring entity (the DepEd Sec. or the DBM-PS head), as required by law; (2) these were unverified; and (3) no payment of protest fee. Thus it cannot really be said that Kolonwel availed of the protest procedure prescribed under Sec. 55 before going to the RTC, and its filing of a case was precipitate and should’ve been dismissed for lack of jurisdiction. The protest mechanism is a built-in administrative remedy embodied in the law itself. It was not prescribed by an administrative agency tasked with implementing a statute through the medium of interpretative circulars or bulletins. Ignoring this administrative remedy would be to defy the law itself. LACK OF IRR, MAKING THE PROTEST MECHANISM OPERATIVE FOR FOREIGN-FUNDED PROJECTS, WOULDN’T EXCUSE KOLONWEL. As provided by Sec. 55 itself, the IRR (for the protest for foreign-funded projects) was
limited to the fixing of the amount of the protest fee and the periods during which the protest may be filed and resolved. The absence of provisions on protest fee and reglementary period wouldn’t lead to the deferment of the implementation of the protest mechanism as a condition sine qua non to resort to judicial relief. There was no need to wait for the prescription of the specific filing period as protest, as a matter of necessity, has to be lodged before court action. With respect to the protest fee, Kolonwel could’ve proceeded with its protest without paying the fee, remitting the proper amount once the proper amount was fixed by the IRR. “IRR-A” AND ABAYA v. EBDANE. At any rate, there is in fact a set of implementing rules and regulations, the “IRR-A13,” Sec. 55.1 of which provides that prior to a resort to protest, the aggrieved party must first file a motion for reconsideration of the decision of the BAC. It is only after the BAC itself denies reconsideration that the protest, accompanied by a fixed protest fee, shall be filed within the period defined in the IRR. While this applies to “all fully domesticallyfunded procurement activities,” and that “foreign-funded procurement activities shall be the subject of a subsequent issuance,” ABAYA14 should be considered: Admittedly, IRR-A…expressly stated that IRR-B for foreignfunded procurement activities shall be subject of a subsequent issuance. Nonetheless, there is no reason why the policy behind Sec. 77…cannot be applied to foreign-funded procurement projects…the policy on the prospective or non-retroactive application of RA 9184 with respect to domestically-funded procurement projects cannot be any different with respect to foreign-funded procurement projects…It would be incongruous, even absurd, to provide for the prospective application of RA 9184 with respect to domestically-funded procurement projects and… apply RA 9184 retroactively with respect to foreign-funded procurement projects. To be sure, the lawmakers could not have intended such an absurdity. There is no reason why the policy behind Section 55.l on the procedure for protest cannot be applied to foreign-funded procurement projects and RA 9184 doesn’t show that Congress intended such a variance in the protest procedure. NO SUBSTANTIAL COMPLIANCE OF PROTEST REQUIREMENTS as it wasn’t even clear that Kolonwel was aware of these. What is beyond dispute is that courts are precluded by express legislative command from entertaining protests from decisions of the BAC. What Congress intended was that not only would there be a distinct administrative grievance mechanism to be observed in assailing these decisions, but that courts would be without jurisdiction over actions impugning these
Sec. 55. Protest on Decision of the BAC.- Decisions of the BAC [Bids and Awards Committee] in all stages of procurement may be protested to the head of the procuring entity…. Decisions of the BAC may be protested by filing a verified position paper and paying a non-refundable protest fee. The amount of the protest fee and the periods during which the protest may be filed and resolved shall be specific in the IRR. 11 Sec. 57. Non-interruption of the Bidding Process. In no case shall any process taken from any decision treated in this Article stay or delay the bidding process. Protests must first be resolved before any award is made. 12 Sec. 58. Report to Regular Courts; Certiorari.- Court action may be resorted to only after the protests contemplated in this Article shall have been completed. Cases that are filed in violation of the process specified in this article shall be dismissed for lack of jurisdiction. The [RTC] shall have jurisdiction over final decisions of the head of the procuring entity. (Emphasis and words in bracket added.)
Issued on July 11, 2003 by the GPPB and the Joint Congressional Oversight Committee.
Which involved Loan Agreement No. PH-P204 between the Phil. and the Japan Bank for International Cooperation for the implementation of DPWH Contract Package No. 1.
they are a simulation of joint military maneuvers pursuant to the Mutual Defense Treaty (a bilateral defense agreement entered into by the Philippines and the United States in 1951). the WB Guidelines on the conduct and implementation of the bidding/procurement process in question. RA 9184 still requires a protest to be filed. Jr.PH. regardless of source of funds. The question as to whether or not foreign loan agreements with international financial institutions (Loan No. 7118. troops in Basilan and Mindanao for being illegal and in violation of the Constitution. The bidding was conducted by IABAC based on the WB Guidelines. in conjunction with the Philippine military. Bush in reaction to the tragic events that occurred on September 11. Executive Secretary DE LEON. Lim vs. Thus the IABAC was legally obliged to comply with. 4 of R. said exercises are the largest combined training operations involving Filipino and American troops. 1 of the Guidelines for Procurement under IBRD Loans. attacking the constitutionality of the joint exercise. 7118-PH. They likewise pray for a relaxation on the rules relative to locus standi citing the unprecedented importance of the issue involved. ANOTHER RTC ERROR: NO JURISDICTION OVER WATANA which wasn’t served with summons. whether local or foreign by all branches and instrumentalities of government… Any treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed. which defines the court’s jurisdiction not otherwise conferred by the Constitution. the Philippines.) . SANLAKAS and PARTIDO. 4. 4 has been answered in the affirmative in Abaya. This was due to the paucity of any formal agreement relative to the treatment of United States personnel visiting the Philippines. 7118-PH) partake of an executive or international agreement within the purview of the Sec. lawyers and taxpayers. in "Balikatan 02-1”. Lim and Ersando filed suit in their capacities as citizens. who is concurrently Secretary of Foreign. that judgment be rendered issuing a permanent writ of injunction and/or prohibition against the deployment of U. bound itself to perform in good faith its duties and obligation under Loan No. 58 that courts do not have jurisdiction over decisions of the BACs unless the appropriate protest has been made and completed. embodied in Sec. Sec. PETITION FOR CERTIORATI AND PROHIBITION February 1: petitioners Arthur D.: 15 This case involves a petition for certiorari and prohibition as well as a petition-inintervention. the respective governments of the two countries agreed to hold joint exercises on a reduced scale. released the following TOR: Indispensable parties are those with such an interest in the controversy that a final decree would necessarily affect their rights so that courts can’t proceed without their presence. JR. BASIC FACTS GI JOE ARRIVES TO KILL TERRORISTS 2002: personnel from the armed forces of the USA started arriving in Mindanao to take part. shall primarily govern the procurement of goods necessary to implement the main project. Watana is an indispensable party15 to Kolonwel’s petition. Guingona. They were joined subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA. 1. 417 of RA 9184 expressly recognized this process. praying that respondents be restrained from proceeding with the socalled "Balikatan 02-1" and that after due notice and hearing.S. It is Congress by law. on the other hand. 9184.A. The lack of consensus was eventually cured when the two nations concluded the Visiting Forces Agreement (VFA) in 1999. The last "Balikatan" was held in 1995. In theory. and hence will be directly affected by the operations being conducted in Mindanao. Schedule 416. Ersando filed a petition for certiorari and prohibition. J. Sec. (Emphasis added. Scope and application. In the meantime..” Sec. aver that certain members of their organization are residents of Zamboanga and Sulu. SENATE Terms of Reference (TOR) The Senate conducted a hearing on the "Balikatan" exercise wherein Vice-President Teofisto T. Under the fundamental international law principle of pacta sunt servanda. Lim and Paulino P. which declared that the RP-JBIC loan agreement was to be of governing application over the project and that the JBIC Procurement Guidelines.3 unless the protest procedure mandated under Sec. or accord primacy to. Thus the RTC lacked jurisdiction over Kolonwel’s petition. not the courts by discretion. 2001. 16 17 This stipulates that “Goods… shall be procured in accordance with the provisions of Sec. Despite the lack of an IRR. WRT THE SUPERIORITY OF WB GUIDELINES ON PROCUREMENT UNDER IBRD LOANS OVER LOCAL LAWS: recall that all interested bidders were notified that the DepEd’s procurement project was financed by the proceeds of the RP-IBRD Loan No. 55 could not be any clearer when it mandates the manner of protest. which assailed and sought to nullify the contract-award made in Watana’s and Vibal’s favor. Similarly.. No. Affairs. All of them must be included in a suit for an action to prosper or for a final determination to be had. it is clear under Sec. 55 is brought to its logical completion. The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism campaign declared by President George W. as borrower. – This Act shall apply to the Procurement of… Goods and Consulting Services. particularly the provisions on International Competitive Bidding (ICB). as stipulated in the loan agreement. Sec.
and in consultation with community and local government officials. Second. In no instance will US Forces operate independently during field training exercises (FTX). Further advising. 3. they may not file suit in their capacities as. in accordance with their respective laws and regulations. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations. advising and training of RP and US Forces with the primary objective of enhancing the operational capabilities of both forces to combat terrorism. c. 2. b. NOTE: THE COURT AGREED WITH THE SOLGEN ON THIS PROCEDURAL MATTER. LOCUS STANDI:First. c. assisting and training exercises shall be conducted in Malagutay and the Zamboanga area. US exercise participants shall not engage in combat. PUBLIC AFFAIRS a. AFP. Company Tactical headquarters where they can observe and assess the performance of the AFP Forces. The US teams shall remain at the Battalion Headquarters and. The Exercise shall be consistent with the Philippine Constitution and all its activities shall be in consonance with the laws of the land and the provisions of the RP-US Visiting Forces Agreement (VFA). d. 6. b. AFP and US Unit Commanders will retain command over their respective forces under the overall authority of the Exercise Co-Directors. b. 5. assisting and training Exercise relative to Philippine efforts against the ASG. 8. ADMINISTRATION & LOGISTICS a. Falcon and United States Charge d' Affaires Robert Fitts signed the Agreed Minutes of the discussion between the Vice-President and Assistant Secretary Kelly. their being lawyers does not invest them with sufficient personality to initiate the case. The conduct of this training Exercise is in accordance with pertinent United Nations resolutions against global terrorism as understood by the respective parties. Assistant Secretary for American Affairs Minerva Jean A. Third. II. Quezon City. (But still allowed petition on the merits). Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP field. classroom instruction and messing may be set up for use by RP and US Forces during the Exercise. equipment and other assets. when approved. They will use their respective logistics channels. TRAINING a.4 I. and will be conducted on the Island of Basilan. 3. POLICY LEVEL 1.800 RP Forces. commanders. Lim and Ersando have failed to demonstrate the requisite showing of direct personal injury. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of the Chief of Staff. c. RP and US participating forces may share. The Abu Sayyaf bandits ARE NOT an external armed force to warrant the US military assistance.4 ARGUMENTS OF PETITIONERS 1) The Phil and US signed the Mutual Defense Treaty in 1951 to provide mutual military assistance in accordance with the constitutional processes of each country ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR. This briefing shall acquaint US Forces on the culture and sensitivities of the Filipinos and the provisions of the VF A. The briefing shall also promote the full cooperation on the part of the RP and US participants for the successful conduct of the Exercise. The Exercise is a mutual counter-terrorism advising. Zamora. Temporary structures such as those for troop billeting. 9. The exercise shall be conducted and completed within a period of not more than six months. 2. 4. in the use of their resources. At no time shall US Forces operate independently within RP territory. prematurity of the action as well as the impropriety of availing of certiorari to ascertain a question of fact. These terms of Reference are for purposes of this Exercise only and do not create additional legal obligations between the US Government and the Republic of the Philippines. The Chief of Staff. AFP shall direct the Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six month Exercise period. citing the ruling in Integrated Bar of the Philippines v. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US Forces in accordance with their respective laws and regulations. 2) The VFA does NOT authorize American soldiers to engage in combat operations in Philippine territory (cannot even fire back if fired upon). SOLGEN DEFENDS BALIKATAN 1) SOLGEN questions petitioners standing. without prejudice to their right of self-defense. Legal liaison officers from each respective party shall be appointed by the Exercise Directors. RP and US participants shall be given a country and area briefing at the start of the Exercise. Local media relations will be the concern of the AFP and all public affairs guidelines shall be jointly developed by RP and US Forces. Related activities in Cebu will be for support of the Exercise. Contemporaneously. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and resources. EXERCISE LEVEL 1. The Exercise shall involve the conduct of mutual military assisting. RP and US participants shall comply with operational instructions of the AFP during the FTX. No permanent US basing and support facilities shall be established. AFP in Camp Aguinaldo. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in Zamboanga City and at GHQ. 7. taxpayers inasmuch as it has not been shown that "Balikatan 02-1 " involves the exercise of Congress' taxing or spending powers. with the projected participation of 660 US personnel and 3. .
Hence. as well as the duration of the agreement and its termination. At any rate. as we have done in the early Emergency Powers Cases (where the SC “brushed away rules on technicality” and had occasion to rule: 'x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were involving only an indirect and general interest shared in common with the public. in that United States personnel must "abstain from any . criminal jurisdiction. we treat with similar dispatch the general objection to the supposed prematurity of the action. brushes aside the procedural barrier and takes cognizance of the petitions. COURT: Don’t look at the VFA since the terminology itself is the problem. claims. MUTUAL DEFENSE TREATY The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to which the Philippines bound itself. The Court dismissed the objection that they were not proper parties and ruled that 'transcendental importance to the public of these cases demands that they be settled promptly and definitely. this Court." the exact meaning of which was left undefined. on an impermanent basis. importation and exportation. petitioners' concerns on the lack of any specific regulation on the latitude of activity US personnel may undertake and the duration of their stay has been addressed in the Terms of Reference. driving and vehicle registration. PROCEDURAL PART COURT: USED TRANSCENDENTAL IMPORTANCE DOCTRINE AND GRANTED STANDING TO PETITIONERS In view of the paramount importance and the constitutional significance of the issues raised in the petitions. for brevity). by a vote of eleven to three. the United States. The VFA permits United States personnel to engage. [citation omitted] Again. Jr. To resolve this. the "Balikatan" is the largest such training exercise directly supporting the MDT's objectives. in the more recent case of Kilosbayan vs.5 PREMATURITY: SOLGEN is of the view that since the Terms of Reference are clear as to the extent and duration of "Balikatan 02-1. until it was replaced by the Visiting Forces Agreement. since the terminology employed is itself the source of the problem. The VFA provides the "regulatory mechanism" by which "United States military and civilian personnel [may visit] temporarily in the Philippines in connection with activities approved by the Philippine Government. if we must. It is this treaty to which the V FA adverts and the obligations thereunder which it seeks to reaffirm. MAIN DEFENSE SOLGEN claims that there is actually no question of constitutionality involved. is to obtain an interpretation of the V FA. it is said.' We have since then applied the exception in many other cases. Its primary goal is to facilitate the promotion of optimal cooperation between American and Philippine military forces in the event of an attack by a common foe. The MDT has been described as the "core" of the defense relationship between the Philippines and its traditional ally. permitting a wide scope of undertakings subject only to the approval of the Philippine government. 2. The sole encumbrance placed on its definition is couched in the negative. the Court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review. 2000. It is the VFA which gives continued relevance to the MDT despite the passage of years.. I note that October 10. in "activities. technicalities of procedure. Even petitioners' resort to a special civil action for certiorari is assailed on the ground that the writ may only issue on the basis of established facts. movement of vessels and aircraft. considering the President's monopoly in the field of foreign relations and her role as commander-inchief of the Philippine armed forces." the issues raised by petitioners are premature. The first of these is the Mutual Defense Treaty (MDT. in the exercise of its sound discretion. as they are based only on a fear of future violation of the Terms of Reference. Guingona. Its aim is to enhance the strategic and technological capabilities of our armed forces through joint training with its American counterparts. The Solicitor General asks that the SC accord due deference to the executive determination that "Balikatan 02-1" is covered by the VFA. it is necessary to refer to the V FA itself: Not much help can be had therefrom. The expression is ambiguous. this Court ruled that in cases of transcendental importance. COURT: BALIKATAN MUST BE VIEWED IN THE FRAMEWORK OF THE TREATY THAT PERMITTED SUCH TO OCCUR 1." It contains provisions relative to entry and departure of American personnel. Look at Vienna Convention on the Law of Treaties in order to know HOW TO INTERPRET THE DAMN VFA. The true object of the instant suit. VISITING FORCES AGREEMENT The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in US-Philippine defense relations. unfortunately. the SC upheld the validity of the VFA. brushing aside. MAIN PART OF THE DECISION ISSUE NUMBER 1: WON Balikatan is covered by the VFA -Why yes it is.
The context for the purpose of the interpretation of a treaty shall comprise. visiting US forces may sojourn in Philippine territory for purposes other than military. the VFA gives legitimacy to the current Balikatan exercises. are fair game. and in particular.) Unless the bandits draw first blood (remember rules of engagement?) COURT: DIFFICULT TO IMPLEMENT “SELF-DEFENSE” RULE The Terms of Reference are explicit enough. or to determine the meaning when the interpretation according to article 31 : (a) leaves the meaning ambiguous or obscure. It is only logical to assume that . in addition to the text. COURT: THE TERMS OF REFERENCE RIGHTLY FALL WITHIN THE CONTEXT OF THE VFA. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given to the tenus of the treaty in their context and in the light of its object and purpose. 3. Paragraph 8 of section I stipulates that US exercise participants may not engage in combat "except in self-defense. no rigid temporal prohibition on resort to travaux preparatoires of a treaty was intended by the use of the phrase 'supplementary means of interpretation' in what is now Article 32 of the Vienna Convention. the Commission accordingly came down firmly in favour of the view that 'the starting point of interpretation is the elucidation of the meaning of the text. medical and humanitarian missions. (c) any relevant rules of international law applicable in the relations between the parties. which it refers to as the context of the treaty. including the preparatory work of the treaty and the circumstances of its conclusion." All other activities. . which is presumed to verbalize the parties' intentions. As Professor Briggs points out. The Convention likewise dictates what may be used as aids to deduce the meaning of terms. A special meaning shall be given to a term if it is established that the parties so intended. state: SECTION 3.6 activity inconsistent with the spirit of this agreement. it appeared farfetched that the ambiguity surrounding the meaning of the word 'activities" arose from accident. Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation. assisting and training exercise." a "mutual anti. The distinction between the general rule of interpretation and the supplementary means of interpretation is intended rather to ensure that the supplementary means do not constitute an alternative. from any political activity. (remember: ligaw tingin kantot hangin lang sila. (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions. This is not to say that the travauxpreparatoires of a treaty . as well as other elements may be taken into account alongside the aforesaid context." SC notes that this sentiment is admirable in the abstract but difficult in implementation. or the circumstances of its conclusion. SC has the view that it was deliberately made that way to give both parties a certain leeway in negotiation. Both the history and intent of the Mutual Defense Treaty and the V FA support the conclusion that combat-related activities -as opposed to combat itself -such as the one subject of the instant petition are indeed authorized. The Vienna Convention on the Law of Treaties.'Balikatan 02-1. in other words. in order to confirm the meaning resulting from the application of article 31. Under these auspices. 2. not an investigation ab initio into the intentions of the parties'. or (b) leads to a result which is manifestly absurd unreasonable. the joint exercises may include training on new techniques of patrol and surveillance to protect the nation's marine resources. are relegated to a subordinate. (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the party ." falls under the umbrella of sanctioned or allowable activities in the context of the agreement. ISSUE NUMBER 2: MAY US TROOPS ENGAGE IN COMBAT? -Nah. disaster relief operations. As conceived. 4. autonomous method of interpretation divorced from the general rule. civic action projects such as the building of school houses. and the like. DELIBERATE AMBIGUITY After studied reflection. INTERPRETATION OF TREATIES Article 31 General rule of interpretation 1.terrorism advising. There shall be taken into account. It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text. “[t]he Commission's proposals (which were adopted virtually without change by the conference and are now reflected in Articles 31 and 32 of the Convention) were clearly based on the view that the text of a treaty must be presumed to be the authentic expression of the intentions of the parties. including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty. role. which contains provisos governing interpretations of international agreements. As explained by a writer on the Convention . In this manner. sea search-and-rescue operations to assist vessels in distress. and wholly ineffective.
or in any other manner inconsistent with the Purposes of the United Nations. The Philippines renounces war as an instrument of national policy. when the Congress so requires." The indirect violation is actually petitioners' worry. foreign troops are allowed entry into the Philippines only by way of direct exception. cannot reasonably be expected to sit idly while the battle is brought to their very doorstep. cooperation. 25." Further. COURT: NO PRIMACY OF LAW BETWEEL PIL AND MUNICIPAL LAW In Philip Morris. The aforequoted provisions betray a marked antipathy towards foreign military presence in the country. consistent with the national interest. In particular. or of foreign influence in general. and that the provision on self-defense serves only as camouflage to conceal the true nature of the exercise. adopts and pursues a policy of freedom from nuclear weapons in the country. "Balikatan 02-1 " is actually a war principally conducted by the United States government.determination. SEC. “ [This is not exactly helpful in solving the problem at hand since in trying to find a middle ground. and the right to self. in pursuit of the Purposes stated in Article 1. it is provided that: xxx xxx xxx xxx SEC. troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and. 8. though it nevertheless remains in effect as a valid source of international obligation. Hence. v. as in all other treaties and international agreements to which the Philippines is a party. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases. shall act in accordance with the following Principles. SC points out that the parties straddle a fine line. . xxx xxx xxx xxx COURT: READ BOTH TREATIES IN THE CONTEXT OF THE 1987 CONSITUTION Both the Mutual Defense Treaty and the Visiting Forces Agreement. 2. national interest. Hence."12 Even more pointedly. "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith. ratified by a majority of the votes cast by the people in a national referendum held for that purpose. observing the honored legal maxim "Nemo potest facere per alium quod non potest facere per directum. foreign military bases. and recognized as a treaty by the other contracting state. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. xxx xxx xxx xxx The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate. to national legislation. rules of international law are given a standing equal. They cannot be expected to pick and choose their targets for they will not have the luxury of doing so. justice. The present Constitution contains key provisions useful in determining the extent to which foreign military troops are allowed in Philippine territory. Other more traditional approaches may offer valuable insights.7 The target of "Balikatan 02-1 I" the Abu Sayyaf. must be read in the context of the 1987 Constitution. Under the doctrine of incorporation as applied in most countries. Conflict arises then between the fundamental law and our obligations arising from international agreements. Thus. adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace. the Transitory Provisions state: Sec. The Philippines. it favors neither one law nor the other. freedom. COURT: MDT/VFA DO NOT ALLOW FOREIGN TROOPS TO ENGAGE IN AN OFFENSIVE WAR ON PHILIPPINE TERRITORY (cf UN Charter) Article 2 The Organization and its Members. 4. Inc. and amity with all nations. in the Declaration of Principles and State Policies. not superior. which only leaves the hapless seeker with an unsolved dilemma. Court of Appeals it was stated that “the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. territorial integrity. xxx xxx xxx xxx xxx xxx xxx xxx SEC.] COURT: CONSTI VS PIL Perspective of public international law: a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. the Mutual Defense Treaty was concluded way before the present Charter. The State shall pursue an independent foreign policy. A clear pronouncement on this matter thereby becomes crucial. In its relations with other states the paramount consideration shall be national sovereignty. that in reality. 7. equality.
Certiorary is to correct errors of jurisdiction/grave abuse of discretion. final judgments and order of lower courts in: (A) All cases in which the constitutionality or validity of any treaty. Former Special 16th Division of the CA and all persons acting in their behalf. courts are charged with the duty "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. 3 and 4) “Reaffirming their obligations under the Mutual Defense Treaty of August 30. Roque. The foregoing premises leave no doubt that US forces are prohibited / from engaging in an offensive war on Philippine territory. but for the simple reason that facts must be established in accordance with the rules of evidence. Salonga Petition Petitioners: Jovito R. SC must concur with the Solicitor General that the present subject matter is not a fit topic for a special civil action for certiorari. Hernandez. Jr. SC ruled that the provisions of a treaty are always subject to qualification or amendment by a subsequent law. Secretary Alberto Romulo. Salonga. In Ichong v. “Noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines.” • Two questions from these paragraphs: (1) WON the Mutual Defense Treaty (MDT) applies to the VFA. In other words. or that it is subject to the police power of the State." Phil Constitution (stated in section 5 of Article VIII) “The Supreme Court shall have the following powers: xxx xxx xxx xxx (2) Review. as reported from the saturation coverage of the media. On this point. The petitions invites the SC to speculate on what is really happening in Mindanao. respondents in the case at bar have not committed grave abuse of discretion amounting to lack or excess of jurisdiction. or a virtual refusal to perform the duty enjoined or act in contemplation of law. H. ISSUE NUMBER 3: Are American troops actively engaged in combat alongside Filipino soldiers under the guise of an alleged training and assistance exercise? COURT: CANNOT TAKE JUDICIAL NOTICE OF THE EVENTS IN THE SOUTH SC cannot take judicial notice of the events transpiring down south. . in the absence of concrete proof. or impartiality. it will not be amiss to add that the Supreme Court is not a trier of facts. international or executive agreement. accuracy. or regulation is in question. Petition for Certiorari under Rule 65 January 22. 2007 Prefatory Statement • VFA preamble (par. Capulong. Presidential Legal Counsel Sergio Apostol. to issue I make factual findings on matters well beyond the SC’s immediate perception. Emilio C. law. Under the expanded concept of judicial power under the Constitution. petitioners' allegation that the Arroyo government is engaged in "doublespeak" in trying to pass off as a mere training exercise an offensive effort by foreign troops on native soil. or where the power is exercised in an arbitrary and despotic manner by reason of passion and personal hostility. Tanada. as the law or the Rules of Court may provide. xxx xxx xxx xxx It is all too apparent that the determination thereof involves basically a question of fact. Jurisprudence has show in too many instances that questions of fact are not entertained in such a remedy. Raul Gonzalez. WHEREFORE. As a rule. revise. presidential decree. COURT: THE PROBLEM IS AN ISSUE OF FACT (SC is not a trier of facts). the court finds that the holding of "Balikatan 02-1" joint military exercise has not intruded into that penumbra of error that would otherwise call for correction on the SC’s part. order. 1951." In this connection. instruction. ordinance. Jr. Amended Petition. the petition and the petition-in-intervention are hereby DISMISSED without prejudice to the filing of a new petition sufficient in form and substance in the proper Regional Trial Court. Justice Apolinario Bruselas. SC does not take cognizance of newspaper or electronic reports per se.. Florin Hilbay and Benjamin Pozon Respondents: Daniel Smith. Harry L. Wigberto E. SC cannot accept. Sec. reverse. The sole object of the writ is to correct errors of jurisdiction or grave abuse of discretion: The phrase "grave abuse of discretion" has a precise meaning in law..8 a party to a treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to perform a treaty. modify. Jose de la Rama. and this they are understandably loath to do. proclamation. Secretary Ronaldo Puno. not because of any issue as to their truth."21 From the facts obtaining. or affirm on appeal or certiorari. denoting abuse of discretion "too patent and gross as to amount to an evasion of a positive duty.
4.) Art. The decision stated that Smith shall continue to be committed in Makati City Jail until the appropriate Philippine and US authorities shall have come to a binding agreement as to the proper facilities where said shall carry out his confinement or detention during his appeal. II speaks of developing their individual and collective capacity to resist armed attack. IV. political independence or security of either of the parties is threatened by external attack in the Pacific. Art. Rene AV Saguisag. Bush. Special 16th Division of CA issued resolution denying private respondent’s prayer for TRO. despite the imminent attack of China on the armed forces and public vessels of the Philippines. Art. December 12.Trial court denied Smith’s motion for reconsideration. I provides that the parties undertake (as set forth in UN Charter) to settle any international dispute by peaceful means and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the UN. V says that for the purpose of Art.” Clearly. Public prosecutor filed a Manifestation submitting therewith an “agreement” signed by US Ambassador Kristie Kenney and Chief State Prosecutor (CSP) Jovencito Zuño. Private respondent filed an Urgent Motion for Reconsideration with Prayer for Issuance of Stay Order. Smith filed a Petition for Certiorari before the CA praying for the annulment of the order denying his Urgent Motion for Reconsideration. and former UP Law Dean Magallona) December 2006. Africa and Asia. Antecedent Proceedings 1. It appears that US military personnel are in the Philippines the whole year round. 2006.) Art. by any stretch of imagination. “Bayan et. it is incumbent upon this Court to inquire as to the actual length of time US military personnel stay in the Philippines. et. VI provides that “this Treaty does not affect and shall not be interpreted as affecting in any way the rights and obligations of the Parties under the UN Charter or responsibility of the UN for the maintenance of international peace and security. III provides for mutual consultation through their Foreign Ministers or their deputies whenever in the opinion of either of them the territorial integrity. Evalyn Ursua. 3 of the MDT preamble speaks of an “external armed attack. 2. Teofisto Guingona. Trial Court received letter from DOJ Secretary with the agreement attached. Executive Secretary. more importantly. 2006. 9. December 14. there is no room for application of the MDT in the VFA as there is no external armed attack on the Philippines to speak of. Petition for certiorari filed with the SC by Suzette S. 2006.) Art. in accordance with the VFA Smith. 5. • As to 1st question: Petitioners maintain that MDT does not apply: Par.” (The US used this escape clause when the Philippines asked the former to come to its aid in case of imminent attack by mainland China on Kalayaan Island in the Spratlys. 8. October 2000. (Judicial notice that the US. IV (unlike in the NATO which provides that an armed attack on one is considered automatically an armed attack on the others who are parties) declares that either of the Parties “would act to meet common dangers in accordance with its constitutional processes. v. the US made use of this provision to justify its refusal to come to the aid of the Philippines in the Kalayaan Island in the Spratlys. should be returned to US military custody at the US Embassy. has openly denied and ignored the UN in its actions against Iraq—to the dismay and consternation of then UN Secretary General Kofi Annan and many other notable personalities in the US. 2006.” (Again. al. June 2006. be considered as temporary visits. Such presence could not. 6. under President George W. • As to 2nd question: US armed forces’ stay. . as applied in light of the understanding and the assurances made during the ratification by the Senate of the VFA and. under the guise of a visit pursuant to the VFA. (hrough Attys. not temporary visits: In the context of the current practices of the US armed forces in the Philippines. 2006. 7. so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific Area. 3.9 (2) whether the word visit means what it says. al. without any geographical and time limitations. Nicolas (“Nicole”) against Judge Benjamin Pozon and Daniel Smith. Jr. Europe. al.—declaring the VFA as not unconstitutional. in the context of current practices of the US armed forces.. December 18. or on the island territories under its jurisdiction in the Pacific.” Art. especially those in Mindanao. Trial court “temporarily committed” private respondent to the Makati City jail pending further negotiations between the governments of the Philippines and the US regarding custody. an armed attack on either of the parties is deemed to include “an attack on the metropolitan territory of either of the parties. Puno dissented in favor of granting the petition. December 8. et. December 5. Makati RTC found private respondent guilty beyond reasonable doubt of the crime of rape and sentenced him to 40 years imprisonment. The agreement stated that: the Philippine Government and the US Government agree that.
” It must be noted that. 17. Wigberto Tanada. explaining that the transfer was effected in the late evening to “avoid traffic. as published by the Philippine Daily Inquirer that “the basis for the appellate court’s January 3 decision declaring “moot” Smith’s appeal to be returned to US custody had been “falsified and altered. Salonga. 2006. Atty. December 22.. despite his knowledge of the pendency of Smith’s Petition for Certiorari before the CA. Secretary Gonzalez and the Makati City Jail Warden. January 1. 11. Respondent Ermita admitted that he and the President “supported” the transfer of Smith.that the other branches of government are equally the ultimate guardians of the liberties and welfare of the people. Part of the decision reads: “All the foregoing discussions notwithstanding. Smith was released from the Makati City Jail by Philippine officials and turned over to US authorities.10 10. Hence. publicly expressed the view that “we (the executive) are the jailers of Smith. December 27. Jr. we resolve to consider the matter treated in the petition MOOT. the DFA. Emilio capulong. December 20.. its international law implications and the question of jurisdiction and custody as applied to the specific case of rape adjudged to have been . he will be detained at the 1st Floor. Respondent Apostol. Respondent Gonzalez publicly admitted that he gave a written legal opinion to the DILG on the legality of the release of Smith from the Makati City Jail to the custody of US officials even without a court order and that this opinion became the basis of the transfer of Smith. 2006. 2007. Jr. January2. 15. 20. January 3. Quintin Doromal. Embassy. we can decide where to detain a convicted criminal.” 21. in declaring the Smith petition moot. Presidential Legal Counsel Sergio Apostol. 2007.S. Jovito Salonga. 2006. 2007. and Prof. 22. Petitioners Jovito R. Ambassador and respondent Secretary Romulo which stated that the DFA of the Philippines and the US Embassy agree that. December 29. U. al. filed a Very Urgent Supplemental Manifestation and Motion submitting an Agreement dated 22 December 2006 between U. The Philippine police and jail authorities. Roque.S. through the Sol. Conformably with the wise observation – wrongly attributed to Justice Holmes by Justice Bruselas -. 12. in accordance with the VFA signed upon transfer of Smith from the Makati City Jail to US military authorities at the US Embassy in Manila. Dr. CA released its Decision upholding the interpretation of Judge Pozon in his 12 December 2006 Order (#7) that “judicial proceedings” under the VFA refer only to the proceedings at the court a quo and that custody of respondent Smith must be with the Philippine authorities.” Petitioner Salonga pointed out that “a portion of the quote attributed to the eminent magistrate read: “[The] other branches of the government are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. Ambassador and respondent Secretary Romulo. submitting an Agreement entered into by U. Jr. it is evident that there is no legal or factual basis for declaring Smith’s petition as moot. Gen. then the courts would not be able to do anything except to cite the executive department for contempt. Embassy Compound in a room of approximately 10 x 12 square feet.” 14. executive Secretary Ermita. Gen.S. President issued a statement asking the Filipino people to understand and support the “difficult” decision that she and her officials made regarding the transfer of respondent Smith to the U. Rowe (JUSMAG) Building. 2006 11 pm. respondent Puno admitted that it was he and his Department that transferred custody of respondent Smith to US authorities. Some play must be allowed for the joints of the machine and it must be remembered that legislatures are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. of the CA. Atty. Wigberto Tañada. The next day.S. 19. In view of the question of unconstitutionality of CERTAIN PROVISIONS THE VFA. filed a Petition for Contempt with Motion to Consolidate with CA against Daniel Smith. 2007. filed a Very Urgent Manifestation and Motion. Atty. January 2. et. Suzette Nicolas. through the Sol. the DFA. Secretary Puno. under direct supervision of the DILG.” Petitioner Salonga said that the correct quote is: “Great constitutional provisions must be administered with caution. Petitioner Salonga immediately pointed out. At that time. Harry L. we are confronted with the latest agreement executed between Secretary of Foreign Affairs Alberto G. 13. will have access to the place of detention to ensure the US is in compliance with the terms of the VFA.” 16. no agreement had yet been reached between US Ambassador and Secretary Romulo and no resolution had yet been promulgated by Justice Bruselas. He will be guarded round-the-clock by US military personnel. If the President ordered the transfer. it dismissed the Petition of respondent Smith for having become moot because of the agreement between the US Ambassador and Secretary Romulo. Zenaida Quezon Avancena. 18.. However. Romulo and Ambassador Kristie Kenney who are the authorized signatories to bind state parties to an agreement. filed a special appearance petition with the CAto transmit the case to the SC in view of the June 2006 (#2) case pending in the latter. Justice Bruselas relied on the above-cited premise which is a misquotation of the original text.
he need only prove. citing U. 21 Association of Data Processing Service Organizations v. 23 ROTUNDA. Cezar. 669 (1973). CSP Zuño.18 For a party to have personal standing.65 at 76 20 Duke Power Co. As a consequence. 438 US 59 (1978). which requires injury in fact. Secretary Gonzales. SCRAP.20 As to the first requisite. 438 US 59 (1978). Jr. As for the second requisite.. v. CA gravely abused its discretion amount to lack or excess of jurisdiction in recognizing the agreement between US Ambassador and Sec. Romulo as binding on the Philippines and declaring the Smith petition moot. The denial of the instant Petition will redress the impending injury that will be inflicted upon Petitioners. and of their other fundamental rights. infra n.S. 124360.21 there is no rigid rule as to what may constitute such injury.. February 2.R. CRUZ. No. IT IS APPROPRIATE AND NECESSARY THAT ALL THESE MATTERS BE RESOLVED BY THE SUPREME COURT. Cezar.S. Standing of Petitioners Petitioners have personal standing to file the instant Petition.25 that procedural technicalities may be set aside by the Court in cases of transcendental importance in view of the importance of the issues involved. Respondents committed GADALEJ in entering into patently unconstitutional agreements with US Ambassador and transferring custody over Smith the US Authorities.11 committed by Smith against Suzette Nicolas.R. VIII Sec. and second. on one hand. G. v. November 5. this “amendment” constitutes a violation of Petitioners’ right to ample remedies for the protection of their rights. supra note 11. considering the direct injury to their fundamental rights caused by the enforcement of the patently unconstitutional VFA and patently unconstitutional and illegal agreements entered into by Secretary Romulo. MDT does not apply to the VFA/ contrary to the clear intent of the VFA. first. 3. . especially Nicole. v. 24 25 232 SCRA 110. pertaining to the arrest of an accused. on the other. Carolina Environmental Study Group. at 1050.64. No. Petitioners have standing to file the instant Petition. VFA is unconstitutional as it violates Sec. 2. Public respondents gravely absued their discretion when they transferred custody of Smith to US authorities without court authority. especially the right to due process and equal protection of the laws. Comp. VFA violates petitioners’ rights to due process and equal protection. 4. and Ambassador Kenney. on which the agreements between Secretary Romulo. As citizens. February 2. considering that: a. Carolina Environmental Study Group. US military forces do not merely visit the Philippines but stay on indefinitely. It was grave abuse of discretion amounting to lack or excess of jurisdiction for Justice Bruselas.at 25. 131277. 1999. Duke Power Co. 397 US 150 (1970) in RONALD ROTUNDA. G.23 Petitioners have the right to ensure that there is an orderly dispensation of justice before the courts. it was held in Kilosbayan vs. VFA derogates and infringes on the exclusive power of the SC to promulgate rules of procedure (Art. Carolina Environmental Study Group. and cited in NOWAK AND ROTUNDA. infra n. 5. Secretary Gonzalez and CSP Zuño and the US Government.. a "fairly traceable" causal connection between the claimed injury and the challenged conduct. after all. MODERN CONSTITUTIONAL LAW: CASES AND NOTES 1054 (3rd ed. 131277. 438 US 59 (1978). to dismiss private respondent’s petition for certiorari for being moot. Moreover. XVIII of the Constitution. v. Secretary.R. 1997. G. supra note 10. Tankiko v. at 1055. even the existence of "an identifiable trifle" is sufficient for meeting this requisite. Id. The provisions of the VFA on detention and confinement.24 and reiterated in Tatad v. Guingona. 25 Art. The petition involves matters of public interest and transcendental importance that would justify a relaxation of procedural requirements for constitutional adjudication. work to amend the rules on criminal procedure 18 19 Tankiko v. Grounds 1. 1999. Discussion 1st GROUND. among others. it is complied with when the Petitioners show that there is a substantial likelihood that the relief requested will redress the claimed injury. It has been held that legal standing means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the act being challenged. injury to his right or interest19. Duke Power Co. quoted in ROTUNDA. (in addition to what was stated in the prefatory statement) It seems that the fears expressed by those who opposed the ratification of the VFA are real. 412 U. It cannot be used to justify the transfer of custody of Smith. 5 par. 5 1987 Constitution) b. No. 1989) 22 NOWAK & ROTUNDA.22 Even if the line of causation between the injury and the conduct is attenuated. as it involves the enforcement of a public right and raises questions of transcendental importance to the citizenry. detention of a convict and the right to post bail. on the premise that the agreement executed between DFA Secretary Romulo and Ambassador Kenney validly and legally bound the state parties thereto. at 76. by allowing the furtherance of a process aimed at affirming their rights and entitlements as citizens.
094.” “custody inheres in “jurisdiction. it becomes the solemn duty of this Honorable Court to look into the constitutionality of the VFA based on the grounds raised herein. . which means that the Philippines may deny the US request for custody in some cases and demand to retain custody of the US offender. or that justice may be served against him. Hence. Under Section 1. jurisdiction over the offense itself. Xxx As criminal law concepts. Where there is “jurisdiction.12 In light of the above discussion. Hence. Said provision of the VFA. among others. Even granting for the sake of argument that Philippine courts can somehow obtain jurisdiction over concerned US personnel by their voluntary appearance in court for the purpose of arraignment. alter or supplement such rules being reserved only to the Congress of the Philippines. if they so request.” However. Philippine courts will have no jurisdiction to continue with the proceedings of the case. may present its position regarding custody to US authorities. 534 Legal opinion penned by then Secretary of Justice Serafin Cuevas on the constitutionality and criminal jurisdiction provisions of the VFA in response to the request of Senator Rodolfo G. in cases where Section 6. bail. the power to repeal. who must undergo the procedure prescribed in the Rules of Court. Jurisdiction in criminal law necessarily includes “custody. effectively violates and impinges on the power of Philippine courts to acquire custody (read: jurisdiction) over the United States personnel. which under the constitution is exclusively within the realm of judicial power. Article 5 of the VFA is invoked by the United States.” (Also cited In re Cunanan. arrest is defined as the taking of a person into custody in order that he may be bound to answer for the commission of the offense. Having established that the VFA is in conflict with the Constitution insofar as it infringes on the exclusive power of the Supreme Court to promulgate rules and procedure in all courts. in immediately vesting custody of any United States personnel over whom the Philippines is to exercise jurisdiction. such does not detract from the fact that the said 28 26 27 2 SCRA 984 94 Phil. DOJ Opinion No. could not have been intended to modify the laws and regulations governing admission to the practice of law in the Philippines. This view is supported by the Senate deliberations on the ratification of the VFA Similarly. The issue on the custody of an accused and/or convict is a matter of procedure. Rule 113 of the Rules of Court (ROC). 2nd GROUND (B) Due process requires that custody over private respondent should be turned over to Philippine courts in order that the he may be bound to answer for the commission of the offense. Needless to say. for the reason that the Executive Department may not encroach upon the constitutional prerogative of the Supreme Court to promulgate rules for admission to the practice of law in the Philippines. US officials once again use the same provision to thwart the ends of Philippine justice enshrined in the 1987 Charter. it is inevitable that the VFA must be struck down as being unconstitutional. a close perusal of Section 6. 199828 says that “the Philippines. Petitioners’ right to the equal protection of the laws is violated when it prescribes a different procedure for the custody of US personnel of a crime properly cognizable by Philippine courts as compared to Filipino citizens similarly situated. “custody” and “jurisdiction” go hand-inhand. and jurisdiction over the person who commits the offense. arraignment and plea.27) That the SC has the exclusive power under the 1987 Constitution to promulgate rules and procedure in all courts is beyond dispute.” there is also “custody.26 :“The aforementioned Treaty (Treaty on Academic Degrees and the Exercise of Professions between the Republic of the Philippines and the Spanish State). no other governmental entity may usurp this exclusive power of the Supreme Court without running afoul OF the Constitution. Philippine courts are effectively precluded from gaining custody of US personnel in order that the latter may be bound to answer for the commission of an offense. Under the VFA. 2nd GROUND (A) In re Garcia. in extraordinary cases. Biazon. to the United States military authorities. Article 5 of the VFA reveals that it in effect amends the Philippines’ rules on criminal procedure pertaining to arrest.” The VFA’s denial of such custody to Philippine courts ultimately results in the violation of Petitioners’ right to due process. in the instant controversy. s. Without acquiring physical jurisdiction over the US personnel. from the commission of the offense until completion of all judicial proceedings.” Criminal jurisdiction means jurisdiction means jurisdiction over the place of commission of the offense.
R. Estrada.. Having established that Section 25.R. 10 October 2000Integrated Bar of the Philippines.. clearly. G. soldiers from the reach of the Philippines’ criminal justice system. it is incumbent upon this Honorable Court to determine whether or not said VFA conforms to the constitutional requirements for its validity. Article XVIII of the Constitution applies to the VFA. the VFA does not provide for a specific and limited period of effectivity. vs. No.S. Chief Justice Puno HAS BEEN right all along.S. No. Such a privileged treatment of U. It is therefore apropos to make a more in depth study of the U. G. Moreover. and (3) such treaty should be recognized as a treaty by the other contracting party. the classification is not germane to the purpose of the treaty which governs the conduct of military exercise between the Philippines and the United States of America. Court of Appeals. Inc. troops cannot stand for.R. there is clearly no substantial distinction between the US personnel and other persons of crimes. there is no reason to extend such privilege to U. et. not in favor of Filipinos. 10 October 2000Giungona. vs. using these three types of executive agreements as bases for classification. al. Estrada. involved mere treaty interpretation. Chief Justice Puno further held that the above provision of the Constitution applies to the VFA inasmuch as the “views on the temporary nature of visits of U. It instead provides an open-ended term in Art.S. et. et. there is no denying the fact that there is no substantial distinction between Filipino and U. There being no substantial distinction between the two groups as to warrant a different treatment. the VFA would not fall under the category of an executive agreement made by the president pursuant to authority conferred in a prior treaty because although the VFA makes reference to the Mutual Defense Treaty in its Preamble. (2) when Congress so requires.S. “In ascertaining the VFA’s compliance with the constitutional requirement that it be “recognized as a treaty by the other contracting state. On this issue. Chief Justice Puno had this to say in his dissenting opinion in the above-cited VFA cases.”30 29 Tiu v. IX. al.S. al. (t)his agreement shall remain in force until the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement. 3rd GROUND As correctly held by now Chief Justice Reynato Puno in his dissenting opinion in the above-cited consolidated VFA cases. Furthermore. 138587. 301 SCRA 278 (1999).” Such provision in the VFA creates a privileged class among criminals under the country’s criminal justice system that smacks of unwarranted partiality or undue favoritism.. namely: (1) their presence should be allowed by a treaty duly concurred in by the Philippine Senate. military personnel charged of a crime in the Philippines. vs. et. but is subject to reasonable classification. 10 October 2000 31 Ibid. or facilities can be allowed in Philippine territory. al. . but of United States military personnel only.S. viz: “.” it is crystal clear from the above exchanges of the Constitutional Commissioners that the yardstick should be U.”31 In the context of current practices of the ARMED FORCES of the United States in the Philippines. et. Issues have occasionally arisen about whether an executive agreement was entered into pursuant to a treaty. . “visiting” without any geographical or time limitations. the VFA must be struck down as unconstitutional for violating petitioners’ right to the equal protection of the laws. et. 138680. al. “This provision lays down three constitutional requisites that must be complied with before foreign military bases. however. . Executive Secretary. al. 138570. US military forces are in the Philippines all-year round... such treaty should be ratified by a majority of the votes cast by the Filipino people in a national referendum held for that purpose.29 In the instant case. Executive Secretary. et. G. No. as to warrant a different treatment between the two groups. While it is true that the equal protection of the law clause in the Constitution is not absolute.S. al. troops.R. President to enter into executive agreements in implementation of the Treaty. the groupings must be characterized by substantial distinctions that make real differences. xxx I respectfully submit that. al. G.13 provision of the VFA creates a privileged class among the criminally on the mere basis that they are “United States military personnel. No. vs.. constitutional law. constitutional law. so that one class may be treated and regulated differently from the other. President’s power to enter into executive agreements under U. Executive Secretary. 138572. et.R.S. vs. 138698. 10 October 2000 Philippine Constitution Association.S. No. military personnel does not in anyway promote or facilitate the conduct of military exercises as much as it shields U. Xxx 30 Bayan. al.” No magic of semantics will blur the truth that the VFA could be in force indefinitely. et. These issues. 10 October 2000and Salonga. al. Whatever maybe the reason for creating such a privileged class. military personnel only when there are military personnel from other countries aside from the United States that participate in military exercises in the Philippines. G. et. the Mutual Defense Treaty itself does not confer authority upon the U.
Art. p. which provides as follows: Hence.S. 25. as a sole executive agreement. invalid and ineffective.” as pointed out by Petitioner Salonga. foreign relations vis-a-vis U.” Further. Moreover. I respectfully submit that the Court will be standing on unstable ground if it places a sole executive agreement like the VFA on the same constitutional plateau as a treaty. the assailed agreements are not binding and enforceable. As a matter of due process and in deference to the judiciary. Consequently. Petitioner Salonga pointed out that “a portion of the quote attributed to the eminent magistrate read: “[The] other branches of the government are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. it follows that the Special 16th Division of the Court of Appeals gravely abused its discretion amounting to lack or excess of jurisdiction in recognizing said agreement as binding on the Philippines and declaring the petition moot on the basis of such agreement. public respondents should not have transferred custody over Smith to US military authorities without a court order. 2007 decision of public respondent Special 16th Division of the Court of Appeals that “the basis for the appellate court’s January 3 decision declaring “moot” Smith’s appeal to be returned to US custody had been “falsified and altered. cannot climb to the same lofty height that the dignity of a treaty can reach.” It is undeniable that the VFA grants no authority to public respondents Romulo and Gonzalez to enter into the assailed agreements with Ambassador Kenney. 4th GROUND Having established that the Romulo-Kenney agreement was not ratified by the Philippine Senate. Some play must be allowed for the joints of the machine and it must be remembered that legislatures are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.“(o)ften the treaty process will be used at the insistence of other parties to an agreement because they believe that a treaty has greater ‘dignity’ than an executive agreement.S.” public respondents nevertheless transferred the custody over Smith to the US military authorities sans a court order. hence. However we may wish it. were not sent to the Philippine Senate for deliberation and ratification. Art. XVIII of the 1987 Constitution that the agreement allowing the presence of foreign military troops on Philippine soil must be “recognized as a treaty by the other contracting state.” Norman Bordadora. in accordance with Section 25. through an article in the Philippine Daily Inquirer (“Salonga raps CA justice over misquote.14 In conclusion. Article VII of the Constitution. 25. p. 12 January 2007. attention must be given to the fact that the assailed January 3.S. This. it is evident that there is no legal or factual basis for declaring Smith’s petition as moot. because a treaty will ‘commit’ the Senate and the people of the United States and make its subsequent abrogation or violation less likely. this Court must strike a blow for the sovereignty of our country by drawing a bright line between the dignity and status of a treaty in contrast with a sole executive agreement.1). The assailed agreements. LIKEWISE. XVIII of the 1987 Constitution -. law. The observation of Louis Henkin. This. despite public respondents’ knowledge of the pendency of the petition for certiorari pending filed before the Court of Appeals questioning Judge Pozon’s 12 December 2006 Order. 9) Hence. constitutional law scholar. Petitioner Salonga said that the correct quote is: “Great constitutional provisions must be administered with caution. constitutional law.” IT MUST BE NOTED THAT JUSTICE BRUSELAS PREMISED HIS DECISION TO DECLARE SMITH’S OWN PETITION WITH THE SPECIAL 16TH DIVISION OF THE COURT OF APPEALS MOOT ON SAID MISQUOTED TEXT. constitutional law. after a macro view of the landscape of U. Article XVIII and Section 21.S. 14 January 2007.” (Philippine Daily Inquirer. the VFA. because its constitutional effectiveness is beyond doubt. CLAIMING HE DID IT IN “PLAIN GOOD FAITH. captures the sentiments of the framers of the Philippine Constitution and of the Filipinos in crafting Sec.S. 5th GROUND In clear disregard of Honorable Judge Benjamin Pozon’s express directive in his 12 December 2006 Order that Smith shall continue to be temporarily committed at the Makati City Jail “until the appropriate Philippine and United States authorities shall have come to a binding agreement as to the proper facilities where said shall carry out his confinement or detention during his appeal and until further orders from this Court. a noted international and U. being treaties themselves.” “With the cloud of uncertainty still hanging on the exact legal force of sole executive agreements under U. despite the fact that the DFA submitted several urgent manifestations before the Court of Appeals praying for the transfer of custody over Smith to US authorities by virtue of the Kenney-Romulo Agreement. Questions remain and the debate continues on the constitutional basis as well as the legal effects of sole executive agreements under U. with special attention on the legal status of sole executive agreements. it falls short of the requirement set by Sec. SAID JUSTICE ADMITTED HIS ERROR IN MISQUOTING JUSTICE HOLMES. .
notices. of legal age and may be served with summons. WHICH IT ULTIMATELY USED AS BASIS TO DECLARE SMITH’S PETITION MOOT. Branch 139. He may be served with notices. Private respondent Lance Corporal Daniel Smith has been convicted by the Regional Trial Court of Makati City. Emilio C. pleadings and other processes of this Honorable Court c/o the DFA 2330 Roxas Boulevard. Wigberto E. Salcedo Village Makati City. Branch 139. He may be served with notices. 1904 Antel Corporate Center. AND FOR VIOLATING PETITIONERS’ RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAWS. It may be served with notices. 1904 Antel Corporate Center. 121 Valero Street. 121 Valero Street. AND REVERSE AND SET ASIDE THE 3 JANUARY 2007 DECISION OF THE FORMER SPECIAL 16TH DIVISION OF THE COURT OF APPEALS INSOFAR AS IT RECOGNIZED AS VALID AND BINDING THE ASSAILED ROMULOKENNEY TREATY. is an international law professor at. JR. it is most respectfully prayed that this Honorable Court: DECLARE THE MUTUAL DEFENSE TREATY OF 1951 AS INAPPLICABLE TO THE VFA. and Director of the Institute of International Legal Studies (IILS) of the University of the Philippines College of Law. Respondent Secretary Raul Gonzalez is a Filipino.15 Clearly. NULLIFY THE ASSAILED AGREEMENTS ENTERED INTO BY PUBLIC RESPONDENTS ROMULO AND GONZALEZ WITH AMBASSADOR KENNEY FOR BEING UNCONSTITUTIONAL. premises considered. pleadings and other processes of this Honorable Court through Roque & Butuyan Law Offices. Salonga is a former Senator of the Republic of the Philippines and is the founder of Kilosbayan. Salcedo Village Makati City. Florin Hilbay is a law professor at the University of the Philippines College of Law. of the crime of rape. Tañada is a former Senator of the Republic of the Philippines who led in the rejection by the Senate on 16 September 1991 of the Treaty of Friendship. pleadings and other processes of this Honorable Court through Roque & Butuyan Law Offices. a people’s organization established in August 1993 in accordance with the 1987 Constitution and its sister organization. an NGO established on Recto Day. thus ending the more than 470 years of foreign military presence in the Philippines. DEROGATING ON THE EXCLUSIVE POWER OF THE SUPREME COURT TO PROMULGATE RULES OF PROCEDURE IN ALL COURTS. H. 121 Valero Street. a law practitioner. Roque & Butuyan Law Offices. ARTICLE XVIII OF THE CONSTITUTION. pleadings and other processes of this Honorable Court at the Department of Justice. 1904 Antel Corporate Center. 1904 Antel Corporate Center. pleadings and other processes of this Honorable Court at the Court of Appeals. dated 2 January 2007. 1904 Antel Corporate Center. He may be served with notices. OF THE FORMER Special 16th Division of the Court of Appeals rendered the assailed Decision. pleadings and other processes of this Honorable Court through his counsel. He may be served with notices. Bantay Katarungan. Jose de la Rama is a retired Justice of the Court of Appeals. is the Executive Director of Bantay Katarungan and one of the founders of Kilosbayan. Prayer WHEREFORE. who convicted the accused Daniel Smith guilty beyond reasonable doubt of the crime of rape in a decision promulgated on 4 December 2006. Salcedo Village Makati City. Manila. 121 Valero Street. Roque. Capulong. February 8. Pasay City. Salcedo Village Makati City. Salcedo Village Makati City. Jr. He may be served with notices. 121 Valero Street. pleadings and other processes of this Honorable Court at the Makati City RTC. Parties Jovito R. which also temporarily committed said accused to the Makati City Jail. Salcedo Village Makati City. Benjamin E. Manila. Public respondent JUSTICE APOLINARIO BRUSELAS. DECLARE THE VFA AS UNCONSTITUTIONAL FOR VIOLATING SECTION 25. Other just and equitable relief under the premises are prayed for. 2000. . pleadings and other processes of this Honorable Court through Roque & Butuyan Law Offices. Cooperation and Security. pleadings and other processes of this Honorable Court through his counsel. Roque & Butuyan Law Offices. Roque & Butuyan Law Offices. Harry L. pleadings and other processes of this Honorable Court through his counsel. notices. He may be served with notices. it was grave abuse of discretion amounting to lack or excess jurisdiction for public respondents to have transferred custody over Smith without the proper court authority. 1904 Antel Corporate Center. Pozon is the Presiding Judge of Makati City RTC Branch 139. 121 Valero Street. He may be served with notices. He may be served with summons.
unless the following conditions are met:  must be under a treaty  duly concurred in by the Senate  recognized as a treaty by the other contracting state. foreign military bases. First. or are in danger of sustaining any direct injury as a result of the enforcement of the VFA. Fourth." REQUIREMENTS UNDER SECTION 25. as long as the negotiating functionaries have remained within their powers. of legal age and may be served with summons. pleadings and other processes of this Honorable Court at Malacañan Palace. it is inconsequential whether the US treats the VFA merely as an executive agreement (EO) because. or facilities in the country. Erap ratified the VFA. actually share some common ground. It provides for the guidelines to govern such visits of military personnel. there is a compliance with the mandate of the Constitution. and in 1951. This is in view of the paramount importance and the constitutional significance of the issues raised. notices. an executive agreement is as binding as a treaty. The Instrument of Ratification. This section disallows foreign military bases. Section 21. Petitioners had no legal standing. 1ST ISSUE: LOCUS STANDI. they failed to show that they have sustained. armed forces. and binds itself further to comply with its obligations under the treaty. Third. Secondly. has stated that the US government has fully committed to living up to the terms of the VFA.16 Respondent Presidential Legal Counsel Sergio Apostol is a Filipino. The US and Philippines represented by the US Defense Deputy Assistant Secretary for Asia Pacific and Philippines Foreign Affairs Undersecretary discussed the Visiting Forces Agreement (VFA). in any case. no public funds raised by taxation are involved in this case. ZAMORA (October 10. In 1991. In 1998. movement of vessel and aircraft. US need not submit the VFA to the US Senate for concurrence pursuant to its Constitution. or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and. NONETHELESS. Agapito Aquino and Joker Arroyo. when the Congress so requires. the Mutual Defense Treaty was entered into providing that the Philippines and the US shall respond to any external armed attack on their territory. the concurrence of the Senate is mandatory to comply with the strict constitutional requirements. . In 1947. the phrase "recognized as a treaty" means that the other contracting party accepts or acknowledges the agreement as a treaty. 2ND ISSUE: WHICH CONSTITUTIONAL PROVISION APPLIES. through Ambassador Hubbard. THE VISITNG FORCES AGREEMENT." Section 25. Practically. Article VII of the 1987 Constitution (not Section 25. J. the records reveal that the US Government. In any case. have no standing. HELD: Court dismissed the petitions because there was no grave abuse of discretion. the allegations of impairment of legislative power are more apparent than real. First of all. 3RD ISSUE: WON THE US RECOGNIZED VFA AS A TREATY. FACTS. ratified by a majority of the votes cast by the people in a national referendum held for that purpose. importation and exportation of equipment. in the absence of a clear showing of any direct injury to their person or to the institution to which they belong. under international law. the Military Bases Agreement (MBA)was forged. Second. and further defines the rights of the US and the Philippine government in the matter of criminal jurisdiction. Article XVIII reads: "After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases. Both provisions shall apply because far from contradicting each other. 2000) Buena. The VFA provides for the mechanism for regulating the circumstances and conditions under which US Armed Forces and defense personnel my be present in the Philippines. Manila. A draft text was consolidated and thereafter approved by President Ramos. materials and supplies. Third. For as long as the US acknowledges the VFA as a treaty. and aircraft. It is an agreement which defines the treatment of US troops and personnel visiting the Philippines. yes. Representatives Wigberto Tañada. BAYAN v. THE COURT TAKES COGNIZANCE OF THE CASE. public vessels. troops. there is no difference between treaties and EOs in their binding effect upon states. The 1987 Philippine Constitution contains 2 provisions requiring the concurrence of the Senate on treaties or international agreements. the letter of the President and the VFA were transmitted to the Senate for concurrence pursuant to Section 21. Article VII reads: “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. and recognized as a treaty by the other contracting State. In international law. the MBA expired so the military exercises were held in abeyance. because this is to accord too strict a meaning to the phrase. troops. Article XVII).
PRESIDENT IS THE ONE WHO CONSENTS. Hence. a healthy system of checks and balances indispensable toward the nation's pursuit of political maturity and growth 6TH ISSUE: WON THERE WAS GRAVE ABUSE OF DISCRETION. is the sole organ and authority in the external affairs of the country. by the President and the concurrence of the Senate should be taken as a clear and unequivocal expression of our nation's consent to be bound Second. REP. the President may not be faulted or scarred. as the case may be. THE CONSENT TO BE BOUND IS EXPRESSED BY RATIFICATION WHEN:  the treaty provides for such ratification. Yes. DEFINED. The Constitution vests the power to enter into treaties or international agreements with the President. WON PHILIPPINES IS BOUND BY THE TREATY.. much less be adjudged guilty of committing an abuse of discretion in some patent. The President acted within the confines and limits of the powers vested in him by the Constitution. the Philippines is bound by the treaty because ratification. instead of Section 25. The Philippines cannot plead the Constitution as a convenient excuse for non-compliance with its obligations. JR. SENATE IS THE ONE THAT CONCURS. Third. Therefore. or  the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative. DEFINED. . when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility. The President. HARRISON JACOB R. and whatever its particular designation. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The role of the Senate is limited only to giving or withholding its consent. The Senate and Congress cannot intrude into the field of negotiation. 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. TASK FORCE DETAINEES OF THE PHILIPPINES. BIANCA HACINTHA R.  it is otherwise established that the negotiating States agreed that ratification should be required  the representative of the State has signed the treaty subject to ratification. and addition to meeting all the constitutional requirements. gross. Matters pertaining to the wisdom of a legislative act are beyond the ambit and province of the courts to inquire." Fourth. SENATOR AQUILINO PIMENTEL." 4TH ISSUE: WON AN EO IS BINDING. ROQUE. PHILIPPINE COALITION FOR THE ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL COURT. and capricious manner. Eastern Sea Trading states that EOs are binding even without concurrence of the Senate or Congress because “the right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage…The validity of these has never been seriously questioned by our courts. 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.” 5TH ISSUE. No. The Constitution animates. through this treaty-concurring power of the Senate." RATIFICATION. The power to ratify is vested in the President and not in the legislature. Article 2 of the Vienna Convention on the Law of Treaties. The role of the Senate in relation to treaties is essentially legislative in character. still. undertaken by the head of the state or of the government. Constitution and laws will carry out the country’s international obligation. Even if he erred in submitting the VFA to the Senate for concurrence under Section 21. or was expressed during the negotiation. and it must be so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of law. ETTA ROSALES. the principle of pacta sunt servanda preserves the sanctity of treaties. to the ratification. Commissioner of Customs vs. Yes. Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 provides: "Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law. duties and responsibilities under international law. through which the formal acceptance of the treaty is proclaimed. and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty. SEC. It is equivalent to final acceptance. Firstly. Section 2. it is binding. FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCES. as head of State. Filipinos are responsible to assure that its government. EXEC. or concurrence. It is an executive act. whether embodied in a single instrument or in 2 or more related instruments. the negotiation of the VFA is an exclusive act which pertain solely to the President. ROQUE. PIMENTEL V. states that it is "an international instrument concluded between States in written form and governed by international law.17 TREATY. or.
Jr. 3.“Legal standing” means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the government act that is being challenged. CRISTINA ATENDIDO. war crimes and the crime of aggression as defined in the Statute. a juridical entity duly organized and existing pursuant to Philippine Laws with the avowed purpose of promoting the cause of families and victims of human rights violations in the country suing under the doctrine of intergenerational rights enunciated in the case of Oposa vs. 2000 at the United Nations Headquarters in New York. . CELESTE CEMBRANO. Manalo of the Philippine Mission to the United Nations. an interest in issue and to be affected by the decree. is a function of the Senate. as distinguished from mere interest in the question involved. and ROMEL BAGARES. Jr Taxpayers (mga sipsip) the Families of Victims of Involuntary Disappearances Bianca Hacintha Roque and Harrison Jacob Roque aged two (2) and one (1). ISRAFEL FAGELA. (THESE ARE ROQUE’S KIDS!!!) group of fifth year working law students from the University of the Philippines College of Law .: 1.versus OFFICE OF THE EXECUTIVE SECRETARY. The Philippines signed the Statute on December 28.18 AHMED PAGLINAWAN. Ratification of a treaty. 2000 through Charge d’ Affairs Enrique A. SALO. 2. PUNO J. Petitioners allege that the executive has a duty to transmit the signed copy upon the theory that Senate has the power to ratify. ALBERTO ROMULO. represented by HON. Petitioners filed the instant petition to compel the respondents — the Office of the Executive Secretary and the Department of Foreign Affairs — to transmit the signed text of the treaty to the Senate of the Philippines for ratification. crimes against humanity. RON P. Furthermore they insist that the Philippines has a ministerial duty to ratify the treaty since we signed it already. Congresswoman Loretta Ann Rosales The Philippine Coalition for the Establishment of the International Criminal Court the Task Force Detainees of the Philippines member of the Senate member of the House of Representatives and Chairperson of its Committee on Human Rights composed of individuals and corporate entities dedicated to the Philippine ratification of the Rome Statute a juridical entity with the avowed purpose of promoting the cause of human rights and human rights victims in the country . JAIME ARROYO. The Statute was opened for signature by all states in Rome on July 17. acceptance or approval of the signatory states.” Its jurisdiction covers the crime of genocide. B. Court disagrees on both levels. . Petitioners. EDGARDO CARLO VISTAN. or a mere incidental interest 6. The Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law such as the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty 5. 4. NOEL VILLAROMAN. MARWIL LLASOS. BLAS OPLE. Petitioner’s 2 Theories: Senate has the power to ratify & a pre-emptive notion of pacta sunt servanda A. under both domestic law and international law. Respondents *case concerns a petition for mandamus to compel the respondents to transmit to the Senate the signed copy of the Rome Statute of the Int’l Criminal Court (being held by the executive branch – Dept. of Foreign Affairs) for ratification. and the DEPARTMENT OF FOREIGN AFFAIRS. represented by HON. Hence. Standing Issue .“Interest” is material interest. LEAVIDES G. Purpose of the Rome Statute The Rome Statute established the International Criminal Court which “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary to the national criminal jurisdictions. DOMINGO. it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate. 1998 and had remained open for signature until December 31. Parties and their basis for Standing Senator Aquilino Pimentel. LIZA ABIERA. Factoran.only those aggrieved by the inaction of the executive has standing .[ that it be subject to ratification.
All treaties. Treaties. Only Senator Pimentel has standing !!! “to the extent the powers of Congress are impaired. so is the power of each member thereof. the instrument is deemed effective upon its signature. 12. Petition for mandamus dismissed 11. the President has the sole authority to negotiate with other states. or any amendment thereto. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests Exchange of the instruments of ratification. Executive Agreements. which they exhibit to the other negotiators at the start of the formal discussions. 459 issued by President Fidel V. Ratification which is the next step. .” 8. Role of the President with regard to foreign affairs . The Rome Statute is intended to complement national criminal laws and courts. the Constitution ensures a healthy system of checks and balance necessary in the nation’s pursuit of political maturity and growth. extend or withhold recognition. but. — The domestic requirements for the entry into force of a treaty or an executive agreement.19 7. What about the Concurrence of Senate requirement? Only serve as a check! Section 21. . enter into treaties. 459 reads: Sec. in his book on International Law describes the treatymaking process in this wise: Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. Justice Isagani Cruz. significantly. together with the counterproposals. item A (Executive Agreements) .the President is vested with the authority to deal with foreign states and governments. Other petitioner’s contention – Rome Statute protects their right Their contention that they will be deprived of their remedies for the protection and enforcement of their rights does not persuade. 10. After the President has ratified the treaty. the same shall be transmitted to the Department of Foreign Affairs. shall be as follows: A. Executive Order No. These representatives are provided with credentials known as full powers. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. 16. Error of petitioner – DFA signing is not equal to ratification Thus. 7. By requiring the concurrence of the legislature in the treaties entered into by the President.[ 13. Signing is the step primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties. which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. COURT HOLDS – no duty on the executive. 9.” The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations. the President acts as the country’s mouthpiece with respect to international affairs. The power to ratify does not belong to the Senate!!! 14. The Department of Foreign Affairs shall then prepare the ratification papers and forward the signed copy of the treaty to the President for ratification. maintain diplomatic relations. It is standard practice for one of the parties to submit a draft of the proposed treaty which. Article VII of the 1987 Constitution “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. The document is ordinarily signed in accordance with the alternat. and otherwise transact the business of foreign relations. is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. Where ratification is dispensed with and no effectivity clause is embodied in the treaty. the Department of Foreign Affairs shall submit the same to the Senate for concurrence. SUBSTANTIVE ISSUE whether the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the signature of the President. It mandates that after the treaty has been signed by the Philippine representative. since his office confers a right to participate in the exercise of the powers of that institution. 15. each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state. becomes the basis of the subsequent negotiations. i. Sufficient remedies are available under our national laws to protect our citizens against human rights violations and petitioners can always seek redress for any abuse in our domestic courts.the sole organ and authority in external relations and is the country’s sole representative with foreign nations. shall comply with the requirements provided in sub-paragraph[s] 1 and 2. Ramos on November 25. Executive Order No. regardless of their designation. that is.In the realm of treaty-making. it does not indicate the final consent of the state in cases where ratification of the treaty is required. (same as treaties) B. 1997 provides the guidelines in the negotiation of international agreements and its ratification. .the chief architect of foreign policy.
and sentenced to death in criminal proceedings in the US. the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification. 3. IRAN. such decision is within the competence of the President alone. acceptance or approval of the signatory states. 36 (1b) of the Vienna Convention. in such numbers as may be required by the Senate. Ohio. US VIENNA CONVENTION ON DIPLOMATIC RELATIONS US V. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly. together with a certified true copy of the ratification instrument. Mexico claims that the US has committed breaches of the Vienna Convention in relation to the treatment of a number of Mexican nationals who have been tried. BASIS OF MEXICO’S CLAIM. There are 52 individuals in all (see paragraph 16 of the original for all the names). parties to the Vienna Convention and to the Optional Protocol. The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states. Mexico and the US are. is limited only to giving or withholding its consent. According to Mexico. A certified true copy of the treaties. The role of the Senate. It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries. Upon receipt of the concurrence by the Senate. and in the 2 remaining cases. WHY MEXICO WANTS TO SUE. In the 23 remaining cases. These criminal proceedings have been taking place in 9 different States of the US. In fact. the requirement of ratification of treaties would be pointless and futile. PROVISIONAL MEASURES. 5. however. a state expresses its willingness to be bound by the provisions of such treatyThus. Roberto Moreno Ramos. Mexico also filed a request for the indication of provisional measures which the Court granted: (1) that the US shall take all necessary measures to ensure that Cesar Roberto Fierro Reyna. supra Case Concerning Avena and Other Mexican Nationals (Mexico v. By ratifying a treaty signed in its behalf. its consular authorities learned of the detention of the Mexican nationals only after death sentences had been handed down. and one case each for Arizona. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. shall accompany the submission of the treaties to the Senate. Osvaldo Torres Aguilera are not to be . Ministerial duty to ratify a treaty after signing has no basis . the Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the ratification by the President. ii. IN VIEW WHEREOF. 18. 4. It is the ratification that binds the state to the provisions thereof. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties. MEXICO INSTITUTES PROCEEDINGS. Mexico has indicated that in 29 of the 52 cases. such information was provided “without delay”. which cannot be encroached by this Court via a writ of mandamus. GRANTED. If that were so. Arkansas. in 50 of the specified cases. MEXICO’S CLAIM. but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. There is no legal obligation to ratify a treaty. to the ratification. and Oregon between 1979 and the present. as required by that provision.20 of this Section. Power to ratify is vested in the President alone!!! He can refuse to ratify! It should be emphasized that under our Constitution. In addition. USA) (March 31. SALONGA PETITION ON VFA RESERVATIONS TO THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE NICARAGUA V. namely California (28 cases). subject to the concurrence of the Senate. 2. the Department of Foreign Affairs shall comply with the provision of the treaties in effecting their entry into force. Mexico contends that it learned of the cases through means other than notification to the consular post as required by the same article. Texas (15 cases). the power to ratify is vested in the President. The US authorities arrested and interrogated these individuals had sufficient information at their disposal to be aware of the foreign nationality of those individuals. Oklahoma. Mexican nationals were never informed by the competent US authorities of their rights under Art. Mexico based the jurisdiction of the Court on Article 36 (1) of the Statute of the Court and on Article 1 of the Optional Protocol Concerning the Compulsory Settlement of Disputes. and were at all relevant times. the petition is DISMISSED. Mexico instituted proceedings against the US for “violations of the Vienna Convention on Consular Relations”. which accompanies the Vienna Convention.The signature does not signify the final consent of the state to the treaty. the President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. 17. Illinois (3 cases). Nevada. convicted. or concurrence. Mexico relies on te Vienna Convention and of the Optional Protocol providing for jurisdiction of the ICJ over “disputes arising out of the interpretation or application” of the Convention. 2004) (Note: The paragraph numbers here are not reflective of the paragraph numbers in the original decision) 1.
violated its international legal obligations to Mexico. f. 9. taking into account that the United States has conformed its conduct to this Court’s Judgment in the LaGrand Case (Germany v. MEXICO’S ANSWER TO US OBJECTION ON JURISDICTION (See #11). That this restitution consists of the obligation to restore the status quo ante by annulling or otherwise depriving of full force or effect the convictions and sentences of all 52 Mexican nationals. ICJ. in its own right and in the exercise of its right to diplomatic protection of its nationals. United States of America). ORAL ARGUMENT. consistent with the Declaration of the President of the Court in that case. the Government of the USA requests that the Court. and h. US’ COUNTER-MEMORIAL. The Court concludes that it should not exclude from consideration the objections of the US to jurisdiction and admissibility by reason of the fact that they were not presented within 3 months from the date of filing of the Memorial. not only with respect to German nationals but. adjudge and declare that the claims of the United Mexican States are dismissed. the United States shall provide. That the United States of America violated its obligations under Article 36 (2) of the Vienna Convention by failing to provide meaningful and effective review and reconsideration of convictions and sentences impaired by a violation of Article 36 (1). in arresting. 11. 8. 7. and that this obligation cannot be satisfied by means of clemency proceedings or if any municipal law rule or doctrine inconsistent with paragraph (3) above is applied. executed pending final judgment. Mexico is entitled to full reparation for those injuries in the form of restitutio in integrum. ORAL ARGUMENTS. without delay. and for the ICJ to address such issues would be an abuse of its jurisdiction – OBJECTION CANNOT BE UPHELD – The jurisdiction of the ICJ in this case has been invoked under the Vienna Convention and Optional Protocol to determine the nature and extent of the obligations undertaken by the US and Mexico by becoming party to that g.21 6. (2) that the US shall inform the ICJ of all measures taken in implementation of the provisional measures ordered. a. and sentencing the 52 Mexican nationals on death row described in Mexico’s Memorial. 79 (1) of the Rules of Court as amended in 2000. the 52 Mexican nationals after their arrest of their right to consular notification and access under Article 36 (1) (b) of the Vienna Convention on Consular Relations. c. to all detained foreign nationals. . That the United States of America. since many of its objections are of such a nature that they would in any event probably have had to be heard along with the merits. That pursuant to the injuries suffered by Mexico in its own right and in the exercise of diplomatic protection of its nationals. detaining. b. The objections of the US are inadmissible as having been raised after the expiration of the time-limit laid down by Art. To ensure the procedural equality of the parties. However. That the United States of America shall cease its violations of Article 36 of the Vienna Convention with regard to Mexico and its 52 nationals and shall provide appropriate guarantees and assurances that it shall take measures sufficient to achieve increased compliance with Article 36 (1) and to ensure compliance with Article 36 (2). This is what the US has done in this case. US OBJECTIONS TO ICJ JURISDICTION. by means of its own choosing. 10. US OBJECTIONS SHOULD NOT BE EXLUCDED. trying. On the basis of the facts and arguments made by the US in its Counter-Memorial and in these proceedings. the ICJ decided not to authorize a requested amendment by Mexico of its submissions so as to include 2 addt’l Mexican nationals. DENIED. by substituting for such review and reconsideration clemency proceedings. and by applying the “procedural default” doctrine and other municipal law doctrines that fail to attach legal significance to an Article 36 (1) violation on its own terms. That the obligation in Article 36 (1) of the Vienna Convention requires notification of consular rights and a reasonable opportunity for consular access before the competent authorities of the receiving State take any action potentially detrimental to the foreign national’s rights. That this restitution also includes the obligation to take all measures necessary to ensure that a prior violation of Article 36 shall not affect the subsequent proceedings. That to the extent that any of the 52 convictions or sentences are not annulled. the Court notes that there are circumstances where the party failing to avail itself of the Article 79 procedure on preliminary objections may forfeit the right to bring a suspension of the proceedings on the merits. MEXICO SOUGHT TO INCLUDE 2 ADDT’L NATIONALS. by failing to inform. The Government of Mexico respectfully requests the Court to adjudge and declare: a. meaningful and effective review and reconsideration of the convictions and sentences of the 52 nationals. while taking note that the US had made no objection to the withdrawal of Mexico of its request for relief in 2 other cases. and to the operation of the US criminal justice system as a whole. and by depriving Mexico of its right to provide consular protection and the 52 nationals’ right to receive such protection as Mexico would provide under Article 36 (1) (a) and (c) of the Convention. MEXICO’S MEMORIAL. d. convicting. but can still argue the objection along merits. e. Mexican Memorial is fundamentally addressed to the treatment of Mexican nationals in the US.
which merely lays down obligations of notification. basing them on the injury which it allegedly suffered. Mexico’s submissions are inadmissible because Mexico did not exhaust local remedies – OBJECTION CANNOT BE UPHELD – Mexico does not claim to be acting solely for its nationals but also asserts its own claims. custody or detention shall be forwarded by . d. The ICJ also notes that Mexico has indicated a number of ways in which it brought to the attention of the US the breaches the latter made. for which it has jurisdiction. 36 was not beyond reproach. in these special circumstances. similarly. Mexico’s submissions are inadmissible because they seek to have the ICJ function as a court of criminal appeal – OBJECTION CANNOT BE UPHELD – This contention is addressed solely to the question of remedies and is a matter of merits. a. b. as a result of the violation of the US of the obligations incumbent upon it under Art. without delay. The ICJ finds that. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) Consular officers shall be free to communicate with nationals of the sending State and to have access to them. The Vienna Convention included commitments as to the conduct of their municipal courts in relation to the nationals of other parties.22 Convention. MERITS OF THE CASE First off. So far as inadmissibility might be based on an implied waiver of rights. c. here’s the Article in the Vienna Convention on Consular Relations that figures in this case: Article 36 Communication and contact with nationals of the sending State 1. the ICJ observed that “delay on the part of a claimant State may render an application inadmissible”. Australia). 12. but that international law does not lay down any specific time-limit in that regard. the “detaining. To determine if there has been a breach of the Convention. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State. no separate basis for jurisdiction is required by the ICJ in order to consider the remedies a party has required for the breach of the obligation. The ICJ lacks jurisdiction to determine WON consular notification is a human right. where jurisdiction exists over a dispute on a particular matter. the ICJ considers that only a much more prolonged and consistent inaction of Mexico than any that the US has alleged might be interpreted as implying such a waiver. and that. e. – OBJECTION CANNOT BE UPHELD – It calls for interpretation which may or may not be confirmed on the merits. Mexico may in submitting a claim in its own name. c. the ICJ must be able to examine the actions of those courts in light of international law. is making a claim in its own right on the basis of the alleged breaches by the US of the Vienna Convention. and sentencing” of Mexican nationals could not constitute breaches of Article 36. within its consular district. Mexico’s submissions are inadmissible because Mexico should not be allowed to invoke against the US standards that Mexico itself does not follow in its own practice – OBJECTION CANNOT BE UPHELD – Even if it were shown that Mexico’s practice as regards the application of Art. Mexico is not entitled to restitution in integrum and the US is under no obligation to restore the status quo ante because this would intrude deeply into the independence of its courts. in addition to seeking to exercise diplomatic protection of its nationals. 36 (1b). Mexico’s submissions are inadmissible because Mexico was in considerable delay – OBJECTION CANNOT BE UPHELD – In the case of Certain Phosphate Lands in Nauru (Nauru v. and that for the ICJ to declare that the US is under a specific obligation to vacate convictions and sentences would be beyond its jurisdiction – OBJECTION CANNOT BE UPHELD – In the LaGrand case (Germany v. or to declare fundamental requirements of substantive or procedural due process – OBJECTION CANNOT BE UPHELD – This questions involves interpretation of the Vienna Convention. in prison. Article 36 of the Vienna Convention “creates no obligations constraining the rights of the US to arrest a foreign national”. trying. Any communication addressed to the consular post by the person arrested. convicting. US). the competent authorities of the receiving State shall. d. this would not constitute a ground of objection to the admissibility of Mexico’s claim. 36 (1abc). US OBJECTIONS TO ADMISSIBILITY. request the ICJ to rule on the violation of rights which it claims to have suffered both directly and through the violation of individual rights conferred on Mexican nationals under Art. b. a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. inform the consular post of the sending State if. directly and through its nationals. (b) If he so requests. Mexico’s submissions are inadmissible because of the dual nationality of some of the Mexican nationals who the US alleges are also US nationals – OBJECTION CANNOT BE UPHELD – Mexico.
US VIOLATION OF ART. Both Mexico and the US have very different interpretations on the phrase “without delay”. consular officers shall refrain from taking action on behalf of a national who is in prison. Applying this interpretation of “without delay”. 36. if he so requests. 36 (1c) because it precluded the consular officers of the other State from visiting their detained nationals and from arranging for legal representation of their nationals. 5. 36 (2) by failing to provide meaningful and effective review and reconsideration of convictions and sentences. . or once there are grounds to think that the person is probably a foreign national. so that the consul may offer useful advise about the foreign legal system and provide assistance in obtaining counsel before the foreign national makes any ill-informed decisions or the State takes any action potentially prejudicial to his rights. the US applied the “procedural default” rule which led to the default of some of the 52 Mexican nationals. the US was not able to demonstrate that some of them were citizens of both the US and Mexico. The purpose of Art. It is a procedural advise that allows the foreign national to trigger the related process of notification. SECOND ISSUE: AS TO DELAY. custody or detention in their district in pursuance of a judgement. however. that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended. Mexico claims that the US failed to provide the arrested persons with information as to their rights under Art. and (3) the obligation of the receiving State to forward without delay any communication addressed to the consular by the detained person. 1. there are 3 elements in Art. The Court therefore concludes that the US is in violation of its obligations under Art. which is to enable “meaningful consular assistance” and the safeguarding of the vulnerability of foreign nationals in custody. It cannot possibly be fundamental to the criminal justice process”. The said authorities shall inform the person concerned without delay of his rights under this subparagraph. The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State. INTERRELATIONSHIP BETWEEN SUBPARAGRAPHS OF ART. Court: “without delay” is not necessarily to be interpreted as “immediately” upon arrest. (c) Consular officers shall have the right to visit a national of the sending State who is in prison. Nevertheless. the Court finds that the US was in breach of its obligations to all but one of the 52 individuals concerned. WHAT WOULD BE ADEQUATE REPARATION FOR THE VIOLATIONS OF ARTICLE 36? The remedy to make good these violations of its obligations should consist in an requirement for the US to permit review and reconsideration of these nationals’ cases by the US courts. 4. 36 (1b) in not notifying the Consular Post of the other state of the detention of the latter’s nationals. 36 (1a) because it precluded the consular officers of the other State to communicate with and have access to their nationals. US: “without delay” does not mean “immediately. to converse and correspond with him and to arrange for his legal representation. The Court held that as regards the 52 persons affected in this case. 36 (1). the US had obligations under Article 36 as to all of them. If a State breaches its obligation under Art. The Court observes. They shall also have the right to visit any national of the sending State who is in prison. with a view to ascertaining whether in each case the violation of Art. custody or detention if he expressly opposes such action. and before interrogation”. Mexico: “without delay” = requires “unqualified immediacy”. 36 (1b). 36 (1b) contains three separate but interrelated elements: (1) the right of the individual concerned to be informed without delay of his rights under Article 36 (1b). however. As stated above. subject to the proviso. 36 (1b). The US claims that the duty under Article 36 of the Vienna Convention on Consular Relations applies only to Mexican nationals and not to those of dual Mexican/American nationality. FIRST ISSUE: AS TO NATIONALITY. Mexico claims that US violated Art. custody or detention. The ICJ stated that Art. 36 (2). This rule has previously been considered by the court in the LaGrands case and as in this case. 36 (2). the rule prevented counsel for the Mexicans (and for the LaGrands) to effectively challenge their convictions and sentences.” 3. In view of the object and purpose of Art. 36 committed by the competent authorities caused actual prejudice to the defendant in the process of administration of criminal justice. 2. This is because Mexico has proven that these 52 people are Mexican nationals by producing birth certificates and declarations of nationality while on the other hand. “The significance of giving consular information to a national is thus limited. nor can it be interpreted to signify that the provision of the notice must necessarily precede any interrogation. that there is nonetheless a duty upon the arresting authorities to give the information to an arrested person as soon as it is realized that the person is a foreign national. so that the commencement of interrogation before the notification would be a breach of Art. (2) the right of the consular post to be notified without delay of the individual’s detention. Basically. it also breaches Art. 36 was to facilitate the exercise of consular functions by a consular officer. 36. as well as Art. “consular notification must occur immediately upon detention and prior to any interrogation of the foreign detainee. The US has not met its burden of proof.23 the said authorities without delay. 2.
review and reconsideration should be both of the sentence and of the conviction. it is not the convictions and sentences of the Mexican nationals which are regarded to be the violation of international law. 14 – 1 votes: The US breached its obligations under Art. 36 (1b) by not informing the detained Mexican nationals of their rights under 36 (1b). 36 of the Vienna Convention. and Aguilera. 36 (2). Thus. it is entitled to an order that in any subsequent criminal proceedings against the Mexican nationals. as Mexico asserts. EXCLUSION IN SUBSEQUENT CRIMINAL PROCEEDINGS OBTAINED PRIOR TO NOTIFICATION DENIED. Ramos. Mexico claims that if the convictions or sentences are not annulled. 36 (1c) by precluding Mexico of the right to arrange for legal representation of its national. Also. 36 (1) and ENSURE COMPLIANCE WIT ART. The ICJ denied this claim because it is of the view that this questions is one which has to be examined under the concrete circumstance of each case by the US courts concerned in the process of their review and reconsideration. MEXICO’S 7th SUBMISSION (REVIEW AND RECONSIDEARATION IF CONVICTIONS ARE NOT ANNULLED). 15 – 0 votes: Takes note of the commitment undertaken by the US to ensure implementation of the specific measures adopted in performance of its obligations under Art. should not be presumed as the necessary and sole remedy. the US shall provide. review and reconsideration . 36 (2) by not permitting the review and reconsideration of the conviction and sentences of Reyna. Lastly. Mexico claims that as an aspect of restitution in integrum. 7. 36 (1a) and (1c) by precluding Mexico of the right to communicate with and have access to its nationals and to visit them in detention. by means of its own choosing. it should take 9. The Court observes that in the current situation in US criminal procedure. without their rights under Art. statements and confessions obtained prior to the notification to the national of his right to consular assistance be excluded. 36 (1b) by not notifying the appropriate Mexican consular post without delay of the detention of the Mexican nationals and thereby depriving Mexico of the right to render assistance to the individuals concerned. The Court emphasizes that “review and reconsideration” prescribed by it originally in the LaGrand case should be effective. 36 (1b) of the Vienna Convention and finds that this commitment must be regarded as meeting the request by Mexico for guarantees and assurances of non-repetition. 14 – 1 votes: The US breached its obligations under Art. Thus. 14 – 1 votes: The US breached its obligations under Art. 14 – 1 votes: The US breached its obligations under Art. by means of its own choosing. meaningful and effective review and reconsideration of the convictions and sentences of the 52 nationals and that this obligation cannot be satisfied by means of clemency proceeding or if any municipal law rule or doctrine that fails to attach legal significance to an Art. the US uses clemency proceedings which Mexico argues is ineffective because clemency review is “standardless. 8. In this case. 6. secretive.24 Partial or total annulment of conviction or sentence. The ICJ observes that the question on WON the Vienna Convention rights are human rights is not a matter that it need not decide. 14 – 1 votes: That the appropriate reparation in this case consists in the obligation of the US to provide. The ICJ notes that the US has been making considerable efforts to ensure that its law enforcement authorities provide consular information to every arrested person they know or have reason to believe is a foreign national. account of the violation of the rights set forth in the Vienna Convention and guarantee that the violation and the possible prejudice caused by the violation will be fully examined and taken into account in the review and reconsideration process. nor any indication in the travaux préparatoires support the Mexico’s conclusion. The ICJ agrees with Mexico that the clemency process is not sufficient to serve as an appropriate means of “review and reconsideration”. The ICJ points out however that neither the text nor the object and purpose of the Convention. and immune from judicial oversight”. 36 (1) violation is applied. by means of its own choosing. 36 (1b) having been respected. review and reconsideration o the convictions and sentences of the Mexican nationals. the US shall provide. but solely certain breaches of treaty obligations. Mexico’s claim for restitution in integrum and the claim for the restoration of the status quo ante by annulling or otherwise depriving of full force or effect the conviction and sentences of all 52 Mexican nationals cannot be upheld. by taking account both of the violation of the rights set forth in Art. 15 – 0 votes: Finds that should Mexican nationals nonetheless be sentenced to severe penalties. Mexico states that the US has failed to prevent the continuing violation by its authorities of the consular notification and assistance rights. JUDGMENT OF THE COURT 14 – 1 votes: The US breached its obligations under Art. the application of the procedural default rule effectively limits the Mexican nationals from seeking vindication of his rights except under the US Constitution. VIENNA CONVENTIONS = HUMAN RIGHTS ??????? Mexico contends that the right to consular notification and consular communication under the Vienna Convention is a human right of such a fundamental nature that its infringement will ipso facto produce the effect of vitiating the entire process of the criminal proceedings conducted in violation of this fundamental right. MEXICO’S LAST SUBMISSION (FOR US TO ASSURE THAT IT SHALL TAKE MEASURES SUFFICIENT TO ACHIEVE INCREASED COMPLIANCE WITH ART.
.25 of the conviction and sentence. so as to allow full weight to be given to the violation of the rights set forth in the Convention.
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