Mighell vs Sultan of Johore

FACTS:
The Sultan’ s sovereign status was an issue in a court case in England. When Miss Mighell sued a certain Albert Baker
(Sultan of Johor), travelling incognito in the United Kingdom) for breach of promise of marriage, the Court granted the
Sultan as an “independent sovereign” immunity from jurisdiction. The decision was based on a letter from the Secretary of
State for the Colonies stating that “generally speaking, [the Sultan] exercises without question the usual attributes of a
sovereign ruler.” This further demonstrates the British recognition of the Sultanate of Johor as an independent State.

Issue: whether sultan Johor will get diplomatic immunity or not?

Decision: Sultan Johor will get the diplomatic immunity as an “independent sovereign. Held: The Sultan was entitled to
immunity even though up to the time of suit ‘he has perfectly concealed the fact that he is a sovereign, and has acted as a
private individual.’ ‘When once there is the authoritative certificate of the Queen through her minister of state as to the
status of another sovereign, that in the courts of this country is decisive’.
To an argument that he had waived this immunity, the court held that the only way that a sovereign could waive immunity
was by submitting to jurisdiction in the face of the court as, for example, by appearance to a writ. If the sovereign ignored
the issue of the writ, the court was under a duty of its own motion to recognise his immunity from suit.

Regina vs Bartle

FACTS:
General Augusto Pinochet was accused of killing and forcible disappearances during his 17 year dictatorship in Chile. On
Oct. 16,1998, while seeking medical help in London, British authorities detained Pinochet on an arrest warrant issued by
Spanish Magistrate Baltazar Garzon. Garzon charged Pinochet with genocide, terrorism, and torture committed during his
rule and was seeking his extradition to Spain. Pinochet claimed immunity as head of state.

ISSUE:
Whether the alleged organization of state torture by Pinochet (if proved) would constitute an act committed by Pinochet as
part of his official functions as head of state.

HELD:
The British court ruled that the implementation of torture even if sanctioned by a state cannot be considered as a State
function. It can no longer be doubted that as a matter of customary international law a head of state will personally be
liable to be called to account if there is sufficient evidence that he authorized or perpetrated such serious international
crimes. One cannot take shield from the immunity of a head of state, because such act is considered as state function. It
affirmed that Pinochet could be extradited.

Note, however, the Chilean government and other extradition opponents then urged british government to send the former
dictator back to Chile on medical grounds. Despite the protest of legal and medical experts from several countries, British
home Secretary Jack Straw released Pinochet on March 2,2000, ostensibly on health grounds.

MINUCHER VS. COURT OF APPEALS

214 SCRA 243

FACTS:
Calzo, an agent of the Drug Enforcement Administration of Department of Justice of the USA ordered from Minucher, a
labor attaché of the Iran Embassy in Manila Iranian were introduced by a common associate, Inigo. Calzo offered to help
Minucher with his problem with his family’s US visas for a fee of $2,000. Calzo also found buyers of certain Iranian goods
which Calzo was selling such as silk and carpets. So, Calzo came to the residence of Minucher and asked to be entrusted
with a pair of Persian silk carpets with a floor price of $24,000 each, for which he had a buyer. The following day, Calzo
returned to Minucher’s residence, took the carpets and gave the latter $24,000; after about an hour, Calzo returned,
claimed that he had already made arrangements with his contacts at the American Embassy concerning the visas and
asked for $2,000. He was given this amount. It turned out, however, that Calzo had prepared an elaborate plan to frame-
up Minucher for alleged trafficking; both were falsely arrested by Calzo and some American and Filipino police officers,
and were taken to Camp Crame in their underwear. Calzo and his companions took petitioner’s 3 suitcases containing
various documents, his wallet containing money and the keys to his house and car, as well as the $24,000 which Calzo
had earlier delivered to him. Minucher and his companion, Torabian were handcuffed together for 3 days and were not
given food and water; they were asked to confess to the possession of heroin or else they would be jailed or even
executed by Iranian terrorists. Consequently, the two were charged for the violation of Section 4 of RA. No. 6425
(Dangerous Drugs Act of 1972) before the Pasig RTC. They were, however, acquitted by the said court. Calzo testified for
the prosecution in the said case.

Counsel filed a Special Appearance to Quash Summons alleging therein that: The action being it personal action for
damages arising from an alleged tort, the defendant being outside the Philippines and not being a resident of the
Philippines, Defendant is beyond the processes of this court,” and praying that the summons issued be quashed. The trial
court denied the motion in its Order. Unsatisfied with the said order, Calzo filed a petition for certiorari with the CA. In its
Decision, the CA dismissed the petition for lack of merit. Calzo elevated the case to the SC but was dismissed due to non-
compliance with par 2 of Circular No. 1-88 and its failure to show that the CA had committed any reversible error.

(Arthur W. Scalzo, was a member of the diplomatic staff of the United States diplomatic mission from his arrival in the
Philippines on October 14, 1985 until his departure on August 10, 1988. x x x
x x x in May 1986, with the cooperation of Philippine law enforcement officials and in the exercise of his functions as a
member of the mission, Mr. Scalzo investigated Mr. Khosrow Minucher, the plaintiff in the aforementioned case for
allegedly trafficking in a prohibited drug. It is this investigation which has given rise to the plaintiff’s complaint. The
Embassy takes note of the provisions of Article 39(2) of the Vienna Convention on Diplomatic Relations, which provides
that Mr. Scalzo retains immunity from civil suit for sets performed in the exercise of his functions, as is the caw here, even
though he has departed (sic) the country.”The trial court issued an order denying the motion for being “devoid of merit.”)

ISSUE: WON a complaint for damages should be dismissed on the sole basis of a statement contained in a Diplomatic
Note, belatedly issued after an answer to the said complaint had already been filed, that the defendant was a member of
the diplomatic staff of the United States Diplomatic Mission in the Philippines at the time the cause of action accrued?

HELD: NO

While the trial court correctly denied the motion to dismiss, the CA gravely abused its discretion in dismissing the civil
case on the basis of an erroneous assumption that simply-because of the Diplomatic Note, the private respondent is
clothed with diplomatic immunity, thereby divesting the trial court of jurisdiction over his person. It may at once be stated
that even if the Calzo enjoys diplomatic immunity, a dismissal of the case cannot be ordered on the ground of lack of
jurisdiction over his person, but rather for lack of a cause of action because even if he committed the imputed act and
could have been otherwise made liable therefor, his immunity would bar any suit against him in connection therewith and
would prevent recovery of damages arising therefrom.
As described in the complaint, he committed criminal acts for which he is also civilly liable. In the Special Appearance to
Quash Summons earlier alluded to, an the other hand, private respondent maintains that the claim for damages arose
“from an alleged tort.” Whether such claim arises from criminal acts or from tort, there can be no question that private
respondent was sued in his personal capacity for acts committed outside his official functions duties.
ARTICLE 31 OF THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS admits of exceptions. It reads:
“I. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy
immunity from its civil and administrative jurisdiction except in the case of an action relating to any professional or
commercial activity exercised by the diplomatic agent in the receiving State, outside his official functions.
There is of course the claim of private respondent that the act imputed to him were done in his official capacity. Nothing
supports this self-serving claim other than the so-called Diplomatic Note. In short, insofar as the records are concerned,
Calzo did not come forward with evidence to prove that indeed, he had acted in his official capacity.

MINUCHER VS. COURT OF APPEALS

G.R. No. 142396, 2003 February 11

FACTS
Sometime in May 1986, an information for violation of the Dangerous Drugs Act was filed against petitioner Khosrow
Minucher with the RTC. The criminal charge followed a "buy-bust operation" concluded by the Philippine police narcotic
agent in the house if Minucher where a quantity of heroin, a prohibited drug, was said to have been seized. The narcotic
agents were accompanied by private respondent Arthur Scalzo who would, in due time, become one of the principal
witnesses for the prosecution. On January 1988, Presiding Judge Migrino rendered a decision acquitting the accused.
Minucher filed Civil Case before the RTC for damages on account of what he claimed to have been trumped-up charges
of drug trafficking made by Arthur Scalzo.

ISSUES
1. Whether or not Arthur Scalzo is entitled to diplomatic immunity

2. Whether the Doctrine of State Immunity from suit is applicable herein

RULING

1. Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a signatory, grants him
absolute immunity from suit being an agent of the US Drugs Enforcement Agency. However, the main yardstick in
ascertaining whether a person is a diplomat entitled to immunity is the determination of whether or not he performs duties
of diplomatic nature. The Vienna Convention lists the classes of heads of diplomatic missions to include (a) ambassadors
or nuncios accredited to the heads of state, (b) envoys, ministers or inter nuncios accredited to the head of states, and (c)
charges d' affairs accredited to the ministers of foreign affairs. The Convention defines "diplomatic agents" as the heads of
missions or members of the diplomatic staff, thus impliedly withholding the same privileges from all others. Scalzo
asserted that he was an Assistant Attache of the US diplomatic mission. Attaches assist a chief of mission in his duties
and are administratively under him. These officials are not generally regarded as members of the diplomatic mission, nor
they normally designated as having diplomatic rank.

2. While the diplomatic immunity of Scalzo might thus remain contentions, it was sufficiently established that, indeed, he
worked for the USDEA. If it should be ascertained that Scalzo was acting well within his assigned functions when he
committed the acts allegedly complained of, the present controversy could then be resolved under the related doctrine of
State Immunity from Suit. While the doctrine appears to prohibit only suits against against the State without its consent, it
is also applicable to complaints filed against officials of the State for acts allegedly performed by them in the discharge of
their duties. The official exchanges of communication, certifications from officials, as well as participation of members of
the Philippine Narcotics Command may be inadequate to support to support the diplomatic status of Scalzo but they give
enough indication that the Philippine government has given its imprimatur to the activities of Scalzo. It can hardly be said
that he acted beyond the scope of his official function or duties. All told, Scalzo is entitled to the defense os state immunity
from suit.

Jeffrey Liang vs. People of the Philippines

Facts:
On January 28 & 31, 1994 Jeffrey Liang alledgely uttered defamatory words agains Joyce V Cabal a Chinese national
who was employed and a member of the clerical staff of Asian Development Bank (ADB). The MTC of Mandaluyong
dismissed the Criminal Information against Liang, pursuant to an advice from the Department of Foreign Affairs that Liang
enjoyed immunity from legal processes. But the Regional Trial Court of Pasig set aside the Order of the MTC.

Jeffrey Liang brought this petition with this Court (The Supreme Court) for review. This Court deny the petition for review.
Thus, this motion for reconsideration of a decision of the Supreme Court.

Prior to this incedent, there was an "Agreement Between the Asian Development Bank and the Government of the
Republic of the Philippines Regarding the Headquarters of the Asian Development Bank" wherein section 45 of the said
agreement states that:

Officers and staff of the bank, including for the purpose of this Article experts and consultants performing missions for the
Bank, shall enjoy the following privileges and immunities:

a.) Immunity from legal process with respect to acts performed by them in their official capacity except when the Bank
waives the immunity.

Issue:

Whether or not the statements allegedly uttered by Jeffrey Liang were made while he is in the performance of his official
functions, so that he can invoke Section 45 of the Agreement.

HELD:
NO. The petitioner’s case is not covered by the immunity. Courts cannot blindly adhere to the communication from the
DFA that the petitioner is covered by any immunity. It has no binding effect in courts. The court needs to protect the right
to due process not only of the accused but also of the prosecution. Secondly, the immunity under Section 45 of the
Agreement is not absolute, but subject to the exception that the acts must be done in “official capacity”. Hence, slandering
a person could not possibly be covered by the immunity agreement because our laws do not allow the commission of a
crime, such as defamation, in the name of official duty.
Republic of Indonesia vs Vinzon

FACTS: Petitioner Vinzon entered into a Maintenance Agreement with respondent. The maintenance agreement includes
the following specific equipments: air conditioning units, generator sets, electrical facilities, water heaters and water motor
pumps. The agreement shall be effective for 4 years.

The new Minister Counsellor allegedly found respondent's work and services unsatisfactory and not in compliance with
the standards set in the Agreement. The respondent terminated the agreement with the respondent. The latter claim that it
was unlawful and arbitrary. Respondent filed a Motion to Dismiss alleging that the Republic of Indonesia, as a foreign
state, has sovereign immunity from suit and cannot be sued as party-defendant in the Philippines.

Issues:
1. Whether or not the Republic of Indonesia can invoke the doctrine of sovereign immunity from suit.
2. Whether or not petitioners Ambassador Soeratmin and Minister Counsellor Kasim may be sued herein in their
private capacities.

Rulings:
1. The Supreme Court ruled that the republic of Indonesia cannot be deemed to have waived its immunity to suit.
The mere entering into a contract by a foreign state with a private party cannot be construed as the ultimate test
of whether or not it is an act juri imperii or juri gestionis. Such act is only the start of the inquiry. There is no
dispute that the establishment of a diplomatic mission is an act juri imperii. The state may enter into contracts with
private entities to maintain the premises, furnishings and equipment of the embassy. The Republic of Indonesia is
acting in pursuit of a sovereign activity when it entered into a contract with the respondent. The maintenance
agreement was entered into by the Republic of Indonesia in the discharge of its governmental functions. It cannot
be deemed to have waived its immunity from suit.
2. Article 31 of the Vienna Convention on Diplomatic Relations provides that a diplomatic agent shall enjoy immunity
from the criminal jurisidiction of the receiving State. He shall also enjoy immunity from its civil and administrative
jurisdiction, except in the case of:
o a real action relating to private immovable property situated in the territory of the receiving State, unless
he holds it on behalf of the sending State for the purposes of the mission;
o an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir
or legatee as a private person and not on behalf of the sending State;
o an action relating to any professional or commercial activity exercised by the diplomatic agent in the
receiving State outside his official functions.
The Solicitor General believes that said act may fall under subparagraph (c) thereof, but said provision clearly applies only
to a situation where the diplomatic agent engages in any professional or commercial activity outside official functions,
which is not the case herein.

Commissioner of Customs vs. Eastern Sea Trading (G.R. No. L-14279)

FACTS: 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.

Bayan v Zamora (Public International Law)

G.R. No. 138570

FACTS:

The Philippines and the United States entered into a Mutual Defense Treaty on August 30, 1951, To further strengthen
their defense and security relationship. Under the treaty, the parties agreed to respond to any external armed attack on
their territory, armed forces, public vessels, and aircraft.

On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and
Security which, in effect, would have extended the presence of US military bases in the Philippines.

On July 18, 1997 RP and US exchanged notes and discussed, among other things, the possible elements of the Visiting
Forces Agreement (VFA).This resulted to a series of conferences and negotiations which culminated on January 12 and
13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively signed by Secretary Siazon and
United States Ambassador Thomas Hubbard.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA. On
October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially transmitted to
the Senate of the Philippines,the Instrument of Ratification, the letter of the President and the VFA, for concurrence
pursuant to Section 21, Article VII of the 1987 Constitution.

Petitions for certiorari and prohibition, petitioners – as legislators, non-governmental organizations, citizens and taxpayers
– assail the constitutionality of the VFA and impute to herein respondents grave abuse of discretion in ratifying the
agreement.

Petitioner contends, under they provision cited, the “foreign military bases, troops, or facilities” may be allowed in the
Philippines unless the following conditions are sufficiently met: a) it must be a treaty,b) it must be 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 c) recognized as such by the other contracting state.

Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for such treaty to
be valid and effective is the concurrence in by at least two-thirds of all the members of the senate.

ISSUES AND RULING:

1. Issue 1: Do the Petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the
constitutionality of the VFA?

NO. 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 taxpayer's 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.

2. 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.

3. Issue 3: Was Sec 25 Art XVIII's requisites satisfied to make the VFA effective?

YES

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 nation's 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.

Suzette Nicolas vs Alberto Romulo

FACTS: **This case is consolidated with Salonga vs Daniel Smith & BAYAN vs Gloria Arroyo
On the 1st of November 2005, Daniel Smith committed the crime of rape against Nicole. He was convicted of the said
crime and was ordered by the court to suffer imprisonment. Smith was a US serviceman convicted of a crime against our
penal laws and the crime was committed within the country’s jurisdiction. But pursuant to the VFA, a treaty between the
US and Philippines, the US embassy was granted custody over Smith. Nicole, together with the other petitioners appealed
before the SC assailing the validity of the VFA. Their contention is that the VFA was not ratified by the US senate in the
same way our senate ratified the VFA.

ISSUE: Is the VFA void and unconstitutional & whether or not it is self-executing.

HELD: The VFA is a self-executing Agreement because the parties intend its provisions to be enforceable, precisely
because the VFA is intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty. As a
matter of fact, the VFA has been implemented and executed, with the US faithfully complying with its obligation to produce
Smith before the court during the trial.
The VFA is covered by implementing legislation inasmuch as it is the very purpose and intent of the US Congress that
executive agreements registered under this Act within 60 days from their ratification be immediately implemented. The SC
noted that the VFA is not like other treaties that need implementing legislation such as the Vienna Convention. As regards
the implementation of the RP-US Mutual Defense Treaty, military aid or assistance has been given under it and this can
only be done through implementing legislation. The VFA itself is another form of implementation of its provisions.

Lance Corporal Daniel Smith Case

FACTS:
Lance Corporal Daniel Smith, member of the US Armed Forces, was found guilty beyond reasonable doubt of the crime of
rape in the RTC of Makati. The court ordered Smith detained at the Makati City Jail until further orders.
On December 19 and 22, 2006, Philippine Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney
executed agreements that pursuant to the VFA, Smith be returned to the US military custody and be detained at the first
floor, Rowe Building, US Embassy Compound.

Petitioner Jovito Salonga, et al. challenged the validity of the said agreements contending that the Philippines should have
custody of Smith because, first of all, the VFA is void and unconstitutional since it violates Art. XVlll, Sec. 25 of the
constitution.

ISSUE: Is the VFA constitutional? Granting that it is constitutional, Are the Romulo-Kenney Agreements in accordance
with the provisions of the VFA itself?

HELD:
The SC ruled The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States,
entered into on February 10, 1998, is constitutional, but the Romulo-Kenney Agreements of December 19 and 22, 2006
are DECLARED not in accordance with the VFA.

VFA is Constitutional

The SC ruled that “the VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by the
United States,” and “the fact that (it) was not submitted for advice and consent of the United States does not detract from
its status as a binding international agreement or treaty recognized by the said State.”

Section 25, Article XVIII, 1987 Constitution 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, when the Congress so requires, ratified by a
majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the
other contracting State.”

The issue, the Court said, is “whether or not the presence of the US Armed Forces in Philippine territory pursuant to the
VFA is allowed ‘under a treaty duly concurred in by the Senate and recognized as a treaty by the other contracting State.’”
“It is,” the Court ruled. “The VFA, which is the instrument agreed upon to provide for the joint RP-US military exercises, is
simply an implementing agreement to the main RP-US Mutual Defense Treaty,” the Court held. visit fellester.blogspot.com
The RP-US Mutual Defense Treaty of August 30, 1951 was signed and duly ratified with the concurrence of both the
Philippine Senate and the United States Senate.

Romulo-Kenney Agreements not in accord with the VFA itself

The Court however ruled that “the Romulo-Kenney Agreements of December 19 and 22, 2006, which are agreements on
the detention of the accused in the United States Embassy, are not in accord with the VFA itself because such detention
is not “by Philippine authorities.” Article V, Section 10 of the VFA provides that “the confinement or detention by Philippine
authorities of the United States personnel shall be carried out in facilities agreed on by appropriate Philippines and United
States authorities.” (Suzette Nicolas y Sombilon Vs. Alberto Romulo, G.R. No. 175888, February 11, 2009)

DISSENTING OPINION

In his dissent, Chief Justice Puno maintained his view in the earlier case of Bayan v. Zamora that the VFA falls short of
the requirement set by Sec. 25, Art. XVIII, 1987 Constitution, which provides that the agreement allowing the presence of
foreign military troops in the Philippines must be “recognized as a treaty by the other contracting state.” For the Chief
Justice, the majority of the Court in Bayan v. Zamora gave undue deference to the statement of former US Ambassador
Thomas Hubbard that US Senate advice and consent was not needed to consider a treaty binding on the US, “then
jumped to the conclusion that the US recognized the VFA as a treaty, and that the constitutional requirements had been
satisfied.” (Suzette Nicolas y Sombilon Vs. Alberto Romulo, G.R. No. 175888, February 11, 2009)

PIMENTEL v. EXECUTIVE SECRETARY

Facts:
This is a petition of Senator Aquilino Pimentel and the other parties to ask the Supreme Court to require the Executive
Department to transmit the Rome Statute which established the International Criminal Court for the Senate’s concurrence
in accordance with Sec 21, Art VII of the 1987 Constitution.
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.[5]
The Office of the Solicitor General, commenting for the respondents, questioned the standing of the petitioners to file the
instant suit. It also contended that the petition at bar violates the rule on hierarchy of courts. On the substantive issue
raised by petitioners, respondents argue that the executive department has no duty to transmit the Rome Statute to the
Senate for concurrence.

Issue:
Whether or not the executive department has a ministerial duty to transmit the Rome Statute (or any treaty) to the Senate
for concurrence.

Ruling:
The petition was dismissed. The Supreme Court ruled that the 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.
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.”
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.
Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized
representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other
negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the
proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. The
negotiations may be brief or protracted, depending on the issues involved, and may even “collapse” in case the parties
are unable to come to an agreement on the points under consideration.
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.
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 state’s 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 should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the
concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or
concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate
or, having secured its consent for its ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty which
has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of
the President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction
over actions seeking to enjoin the President in the performance of his official duties.

Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr.

FACTS:
On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public Works and Highways (DPWH) issued a
Resolution No. PJHL-A-04-012. It was approved by DPWH Acting Secretary Florante Soriquez. This resolution
recommended the award to China Road & Bridge Corporation of the contract for the implementation of civil works for
Contract Package No. I (CP I), which consists of the improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga
road, with the lengt of 79.818 kilometers, in the island province of Catanduanes.
This Loan Agreement No. PH-204 was executed by and between the JBIC and the Philippine Government pursuant to the
exchange of Notes executed by and between Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan
to the Philippines, and then Foreign Affairs Secretary Siazon, in behalf of their respective governments.

ISSUE:
Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine Government is a kind of a treaty.

HELD:
The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes dated December 27, 1999 between
the Japanese Government and the Philippine Government is an executive agreement.
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.
…treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and
exchange of notes all are refer to international instruments binding at international law.
Although these instruments differ from each other by title, they all have common features and international law has
applied basically the same rules to all these instruments. These rules are the result of long practice among the States,
which have accepted them as binding norms in their mutual relations. Therefore, they are regarded as international
customary law.
That case was dismissed by the SCORP last Feb. 14 2007.

What the petitioners wanted was that Foreign funded projects also undergo the procurement process.
The dismissal of the case somehow gave justification for the delay of the implementing rules for foreign funded projects
(IRR-B) of the procurement law If we recall the decision of the Abaya vs Ebdane was used by the DOJ when the DOTC
Secretary was asking for an opinion from the former, during the ZTE controversy.as ruled by the Supreme Court in Abaya
v. Ebdane, an exchange of notes is considered a form of an executive agreement, which becomes binding through
executive action without need of a vote by the
Senate and that (like treaties and conventions, it is an international instrument binding at international law,
The second issue involves an examination of the coverage of Republic Act No. 9184, otherwise known as the
“Government Procurement Reform Act”. Section 4 of the said Act provides that it shall
apply to: … the Procurement of infrastructure Projects, Goods and Consulting Services, regardless of source of funds,
whether local or foreign, by all branches and instrumentalities of government, its departments, offices and agencies,
including government-owned and/or -controlled corporations and local government units, subject to the provisions of
Commonwealth Act No. 138. 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.

People’s Movement for Press Freedom vs. Manglapus

FACTS:
•Petitioners, consisted of members of the mass media, were seeking information from the Presidents representatives on
the state of the then on going negotiations of the RP-US Military Bases Agreement
•A collision between governmental power over the conduct of foreign affairs and the citizens right to information

ISSUE:
Whether the information sought by the petitioners are of pulic concern and are still covered by the doctrine of executive
privilege.

HELD:The court adopted the doctrine in a case that the President is the sole organ of the nation in its negotiations with
foreign countries. The court denied the petition, stressing that secrecy of negotiations with foreign countries is not violative
of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information.
AKBAYAN vs. Aquino

FACTS:

This is regarding the JPEPA, the bilateral free trade agreement ratified by the President with Japan, concerning trade in
goods, rules of origin, customs procedures, paperless trading, trade in services, investment, etc.

Prior to President’s signing of JPEPA in Sept. 2006, petitioners – non-government organizations, Congresspersons,
citizens and taxpayers – sought via petition for mandamus and prohibition to obtain from respondents the full text of the
JPEPA, including the Philippine and Japanese offers submitted during the negotiation process and all pertinent
attachments and annexes thereto. Particularly, Congress through the House Committee are calling for an inquiry into the
JPEPA, but at the same time, the Executive is refusing to give them the said copies until the negotiation is completed.

ISSUES:

o Whether or not petitioners have legal standing

o Whether or not the Philippine and Japanese offers during the negotiation process are privileged
o Whether or not the President can validly exclude Congress, exercising its power of inquiry and power to concur in
treaties, from the negotiation process

RULING:

Standing

In a petition anchored upon the right of the people to information on matters of public concern, which is a public right by its
very nature, petitioners need not show that they have any legal or special interest in the result, it being sufficient to show
that they are citizens and, therefore, part of the general public which possesses the right. As the present petition is
anchored on the right to information and petitioners are all suing in their capacity as citizens and groups of citizens
including petitioners-members of the House of Representatives who additionally are suing in their capacity as such, the
standing of petitioners to file the present suit is grounded in jurisprudence.

JPEPA, A Matter of Public Concern

To be covered by the right to information, the information sought must meet the threshold requirement that it be a matter
of public concern xxx

From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese offers
submitted during the negotiations towards its execution are matters of public concern. This, respondents do not dispute.
They only claim that diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an
exception to the right to information and the policy of full public disclosure.

Privileged Character of Diplomatic Negotiations Recognized

The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations
on the right to information, the Court in Chavez v. PCGG held that “information on inter-government exchanges prior to
the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national
interest.”

Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept
perpetually confidential – since there should be “ample opportunity for discussion before [a treaty] is approved” – the
offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is
reasonable to conclude that the Japanese representatives submitted their offers with the understanding that “historic
confidentiality” would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only
with Japan but with other foreign governments in future negotiations.

A ruling that Philippine offers in treaty negotiations should not be open to public scrutiny would discourage future
Philippine representatives from frankly expressing their views during negotiations. While, on first impression, it appears
wise to deter Philippine representatives from entering into compromises, it bears noting that treaty negotiations, or any
negotiation for that matter, normally involve a process of quid pro quo, and oftentimes negotiators have to be willing to
grant concessions in an area of lesser importance in order to obtain more favorable terms in an area of greater national
interest.
Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no
exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing
a type of information as privileged does not mean that it will be considered privileged in all instances. Only after a
consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the
disclosure of the desired information, strong enough to overcome its traditionally privileged status.

Does the exception apply even though JPEPA is primarily economic and does not involve national security?

While there are certainly privileges grounded on the necessity of safeguarding national security such as those involving
military secrets, not all are founded thereon. One example is the “informer’s privilege,” or the privilege of the Government
not to disclose the identity of a person or persons who furnish information of violations of law to officers charged with the
enforcement of that law. The suspect involved need not be so notorious as to be a threat to national security for this
privilege to apply in any given instance. Otherwise, the privilege would be inapplicable in all but the most high-profile
cases, in which case not only would this be contrary to long-standing practice. It would also be highly prejudicial to law
enforcement efforts in general.

Also illustrative is the privileged accorded to presidential communications, which are presumed privileged without
distinguishing between those which involve matters of national security and those which do not, the rationale for the
privilege being that a frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure
by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential,
Legislative and Judicial power.

In the same way that the privilege for judicial deliberations does not depend on the nature of the case deliberated upon,
so presidential communications are privileged whether they involve matters of national security.

It bears emphasis, however, that the privilege accorded to presidential communications is not absolute, one significant
qualification being that “the Executive cannot, any more than the other branches of government, invoke a general
confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions
into possible criminal wrongdoing.” This qualification applies whether the privilege is being invoked in the context of a
judicial trial or a congressional investigation conducted in aid of legislation.

Closely related to the “presidential communications” privilege is the deliberative process privilege recognized in the United
States. As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co, deliberative process covers
documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated. Notably, the privileged status of such documents rests, not on the
need to protect national security but, on the “obvious realization that officials will not communicate candidly among
themselves if each remark is a potential item of discovery and front page news,” the objective of the privilege being to
enhance the quality of agency decisions.

The diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential
communications privilege. It may be readily perceived that the rationale for the confidential character of diplomatic
negotiations, deliberative process, and presidential communications is similar, if not identical.

The earlier discussion on PMPF v. Manglapus shows that the privilege for diplomatic negotiations is meant to encourage
a frank exchange of exploratory ideas between the negotiating parties by shielding such negotiations from public view.
Similar to the privilege for presidential communications, the diplomatic negotiations privilege seeks, through the same
means, to protect the independence in decision-making of the President, particularly in its capacity as “the sole organ of
the nation in its external relations, and its sole representative with foreign nations.” And, as with the deliberative process
privilege, the privilege accorded to diplomatic negotiations arises, not on account of the content of the information per se,
but because the information is part of a process of deliberation which, in pursuit of the public interest, must be presumed
confidential.

Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged character of
the deliberative process.

Does diplomatic privilege only apply to certain stages of the negotiation process?

In Chavez v. PEA and Chavez v. PCGG, the Court held that with regard to the duty to disclose “definite propositions of the
government,” such duty does not include recognized exceptions like privileged information, military and diplomatic secrets
and similar matters affecting national security and public order.

Treaty-making power of the President

xxx they (petitioners) argue that the President cannot exclude Congress from the JPEPA negotiations since whatever
power and authority the President has to negotiate international trade agreements is derived only by delegation of
Congress, pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of Presidential Decree No.
1464.

The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and international
agreements, but the power to fix tariff rates, import and export quotas, and other taxes xxx.

As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII – the article on the
Executive Department.

xxx

While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the President only
be delegation of that body, it has long been recognized that the power to enter into treaties is vested directly and
exclusively in the President, subject only to the concurrence of at least two-thirds of all the Members of the Senate for the
validity of the treaty. In this light, the authority of the President to enter into trade agreements with foreign nations provided
under P.D. 1464 may be interpreted as an acknowledgment of a power already inherent in its office. It may not be used as
basis to hold the President or its representatives accountable to Congress for the conduct of treaty negotiations.

This is not to say, of course, that the President’s power to enter into treaties is unlimited but for the requirement of Senate
concurrence, since the President must still enure that all treaties will substantively conform to all the relevant provisions of
the Constitution.

It follows from the above discussion that Congress, while possessing vast legislative powers, may not interfere in the field
of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence, such pertains only to the validity of
the treaty under consideration, not to the conduct of negotiations attendant to its conclusion. Moreover, it is not even
Congress as a while that has been given the authority to concur as a means of checking the treaty-making power of the
President, but only the Senate.

Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members of the House of
Representatives fail to present a “sufficient showing of need” that the information sought is critical to the performance of
the functions of Congress, functions that do not include treaty-negotiation.

Did the respondent’s alleged failure to timely claim executive privilege constitute waiver of such privilege?

That respondent invoked the privilege for the first time only in their Comment to the present petition does not mean that
the claim of privilege should not be credited. Petitioner’s position presupposes that an assertion of the privilege should
have been made during the House Committee investigations, failing which respondents are deemed to have waived it.

xxx (but) Respondent’s failure to claim the privilege during the House Committee hearings may not, however, be
construed as a waiver thereof by the Executive branch. xxx what respondents received from the House Committee and
petitioner-Congressman Aguja were mere requests for information. And as priorly stated, the House Committee itself
refrained from pursuing its earlier resolution to issue a subpoena duces tecum on account of then Speaker Jose de
Venecia’s alleged request to Committee Chairperson Congressman Teves to hold the same in abeyance.

The privilege is an exemption to Congress’ power of inquiry. So long as Congress itself finds no cause to enforce such
power, there is no strict necessity to assert the privilege. In this light, respondent’s failure to invoke the privilege during the
House Committee investigations did not amount to waiver thereof.

“Showing of Need” Test

In executive privilege controversies, the requirement that parties present a “sufficient showing of need” only means, in
substance, that they should show a public interest in favor of disclosure sufficient in degree to overcome the claim of
privilege. Verily, the Court in such cases engages in a balancing of interests. Such a balancing of interests is certainly not
new in constitutional adjudication involving fundamental rights.

xxx However, when the Executive has – as in this case – invoked the privilege, and it has been established that the
subject information is indeed covered by the privilege being claimed, can a party overcome the same by merely asserting
that the information being demanded is a matter of public concern, without any further showing required? Certainly not, for
that would render the doctrine of executive privilege of no force and effect whatsoever as a limitation on the right to
information, because then the sole test in such controversies would be whether an information is a matter of public
concern.

Right to information vis-a-vis Executive Privilege

xxx the Court holds that, in determining whether an information is covered by the right to information, a specific “showing
of need” for such information is not a relevant consideration, but only whether the same is a matter of public concern.
When, however, the government has claimed executive privilege, and it has established that the information is indeed
covered by the same, then the party demanding it, if it is to overcome the privilege, must show that that information is
vital, not simply for the satisfaction of its curiosity, but for its ability to effectively and reasonably participate in social,
political, and economic decision-making.

Bayan Muna vs Romulo

G. R. No. 159618, February 01, 2011

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 this case.
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 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 d’Affaires 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
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.
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. In esse, 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.8 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: 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.

Ruling: The petition is bereft of merit.

Validity of the RP-US Non-Surrender Agreement
Petitioner’s initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO-028-03
cannot be a valid medium for concluding the Agreement.
Petitioners’ contention––perhaps taken unaware of certain well-recognized international doctrines, practices, and jargons–
–is 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.
In another perspective, the terms “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. x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-Surrender Agreement itself,
or as an integral instrument of acceptance thereof or as consent to be bound––is a recognized mode of concluding a
legally binding international written contract among nations.
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement 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 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; x x x it precludes our country from delivering an American criminal to the [ICC]
x x x.”63
The above argument is a kind of recycling of petitioner’s earlier position, which, as already discussed, 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. x x x The
agreement is a recognition of the primacy and competence of the country’s 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, for the nonce, 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.
Tanada vs Angara 272 SCRA 18

Facts

On April 15, 1994, the Philippine Government represented by its Secretary of the Department of Trade and Industry
signed the Final Act binding the Philippine Government to submit to its respective competent authorities the WTO (World
Trade Organization) Agreements to seek approval for such. On December 14, 1994, Resolution No. 97 was adopted by
the Philippine Senate to ratify the WTO Agreement.
This is a petition assailing the constitutionality of the WTO agreement as it violates Sec 19, Article II, providing for the
development of a self reliant and independent national economy, and Sections 10 and 12, Article XII, providing for the
“Filipino first” policy.

Issue

Whether or not the Resolution No. 97 ratifying the WTO Agreement is unconstitutional

Ruling

The Supreme Court ruled the Resolution No. 97 is not unconstitutional. While the constitution 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 interests only against foreign
competition and trade practices that are unfair. In other words, the Constitution did not intend to pursue an isolationalist
policy. Furthermore, 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.”
The Senate, after deliberation and voting, gave its consent to the WTO Agreement thereby making it “a part of the law of
the land”. The Supreme Court gave due respect to an equal department in government. It presumes its actions as regular
and done in good faith unless there is convincing proof and persuasive agreements to the contrary. As a result, the
ratification of the WTO Agreement limits or restricts the absoluteness of sovereignty. A treaty engagement is not a mere
obligation but creates a legally binding obligation on the parties. A state which has contracted valid international
obligations is bound to make its legislations such modifications as may be necessary to ensure the fulfillment of the
obligations undertaken.

Augusto Santos III vs Northwest Orient Airlines

FACTS:
Augusto Benedicto Santos III is a minor represented by his dad. In October 1986, he bought a round trip ticket from
Northwest Orient Airlines (NOA) in San Francisco. His flight would be from San Francisco to Manila via Tokyo and back to
San Francisco. His scheduled flight was in December. A day before his departure he checked with NOA and NOA said he
made no reservation and that he bought no ticket. The next year, due to the incident, he sued NOA for damages. He sued
NOA in Manila. NOA argued that Philippine courts have no jurisdiction over the matter pursuant to Article 28(1) of
the Warsaw Convention, which provides that complaints against international carriers can only be instituted in:
1. the court of the domicile of the carrier (NOA’s domicile is in the USA);
2. the court of its principal place of business (which is San Francisco, USA);
3. the court where it has a place of business through which the contract had been made (ticket was purchased in San
Francisco so that’s where the contract was made);
4. the court of the place of destination (Santos bought a round trip ticket which final destination is San Francisco).
The lower court ruled in favor of NOA. Santos III averred that Philippine courts have jurisdiction over the case and he
questioned the constitutionality of Article 28 (1) of the Warsaw Convention.

ISSUE: Whether or not Philippine courts have jurisdiction over the matter to conduct judicial review.

HELD: No. The Supreme Court ruled that they cannot rule over the matter for the SC is bound by the provisions of the
Warsaw Convention which was ratified by the Senate. Until & unless there would be amendment to the Warsaw
Convention, the only remedy for Santos III is to sue in any of the place indicated in the Convention such as in San
Francisco, USA.
The SC cannot rule upon the constitutionality of Article 28(1) of the Warsaw Convention. In the first place, it is a treaty
which was a joint act by the legislative and the executive. The presumption is that it was first carefully studied and
determined to be constitutional before it was adopted and given the force of law in this country. In this case, Santos was
not able to offer any compelling argument to overcome the presumption.