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Tanada vs Angara, 272 SCRA 18, May 2, 1997

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.

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