Facts : This is a petition seeking to nullify the Philippine
ratification of the World Trade Organization (WTO) Agreement. Petitioners question the concurrence of herein respondents acting in their capacities as Senators via signing the said agreement. The WTO opens access to foreign markets, especially its major trading partners, through the reduction of tariffs on its exports, particularly agricultural and industrial products. Thus, provides new opportunities for the service sector cost and uncertainty associated with exporting and more investment in the country. These are the predicted benefits as reflected in the agreement and as viewed by the signatory Senators, a free market espoused by WTO. Petitioners on the other hand viewed the WTO agreement as one that limits, restricts and impair Philippine economic sovereignty and legislative power. That the Filipino First policy of the Constitution was taken for granted as it gives foreign trading intervention. Issue : Whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Senate in giving its concurrence of the said WTO agreement. Held: In its Declaration of Principles and state policies, the Constitution adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity , with all nations. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered automatically part of our own laws. Pacta sunt servanda international agreements must be performed in good faith. A treaty is not a mere moral obligation but creates a legally binding obligation on the parties. Through WTO the sovereignty of the state cannot in fact and reality be considered as absolute because it is a regulation of commercial relations among nations. Such as when Philippines joined the United Nations (UN) it consented to restrict its sovereignty right under the concept of sovereignty as autolimitation. What Senate did was a valid exercise of authority. As to determine whether such exercise is wise, beneficial or viable is outside the realm of judicial inquiry and review. The act of signing the said agreement is not a legislative restriction as WTO allows withdrawal of membership should this be the political desire of a member. Also, it should not be viewed as a limitation of economic sovereignty. WTO remains as the only viable structure for multilateral trading and the veritable forum for the development of international trade law. Its alternative is isolation, stagnation if not economic self-destruction. Thus, the people be allowed, through their duly elected officers, make their free choice. Petition is DISMISSED for lack of merit. Case Digest on Bayan v. Zamora (Visiting Forces Agreement) G.R. NO. 138570 (October 10. 2000) November 10, 2010 The Visiting Forces Agreement, for which Senate concurrence was sought and received on May 27, 1999, is the subject of a number of Constitutional challenges. Issue 1: Do the Petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the constitutionality of the VFA? Petitioners Bayan Muna, etc. have no standing. A party bringing a suit challenging the Constitutionality of a law must show not only that the law is invalid, but that he has sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. Petitioners have failed to show that they are in any danger of direct injury as a result of the VFA. As taxpayers, they have failed to establish that the VFA involves the exercise by Congress of its taxing or spending powers. A taxpayers suit refers to a case where the act complained of directly involves the illegal disbursement of public funds derived from taxation. Before he can invoke the power of judicial review, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public. Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence of any allegation by petitioners that public funds are being misspent or illegally expended,
petitioners, as taxpayers, have no legal standing to assail the
legality of the VFA. Similarly, the petitioner-legislators (Tanada, Arroyo, etc.) do not possess the requisite locus standi to sue. In the absence of a clear showing of any direct injury to their person or to the institution to which they belong, they cannot sue. The Integrated Bar of the Philippines (IBP) is also stripped of standing in these cases. The IBP lacks the legal capacity to bring this suit in the absence of a board resolution from its Board of Governors authorizing its National President to commence the present action. Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised, the Court may brush aside the procedural barrier and takes cognizance of the petitions. Issue 2: Is the VFA governed by section 21, Art. VII, or section 25, Art. XVIII of the Constitution? Section 25, Art XVIII, not section 21, Art. VII, applies, as the VFA involves the presence of foreign military troops in the Philippines. The Constitution contains two provisions requiring the concurrence of the Senate on treaties or international agreements. Section 21, Article VII reads: [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. Section 25, Article XVIII, provides:[a]fter the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. Section 21, Article VII deals with treaties or international agreements in general, in which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the treaty valid and binding to the Philippines. This provision lays down the general rule on treaties. All treaties, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective. In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. Sec 25 further requires that foreign military bases, troops, or facilities may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress, and recognized as such by the other contracting state. On the whole, the VFA is an agreement which defines the treatment of US troops visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the US and RP government in the matter of criminal jurisdiction, movement of vessel and aircraft, import and export of equipment, materials and supplies. Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case. To a certain extent, however, the provisions of Section 21, Article VII will find applicability with regard to determining the number of votes required to obtain the valid concurrence of the Senate. It is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the reason that there is no permanent placing of structure for the establishment of a military base. The Constitution makes no distinction between transient and permanent. We find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines. When no distinction is made by law; the Court should not distinguish. We do not subscribe to the argument that Section 25, Article XVIII is not controlling since no foreign military bases, but merely foreign troops and facilities, are involved in the VFA. The proscription covers foreign military bases, troops, or facilities. Stated differently, this prohibition is not limited to the entry of troops and facilities without any foreign bases being established. The clause does not refer to foreign military bases, troops, or facilities collectively but treats them as separate and independent subjects, such that three different situations are contemplated a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities any of the three standing alone places it under the coverage of Section 25, Article XVIII. Issue 3: Was Sec 25 Art XVIIIs requisites satisfied to make the VFA effective?
Section 25, Article XVIII disallows foreign military bases,
troops, or facilities in the country, unless the following conditions are sufficiently met: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by Congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state. There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with the Constitution, as there were at least 16 Senators that concurred. As to condition (c), the Court held that the phrase recognized as a treaty means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the US to submit the VFA to the US Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase. Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use. The records reveal that the US Government, through Ambassador Hubbard, has stated that the US has fully committed to living up to the terms of the VFA. For as long as the US accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its treaty obligations, there is indeed compliance with the mandate of the Constitution. Worth stressing too, is that the ratification by the President of the VFA, and the concurrence of the Senate, should be taken as a clear and unequivocal expression of our nations consent to be bound by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder. Ratification is generally held to be an executive act, undertaken by the head of the state, through which the formal acceptance of the treaty is proclaimed. A State may provide in its domestic legislation the process of ratification of a treaty. In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification. With the ratification of the VFA it now becomes obligatory and incumbent on our part, under principles of international law (pacta sunt servanda), to be bound by the terms of the agreement. Thus, no less than Section 2, Article II declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations. Commissioner of Customs & Collector of Customs vs Eastern Sea Trading on October 29, 2011 Constitutional Law Treaties vs Executive Agreements EST was a shipping company charged in the importation from Japan of onion and garlic into the Philippines. In 1956, the Commissioner of Customs ordered the seizure and forfeiture of the import goods because EST was not able to comply with Central Bank Circulars 44 and 45. The said circulars were pursuant to EO 328 w/c sought to regulate the importation of such non-dollar goods from Japan (as there was a Trade and Financial Agreement b/n the Philippines and Japan then). EST questioned the validity of the said EO averring that the said EO was never concurred upon by the Senate. The issue was elevated to the Court of Tax Appeals and the latter ruled in favor of EST. The Commissioner appealed. ISSUE: Whether or not the EO is subject to the concurrence of at least 2/3 of the Senate. HELD: No, executive Agreements are not like treaties which are subject to the concurrence of at least 2/3 of the members of the Senate. Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments treaties and conventions. They sometimes take the form of exchanges of notes and at other times that of more formal documents denominated agreements or protocols. The point where ordinary correspondence between this and other governments ends and agreements whether denominated executive agreements or exchanges of notes or otherwise begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the large variety of executive agreements as such, concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade- agreements act, have been negotiated with foreign governments. . . . It would seem to be sufficient, in order to show that the trade agreements under the act of
1934 are not anomalous in character, that they are not
treaties, and that they have abundant precedent in our history, to refer to certain classes of agreements heretofore entered into by the Executive without the approval of the Senate. They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil aircraft, customs matters, and commercial relations generally, international claims, postal matters, the registration of trade-marks and copyrights, etc. Some of them were concluded not by specific congressional authorization but in conformity with policies declared in acts of Congress with respect to the general subject matter, such as tariff acts; while still others, particularly those with respect to the settlement of claims against foreign governments, were concluded independently of any legislation. USAFFE VETERANS ASSOCIATION, INC. vs. THE TREASURER OF THE PHILIPPINES, ET AL. FACTS: In October 1954, the USAFFE Veterans Associations Inc. (Usaffe), prayed in its complaint before the Manila court of first instance that the Romulo-Snyder Agreement (1950) whereby the Philippine Government undertook to return to the United States Government in ten annual installments, a total of about 35-million dollars advanced by the United States to, but unexpanded by, the National Defense Forces of the Philippines be annulled, that payments thereunder be declared illegal and that defendants as officers of the Philippine Republic be restrained from disbursing any funds in the National Treasury in pursuance of said Agreement. Said Usaffe Veterans further asked that the moneys available, instead of being remitted to the United States, should be turned over to the Finance Service of the Armed Forces of the Philippines for the payment of all pending claims of the veterans represented by plaintiff. The complaint rested on plaintiff's three propositions: first, that the funds to be "returned" under the Agreement were funds appropriated by the American Congress for the Philippine army, actually delivered to the Philippine Government and actually owned by said Government; second, that U.S. Secretary Snyder of the Treasury, had no authority to retake such funds from the P.I. Government; and third, that Philippine foreign Secretary Carlos P. Romulo had no authority to return or promise to return the aforesaid sums of money through the so-called Romulo-Snyder Agreement. The defendants moved to dismiss, alleging Governmental immunity from suit. But the court required an answer, and then heard the case merits. Thereafter, it dismissed the complaint, upheld the validity of the Agreement and dissolved the preliminary injunction i had previously issued. The plaintiff appealed. ISSUE: Whether the Romulo-Snyder Agreement is void. HELD: There is no doubt that President Quirino approved the negotiations. And he had power to contract budgetary loans under Republic Act No. 213, amending the Republic Act No. 16. The most important argument, however, rests on the lack of ratification of the Agreement by the Senate of the Philippines to make it binding on this Government. On this matter, the defendants explain as follows: That the agreement is not a "treaty" as that term is used in the Constitution, is conceded. The agreement was never submitted to the Senate for concurrence (Art. VII, Sec. 10 (7). However, it must be noted that treaty is not the only form that an international agreement may assume. For the grant of the treaty-making power to the Executive and the Senate does not exhaust the power of the government over international relations. Consequently, executive agreements may be entered with other states and are effective even without the concurrence of the Senate. It is observed in this connection that from the point of view of the international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned as long as the negotiating functionaries have remained within their powers. "The distinction between so-called executive agreements" and "treaties" is purely a constitutional one and has no international legal significance". There are now various forms of such pacts or agreements entered into by and between sovereign states which do not necessarily come under the strict sense of a treaty and which do not require ratification or consent of the legislative body of the State, but nevertheless, are considered valid international agreements. In the leading case of Altman vs, U. S., 224, U. S. 583, it was held that "an international compact negotiated between the representatives of two sovereign nations and made in the name and or behalf of the contracting parties and dealing with important commercial relations between the two countries, is a treaty both internationally although as an executive agreement it is not technically a treaty requiring the advice and consent of the Senate. Nature of Executive Agreements. Executive Agreements fall into two classes: (1) agreements made purely as executive acts affecting external relations and
independent of or without legislative authorization, which may
be termed as presidential agreements and (2) agreements entered into in pursuants of acts of Congress, which have been designated as Congressional-Executive Agreements. The Romulo-Snyder Agreement may fall under any of these two classes, for precisely on September 18, 1946, Congress of the Philippines specifically authorized the President of the Philippines to obtain such loans or incur such indebtedness with the Government of the United States, its agencies or instrumentalities. Even granting, arguendo, that there was no legislative authorization, it is hereby maintained that the Romulo-Snyder Agreement was legally and validly entered into to conform to the second category, namely, "agreements entered into purely as executive acts without legislative authorization." This second category usually includes money agreements relating to the settlement of pecuniary claims of citizens. It may be said that this method of settling such claims has come to be the usual way of dealing with matters of this kind. Such considerations seems persuasive; indeed, the Agreement was not submitted to the U.S. Senate either; but we do not stop to check the authorities above listed nor test the conclusions derived therefrom in order to render a definite pronouncement, for the reason that our Senate Resolution No. 153 practically admits the validity and binding force of such Agreement. Furthermore, the acts of Congress Appropriating funds for the yearly installments necessary to comply with such Agreements constitute a ratification thereof, which places the question the validity out of the Court's reach, no constitutional principle having been invoked to restrict Congress' plenary power to appropriate funds-loan or no loan. Petition denied. PROVINCE OF NORTH COTABATO vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP) FACTS: On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOAAD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia. The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon motion of petitioners, specifically those who filed their cases before the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order enjoining the GRP from signing the same. ISSUE: Whether the contents of the MOA-AD violate the Constitution and the laws. HELD: In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local government under present laws, and even go beyond those of the present ARMM. Before assessing some of the specific powers that would have been vested in the BJE, however, it would be useful to turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the international law concept of association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that the Parties actually framed its provisions with it in mind. The nature of the "associative" relationship may have been intended to be defined more precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of "association" in international law, and the MOA-AD - by its inclusion of international law instruments in its TORplaced itself in an international legal context, that concept of association may be brought to bear in understanding the use of the term "associative" in the MOA-AD. The MOA-AD, it contains many provisions which are consistent with the international legal concept of association, specifically the following: the BJE's capacity to enter into economic and trade relations with foreign countries, the commitment of the Central Government to ensure the BJE's participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Central Government over external defense. Moreover, the BJE's right to participate in Philippine official missions bearing on negotiation of border agreements, environmental protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming part of the ancestral domain, resembles the right of the governments of FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter affecting them. These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status closely approximating it. The concept of association is not recognized under the present Constitution No province, city, or municipality, not even the ARMM, is recognized under our laws as having an "associative" relationship with the national government. Indeed, the
concept implies powers that go beyond anything ever granted
by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for its validity the amendment of constitutional provisions, specifically the following provisions of Article X: SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. The BJE is a far more powerful entity than the autonomous region recognized in the Constitution It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention, namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states. Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it - which has betrayed itself by its use of the concept of association - runs counter to the national sovereignty and territorial integrity of the Republic. The defining concept underlying the relationship between the national government and the BJE being itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws. Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region." (Emphasis supplied) As reflected above, the BJE is more of a state than an autonomous region. The MOA-AD, moreover, would not comply with Article X, Section 20 of the Constitution Since that provision defines the powers of autonomous regions as follows: SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. (Underscoring supplied) Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an amendment that would expand the above-quoted provision. The mere passage of new legislation pursuant to subparagraph No. 9 of said constitutional provision would not suffice, since any new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with treaty-making power in order to accommodate paragraph 4 of the strand on RESOURCES which states: "The BJE is free to enter into any economic cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do not include aggression against the Government of the Republic of the Philippines x x x." Under our constitutional system, it is only the President who has that power. Pimentel v. Executive Secretary instructs: In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country's sole representative with foreign
nations. As the chief architect of foreign policy, the President
acts as the country's mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states. Article II, Section 2 of the Constitution states that the Philippines "adopts the generally accepted principles of international law as part of the law of the land." International law has long recognized the right to selfdetermination of "peoples," understood not merely as the entire population of a State but also a portion thereof. Among the conventions referred to are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights which state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-determination, "freely determine their political status and freely pursue their economic, social, and cultural development." The people's right to self-determination should not, however, be understood as extending to a unilateral right of secession. As with the broader category of "peoples," indigenous peoples situated within states do not have a general right to independence or secession from those states under international law, but they do have rights amounting to what was discussed above as the right to internal selfdetermination. Assuming that the UN DRIP (United Nations Declaration on the Rights of Indigenous Peoples), like the Universal Declaration on Human Rights, must now be regarded as embodying customary international law - a question which the Court need not definitively resolve here - the obligations enumerated therein do not strictly require the Republic to grant the Bangsamoro people, through the instrumentality of the BJE, the particular rights and powers provided for in the MOA-AD. Even the more specific provisions of the UN DRIP are general in scope, allowing for flexibility in its application by the different States. There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples their own police and internal security force. Indeed, Article 8 presupposes that it is the State which will provide protection for indigenous peoples against acts like the forced dispossession of their lands - a function that is normally performed by police officers. If the protection of a right so essential to indigenous people's identity is acknowledged to be the responsibility of the State, then surely the protection of rights less significant to them as such peoples would also be the duty of States. Nor is there in the UN DRIP an acknowledgement of the right of indigenous peoples to the aerial domain and atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous peoples to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate States to grant indigenous peoples the near-independent status of an associated state. Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the Constitution, it would not suffice to uphold the validity of the MOA-AD so as to render its compliance with other laws unnecessary. It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with the Constitution and the laws as presently worded. Petition Granted. Respondents motion to dismiss denied. Abaya vs. Ebdane G.R. No. 167919 Feb. 14, 2007 July 25, 2009 at 11:12 am (1) FACTS : This a petition for certiorari and prohibition to set aside and nullify Res. No. PJHL-A-04-012 dated May 27, 2004 issued by the Bids and Action Committee (BAC) of the DPWH. This resolution recommended the award to private respondent China Road and Bridge Corporation of the contract which consist of the improvement and rehabilitation of a 79.818-km road in the island of Catanduanes. Based on an Exchange of Notes, Japan and the Philippines have reached an understanding that Japanese loans are to be extended to the country with the aim of promoting economic stabilization and development efforts. In accordance with the established prequalification criteria, eight contractors were evaluated or considered eligible to bid as concurred by the JBIC. Prior to the opening of the respective bid proposals, it was announced that the Approved Budget for the Contract (ABC) was in the amount of P738,710,563.67. Consequently, the bid goes to private
respondent in the amount of P952,564,821.71 (with a
variance of 25.98% from the ABC). Hence this petition on the contention that it violates Sec. 31 of RA 9184 which provides that : Sec. 31 Ceiling for Bid Prices. The ABC shall be the upper limit or ceiling for the bid prices. Bid prices that exceed this ceiling shall be disqualified outright from further participating in the proceeding. There shall be no lower limit to the amount of the award. The petitioners further contends that the Loan Agreement between Japan and the Philippines is neither an international nor an executive agreement that would bar the application of RA9184. They pointed out that to be considered as such, the parties must be two (2) sovereigns or states whereas in this loan agreement, the parties were the Philippine government and the JBIC, a banking agency of Japan, which has a separate juridical personality from the Japanese government. ISSUE : Whether or not the assailed resolution violates RA 9184. RULING : The petition is dismissed. Under the fundamental principle of international law of pacta sunt servanda, which is in fact, embodied is Section 4 of RA9184, 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. The DPWH, as the executing agency of the project financed by the Loan Agreement rightfully awarded the contract to private respondent China Road and Bridge Corporation. The Loan Agreement was executed and declared that it was so entered by the parties in the light of the contents of the Exchange of Notes between the government of Japan and the government of the Philippines dated Dec. 27, 1999. Under the circumstances, the JBIC may well be considered an adjunct of the Japanese government. The JBIC procurement guidelines absolutely prohibits the imposition of ceilings and bids. BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L. MAZA, Petitioner, vs. ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity as Secretary of Foreign Affairs, Respondents. VELASCO, JR., J.: Facts: Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to thiscase. Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary. Rome Statute of the International Criminal Court. Having a key determinative bearing on this case is the Rome Statute establishing the International Criminal Court (ICC) with the power to exercise its jurisdiction over persons for the mostserious crimes of international concern and shall be complementary to the national criminal jurisdictions Theserious crimes adverted to cover those considered grave under international law, such as genocide, crimes againsthumanity, war crimes, and crimes of aggression.On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed the Rome Statute which, by itsterms,is subject to ratification, acceptance or approval by the signatory states. As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the ratification, approval and concurrence process. The Philippines is not among the 92. Issue: Whether or not the RP-US Non Surrender Agreement is void ab initio for contracting obligations that are either immoral or otherwise at variance with universally recognized principles of international law. Held: No. Petitioner urges that theAgreement be struck down as void ab initio for imposing immoral obligations and/or being at variance with allegedly universally recognized principles of international law. The immoral aspect proceedsfrom the fact that the Agreement, as petitioner would put it, leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity; it
precludes our country from delivering an American criminal to
the ICC. The above argument is a kind of recycling of petitioners earlier position, which, as already discussed, contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in theprocess undermined its treaty obligations under the Rome Statute, contrary to international law principles. The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by the Solicitor General, is an assertion by the Philippines of its desire to try and punish crimes under its national law. The agreement is a recognition of the primacy and competence of the countrys judiciary to try offenses under its national criminal laws and dispense justice fairly and judiciously. Petitioner, labors under the erroneous impression that the Agreement would allow Filipinos and Americans committing high crimes of international concern to escape criminal trial and punishment. This is manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming that all the formalities necessary to bind both countries to the Rome Statute have been met. Perspective wise, what the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the crime under its existing laws. With this view, there is nothing immoral or violative of international law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the nonsurrender agreement over an offense considered criminal by both Philippine laws and the Rome Statute International Agreements; treaties and executive agreements. Under international law, there is no difference between treaties and executive agreements in terms of their binding effects on the contracting states concerned, as long as the negotiating functionaries have remained within their powers. However, a treaty has greater dignity than an executive agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President, the Senate, and the people; a ratified treaty, unlike an executive agreement, takes precedence over any prior statutory enactment. Petitioner, in this case, argues that the Non-Surrender Agreement between the Philippines and the US is of dubious validity, partaking as it does of the nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner relies on the case, Commissioner of Customs v. Eastern Sea Trading, in which the Court stated: international agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties; while those embodying adjustments of detail carrying out well established national policies and traditions and those involving arrangements of a more or less temporary nature take the form of executive agreements. According to petitioner, the subject of the Agreement does not fall under any of the subject-categories that are enumerated in the Eastern Sea Trading case that may be covered by an executive agreement, such as commercial/consular relations, most-favored nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and settlement of claims. The Supreme Court held, however, that the categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of entering, on a given subject, into a treaty or an executive agreement as an instrument of international relations. The primary consideration in the choice of the form of agreement is the parties intent and desire to craft an international agreement in the form they so wish to further their respective interests. The matter of form takes a back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the parties in either international agreement each labor under the pacta sunt servanda principle. International Agreements; limitations on sovereignty. The RP, by entering into the Agreement, does thereby abdicate its sovereignty, abdication being done by its waiving or abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans committing international crimes in the country. As it were, the Agreement is but a form of affirmance and confirmation of the Philippines national criminal jurisdiction. National criminal jurisdiction being primary, it is always the responsibility and within the prerogative of the RP either to prosecute criminal offenses
equally covered by the Rome Statute or to accede to the
jurisdiction of the ICC. Thus, the Philippines may decide to try persons of the US, as the term is understood in the Agreement, under our national criminal justice system; or it may opt not to exercise its criminal jurisdiction over its erring citizens or over US persons committing high crimes in the country and defer to the secondary criminal jurisdiction of the ICC over them. In the same breath, the US must extend the same privilege to the Philippines with respect to persons of the RP committing high crimes within US territorial jurisdiction. By their nature, treaties and international agreements actually have a limiting effect on the otherwise encompassing and absolute nature of sovereignty. By their voluntary act, nations may decide to surrender or waive some aspects of their state power or agree to limit the exercise of their otherwise exclusive and absolute jurisdiction. The usual underlying consideration in this partial surrender may be the greater benefits derived from a pact or a reciprocal undertaking of one contracting party to grant the same privileges or immunities to the other. Pimentel vs. Office of the Executive Secretary July 6, 2005 FACTS: This is a petition for mandamus filed by petitioners to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in accordance with Section 21, Article VII of the 1987 Constitution. 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. Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the Statute The Philippines signed the Statute on December 28, 2000 through Charge d Affairs Enrique A. Manalo of the Philippine Mission to the United Nations. Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states 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. It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. Petitioners invoke 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. Respondents argue that the executive department has no duty to transmit the Rome Statute to the Senate for concurrence. 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. HELD: SC rule in the negative. In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the countrys sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the countrys mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a
limitation to his power by requiring the concurrence of 2/3 of
all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that 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 1935 and the 1973 Constitution also required the concurrence by the legislature to the treaties entered into by the executive. Section 10 (7), Article VII of the 1935 Constitution provided: Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the Members of the Senate, to make treaties xxx. Section 14 (1) Article VIII of the 1973 Constitution stated: Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective unless concurred in by a majority of all the Members of the Batasang Pambansa. The participation of the legislative branch in the treatymaking process was deemed essential to provide a check on the executive in the field of foreign relations. By requiring the concurrence of the legislature in the treaties entered into by the President, the Constitution ensures a healthy system of checks and balance necessary in the nations pursuit of political maturity and growth. In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean that the power to ratify treaties belongs to the Senate. SC disagree. Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise: The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties. If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state. Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. 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. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them. xxx The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature. Petitioners arguments equate the signing of the treaty by the Philippine representative with ratification. It should be underscored that the signing of the treaty and the ratification are two separate and distinct steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by the states authorized representative in the diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative. It is generally held to be an executive act, undertaken by the head of the state or of the government. Thus, Executive Order No. 459 issued by President Fidel V. Ramos on November 25, 1997 provides the guidelines in the negotiation of international agreements and its ratification. It mandates that after the treaty has been signed by the Philippine representative, the same shall be transmitted to the Department of Foreign Affairs. The Department of Foreign
Affairs shall then prepare the ratification papers and forward
the signed copy of the treaty to the President for ratification. After the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs shall comply with the provisions of the treaty to render it effective.
Analysis of Gajanan Moreshwar Parelkar v. Moreshwar Madan Mantri 1942 44 Bomlr. 703 Insight On The Commencement of Liability Under The Contract of Indemnity