DE JURE & DE FACTO GOVT
insurrection and war did not loosen the bonds of society, or do away with civil
Co Kim Chan v Valdez Tan Keh De Facto Government (All acts and proceedings of
Legislative, Judicial, or executive dep of de facto govt are good and valid)
*De facto governments, follows that judicial acts and proceedings of the courts of justice of
those governments, which are not of policital complexion were good and valid
* by virtue of Postliminy (Postliminium), remained good and valid after the liberation or
reoccupation of the PH by Am an FIL forces under leadership of Douglas MA
Facts:
Co Kim Chan had a pending civil case 3012, initiated during the Japanese
occupation, w/ the CFI Manila
After the Liberation of the Manila and the American occupation, Judge Arsenio
Dizon refused to continue hearings on the case, saying that a proclamation issued
by General Douglas MacArthur (Oct 23,1944) had invalidated and nullified all
judicial proceedings and judgments of the courts of the Philippines
1) Govt of commonwealth of PH s.t.supreme authority of Govt of US, sole
and only govt having legal and valid jurisdiction over people in areas of
PH free of enemy occupation and control
2) Laws now existing on statute books of commonwealth of PH and the
regulations promulgated pursuant thereof are in full force and effect and
legally binding upon the people in areas of PH free from.
3) All laws, regulations, and processes of any other govt in PH than CW are
NULL and VOID & W/O LEGAL EFFECT in areas in PH..
Without an enabling law, lower courts have no jurisdiction to take cognizance of
and continue judicial proceedings pending in the courts of the defunct Republic of
the Philippines (the Philippine government under the Japanese).
Issues:
1. WN judicial proceedings and decisions made during the Japanese occupation were valid
and remained valid even after the American occupation;
2. WN the October 23, 1944 proclamation MacArthur issued in which he declared that all
laws, regulations and processes of any other government in the Philippines than that of the
said Commonwealth are null and void and without legal effect in areas of the Philippines free
of enemy occupation and control invalidated all judgments and judicial acts and proceedings
of the courts;
3. WN if they were not invalidated by MacArthurs proclamation, those courts could continue
hearing the cases pending before them.
Ratio:
1) Political and international law recognizes that all acts and proceedings of a de facto
government are good and valid.
The Philippine Executive Commission and the Republic of the Philippines under the
Japanese occupation may be considered de facto governments, supported by the
military force and deriving their authority from the laws of war.
Municipal laws and private laws, however, usually remain in force unless
suspended or changed by the conqueror.
Civil obedience is expected even during war, for the existence of a state of
government or the regular administration of the laws. And if they were not valid,
then it would not have been necessary for MacArthur to come out with a
proclamation abrogating them.
2) Court: interpretation of the phrase processes of any other government and WN
he intended it to annul all other judgments and judicial proceedings of courts
during the Japanese military occupation.
IF, according to international law, non-political judgments and judicial proceedings
of de facto governments are valid and remain valid even after the occupied
territory has been liberated, then it could not have been MacArthurs intention to
refer to judicial processes, which would be in violation of international law.
A well-known rule of statutory construction is: A statute ought never to be
construed to violate the law of nations if any other possible construction remains.
where great inconvenience will result from a particular construction, or great
mischief done, such construction is to be avoided, or the court ought to presume
that such construction was not intended by the makers of the law, unless required
by clear and unequivocal words.
Annulling judgments of courts made during the Japanese occupation would clog
the dockets and violate international law, therefore what MacArthur said should
not be construed to mean that judicial proceedings are included in the phrase
processes of any other governments.
In the case of US vs Reiter, the court said that if such laws and institutions are
continued in use by the occupant, they become his and derive their force from him.
The laws and courts of the Philippines did not become, by being continued as
required by the law of nations, laws and courts of Japan.
It is a legal maxim that, excepting of a political nature, law once established
continues until changed by some competent legislative power. IT IS NOT CHANGED
MERELY BY CHANGE OF SOVEREIGNTY. Until, of course, the new sovereign by
legislative act creates a change.
Therefore, even assuming that Japan legally acquired sovereignty over the
Philippines, and the laws and courts of the Philippines had become courts of Japan,
as the said courts and laws creating and conferring jurisdiction upon them have
continued in force until now, it follows that the same courts may continue
exercising the same jurisdiction over cases pending therein before the restoration
of the Commonwealth Government, until abolished or the laws creating and
conferring jurisdiction upon them are repealed by the said government.
DECISION: Writ of mandamus issued to the judge of the Court of First Instance of Manila,
ordering him to take cognizance of and continue to final judgment the proceedings in civil
case no. 3012.
Summary of ratio:
1. International law says the acts of a de facto government are valid and civil laws continue
even during occupation unless repealed.
2. MacArthur annulled proceedings of other governments, but this cannot be applied on
judicial proceedings because such a construction would violate the law of nations.
3. Since the laws remain valid, the court must continue hearing the case pending before it.
***3 kinds of de facto government:
Rebellion govt gets possession and control through force or the voice of the
majority and maintains itself against the will of the rightful government)
Occupation established and maintained by military forces who invade and occupy
a territory of the enemy in the course of war; denoted as a government of
paramount force)
Insurrection established as an independent government by the inhabitants of a
country who rise in insurrection against the parent state)
Letter to SJ Puno Government: Revolutionary
- Revolution is defined as "the complete overthrow of the established government in
any country or state by those who were previously subject to it." or "as sudden,
radical, and fundamental change in the government or political system, usually
effected with violence or at least some acts of violence."
Facts:
- The petitioner, Reynato S. Puno, was first appointed as Associate Justice of the
Court of Appeals on 6/20/1980.
- Took oath nov. 29, 1982
- On 1983, the Court of Appeals was reorganized and became the Intermediate
Appellate Court pursuant to BP Blg. 129.: An Act Reorganizing the the Judiciary.
Appropriating funds therefore and for other purposes
- On 1984, petitioner was appointed to be Deputy Minister of Justice in the Ministry
of Justice. Thus, he ceased to be a member of the Judiciary.
- After February 1986 EDSA Revolution, there was a reorganization of the entire
government, including the Judiciary.
- Screening Committee for the reorganization of the Intermediate Appellate Court
and lower courts recommended the return of petitioner as Associate Justice of the
new court of Appeals and assigned him the rank of number 11 in the roster of
appellate court justices.
- When the appointments were signed by Pres. Aquino, petitioner's seniority ranking
changes from number 11 to 26.
- Then, petitioner alleged that the change in seniority ranking was due to
"inadvertence" of the President, otherwise, it would run counter to the provisions
of Section 2 of E.O. No. 33.
- Petitioner Justice Reynato S. Puno wrote a letter to the Court seeking the
correction of his seniority ranking in the Court of Appeals.
- The Court en banc granted Justice Puno's request.
- MR was later filed by Associate Justices Campos Jr. and Javellana who are affected
by the ordered correction
- They alleged that petitioner could not claim reappointment because the courts
where he had previously been appointed ceased to exist at the date of his last
appointment. (CA being an entirely different court
Issue: WN the present Court of Appeals is merely a continuation of the old Court of Appeals
and Intermediate Appellate Court existing before the promulgation of E.O. No. 33.
Held:
- MR Granted
- The Court held that the Court of Appeals and Intermediate Appellate Court existing
prior to E.O. No. 33 phased out as part of the legal system abolished by the 1987
Revolution. The Court of Appeals that was established under E.O. No. 33 is
considered as an entirely new court.
- The present Court of Appeals is a new entity, different and distinct from the courts
existing before E.O. No. 33. It was created in the wake of the massive
reorganization launched by the revolutionary government of Corazon Aquino in the
aftermath of the people power in 1986.
Republic v. Sandiganbayan Rights during interregnum
FACTS:
o House 15 yakan st la vista qc, house and lot in Cebu 3327sqm, QC property 700k,
2.87M pesos and 50k USD, miliarty items, comm equipment, etc. in Elizabeth
Dimaanos house (shes the mistress and clerk typist of Maj Gen Josephus Ramas)
o None of these were declared in SALN
o Didnt have means of acquiring such income
o Aug 1 1987: PCGG petition for forfeiture RA 1379
o They denied the allegations. They kept delaying it as well for reasons of lack of
preparation for trial, absence of witnesses and documents to support case, ended
up a year in total of delay
Issues:
WN PCGG had jurisdiction to investigate private respondents? NO
Position alone doesnt make him automatically a subordinate. PCGG has lack of
authority to investigate because they had to provide prima facie evidence showing
that he is an associate of Marcos, which they didnt do.
Proper agencies should investigate and prosecute forfeiture petitions not under
EO1
They shouldve recommended case to Ombudsman.
Ombudsman has authority to conduct preliminary investigation of unexplained
wealth amassed before feb 25, 1986
Sol gen: authority to file corresponding forfeiture petition
Should be RA 3019 and RA 1379
WN Legal search and seizure?
Petitioner: SB erred in saying that the properties seized from Dimaanos house
were illegally seized and inadmissible for evidence
Constabulary raiding team: search warrant illegal possession of firearms ad
ammunition
Dimaano wasnt there, only cousins were there
 One baby armalite rifle with two magazines, 40 rounds 5.56 ammunition, one pistol
caliber .45, communications equipment, cash P2870000 50000USD, jewelry, and
land titles
Petitioner: Revolutionary govt at that time so that withheld operation of 1973
Constitution which guaranteed the respondents exclusionary rights
Petitioner: Exclusionary right from illegal search applies only from Feb 2 1987,
ratification of 1987 Constitution. So govt can confiscate the items from Dimaano
and use it as evidence against her since they had not const right at time of seizure
Without Sec 26: sequestrian orders would not stand the test of due process under
the bill of rights
Revolutionary govt: de jure, responsibility of states good faith compliance with the
covenant to which PH is a signatory (respect and ensure all individuals within
territory and jurisdiction rights recognized in the Covenant) no one shall be
subjected to arbitrary unlawful interference with privacy, family, home, or
correspondence
no one shall be arbitrarily deprived or property = under intl law, STILL HAD TO
OBSERVE RIGHTS UNDER DECLARATION!
Warrant of seizure is valid only for the things in the list of the warrant however
they seized things not in there too (dapat weapons lang but then) so Seizure for
other items is void
*Interregnum Period between death of sovereign and lection of another; bound by no
constitution or BOR, DIRECTIVES AND ORDERS OF REV GOVT WERE THE SUPREME LAW
ISSUES:
WN Revolutionary govt bound by bill of rights and 1973 constitution during
interregnum? BOR NOT OPERATIVE!
o PCGGs sequestering orders DO NOT VIOLATE BOR because its not in
effect at that time
o They are not entitled to exclusionary rights
- WN protection accorded to individuals under International Covenant on Civil and
Political Rights and the Universal Declaration of Human Rights remaind in effect
during interregnum? YES, REMAINED IN EFFECT!
Held: Certiorari is dismissed! OMB to do investigation and BIR to figure out tax liability
Sovereignty authority of a state to govern itself or another state
People v Gozo (auto-limitation)
Loreta Gozo bought a house and lot, which was located inside the US Naval
Reservation, within the territorial jurisdiction of Olongapo City.
Upon the advice of an assistant in the Mayors Office and some neighbors, she
demolished the house standing thereon without acquiring the necessary permits
and then later on erected another house.
She was then charged by the City Engineers Office for violating a municipal
order, which requires her to secure permits for any demolition and/or construction
within the City.
She was convicted in violation thereof by the lower court.
She appealed and countered that the City of Olongapo has no administrative
jurisdiction over the said lot because it is within a Naval Base of a foreign country.
ISSUE: Is the Municipal Ordinance enforceable within the US Naval Base?
HELD: Yes. The Philippine Government has not abdicated its sovereignty over the bases as
part of the Philippine territory or divested itself completely of jurisdiction over offenses
committed therein. Under the terms of the treaty, the United States Government has prior or
preferential but not exclusive jurisdiction of such offenses. The Philippine Government
retains not only jurisdictional rights not granted, but also all such ceded rights as the United
States Military authorities for reasons of their own decline to make use of (Military Bases
Agreement). Hence, in the exercise of its sovereignty, the State through the City of Olongapo
does have administrative jurisdiction over the lot located within the US Naval Base.
Sec 2. International Law and Philippine Municipal Law
Adoption of International Law and the Doctrine of Incorporation
As applied to:
Treaties and Agreements
Tanada v Angara (GATT-WTO)
THE FACTS
Petitioners Senators Taada, et al. questioned the constitutionality of the
concurrence by the Philippine Senate of the Presidents ratification of the
international Agreement establishing the World Trade Organization (WTO).
They argued that the WTO Agreement violates the mandate of the 1987
Constitution to develop a self-reliant and independent national economy
effectively controlled by Filipinos . . . (to) give preference to qualified Filipinos (and
to) promote the preferential use of Filipino labor, domestic materials and locally
produced goods.
Further, they contended that the national treatment and parity provisions of
the WTO Agreement place nationals and products of member countries on the
same footing as Filipinos and local products, in contravention of the Filipino First
policy of our Constitution, and render meaningless the phrase effectively
controlled by Filipinos.
II. THE ISSUE
 Does the 1987 Constitution prohibit our country from participating in worldwide
trade liberalization and economic globalization and from integrating into a global economy
that is liberalized, deregulated and privatized?
III. THE RULING
The Court DISMISSED the petition. It sustained the concurrence of the Philippine
Senate of the Presidents ratification of the Agreement establishing the WTO.]
NO, the 1987 Constitution DOES NOT prohibit our country from participating in
worldwide trade liberalization and economic globalization and from integrating into a
global economy that is liberalized, deregulated and privatized.
There are enough balancing provisions in the Constitution to allow the Senate to
ratify the Philippine concurrence in the WTO Agreement.
While the Constitution indeed mandates a bias in favor of Filipino goods, services, labor
and enterprises, at the same time, it recognizes the need for business exchange with the
rest of the world on the bases of equality and reciprocity and limits protection of Filipino
enterprises only against foreign competition and trade practices that are unfair. In other
words, the Constitution did not intend to pursue an isolationist policy. It did not shut out
foreign investments, goods and services in the development of the Philippine economy.
While the Constitution does not encourage the unlimited entry of foreign goods,
services and investments into the country, it does not prohibit them either. In fact, it
allows an exchange on the basis of equality and reciprocity, frowning only on foreign
competition that is unfair.
The constitutional policy of a self-reliant and independent national economy does not
necessarily rule out the entry of foreign investments, goods and services. It
contemplates neither economic seclusion nor mendicancy in the international
community. As explained by Constitutional Commissioner Bernardo Villegas, sponsor of
this constitutional policy:
Economic self-reliance is a primary objective of a developing country that is keenly
aware of overdependence on external assistance for even its most basic needs. It does not
mean autarky or economic seclusion; rather, it means avoiding mendicancy in the
international community. Independence refers to the freedom from undue foreign control of
the national economy, especially in such strategic industries as in the development of natural
resources and public utilities.
The WTO reliance on most favored nation, national treatment, and trade without
discrimination cannot be struck down as unconstitutional as in fact they are rules of
equality and reciprocity that apply to all WTO members. Aside from envisioning a trade
policy based on equality and reciprocity, the fundamental law encourages industries
that are competitive in both domestic and foreign markets, thereby demonstrating a
clear policy against a sheltered domestic trade environment, but one in favor of the
gradual development of robust industries that can compete with the best in the foreign
markets. Indeed, Filipino managers and Filipino enterprises have shown capability and
tenacity to compete internationally. And given a free trade environment, Filipino
entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to
grow and to prosper against the best offered under a policy of laissez faire.
It is true, as alleged by petitioners, that broad constitutional principles require the State
to develop an independent national economy effectively controlled by Filipinos; and to
protect and/or prefer Filipino labor, products, domestic materials and locally produced
goods. But it is equally true that such principles while serving as judicial and
legislative guides are not in themselves sources of causes of action. Moreover, there
are other equally fundamental constitutional principles relied upon by the Senate which
mandate the pursuit of a trade policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of equality and reciprocity and the
promotion of industries which are competitive in both domestic and foreign markets,
thereby justifying its acceptance of said treaty. So too, the alleged impairment of
sovereignty in the exercise of legislative and judicial powers is balanced by the adoption
of the generally accepted principles of international law as part of the law of the land
and the adherence of the Constitution to the policy of cooperation and amity with all
nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its
consent to the WTO Agreement thereby making it a part of the law of the land is a
legitimate exercise of its sovereign duty and power. We find no patent and gross
arbitrariness or despotism by reason of passion or personal hostility in such exercise.
It is not impossible to surmise that this Court, or at least some of its members, may even
agree with petitioners that it is more advantageous to the national interest to strike
down Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse of
discretion to the Senate and to nullify its decision. To do so would constitute grave
abuse in the exercise of our own judicial power and duty. Ineludibly, what the Senate
did was a valid exercise of its authority. As to whether such exercise was wise, beneficial
or viable is outside the realm of judicial inquiry and review. That is a matter between the
elected policy makers and the people. As to whether the nation should join the
worldwide march toward trade liberalization and economic globalization is a matter that
our people should determine in electing their policy makers. After all, the WTO
Agreement allows withdrawal of membership, should this be the political desire of a
member.
Bayan v Zamora (VFA)
I. THE FACTS
The Republic of the Philippines and the United States of America entered into an
agreement called the Visiting Forces Agreement (VFA) treaty by the Philippine
government and was ratified by then-President Joseph Estrada with the
concurrence of 2/3 of the total membership of the Philippine Senate.
The VFA defines the treatment of U.S. troops and personnel visiting the
Philippines. It provides for the guidelines to govern such visits, and further defines
the rights of the U.S. and the Philippine governments in the matter of criminal
jurisdiction, movement of vessel and aircraft, importation and exportation of
equipment, materials and supplies.
 Petitioners argued, inter alia, that the VFA violates 25, Article XVIII of the 1987
Constitution, which provides that foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty duly concurred in by the
Senate . . . and recognized as a treaty by the other contracting State.
II. THE ISSUE
Was the VFA unconstitutional?
III. THE RULING
[The Court DISMISSED the consolidated petitions, held that the petitioners did not
commit grave abuse of discretion, and sustained the constitutionality of the VFA.]
NO, the VFA is not unconstitutional.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the
country UNLESS!!! the following conditions are sufficiently met, viz:
(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 provisions of the Constitution . . . the provision in [in 25, Article XVIII]
requiring ratification by a majority of the votes cast in a national referendum being
unnecessary since Congress has not required it.
This Court is of the firm view that the phrase recognized as a treaty means that the
other contracting party accepts or acknowledges the agreement as a treaty. To require
the other contracting state, the United States of America in this case, to submit the VFA
to the United States 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.
Moreover, it is inconsequential whether the United States treats the VFA only as an
executive agreement because, under international law, an executive agreement is as
binding as a treaty. To be sure, as long as the VFA possesses the elements of an
agreement under international law, the said agreement is to be taken equally as a
treaty.
The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up
to the terms of the VFA. For as long as the United States of America accepts or
acknowledges the VFA as a treaty, and binds itself further to comply with its
obligations under the treaty, there is indeed marked compliance with the mandate of
the Constitution.
Saguisag v. Executive Secretary (affirming 1st subject EDCA)
Facts:
Petitioners, as citizens, taxpayers and former legislators, questioned before the SC
the constitutionality of EDCA (Enhanced Defense Cooperation Agreement), an
agreement entered into by the executive department with the US and ratified on
June 6, 2014.
Under the EDCA, the PH shall provide the US forces the access and use of portions
of PH territory, which are called Agreed Locations.
Aside from the right to access and to use the Agreed Locations, the US may
undertake the following types of activities within the Agreed Locations:
1) security cooperation exercises;
2) joint and combined training activities;
3) humanitarian and disaster relief activities; and
4) such other activities that as may be agreed upon by the parties.
Mainly, petitioners posit that the use of executive agreement as medium of
agreement with US violated the constitutional requirement of Art XVIII, Sec 25
since the EDCA involves foreign military bases, troops or facilities whose entry
into the country should be covered by a treaty concurred in by the Senate.
The Senate, through Senate Resolution 105, also expressed its position that EDCA
needs congressional ratification.
Issue 1: W/N EDCA is a valid agreement entered into by the President
No!!! EDCA is not a valid executive agreement entered into by the President because it falls
under those treaties and international agreements, which need the concurrence of the
Philippine Senate.
Article XVIII, Sec 25 of the 1987 Constitution is a special provision that prohibits the
entry of foreign military bases, troops or facilities in the Philippines. As an
exception, such would be allowed only if: first, the stay of foreign military bases,
troops, or facilities is allowed by a treaty; second, such treaty is with the
concurrence of the Senate, and when Congress so requires, such treaty should be
ratified by majority of the votes cast by the Filipino people in a national
referendum held for the purpose; and third, such treaty is recognized as a treaty by
the other contracting party.
Whether the stay of the foreign troops in the country is permanent or temporary is
immaterial because the Constitution does not distinguish. In the case of EDCA, it
clearly involves the entry of foreign military bases, troops or facilities in the
country. Hence, the absence of Senate concurrence to the agreement makes it an
invalid treaty.
Issue 2: W/N the EDCA is merely an implementation of the VFA and the MDT

No. The EDCA is entirely a new treaty, separate and distinct from the VFA and the MDT.
First, while the VFA allows only the presence of US military troops, the EDCA on the
other hand contemplates the presence of not just the troops but also
military bases and facilities in the so-called Agreed Locations.
Second, the MDT covers defensive measures to counter an armed attack against
either of the parties territories or armed forces but there is nothing in the MDT
that specifically authorizes the presence, whether temporary or permanent, of a
partys bases, troops, or facilities in the other partys territory even during peace
time or in mere anticipation of an armed attack. The presence of foreign military
bases, troops, or facilities provided under the EDCA cannot be traced to the MDT.
Moreover, the general provisions of the MDT cannot prevail over the categorical
and specific provision of Section 25, Article XVIII of the Constitution.
Hence, the EDCA as an agreement creating new rights and obligations must satisfy the
requirements under Sec 25, Art XIII of the Constitution.
Bayan Muna vs. Romulo - GR No. 159618 Case Digest (RP-US non-surrender agreement)
Facts:
Petitioner Bayan Muna: duly registered party-list group established to represent the
marginalized sectors of society. Respondent Blas F. Ople, now deceased: Secretary of Foreign
Affairs during the period material to this case.
Respondent Alberto Romulo: 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 most serious crimes of international concern x x x and shall
be complementary to the national criminal jurisdictions. The serious crimes
adverted to cover those considered grave under international law, such as
genocide, crimes against humanity, war crimes, and crimes of aggression.
On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo,
signed the Rome Statute which, by its terms, 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.
RP-US Non-Surrender Agreement
1) On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy
Note No. 0470 to the Department of Foreign Affairs (DFA) proposing the
terms of the non-surrender bilateral agreement (Agreement,
hereinafter) between the USA and the RP.
2) Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-
028-03, hereinafter), the RP, represented by then DFA Secretary Ople,
agreed with and accepted the US proposals embodied under the US
Embassy Note adverted to and put in effect the Agreement with the US
government.
3) The Agreement aims to protect what it refers to and defines as persons
of the RP and US from frivolous and harassment suits that might be
brought against them in international tribunals
It is reflective of the increasing pace of the strategic security and defense
partnership between the two countries. As of May 2, 2003, similar bilateral
agreements have been effected by and between the US and 33 other countries.
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, persons are current or former Government
officials, employees (including contractors), or military personnel or nationals of
one Party.
2. Persons of one Party present in the territory of the other shall not, absent the
express consent of the first Party,
(a) be surrendered or transferred by any means to any international tribunal for
any purpose, unless such tribunal has been established by the UN Security Council,
or
(b) be surrendered or transferred by any means to any other entity or third
country, or expelled to a third country, for the purpose of surrender to or transfer
to any international tribunal, unless such tribunal has been established by the UN
Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a person of the
Philippines to a third country, the [US] will not agree to the surrender or transfer of
that person by the third country to any international tribunal, unless such tribunal
has been established by the UN Security Council, absent the express consent of the
Government of the Republic of the Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the
[USA] to a third country, the [GRP] will not agree to the surrender or transfer of
that person by the third country to any international tribunal, unless such tribunal
has been established by the UN Security Council, absent the express consent of the
Government of the [US].
5. This Agreement shall remain in force until one year after the date on which one
party notifies the other of its intent to terminate the Agreement. The provisions of
this Agreement shall continue to apply with respect to any act occurring, or any
allegation arising, before the effective date of termination.
 In response to a query of then Solicitor General Alfredo L. Benipayo on
the status of the non-surrender agreement, Ambassador Ricciardone
replied in his letter of October 28, 2003 that the exchange of diplomatic
notes constituted a legally binding agreement under international law;
and that, under US law, the said agreement did not require the advice
and consent of the US Senate.
In this proceeding, petitioner imputes grave abuse of discretion to
respondents in concluding and ratifying the Agreement and prays that it
be struck down as unconstitutional, or at least declared as without force
and effect.
Issue: WN 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?
Ruling: The petition has lack of merit
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form, its threshold
posture being that W/N BFO-028-03 cannot be a valid medium for concluding the
Agreement.
Petitioners contentionperhaps taken unaware of certain well-recognized
international doctrines, practices, and jargonsis untenable.
One of these is the doctrine of incorporation, as expressed in Section 2, Article II of
the Constitution, wherein the Philippines adopts the generally accepted principles
of international law and international jurisprudence as part of the law of the land
and adheres to the policy of peace, cooperation, and amity with all nations. An
exchange of notes falls into the category of inter-governmental agreements,
which is an internationally accepted form of international agreement. The United
Nations Treaty Collections (Treaty Reference Guide) defines the term as follows:
An exchange of notes is a record of a routine agreement that has many
similarities with the private law contract. The agreement consists of the exchange
of two documents, each of the parties being in the possession of the one signed by
the representative of the other. Under the usual procedure, the accepting State
repeats the text of the offering State to record its assent. The signatories of the
letters may be government Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently resorted to, either because of its
speedy procedure, or, sometimes, to avoid the process of legislative approval.
The terms of exchange of notes and executive agreements have been used
interchangeably, exchange of notes being considered a form of executive
agreement that becomes binding through executive action. On the other hand,
executive agreements concluded by the President sometimes take the form of
exchange of notes and at other times that of more formal documents denominated
agreements or protocols. As former US High Commissioner to the Philippines
Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement
Acts:
The point where ordinary correspondence between this and other governments
ends and agreements whether denominated executive agreements or exchange
of notes or otherwise begin, may sometimes be difficult of ready ascertainment.
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed
as the Non-Surrender Agreement itself, or as an integral instrument of acceptance
thereof or as consent to be boundis a recognized mode of concluding a legally
binding international written contract among nations.
Agreement Not Immoral/Not at Variance with Principles of International Law
Agreement: void ab initio for imposing immoral obligations and/or being at
variance with allegedly universally recognized principles of international law. The
immoral aspect proceeds from 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]
Contends that the RP, by entering into the Agreement, virtually abdicated its
sovereignty and in the process 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, we believe, 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.
For perspective, 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 the view we take of things, there is nothing immoral or violative
of international law concepts in the act of the Philippines of assuming criminal
jurisdiction pursuant to the non-surrender agreement over an offense considered
criminal by both Philippine laws and the Rome Statute.
Deutsche Bank v. CIR (Tax Treaty)

FACTS:
Petitioner withheld a 15% tax on its remittances to its head office in Germany using
as basis the Tax Code provision on Branch Profit Remittance Tax (BPRT).
Petitioner: Filed refund w/ BIR and CTA because believed that he overpaid BPRT
since the RP-Germany Treaty provides for a lower rate of 10% on branch
remittances
Both the BIR and the CTA denied: Branch office should have filed a tax treaty relief
application PRIOR to availing of the preferential treaty rate in view of the existing
doctrine n the Mirant case.

ISSUE: Whether or not Deutsche Bank is entitled to the claim for refund even if it DID NOT
FILE A TAX TREATY relief application with the BIR

RULING: Yes. The Court initially stated that the minute resolution upholding the doctrine
in Mirant is not a binding precedent specially since there are differences in the parties,
taxable period, etc.
On the substantive issue, the Court said that the principle of pacta sunt servanda
requires the performance in good faith of treaty obligations.
Thus, to require that taxpayers must first comply with an administrative
requirement (under RMO 1-2000) is not in consonance with the performance in
good faith.
The obligation to comply with a tax treaty must take precedence over the
objectives of the said RMO. In addition, it was pointed out that the prior
application becomes illogical if the premise of the claim was an erroneous payment
since the taxpayer could not have known it would be entitled to the refund since
precisely it was using a different basis when it paid the taxes due.
CBK Power v. CIR (tax treaty)
CBK project so asked for loans from foreign banks
They loaned CBK 15-20% interest, so CBK asked for refund saying that income from
those banks are only st 10% max preferential tax rate
2003 claim for refund CTA case no 6699 P6,393,267.20 from Fortis-Belgium,
Industrial Bank of Japan, and Raiffesen Bank
2004 CTA Case 6884 refund P8,136,174.31 Fortis Belgium, Industrial Bank of
Japan, Raiffesen Bank
2005 CTA case 7166 refund P1,143,517.21 Fortis Belgium, raiffesen bank
Aug 28 2008 CTA 1st Div ganted petitions refund P15,672,958.42
Required ITAD ruling was not a condition for tax relief of CBK.
MR reduce to P14,835,720.39 since CBK power failed to obtain ITAD before
transactions with Fortis
Cited Mirant case again. ITAD before avail PTR
CBK: MR! its not a legal precedent; Denied = lack of merit
ISSUE:
WN BIR may add a requirement of prior application for ITAD ruling, not found in the income
tax treaties, before avail of PTR under treaties
*pacta sunt servanda demands the performance in good faith of treaty obligations on the
part of the states that enter into the agreement. In this jurisdiction, treaties have the force
and effect of law
Held:
Obligation to comply with a tax treaty must take precedence over the objective of RMO
No. 1-2000
CBK Power could not have applied for a tax treaty relief 15 days prior to its
payment of the final withholding tax on the interest paid to its lenders precisely
because it erroneously paid said tax on the basis of the regular rate as prescribed
by the NIRC, and not on the preferential tax rate provided under the different
treaties. As stressed by the Court, the prior application requirement under RMO
No. 1-2000 then becomes illogical
Not only is the requirement illogical, but it is also an imposition that is not found at
all in the applicable tax treaties. In Deutsche Bank, the Court categorically held
that the BIR should not impose additional requirements that would negate the
availment of the reliefs provided for under international agreements, especially
since said tax treaties do not provide for any prerequisite at all for the availment of
the benefits under said agreements.
International law in municipal law
Lim v. Executive Secretary (Balikatan exercises)
Petition for prohibition and certiorari to stop Balikatan 02-1
Jan 2002: Armed forces USA went to Mindanao for Balikatan 02-1 w PH military.
Balikatan exercises are training operations of PH and US troops, simulation of joint
military maneuvers pursutant to Mutual Defense Treaty rooted from 9/11
Feb 2002: Arthur lim and Paulino ersando filed petition for constitutionality of that
along with sanlakas, partido ng manggagawa
Sanlakas & Partido: Some are from Sulu and Zamboanga and might be directly
affected
Solgen: commented the prematurity of the action as it is based only on a fear of
future violation of the Terms of Reference and impropriety of availing of certiorari
to ascertain a question of fact specifically interpretation of the VFA whether it is
covers "Balikatan 02-1 and no question of constitutionality is involved. Moreover,
there is lack of locus standi since it does not involve tax spending and there is no
proof of direct personal injury.
Issues:
WN petition and petition in intervention should prosper?
Held:
NO. Petition and the petition-in-intervention are hereby DISMISSED without
prejudice to the filing of a new petition sufficient in form and substance in the
proper Regional Trial Court - Supreme Court is not a trier of facts
Although courts generally avoid having to decide a constitutional question based
on the doctrine of separation of powers, which enjoins upon the department of the
government a becoming respect for each other's act, this Court nevertheless
resolves to take cognizance of the instant petition.
Interpretation of Treaty
o The VFA permits United States personnel to engage, on an impermanent
basis, in "activities," the exact meaning of which was left undefined. The
expression is ambiguous, permitting a wide scope of undertakings subject
only to the approval of the Philippine government. The sole encumbrance
placed on its definition is couched in the negative, in that United States
personnel must "abstain from any activity inconsistent with the spirit of
this agreement, and in particular, from any political activity." All other
activities, in other words, are fair game.
VFA gives legitimacy to the current Balikatan exercises. Both the history and intent
of the Mutual Defense Treaty and the VFA support the conclusion that combat-
related activities -as opposed to combat itself are indeed authorized.
Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other
treaties and international agreements to which the Philippines is a party, must be
read in the context of the 1987 Constitution especially Sec. 2, 7 and 8 of Article 2:
Declaration of Principles and State Policies in this case. The Constitution also
regulates the foreign relations powers of the Chief Executive when it 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." Even more
pointedly Sec. 25 on Transitory Provisions which shows antipathy towards foreign
military presence in the country, or of foreign influence in general. Hence, foreign
troops are allowed entry into the Philippines only by way of direct exception.
Philip Morris, Inc. v. Court of Appeals: Withal, the fact that international law has
been made part of the law of the land does not by any means imply the primacy of
international law over national law in the municipal sphere. Under the doctrine of
incorporation as applied in most countries, rules of international law are given a
standing equal, not superior, to national legislation.
From the perspective of public international law, a treaty is favored over municipal
law pursuant to the principle of pacta sunt servanda. Hence, "every treaty in force
is binding upon the parties to it and must be performed by them in good faith."
 Further, a party to a treaty is not allowed to "invoke the provisions of its internal
law as justification for its failure to perform a treaty."
Our Constitution espouses the opposing view as stated in section 5 of Article VIII:
The Supreme Court shall have the following powers: xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or
the Rules of Court may provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
Ichong v. Hernandez: provisions of a treaty are always subject to qualification or
amendment by a subsequent law, or that it is subject to the police power of the
State
Gonzales v. Hechanova: our Constitution authorizes the nullification of a treaty,
not only when it conflicts with the fundamental law, but, also, when it runs counter
to an act of Congress.
The constitution leaves us no doubt that US Forces are prohibited from engaging
war on Philippine territory. This limitation is explicitly provided for in the Terms of
Reference of the Balikatan exercise. The issues that were raised by the petitioners
was only based on fear of future violation of the Terms of Reference.
SC: holding of Balikatan-02-1 joint military exercise has not intruded into that
penumbra of error that would otherwise call for the correction on its part.
The petition and the petition-in-intervention is DISMISSED.
Shangri-La v. Developers (Intellectual property rights)
Facts:
DGCI: S logo is mine Oct 18, 1982 BPTTT, and they favored DGCI so they used
Shangrila mark and S in resto
Throughout years, Shangrila businesses have used the Shangrila logo and S, which
was stylized by Mr. William Lee Feb 1975
June 21 1988: BPTTT petition, cancel the issuance to DGCI since it was illegally and
fraudulently obtained; They also filed for Inter Partes for registration in their name
DGCI: Complaint for infringement and damages to RTC QC Branch 99
o Weve been at it for 8 years, and its confusingly similar with them so they
should be prohibited from using it
SLIHM: You guys are the ones who illegally used our logo when its been ours and
used since 1962.
RTC: WPI enjoining SLIHM to use logo
CA: nullify ^ WPI
SLIHM: Motion to suspend proceedings and to cancel DMGIs registration
Issues:
WN prior use of mark requirement for registration?
Held: Petition granted!
While the present law on trademarks has dispensed with the requirement of prior
actual use at the time of registration, the law in force at the time of registration
must be applied.
Under the provisions of the former trademark law, R.A. No. 166, as amended,
hence, the law in force at the time of respondents application for registration of
trademark, the root of ownership of a trademark is actual use in commerce.
Section 2 of said law requires that before a trademark can be registered, it must
have been actually used in commerce and service for not less than two months in
the Philippines prior to the filing of an application for its registration. Trademark is
a creation of use and therefore actual use is a pre-requisite to exclusive ownership
and its registration with the Philippine Patent Office is a mere administrative
confirmation of the existence of such right.
SLIHM & DGCI didnt qualify under Section 2 of R.A. No. 166 as a registrant, since
both failed to fulfill the 2-month actual use requirement. DGCI was not even the
owner of the mark. If they owned it, the mark must not have been already used by
someone else. At the time of respondent DGCIs registration of the mark, the same
was already being used by the petitioners (Impressive mass of proof), albeit
abroad, of which DGCIs president was fully aware.
Recognition of Foreign Judgments
Mijares v. Ranada (Alien torts act)
Facts:
Invoking the Alien Tort Act on May 9 1991, petitioners (10 PH citizens) all of whom
suffered human rights violations (arbitrary detention, torture, and rape 1972-1987)
during the Marcos era, obtained a Final Judgment in their favor against the Estate
of the late Ferdinand Marcos amounting to roughly 1.9 Billion U.S. Dollars in
compensatory and exemplary damages for tortuous violations of international law
in the US District Court of Hawaii.
This Final Judgment was affirmed by the US Court of Appeals. 1997
As a consequence, Petitioners filed a Complaint with the RTC Makati: Enforcement
of the Final Judgment, paying Php 410.00 as docket and filing fees based on Rule
141, Section 7(b) where the value of the subject matter is incapable of pecuniary
estimation.
The Estate of Marcos however, filed a MTD alleging the non-payment of the
correct filing fees.
The RTC Makati dismissed the Complaint: subject matter was capable of pecuniary
estimation as it involved a judgment rendered by a foreign court ordering the
payment of a definite sum of money allowing for the easy determination of the
value of the foreign judgment. Proper filing fee: Php472M, which Petitioners had
not paid.
Mijares et all: MR denied; Certiorari annulment for questioned orders
Issue: WN the amount paid by the Petitioners is the proper filing fee?
Ruling:
Yes, but on a different basisamount merely corresponds to the same amount
required for other actions not involving property.
RTC Makati erred in concluding that the filing fee should be computed on the basis
of the total sum claimed or the stated value of the property in litigation.
 The Petitioners Complaint was lodged against the Estate of Marcos but it is clearly
based on a judgment, the Final Judgment of the US District Court.
However, the Petitioners erred in stating that the Final Judgment is incapable of
pecuniary estimation because it is so capable. On this point, Petitioners state that
this might lead to an instance wherein a first level court (MTC, MeTC, etc.) would
have jurisdiction to enforce a foreign judgment.
Under Batasang Pambansa 129, such courts are not vested with such jurisdiction.
Section 33 of Batasang Pambansa 129 refers to instances wherein the cause of
action or subject matter pertains to an assertion of rights over property or a sum of
money
The subject matter is the foreign judgment itself.
Section 16 of Batasang Pambansa 129 reveals that the complaint for enforcement
of judgment even if capable of pecuniary estimation would fall under the
jurisdiction of the RTCs.
The Complaint to enforce the US District Court judgment is one capable of
pecuniary estimations but at the same time, it is also an action based on judgment
against an estate, thus placing it beyond the ambit of Section 7(a) of Rule 141.
What governs the proper computation of the filing fees over Complaints for the
enforcement of foreign judgments is Section7(b)(3), involving other actions not
involving property.
Soft Law
Soft law is an expression of non-binding norms, principles and practices that
influence state behavior. It does not fall under the international law set forth in
Article 38, Chapter III of the 1946 Statute of the International Court of Justice.
Non-binding norms, principles and practices that influence state behavior
Expression of non-binding norms, principles, and practices that influence state
behavior.
Pharmaceutical v. DOH (World health assemble guidelines not as treaty)
Nullification of AO 2006-0012 (Revised Implementing Rules and Regulations of
EO51 The Milk Code, Relevant Intl agreements, Penalizing Violations, and Other
purposes)
Named as respondents are the Health Secretary, Undersecretaries, and Assistant
Secretaries of the Department of Health (DOH).
For purposes of herein petition, the DOH is deemed impleaded as a co-respondent
since respondents issued the questioned RIRR in their capacity as officials of said
executive agency.1Executive Order No. 51 (Milk Code) was issued by President
Corazon Aquino on October 28, 1986 by virtue of the legislative powers granted to
the president under the Freedom Constitution.
One of the preambular clauses of the Milk Code states that the law seeks to give
effect to Article 112 of the International Code of Marketing of Breastmilk
Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981.
From 1982 to 2006, the WHA adopted several Resolutions to the effect that
breastfeeding should be supported, promoted and protected, hence, it should be
ensured that nutrition and health claims are not permitted for breastmilk
substitutes.In 1990, the Philippines ratified the International Convention on the
Rights of the Child.
Article 24 of said instrument provides that State Parties should take appropriate
measures to diminish infant and child mortality, and ensure that all segments of
society, specially parents and children, are informed of the advantages of
breastfeeding. On May 15, 2006, the DOH issued herein assailed RIRR which was to
take effect on July 7, 2006.
Issue: WN Administrative Order or the Revised Implementing Rules and Regulations
(RIRR) issued by the Department of Health (DOH) is not constitutional;
Held: YES
Under Article 23, recommendations of the WHA do not come into force for
members, in the same way that conventions or agreements under Article 19 and
regulations under Article 21 come into force. Article 23 of the WHO Constitution
reads:
o Article 23. The Health Assembly shall have authority to make recommendations to
Members with respect to any matter within the competence of the Organization
for an international rule to be considered as customary law, it must be established
that such rule is being followed by states because they consider it obligatory to
comply with such rules
Under the 1987 Constitution, international law can become part of the sphere of
domestic law either by:
o Transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism
such as local legislation.
o Incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law.
ICBMS and WHA not treaties since not concurred by 2/3 of senate
Legislation is necessary to transform the provisions of the WHA Resolutions into
domestic law. The provisions of the WHA Resolutions cannot be considered as part
of the law of the land that can be implemented by executive agencies without the
need of a law enacted by the legislature
Sec 3. Civilian Supremacy
IBP v. Zamora (Deployment of marines)
Facts: Invoking his powers as Commander-in-Chief under Sec. 18, Art. VII of the Constitution,
the President directed the AFP Chief of Staff and PNP Chief to coordinate with each other for
the proper deployment and utilization of the Marines to assist the PNP in preventing or
suppressing criminal or lawless violence. The President declared that the services of the
Marines in the anti-crime campaign are merely temporary in nature and for a reasonable
period only, until such time when the situation shall have improved. The IBP filed a petition
seeking to declare the deployment of the Philippine Marines null and void and
unconstitutional.
Issue: WN the calling of the armed forces to assist the PNP in joint visibility patrols violates
the constitutional provisions on civilian supremacy over the military and the civilian character
of the PNP

Held:
When the President calls the armed forces to prevent or suppress lawless violence, invasion
or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom.
Under Sec. 18, Art. VII of the Constitution, Congress may revoke such proclamation of martial
law or suspension of the privilege of the writ of habeas corpus and the Court may review the
sufficiency of the factual basis thereof. However, there is no such equivalent provision
dealing with the revocation or review of the Presidents action to call out the armed forces.
The distinction places the calling out power in a different category from the power to declare
martial law and power to suspend the privilege of the writ of habeas corpus, otherwise, the
framers of the Constitution would have simply lumped together the 3 powers and provided
for their revocation and review without any qualification.

The reason for the difference in the treatment of the said powers highlights the intent to
grant the President the widest leeway and broadest discretion in using the power to call out
because it is considered as the lesser and more benign power compared to the power to
suspend the privilege of the writ of habeas corpus and the power to impose martial law, both
of which involve the curtailment and suppression of certain basic civil rights and individual
freedoms, and thus necessitating safeguards by Congress and review by the Court.

In view of the constitutional intent to give the President full discretionary power to
determine the necessity of calling out the armed forces, it is incumbent upon the petitioner
to show that the Presidents decision is totally bereft of factual basis. The present petition
fails to discharge such heavy burden, as there is no evidence to support the assertion that
there exists no justification for calling out the armed forces.

The Court disagrees to the contention that by the deployment of the Marines, the civilian
task of law enforcement is militarized in violation of Sec. 3, Art. II of the Constitution. The
deployment of the Marines does not constitute a breach of the civilian supremacy clause.
The calling of the Marines constitutes permissible use of military assets for civilian law
enforcement. The local police forces are the ones in charge of the visibility patrols at all
times, the real authority belonging to the PNP

Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian
character of the police force. The real authority in the operations is lodged with the head of a
civilian institution, the PNP, and not with the military. Since none of the Marines was
incorporated or enlisted as members of the PNP, there can be no appointment to civilian
position to speak of. Hence, the deployment of the Marines in the joint visibility patrols does
not destroy the civilian character of the PNP.
**Tanada v. Angara continuation
Issue: Agreement is an assault on the sovereign powers of the Philippines because it meant that
Congress could not pass legislation that would be good for national interest and general welfare if such
legislation would not conform to the WTO Agreement.

Role of Armed Forces

Sec 4. Duty of Government to the People

Sec.5 Maintenance of Peace and Order

Kilosbayan v. Morato 246 SCRA 50 1995 & MR 250 SCRA 130 1995 (mere guidelines)

Sec 6. Separation of Church and State

Sec 7. Independent Foreign Policy

Lim v. Exec. Secretary (President and foreign relations)
Saguisag v. Exec Secretary (affirming1st judgment Sec 2 )

Sec. 8 Freedom from Nuclear weapons

Bayan v. Zamora (supra sec 2)