TREATIES AND INTERNATIONAL AGREEMENTS

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.

EXCHANGE OF NOTES UNDER INTERNATIONAL LAW

G. R. No. 167919
February 14, 2007
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.

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.

PACTA SUNT SERVANDA

SECRETARY OF JUSTICE VS LANTION
G.R. No. L-139465 January 18, 2000
SECRETARY OF JUSTICE, petitioner,
vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ,
respondents.
Facts:
This is a petition for review of a decision of the Manila Regional Trial Court (RTC). The Department of Justice received
a request from the Department of Foreign Affairs for the extradition of respondent Mark Jimenez to the U.S. The
Grand Jury Indictment. The warrant for his arrest, and other supporting documents for said extradition were attached
along with the request. Charges include:

1. Conspiracy to commit offense or to defraud the US

2. Attempt to evade or defeat tax
3. Fraud by wire, radio, or television
4. False statement or entries
5. Election contribution in name of another

The Department of Justice (DOJ), through a designated panel proceeded with the technical evaluation and
assessment of the extradition treaty which they found having matters needed to be addressed. Respondent, then
requested for copies of all the documents included in the extradition request and for him to be given ample time to
assess it. The Secretary of Justice denied request on the following grounds:

1. He found it premature to secure him copies prior to the completion of the evaluation. At that point in time, the
DOJ is in the process of evaluating whether the procedures and requirements under the relevant law (PD 1069
Philippine Extradition Law) and treaty (RP-US Extradition Treaty) have been complied with by the Requesting
Government. Evaluation by the DOJ of the documents is not a preliminary investigation like in criminal cases
making the constitutionally guaranteed rights of the accused in criminal prosecution inapplicable.
2. The U.S. requested for the prevention of unauthorized disclosure of the information in the documents.
3. The department is not in position to hold in abeyance proceedings in connection with an extradition request, as
Philippines is bound to Vienna Convention on law of treaties such that every treaty in force is binding upon the
parties.
Mark Jimenez then filed a petition against the Secretary of Justice. RTC presiding Judge Lantion favored Jimenez.
Secretary of Justice was made to issue a copy of the requested papers, as well as conducting further proceedings.
Thus, this petition is now at bar.
Issue/s:
Whether or not respondent’s entitlement to notice and hearing during the evaluation stage of the proceedings
constitute a breach of the legal duties of the Philippine Government under the RP-US Extradition Treaty.
Discussions:
The doctrine of incorporation is applied whenever municipal tribunals are confronted with situations in which there
appears to be a conflict between a rule of international law and the provisions of the constitution or statute of a local
state. Efforts should be done to harmonize them. In a situation, however, where the conflict is irreconcilable and a
choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law
should be upheld by the municipal courts. The doctrine of incorporation decrees that rules of international law are
given equal standing, but are not superior to, national legislative enactments.
Ruling/s:
No. The human rights of person, Filipino or foreigner, and the rights of the accused guaranteed in our Constitution
should take precedence over treaty rights claimed by a contracting state. The duties of the government to the
individual deserve preferential consideration when they collide with its treaty obligations to the government of another
state. This is so although we recognize treaties as a source of binding obligations under generally accepted principles
of international law incorporated in our Constitution as part of the law of the land.
RULING: Petition dismissed.
The human rights of person, whether citizen or alien , and the rights of the accused guaranteed in our Constitution
should take precedence over treaty rights claimed by a contracting state. The duties of the government to the
individual deserve preferential consideration when they collide with its treaty obligations to the government of another
state. This is so although we recognize treaties as a source of binding obligations under generally accepted principles
of international law incorporated in our Constitution as part of the law of the land.
The doctrine of incorporation is applied whenever municipal tribunals are confronted with situation in which there
appears to be a conflict between a rule of international law and the provision of the constitution or statute of the local
state.
Petitioner (Secretary of Justice) is ordered to furnish Mark Jimenez copies of the extradition request and its supporting
papers, and to grant him (Mark Jimenez) a reasonable period within which to file his comment with supporting
evidence.

“Under the Doctrine of Incorporation, rules of international law form part of the law of the land and no further legislative
action is needed to make such rules applicable in the domestic sphere.
“The doctrine of incorporation is applied whenever municipal tribunals are confronted with situations in which there
appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local
state.
“Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal
law was enacted with proper regard for the generally accepted principles of international law in observance of the
incorporation clause in the above cited constitutional provision.
“In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of
international law and a municipal law, jurisprudence dictates that municipal law should be upheld by the municipal
courts, for the reason that such courts are organs of municipal law and are accordingly bound by it in all
circumstances.

“The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of
international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in
most countries, decrees that rules of international law are given equal standing with, but are not superior to, national
legislative enactments. Accordingly, the principle lex posterior derogate priori takes effect – a treaty may repeal a
statute and a statute may repeal a treaty. In states where the Constitution is the highest law of the land, such as the
Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution

DEPARTMENT OF BUDGET AND MANAGEMENT PROCUREMENT SERVICE VS KOLONWEL TRADING

Facts: Before the Court are these consolidated three (3) petitions for review under Rule 45 of the Rules of Court, with
a prayer for a temporary restraining order, to nullify and set aside the Orderdated December 4, 2006 of the Manila
Regional Trial Court (RTC), Branch 18, in SP Civil Case No. 06-116010, a special civil action for certiorari and
prohibition thereat commenced by herein respondent Kolonwel Trading (Kolonwel for short) against the Department of
Budget and Management Procurement Service (DBM-PS), et al. At the core of the controversy are the bidding and the
eventual contract awards for the supply and delivery of some 17.5 million copies of Makabayan (social studies)
textbooks and teachers manuals, a project of the Department of Education (DepEd). The contract was awarded to
several publishers for the different textbooks and Kolonwel was disqualified for which it appealed to the Inter-Agency
Bids and Awards Committee but was denied. Kolonwel filed with the RTC of Manila a special civil action
for certiorari and prohibition with a prayer for a temporary restraining order (TRO) and/or writ of preliminary injunction.
Docketed as SP Civil Case No. 06-116010, and raffled to Branch 18 of the court, the petition sought to nullify IABAC
Res. Nos. 001-2006 and 001-2006-A and to set aside the contract awards in favor of other publishers. Other
publishers filed a motion to dismiss Kolonwel’s petition on several grounds, among them want of jurisdiction and lack
of cause of action, inter alia alleging that the latter had pursued judicial relief without first complying with the protest
procedure prescribed by Republic Act (R.A.) No. 9184, otherwise known as the “Government Procurement Reform
Act.”.
Issue: Whether or not the RTC erred in assuming jurisdiction over the case despite Kolonwel’s failure to observe the
protest mechanism provided under Sec. 55, Sec. 57 and 58 of the Government Procurement Reform Act because it is
a foreign funded project.
Ruling: The Court is unable to lend concurrence to the trial court’s and respondent’s positions on the interplay of the
protest and jurisdictional issues. As may be noted, that Section 55 of R.A. No. 9184 sets three (3) requirements that
must be met by the party desiring to protest the decision of the Bids and Awards Committee (BAC). These are: 1) the
protest must be in writing, in the form of a verified position paper; 2) the protest must be submitted to the head of the
procuring entity; and 3) the payment of a non-refundable protest fee. The jurisdictional caveat that authorizes courts to
assume or, inversely, precludes courts from assuming, jurisdiction over suits assailing the BAC’s decisions is in turn
found in the succeeding Section 58 which provides that the courts would have jurisdiction over such suits only if the
protest procedure has already been completed. Considering that the respondent’s petition in RTC Manila was actually
filed in violation of the protest process set forth in Section 55 of R.A. No. 9184, that court could not have lawfully
acquired jurisdiction over the subject matter of this case. In fact, Section 58, supra, of R.A. No.9184
emphatically states that cases filed in violation of the protest process therein provided “shall be dismissed for lack of
jurisdiction.” The question as to whether or not foreign loan agreements with international financial institutions, such as
Loan No. 7118-PH, partake of an executive or international agreement within the purview of the Section 4 of R.A. No.
9184, has been answered by the Court in the affirmative in Abaya, supra.Significantly, Abaya declared that the RP-
JBIC loan agreement was to be of governing application over the CP I project and that the JBIC Procurement
Guidelines, as stipulated in the loan agreement, shall primarily govern the procurement of goods necessary to
implement the main project. WHEREFORE, the instant consolidated petitions are GRANTED and the assailed Order
dated December 4, 2006 of the Regional Trial Court of Manila in its SP Case No. 06-116010 is NULLIFIED and SET
ASIDE.

INTERNATIONAL LAW APPLIED LOCALLY

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINESvs. HEALTH SECRETARY
FRANCISCO T. DUQUE III

FACTS: On October 28, 1986, Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino by virtue
of the legislative powers granted to the president under the Freedom Constitution. 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. 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. the DOH issued RIRR which was to take effect on July 7, 2006. a
petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify Revised Implementing Rules and
Regulations of The “Milk Code,” assailing that the RIRR was going beyond the provisions of the Milk Code, thereby
amending and expanding the coverage of said law.
ISSUE: Whether or not respondents officers of the DOH acted without or in excess of jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, and in violation of the provisions of the Constitution in
promulgating the RIRR
RULING:
The Supreme Court PARTIALLY GRANTED the petition. Sections 4(f), 11 and 46 of Administrative Order No. 2006-
0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires. The Department of Health and
respondents are PROHIBITED from implementing said provisions. The international instruments pointed out by the
respondents, UNRC, ICESR, CEDAW, are deemed part of the law of the land and therefore the DOH may implement
them through the RIRR. Customary international law is deemed incorporated into our domestic system. Custom or
customary international law means “a general and consistent practice of states followed by them from a sense of legal
obligation (opinio juris). Under the 1987 Constitution, international law can become part of the sphere of domestic law
either by transformation or incorporation. The transformation method requires that an international law be transformed
into a domestic law through a constitutional mechanism such as local legislation. “Generally accepted principles of
international law” refers to norms of general or customary international law which are binding on all states. The Milk
Code is a verbatim reproduction of the (ICMBS), but it did not prohibit advertising or other forms of promotion to the
general public of products. Instead, the Milk Code expressly provides that advertising, promotion, or other marketing
materials may be allowed if such materials are duly authorized and approved by the Inter-Agency Committee (IAC). In
this regard, the WHA Resolutions adopting the ICMBS are merely recommendatory and legally non-binding. This may
constitute “soft law” or non-binding norms, principles and practices that influence state behavior. Respondents have
not presented any evidence to prove that the WHA Resolutions, although signed by most of the member states, were
in fact enforced or practiced by at least a majority of the member states and obligatory in nature. 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. On the other hand, the petitioners also failed to explain and prove
by competent evidence just exactly how such protective regulation would result in the restraint of trade. Since all the
regulatory provisions under the Milk Code apply equally to both manufacturers and distributors, the Court sees no
harm in the RIRR. Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the
objective, purpose and intent of the Milk Code.

MIJARES VS. RANADA (2005)

Facts:

Invoking the Alien Tort Act, petitioners Mijares, et al.*, all of whom suffered human rights violations during the Marcos
era, obtained a Final Judgment in their favor against the Estate of the late Ferdinand Marcos amounting to roughly
$1.9B 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.

As a consequence, Petitioners filed a Complaint with the RTC Makati for the enforcement of the Final Judgment, paying
P410 as docket and filing fees based on Rule 141, §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. RTC Makati
dismissed the Complaint stating that the 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. As such, the proper filing fee was P472M, which Petitioners had not paid.

Issue: Whether or not the amount paid by the Petitioners is the proper filing fee.

Ruling:

Yes, but on a different basis—amount 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 Petitioner’s 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 err 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 the B.P.129, such courts are not vested with such jurisdiction. §33 of B.P.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. But here, the subject matter is the foreign judgment itself. §16 of B.P.129 reveals that the complaint for
enforcement of judgment even if capable of pecuniary estimation would fall under the jurisdiction of the RTCs. Thus,
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 §7(a) of Rule 141. What
governs the proper computation of the filing fees over Complaints for the enforcement of foreign judgments is §7(b)(3),
involving “other actions not involving property.”

RAZON, JR. VS. TAGITIS

G.R. No. 182498 December 3, 2009

Syllabus:

We review in this petition for review on certiorari the decision dated March 7, 2008 of the Court of Appeals (CA) in
C.A-G.R. AMPARO No. 00009. This CA decision confirmed the enforced disappearance of Engineer Morced N.
Tagitis (Tagitis) and granted the Writ of Amparo at the petition of his wife, Mary Jean B. Tagitis (respondent). The
dispositive portion of the CA decision reads:

WHEREFORE, premises considered, petition is hereby GRANTED. The Court hereby FINDS that this is an "enforced
disappearance" within the meaning of the United Nations instruments, as used in the Amparo Rules. The privileges of
the writ of amparo are hereby extended to Engr. Morced Tagitis.

Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal Investigation and Detention Group
(CIDG) who should order COL. JOSE VOLPANE PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2) respondent
GEN. AVELINO I. RAZON, Chief, PNP, who should order his men, namely: (a) respondent GEN. JOEL GOLTIAO,
Regional Director of ARMM PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE TAGITIS, and (c)
respondent SR. SUPERINTENDENT LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response, to
aid him as their superior- are hereby DIRECTED to exert extraordinary diligence and efforts, not only to protect the
life, liberty and security of Engr. Morced Tagitis, but also to extend the privileges of the writ of amparo to Engr. Morced
Tagitis and his family, and to submit a monthly report of their actions to this Court, as a way of PERIODIC REVIEW to
enable this Court to monitor the action of respondents.

This amparo case is hereby DISMISSED as to respondent LT. GEN. ALEXANDER YANO, Commanding General,
Philippine Army, and as to respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task Force Comet, Zamboanga City,
both being with the military, which is a separate and distinct organization from the police and the CIDG, in terms of
operations, chain of command and budget.

This Decision reflects the nature of the Writ of Amparo – a protective remedy against violations or threats of violation
against the rights to life, liberty and security. It embodies, as a remedy, the court’s directive to police agencies to
undertake specified courses of action to address the disappearance of an individual, in this case, Engr. Morced N.
Tagitis. It does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines
responsibility, or at least accountability, for the enforced disappearance for purposes of imposing the appropriate
remedies to address the disappearance.

Responsibility refers to the extent the actors have been established by substantial evidence to have participated in
whatever way, by action or omission, in an enforced disappearance, as a measure of the remedies this Court shall
craft, among them, the directive to file the appropriate criminal and civil cases against the responsible parties in the
proper courts.

Accountability, on the other hand, refers to the measure of remedies that should be addressed to those who exhibited
involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility
defined above; or who are imputed with knowledge relating to the enforced disappearance and who carry the burden
of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the issuance of the Writ of Amparo is justified by our
primary goal of addressing the disappearance, so that the life of the victim is preserved and his liberty and security are
restored.

FACTS:
The established facts show that Tagitis, a consultant for the World Bank and the Senior Honorary Counselor for the
Islamic Development Bank (IDB) Scholarship Programme, was last seen in Jolo, Sulu. Together with Arsimin Kunnong
(Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of October 31, 2007 from a seminar in
Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis asked Kunnong to buy him a boat
ticket for his return trip the following day to Zamboanga. When Kunnong returned from this errand, Tagitis was no
longer around. The receptionist related that Tagitis went out to buy food at around 12:30 in the afternoon and even left
his room key with the desk. Kunnong looked for Tagitis and even sent a text message to the latter’s Manila-based
secretary who did not know of Tagitis’ whereabouts and activities either; she advised Kunnong to simply wait.

On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor of Muslim studies and Tagitis’
fellow student counselor at the IDB, reported Tagitis’ disappearance to the Jolo Police Station. On November 7, 2007,
Kunnong executed a sworn affidavit attesting to what he knew of the circumstances surrounding Tagitis’
disappearance.

More than a month later (on December 28, 2007), Mary Jean Tagitis filed a Petition for the Writ of Amparo (petition)
with the CA through her Attorney-in-Fact, Atty. Felipe P. Arcilla.The petition was directed against Lt. Gen. Alexander
Yano, Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National Police (PNP); Gen.
Edgardo M. Doromal, Chief, Criminal Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief,
Police Anti-Crime and Emergency Response; Gen. Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben
Rafael, Chief, Anti-Terror Task Force Comet.

Mary Jean said in her statement that she approached some of her co-employees with the Land Bank in Digos branch,
Digos City, Davao del Sur who likewise sought help from some of their friends in the military who could help them
find/locate the whereabouts of her husband. All of her efforts did not produce any positive results except the
information from persons in the military who do not want to be identified that Engr. Tagitis is in the hands of the
uniformed men. According to reliable information she received, subject Engr. Tagitis is in the custody of police
intelligence operatives, specifically with the CIDG, PNP Zamboanga City, being held against his will in an earnest
attempt of the police to involve and connect Engr. Tagitis with the different terrorist groups particularly the Jemaah
Islamiyah or JI.

She then filed her complaint with the PNP Police Station in the ARMM in Cotobato and in Jolo, seeking their help to
find her husband, but was told of an intriguing tale by the police that her husband was not missing but was with
another woman having good time somewhere, which is a clear indication of the refusal of the PNP to help and provide
police assistance in locating her missing husband.

Heeding an advise of one police officer, she went to the different police headquarters namely Police Headquarters in
Cotabato City, Davao City, Zamboanga City and eventually in the National Headquarters in Camp Crame in Quezon
City but her efforts produced no positive results. These trips exhausted all of her resources which pressed her to ask
for financial help from friends and relatives.

She has exhausted all administrative avenues and remedies but to no avail, and under the circumstances, she has no
other plain, speedy and adequate remedy to protect and get the release of her husband, Engr. Morced Tagitis, from
the illegal clutches of his captors, their intelligence operatives and the like which are in total violation of the subject’s
human and constitutional rights, except the issuance of a WRIT OF AMPARO.

On the same day the petition was filed, the CA immediately issued the Writ of Amparo, set the case for hearing on
January 7, 2008, and directed the petitioners to file their verified return within seventy-two (72) hours from service of
the writ.

In their verified Return filed during the hearing of January 27, 2008, the petitioners denied any involvement in or
knowledge of Tagitis’ alleged abduction. They argued that the allegations of the petition were incomplete and did not
constitute a cause of action against them; were baseless, or at best speculative; and were merely based on hearsay
evidence. In addition, they all claimed that they exhausted all means, particularly taking pro-active measures to
investigate, search and locate Tagitis and to apprehend the persons responsible for his disappearance.

THE CA RULING
On March 7, 2008, the CA issued its decision confirming that the disappearance of Tagitis was an "enforced
disappearance" under the United Nations (UN) Declaration on the Protection of All Persons from Enforced
Disappearances. The CA held that "raw reports" from an "asset" carried "great weight" in the intelligence world. It also
labeled as "suspect" Col. Kasim’s subsequent and belated retraction of his statement that the military, the police, or
the CIDG was involved in the abduction of Tagitis.

The CA characterized as "too farfetched and unbelievable" and "a bedlam of speculation" police theories painting the
disappearance as "intentional" on the part of Tagitis. He had no previous brushes with the law or any record of
overstepping the bounds of any trust regarding money entrusted to him; no student of the IDB scholarship program
ever came forward to complain that he or she did not get his or her stipend. The CA also found no basis for the police
theory that Tagitis was "trying to escape from the clutches of his second wife," on the basis of the respondent’s
testimony that Tagitis was a Muslim who could have many wives under the Muslim faith, and that there was "no issue"
at all when the latter divorced his first wife in order to marry the second. Finally, the CA also ruled out kidnapping for
ransom by the Abu Sayyaf or by the ARMM paramilitary as the cause for Tagitis’ disappearance, since the
respondent, the police and the military noted that there was no acknowledgement of Tagitis’ abduction or demand for
payment of ransom – the usual modus operandi of these terrorist groups.
Based on these considerations, the CA thus extended the privilege of the writ to Tagitis and his family, and directed
the CIDG Chief, Col. Jose Volpane Pante, PNP Chief Avelino I. Razon, Task Force Tagitis heads Gen. Joel Goltiao
and Col. Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert extraordinary diligence and efforts to
protect the life, liberty and security of Tagitis, with the obligation to provide monthly reports of their actions to the CA.
At the same time, the CA dismissed the petition against the then respondents from the military, Lt. Gen Alexander
Yano and Gen. Ruben Rafael, based on the finding that it was PNP-CIDG, not the military, that was involved.

On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA denied the motion in its
Resolution of April 9, 2008.

ISSUE:
Whether or not the privilege of the Writ of Amparo should be extended to Engr. Morced Tagitis.

RULING:

The disappearance of Engr. Morced Tagitis is classified as an enforced disappearance, thus the privilege of the Writ
of Amparo applies.

Under the UN Declaration enforced disappearance as "the arrest, detention, abduction or any other form of
deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support
or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the
fate or whereabouts of the disappeared person, which place such a person outside the protection of the law." Under
this definition, the elements that constitute enforced disappearance are essentially fourfold:

(a) arrest, detention, abduction or any form of deprivation of liberty;

(b) carried out by agents of the State or persons or groups of persons acting with the authorization, support or
acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a concealment of the fate of the disappeared person;
(d) placement of the disappeared person outside the protection of the law.

There was no direct evidence indicating how the victim actually disappeared. The direct evidence at hand only shows
that Tagitis went out of the ASY Pension House after depositing his room key with the hotel desk and was never seen
nor heard of again. The undisputed conclusion, however, from all concerned – the petitioner, Tagitis’ colleagues and
even the police authorities – is that Tagistis disappeared under mysterious circumstances and was never seen again.

A petition for the Writ of Amparo shall be signed and verified and shall allege, among others (in terms of the portions
the petitioners cite):
(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an
unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant
circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the
investigating authority or individuals, as well as the manner and conduct of the investigation, together with
any report;(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the
aggrieved party and the identity of the person responsible for the threat, act or omission.

The framers of the Amparo Rule never intended Section 5(c) to be complete in every detail in stating the threatened or
actual violation of a victim’s rights. As in any other initiatory pleading, the pleader must of course state the ultimate
facts constituting the cause of action, omitting the evidentiary details. 76 In an Amparo petition, however, this
requirement must be read in light of the nature and purpose of the proceeding, which addresses a situation of
uncertainty; the petitioner may not be able to describe with certainty how the victim exactly disappeared, or who
actually acted to kidnap, abduct or arrest him or her, or where the victim is detained, because these information may
purposely be hidden or covered up by those who caused the disappearance. In this type of situation, to require the
level of specificity, detail and precision that the petitioners apparently want to read into the Amparo Rule is to make
this Rule a token gesture of judicial concern for violations of the constitutional rights to life, liberty and security.

To read the Rules of Court requirement on pleadings while addressing the unique Amparo situation, the test in reading
the petition should be to determine whether it contains the details available to the petitioner under the circumstances,
while presenting a cause of action showing a violation of the victim’s rights to life, liberty and security through State or
private party action. The petition should likewise be read in its totality, rather than in terms of its isolated component
parts, to determine if the required elements – namely, of the disappearance, the State or private action, and the actual
or threatened violations of the rights to life, liberty or security – are present.

The properly pleaded ultimate facts within the pleader’s knowledge about Tagitis’ disappearance, the participation by
agents of the State in this disappearance, the failure of the State to release Tagitis or to provide sufficient information
about his whereabouts, as well as the actual violation of his right to liberty. Thus, the petition cannot be faulted for any
failure in its statement of a cause of action.

If a defect can at all be attributed to the petition, this defect is its lack of supporting affidavit, as required by Section
5(c) of the Amparo Rule. Owing to the summary nature of the proceedings for the writ and to facilitate the resolution of
the petition, the Amparo Rule incorporated the requirement for supporting affidavits, with the annotation that these can
be used as the affiant’s direct testimony. This requirement, however, should not be read as an absolute one that
necessarily leads to the dismissal of the petition if not strictly followed. Where, as in this case, the petitioner has
substantially complied with the requirement by submitting a verified petition sufficiently detailing the facts relied upon,
the strict need for the sworn statement that an affidavit represents is essentially fulfilled. We note that the failure to
attach the required affidavits was fully cured when the respondent and her witness (Mrs. Talbin) personally testified in
the CA hearings held on January 7 and 17 and February 18, 2008 to swear to and flesh out the allegations of the
petition. Thus, even on this point, the petition cannot be faulted.

The phenomenon of enforced disappearance arising from State action first attracted notice in Adolf Hitler’s Nact und
Nebel Erlass or Night and Fog Decree of December 7, 1941. The Third Reich’s Night and Fog Program, a State policy,
was directed at persons in occupied territories "endangering German security"; they were transported secretly to
Germany where they disappeared without a trace. In order to maximize the desired intimidating effect, the policy
prohibited government officials from providing information about the fate of these targeted persons.

In the Philippines, enforced disappearances generally fall within the first two categories, and 855 cases were recorded
during the period of martial law from 1972 until 1986. Of this number, 595 remained missing, 132 surfaced alive and
127 were found dead. During former President Corazon C. Aquino’s term, 820 people were reported to have
disappeared and of these, 612 cases were documented. Of this number, 407 remain missing, 108 surfaced alive and
97 were found dead. The number of enforced disappearances dropped during former President Fidel V. Ramos’ term
when only 87 cases were reported, while the three-year term of former President Joseph E. Estrada yielded 58
reported cases. KARAPATAN, a local non-governmental organization, reports that as of March 31, 2008, the records
show that there were a total of 193 victims of enforced disappearance under incumbent President Gloria M. Arroyo’s
administration. The Commission on Human Rights’ records show a total of 636 verified cases of enforced
disappearances from 1985 to 1993. Of this number, 406 remained missing, 92 surfaced alive, 62 were found dead,
and 76 still have undetermined status.Currently, the United Nations Working Group on Enforced or Involuntary
Disappearance reports 619 outstanding cases of enforced or involuntary disappearances covering the period
December 1, 2007 to November 30, 2008.

Under Philippine Law

The Amparo Rule expressly provides that the "writ shall cover extralegal killings and enforced disappearances or
threats thereof."We note that although the writ specifically covers "enforced disappearances," this concept is neither
defined nor penalized in this jurisdiction. The records of the Supreme Court Committee on the Revision of Rules
(Committee) reveal that the drafters of the Amparo Rule initially considered providing an elemental definition of the
concept of enforced disappearance:

Justice Puno stated that, “as the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction
are not crimes penalized separately from the component criminal acts undertaken to carry out these killings and
enforced disappearances and are now penalized under the Revised Penal Code and special laws. ”

Although the Court’s power is strictly procedural and as such does not diminish, increase or modify substantive rights,
the legal protection that the Court can provide can be very meaningful through the procedures it sets in addressing
extrajudicial killings and enforced disappearances. The Court, through its procedural rules, can set the procedural
standards and thereby directly compel the public authorities to act on actual or threatened violations of constitutional
rights. To state the obvious, judicial intervention can make a difference – even if only procedurally – in a situation
when the very same investigating public authorities may have had a hand in the threatened or actual violations of
constitutional rights.

The burden for the public authorities to discharge in these situations, under the Rule on the Writ of Amparo, is twofold.
The first is to ensure that all efforts at disclosure and investigation are undertaken under pain of indirect contempt from
this Court when governmental efforts are less than what the individual situations require. The second is to address the
disappearance, so that the life of the victim is preserved and his or her liberty and security restored. In these senses,
our orders and directives relative to the writ are continuing efforts that are not truly terminated until the extrajudicial
killing or enforced disappearance is fully addressed by the complete determination of the fate and the whereabouts of
the victim, by the production of the disappeared person and the restoration of his or her liberty and security, and, in
the proper case, by the commencement of criminal action against the guilty parties.

During the International Convention for the Protection of All Persons from Enforced Disappearance (in Paris, France
on February 6, 2007, "enforced disappearance" is considered to be the arrest, detention, abduction or any other form
of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization,
support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection
of the law.

In the recent case of Pharmaceutical and Health Care Association of the Philippines v. Duque III, we held that:
Under the 1987 Constitution, international law can become part of the sphere of domestic law either
by transformation or incorporation. The transformation method requires that an international law be transformed
into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies
when, by mere constitutional declaration, international law is deemed to have the force of domestic law.

The right to security of person in this third sense is a corollary of the policy that the State "guarantees full respect for
human rights" under Article II, Section 11 of the 1987 Constitution. As the government is the chief guarantor of order
and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if
government does not afford protection to these rights especially when they are under threat.

Protection includes conducting effective investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their
families, and bringing offenders to the bar of justice. The duty to investigate must be undertaken in a serious
manner and not as a mere formality preordained to be ineffective.

Evidentiary Difficulties Posed by the Unique Nature of an Enforced Disappearance

The unique evidentiary difficulties presented by enforced disappearance cases; these difficulties form part of the
setting that the implementation of the Amparo Rule shall encounter. These difficulties largely arise because the State
itself – the party whose involvement is alleged – investigates enforced disappearances. Past experiences in other
jurisdictions show that the evidentiary difficulties are generally threefold.

First, there may be a deliberate concealment of the identities of the direct perpetrators. In addition, there are usually
no witnesses to the crime; if there are, these witnesses are usually afraid to speak out publicly or to testify on the
disappearance out of fear for their own lives.

Second, deliberate concealment of pertinent evidence of the disappearance is a distinct possibility; the central piece of
evidence in an enforced disappearance

Third is the element of denial; in many cases, the State authorities deliberately deny that the enforced disappearance
ever occurred. "Deniability" is central to the policy of enforced disappearances, as the absence of any proven
disappearance makes it easier to escape the application of legal standards ensuring the victim’s human rights.

Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.

The remedy of the writ of amparo provides rapid judicial relief as it partakes of a summary proceeding that requires
only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of
evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive
proceedings.

We note in this regard that the use of flexibility in the consideration of evidence is not at all novel in the Philippine legal
system. In child abuse cases, Section 28 of the Rule on Examination of a Child Witness is expressly
recognized as an exception to the hearsay rule. This Rule allows the admission of the hearsay testimony of a
child describing any act or attempted act of sexual abuse in any criminal or non-criminal proceeding, subject
to certain prerequisites and the right of cross-examination by the adverse party.

CONCLUSIONS AND THE AMPARO REMEDY

Based on these considerations, we conclude that Col. Kasim’s disclosure, made in an unguarded moment,
unequivocally point to some government complicity in the disappearance. The consistent but unfounded denials and
the haphazard investigations cannot but point to this conclusion. For why would the government and its officials
engage in their chorus of concealment if the intent had not been to deny what they already knew of the
disappearance? Would not an in-depth and thorough investigation that at least credibly determined the fate of Tagitis
be a feather in the government’s cap under the circumstances of the disappearance? From this perspective, the
evidence and developments, particularly the Kasim evidence, already establish a concrete case of enforced
disappearance that the Amparo Rule covers. From the prism of the UN Declaration, heretofore cited and quoted,
evidence at hand and the developments in this case confirm the fact of the enforced disappearance and government
complicity, under a background of consistent and unfounded government denials and haphazard handling. The
disappearance as well effectively placed Tagitis outside the protection of the law – a situation that will subsist unless
this Court acts.

Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in their duties
when the government completely failed to exercise the extral.'
 To fully enforce the Amparo remedy, we refer this case back to the CA for appropriate proceedings directed at the
monitoring of the PNP and the PNP-CIDG investigations and actions, and the validation of their results through
hearings the CA may deem appropriate to conduct.

GOV’T OF HONGKONG SPECIAL ADMINISTRATIVE REGION VS HON. OLALIA

Bail, Section 1, Rule 114, Revised Rules of Criminal Procedure - is the surety for the release of a person in custody of
the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions
hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance.
Extradition:
FACTS:
Respondent Muñoz was charged of 3 counts of offences of “accepting an advantage as agent”, and 7 counts of
conspiracy to defraud, punishable by the common law of Hongkong. The Hongkong Depoartment of Justice requested
DOJ for the provisional arrest of respondent Muñoz; the DOJ forward the request to the NBI then to RTC. On the same
day, NBI agents arrested him.

Respondent filed with the CA a petition for certiorari, prohibition and mandamus with application for preliminary
mandatory injunction and writ of habeas corpus questioning the validity of the order of arrest.

The CA declared the arrest void. Hence this petition by the Hongkong Department of Justice thru DOJ.

DOJ filed a petition for certiorari in this Court and sustained the validity of the arrest.

Hongkong Administrative Region then filed in the RTC petition for extradition and arrest of respondent. Meanwhile,
respondent filed a petition for bail, which was opposed by the petitioner, initially the RTC denied the petition holding that
there is no Philippine Law granting bail in extradition cases and that private responded is a “flight risk”.

Motion for reconsideration was filed by the respondent, which was granted. Hence this petition.

ISSUE:
Whether or not right to bail can be avail in extradition cases.

HELD:
In Purganan case, the right to bail was not included in the extradition cases, since it is available only in criminal
proceedings.

However the Supreme Court, recognised the following trends in International Law.
1. The growing importance of the individual person in publican international law who, in the 20th century attained global
recognition.
2. The higher value now being given in human rights in international sphere
3. The corresponding duty of countries to observe these human rights in fulfilling their treaty obligations
4. The of duty of this court to balance the rights of the individual under our fundamental law, on one hand, and the law on
extradition on the other.

The modern trend in the public international law is the primacy placed on the sanctity of human rights.

Enshrined the Constitution “The state values the dignity of every human person and guarantees full respect
for human rights.” The Philippines therefore, has the responsibility of protecting and promoting the right of
every person to liberty and due process, ensuring that those detained or arrested can participate in the
proceeding before the a court, to enable it to decide without delay on the legality of the detention and order
their release if justified.

Examination of this Court in the doctrines provided for in the US Vs Purganan provide the following.
1. The exercise of the State’s police power to deprive a person of his liberty is not limited to criminal proceedings.
2. To limit the right to bail in the criminal proceeding would be to close our eyes to jurisprudential history. Philippines has
not limited the exercise of the right to bail to criminal proceedings only. This Court has admitted to bail persons who are
not involved in criminal proceedings. In fact, bail has been involved in this jurisdiction to persons in detention during the
tendency of administrative proceedings, taking into cognisance the obligation of the Philippines under international
conventions to uphold human rights.

EXTRADITION, is defined as the removal of an accused from the Philippines with the object of placing him at the
disposal of foreign authorities to enable the requesting state or government to hold him in connection with criminal
investigation directed against him or execution of a penalty imposed on him under the penal and criminal law of the
requesting state or government. Thus characterized as the right of the a foreign power, created by treaty to demand the
surrender of one accused or convicted of a crimes within its territorial jurisdiction, and the correlative obligation of the
other state to surrender him to the demanding state.

The extradited may be subject to detention as may be necessary step in the process of extradition, but the length of
time in the detention should be reasonable.

In the case at bar, the record show that the respondent, Muñoz has been detained for 2 years without being convicted
in Hongkong.

The Philippines has the obligation of ensuring the individual his right to liberty and due process and should not therefor
deprive the extraditee of his right to bail PROVIDED that certain standards for the grant is satisfactorily met. In other
words there should be “CLEAR AND CONVINCING EVIDENCE”.

However in the case at bar, the respondent was not able to show and clear and convincing evidence that he be entitled
to bail. Thus the case is remanded in the court for the determination and otherwise, should order the cancellation of his
bond and his immediate detention.

SHANGRI-LA INTERNATIONAL HOTEL MANAGEMENT V. DEVELOPERS GROUP OF COMPANIES (G.R.

NO. 159938)
Facts:
Respondent DGCI applied for and was granted registration of the ‘Shangri-La’ mark and ‘S’ logo in its restaurant
business. Petitioner Shangri-La, chain of hotels and establishments owned by the Kuok family worldwide, moved to
cancel the registration of the mark on the ground that it was illegally and fraudulently obtained and appropriated by
respondents. Petitioner also moved to register the mark and logo in its own name. Later, respondent DGCI filed before
the trial court a complaint for infringement against petitioner alleging that DGCI had been the prior exclusive user and
the registered owner in the Philippines of said mark and logo. Petitioner Shangri-La argued that respondent had no right
to apply for the registration because it did not have prior actual commercial use thereof. The trial court found for
respondent. CA affirmed.
Issue:
Whether or not respondent’s prior use of the mark is a requirement for its registration.
Ruling: YES.
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 respondent’s 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.
While the petitioners may not have qualified under Section 2 of R.A. No. 166 as a registrant, neither did respondent
DGCI, since the latter also failed to fulfill the 2-month actual use requirement. What is worse, DGCI was not even the
owner of the mark. For it to have been the owner, the mark must not have been already appropriated (i.e., used) by
someone else. At the time of respondent DGCI’s registration of the mark, the same was already being used by the
petitioners, albeit abroad, of which DGCI’s president was fully aware.

CONTRACT AGREEMENT, NOT AN EXECUTIVE AGREEMENT

China National Machinery v. Santamaria

Facts: On 14 September 2002, petitioner China National Machinery & Equipment Corp. (Group) (CNMEG),
represented by its chairperson, Ren Hongbin, entered into a Memorandum of Understanding with the North Luzon
Railways Corporation (Northrail), represented by its president, Jose L. Cortes, Jr. for the conduct of a feasibility study
on a possible railway line from Manila to San Fernando, La Union (the Northrail Project).

On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the Department of Finance of the Philippines
(DOF) entered into a Memorandum of Understanding (Aug 30 MOU), wherein China agreed to extend Preferential
Buyer’s Credit to the Philippine government to finance the Northrail Project. 3 The Chinese government designated
EXIM Bank as the lender, while the Philippine government named the DOF as the borrower. Under the Aug 30 MOU,
EXIM Bank agreed to extend an amount not exceeding USD 400,000,000 in favor of the DOF, payable in 20 years,
with a 5-year grace period, and at the rate of 3% per annum.

On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui (Amb. Wang), wrote a letter to DOF
Secretary Jose Isidro Camacho (Sec. Camacho) informing him of CNMEG’s designation as the Prime Contractor for
the Northrail Project.
On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for the construction of Section I, Phase
I of the North Luzon Railway System from Caloocan to Malolos on a turnkey basis (the Contract Agreement).7 The
contract price for the Northrail Project was pegged at USD 421,050,000.
On 26 February 2004, the Philippine government and EXIM Bank entered into a counterpart financial agreement –
Buyer Credit Loan Agreement No. BLA 04055 (the Loan Agreement). In the Loan Agreement, EXIM Bank agreed to
extend Preferential Buyer’s Credit in the amount of USD 400,000,000 in favor of the Philippine government in order to
finance the construction of Phase I of the Northrail Project.

On 13 February 2006, respondents filed a Complaint for Annulment of Contract and Injunction with Urgent Motion for
Summary Hearing to Determine the Existence of Facts and Circumstances Justifying the Issuance of Writs of
Preliminary Prohibitory and Mandatory Injunction and/or TRO against CNMEG, the Office of the Executive Secretary,
the DOF, the Department of Budget and Management, the National Economic Development Authority and Northrail.
The case was filed before the Regional Trial Court, National Capital Judicial Region, Makati City, Branch 145 (RTC Br.
145). In the Complaint, respondents alleged that the Contract Agreement and the Loan Agreement were void for being
contrary to (a) the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184), otherwise known as the Government
Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise known as the Government Auditing Code; and
(d) Executive Order No. 292, otherwise known as the Administrative Code.
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEG’s Motion to Dismiss and setting the case
for summary hearing to determine whether the injunctive reliefs prayed for should be issued. CNMEG then filed a
Motion for Reconsideration, which was denied by the trial court in an Order dated 10 March 2008. Thus, CNMEG filed
before the CA a Petition for Certiorari with Prayer for the Issuance of TRO and/or Writ of Preliminary Injunction dated
4 April 2008.

the appellate court dismissed the Petition for Certiorari. Subsequently, CNMEG filed a Motion for Reconsideration,
which was denied by the CA in a Resolution dated 5 December 2008.
Petitioners Argument: Petitioner claims that the EXIM Bank extended financial assistance to Northrail because the
bank was mandated by the Chinese government, and not because of any motivation to do business in the Philippines, it
is clear from the foregoing provisions that the Northrail Project was a purely commercial transaction.

Respondents Argument: respondents alleged that the Contract Agreement and the Loan Agreement were void for
being contrary to (a) the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184), otherwise known as the Government
Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise known as the Government Auditing Code; and
(d) Executive Order No. 292, otherwise known as the Administrative Code.

Issues: Whether or not petitioner CNMEG is an agent of the sovereign People’s Republic of China.
Whether or not the Northrail contracts are products of an executive agreement between two sovereign states.

Ruling: The instant Petition is DENIED. Petitioner China National Machinery & Equipment Corp. (Group) is not
entitled to immunity from suit, and the Contract Agreement is not an executive agreement. CNMEG’s prayer for the
issuance of a TRO and/or Writ of Preliminary Injunction is DENIED for being moot and academic.

The Court explained the doctrine of sovereign immunity in Holy See v. Rosario, to wit:
There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the
classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of
another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized only
with regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure
gestionis. (Emphasis supplied; citations omitted.)
As it stands now, the application of the doctrine of immunity from suit has been restricted to sovereign or
governmental activities (jure imperii). The mantle of state immunity cannot be extended to commercial, private and
proprietary acts (jure gestionis).

Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature of the act
involved – whether the entity claiming immunity performs governmental, as opposed to proprietary, functions. As held
in United States of America v. Ruiz

Admittedly, the Loan Agreement was entered into between EXIM Bank and the Philippine government, while the
Contract Agreement was between Northrail and CNMEG. Although the Contract Agreement is silent on the classification
of the legal nature of the transaction, the foregoing provisions of the Loan Agreement, which is an inextricable part of the
entire undertaking, nonetheless reveal the intention of the parties to the Northrail Project to classify the whole venture as
commercial or proprietary in character.

Thus, piecing together the content and tenor of the Contract Agreement, the Memorandum of Understanding
dated 14 September 2002, Amb. Wang’s letter dated 1 October 2003, and the Loan Agreement would reveal the
desire of CNMEG to construct the Luzon Railways in pursuit of a purely commercial activity performed in the ordinary
course of its business.
ACT OF STATE DOCTRINE
PCGG VS. SANDIGANBAYAN

On 7 April 1986, in connection with criminal proceedings initiated in the Philippines to locate, sequester and
seek restitution of alleged ill-gotten wealth amassed by the Marcoses and other accused from the Philippine
Government, the Office of the Solicitor General (OSG) wrote the Federal Office for Police Matters in Berne,
Switzerland, requesting assistance for the latter office to: (a) ascertain and provide the OSG with information
as to where and in which cantons the ill-gotten fortune of the Marcoses and other accused are located, the
names of the depositors and the banks and the amounts involved; and (b) take necessary precautionary
measures, such as sequestration, to freeze the assets in order to preserve their existing value and prevent
any further transfer thereof (herein referred as the IMAC request).

On 29 May 1986, the Office of the District Attorney in Zurich, pursuant to the OSG’s request, issued an
Order directing the Swiss Banks in Zurich to freeze the accounts of the accused in PCGG I.S. No. 1 and in the
“List of Companies and Foundations”. In compliance with said Order, Bankers Trust A.G. (BTAG) of Zurich
froze the accounts of Officeco Holdings, N.V. (Officeco).

Officeco appealed the Order of the District Attorney to the Attorney General of the Canton of Zurich. The
Attorney General affirmed the Order of the District Attorney. Officeco further appealed to the Swiss Federal
Court which likewise dismissed the appeal on 31 May 1989.

Officeco made representations with the OSG and the PCGG for them to officially advise the Swiss Federal
Office for Police Matters to unfreeze Officeco’s assets. The PCGG required Officeco to present countervailing
evidence to support its request, but instead of complying with the PCGG requirement for it to submit
countervailing evidence, Officeco filed the complaint with the SB praying for the PCGG and the OSG to
officially advise the Swiss government to exclude from the freeze or sequestration order the account of
Officeco with BTAG and to unconditionally release the said account to Officeco.

A motion to dismiss was filed but it was denied hence, a petition was brought to the SC claiming that the
civil action in effect seeks a judicial review of the legality or illegality of the acts of the Swiss government
since the Sandiganbayan would inevitably examine and review the freeze orders of Swiss officials in
resolving the case. This would be in violation of the “act of state” doctrine which states that courts of one
country will not sit in judgment on the acts of the government of another in due deference to the
independence of sovereignty of every sovereign state.

Furthermore, if the Sandiganbayan allowed the complaint to prosper, this would place the Philippine
government in an uncompromising position as it would be constrained to take a position contrary to that
contained in the IMAC request. Is the contention correct?

No. The parameters of the use of the act of state doctrine were clarified in Banco Nacional de Cuba v. Sabbatino, 376
U.S. 398; 84 S. Ct. 923 (1964). There, the U.S. Supreme Court held that international law does not require the
application of this doctrine nor does it forbid the application of the rule even if it is claimed that the act of state in
question violated international law. moreover, due to the doctrine’s peculiar nation-to-nation character, in practice the
usual method for an individual to seek relief is to exhaust local remedies and then repair to the executive authorities of
his own state to persuade them to champion his claim in diplomacy or before an international tribunal.

Even assuming that international law requires the application of the act of state doctrine, it bears stressing that the
Sandiganbayan will not examine and review the freeze orders of the concerned Swiss officials in Civil Case No. 0164.
The Sandiganbayan will not require the Swiss officials to submit to its adjudication nor will it settle a dispute involving
said officials. In fact, as prayed for in the complaint, the Sandiganbayan will only review and examine the propriety of
maintaining PCGG’s position with respect to Officeco’s accounts with BTAG for the purpose of further determining the
propriety of issuing a writ against the PCGG and the OSG. Everything considered, the act of state doctrine finds no
application in this case and petitioners’ resort to it is utterly mislaid. (PCGG, et al. v. SB, et al., G.R. No. 124772,
August 14, 2007, Tinga, J).

The classic American statement of the act of state doctrine, which appears to have taken root in England as early
as 1674 (Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S. Ct. 923 (1964), citing Blad v. Bamfield, 3 Swans.
604, 36 Eng. Rep. 992), and began to emerge in American jurisprudence in the late eighteenth and early nineteenth
centuries, is found in Underhill v. Hernandez, 168 U.S. 250, 18 S. Ct. 83, 42 L. Ed. 456 (1897), where Chief Justice
Fuller said for a unanimous Court:

Every sovereign state is bound to respect the independence of every other state, and the courts of one
country will not sit in judgment on the acts of the government of another, done within its territory, redress of
grievances by reason of such acts must be obtained through the means open to be availed of by sovereign
powers as between themselves. (Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S. Ct. 923 (1964),
citing Underhill v. Hernandez, 168 U.S. 250, 18 S. Ct. 83, 42 L. Ed. 456 (1897)).

The act of state doctrine is one of the methods by which States prevent their national courts from deciding disputes
which relate to the internal affairs of another State, the other two being immunity and non-justiciability. (EVANS, M.D.
(ED.), International Law (First Edition), Oxford University Press, p. 357). It is an avoidance technique that is directly
related to a State’s obligation to respect the independence and equality of other States by not requiring them to submit
to adjudication in a national court or to settlement of their disputes without their consent. It requires the forum court to
exercise restraint in the adjudication of disputes relating to legislative or other governmental acts which a foreign State
has performed within its territorial limits.

UNDERHILL VS. HERNANDEZ

Hernandez was in command of a revolutionary army in Venezuela when an engagement took place with the
government forces which resulted in the defeat of the latter, and the occupation of Bolivar by the former. Underhill was
living in Bolivar, where he had constructed a waterworks system for the city under a contract with the government, and
carried on a machinery repair business. He applied for a passport to leave the city, which was refused by Hernandez
with a view to coerce him to operate his waterworks and his repair works for the benefit of the community and the
revolutionary forces. Subsequently a passport was given him. The revolutionary government under which Hernandez
was acting was recognized by the United States as the legitimate government of Venezuela. Subsequently Underhill
sued Hernandez in .the Circuit Court for the Second Circuit to recover damages caused by the refusal to grant the
passport, for alleged confinement of him to his own house, and for alleged assaults and affronts by Hernandez'
soldiers. Judgment being rendered for defendant, the case was taken to the circuit court of appeals, where the
judgment was affirmed, the court holding "that the acts of the defendant were the acts of Venezuela, and as such are
not properly the subject of adjudication in the courts of another government." Held that the circuit court of appeals was
justified in that conclusion.

Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one
country will not sit in judgment on the acts of the government of another, done within its own territory.

In the early part of 1892, a revolution was initiated in Venezuela against the administration thereof, which the
revolutionists

Page 168 U. S. 251

claimed had ceased to be the legitimate government. The principal parties to this conflict were those who recognized
Palacio as their head, and those who followed the leadership of Crespo. General Hernandez belonged to the anti-
administration party and commanded its forces in the vicinity of Ciudad Bolivar. On the 8th of August, 1892, an
engagement took place between the armies of the two parties at Buena Vista, some seven miles from Bolivar, in
which the troops under Hernandez prevailed, and on the 13th of August, Hernandez entered Bolivar and assumed
command of the city. All of the local officials had in the meantime left, and the vacant positions were filled by General
Hernandez, who from that date, and during the period of the transactions complained of, was the civil and military
chief of the city and district. In October, the party in revolt had achieved success generally, taking possession of the
capital of Venezuela October 6, and on October 23, 1892, the "Crespo government," so called, was formally
recognized as the legitimate government of Venezuela by the United States.

George F. Underhill was a citizen of the United States, who had constructed a waterworks system for the City of
Bolivar under a contract with the government, and was engaged in supplying the place with water, and he also carried
on a machinery repair business. Some time after the entry of General Hernandez, Underhill applied to him, as the
officer in command, for a passport to leave the city. Hernandez refused this request, and requests made by others in
Underhill's behalf, until October 18, when a passport was given, and Underhill left the country.

This action was brought to recover damages for the detention caused by reason of the refusal to grant the passport,
for the alleged confinement of Underhill to his own house, and for certain alleged assaults and affronts by the soldiers
of Hernandez' army.

The cause was tried in the Circuit Court of the United States for the Eastern District of New York, and on the
conclusion of plaintiff's case, the circuit court ruled that, upon the facts, plaintiff was not entitled to recover, and
directed

Page 168 U. S. 252

a verdict for defendant on the ground that

"because the acts of defendant were those of a military commander, representing a de facto government in the
prosecution of a war, he was not civilly responsible therefor."

Judgment having been rendered for defendant, the case was taken to the circuit court of appeals, and by that court
affirmed upon the ground

"that the acts of the defendant were the acts of the government of Venezuela, and as such are not properly the
subject of adjudication in the courts of another government."

65 F. 577. Thereupon the cause was brought to this Court on certiorari.

BANCO NACIONAL DE CUBA VS. SABBATINO

Brief Fact Summary. The bills of lading for a shipment of sugar contracted between Farr, Whitlock & Co an American
commodities broker was assigned by Banco Nacional de Cuba (P), but another Cuban bank instituted this action alleging
conversion of the bills of lading and sought to recover the proceeds thereof from Farr and to enjoin Sabbatino (D), a
court-appointed receiver from exercising control over such proceeds.

Synopsis of Rule of Law. The judiciary, in line with the Act of State Doctrine will not examine the validity of a taking of
property within its own territory by a foreign sovereign government recognized by this country in the absence of
international agreements to the contrary, even if the taking violates customary international law.

Facts. A contract to purchase Cuban sugar from a wholly owned subsidaiary of Compania Azucarera Vertientes-
Camaquey de Cuba (CAV) a corporation organized under Cuban law was made by Farr, Whitlock & Co. (Farr) an
American commodities broker. The CAV stock was principally owned by United States residents. The agreement was
for Farr to pay for the sugar in New York upon the presentation of the shipping documents. After this deal, a law was
enacted in Cuba which empowered the government to nationalize forcefully, expropriation of property or enterprise in
which American nationals had an interest.
Hence, the sugar which Farr had contracted was expropriated from Compania Azucarera. Farr however entered into
contracts which was similar to the one made with CAV with the Banco Para el Comercio de Cuba, which was an
instrumentality of the government. This was done by Farr in order to obtain consent from the Cuban government before
a ship carrying sugar could leave Cuba.A bill of lading which was also an instrumentality of the Cuban government was
assigned by the bank to Banco Para el Comercio de Cuba, who presented the bills and a sight draft as required under
the contract to Farr in New York in return for payment. After CAV notified Farr of its claim to the proceeds as rightful
owner of the sugar, Farr refused the documents.
This action of Farr resulted in a court order which appointed Sabbatino (D) as receiver of CAV‘s New York assets and
enjoined it from removing the payments from the state. Based on the allegation of the conversion of the bills of lading
seeking to recover the proceeds thereof from Farr and to enjoin Sabbatino (D), the receiver from exercising dominion
over such proceeds, the Banco Nacional (P) instituted this action. A summary judgment was granted against Banco
Nacional (P) by the district court on the grounds that the Act of State Doctrine does not apply when the foreign act in
question is in violation of international law. The court of appeals also upheld this judgment.

Issue. Does the judiciary have the authority to examine the validity of a taking of property within its own territory by a
foreign sovereign even if the taking violated international law?

Tolentino v. The Board of Accountancy

G.R. No. L-3062 September 28, 1951

Facts: Commonwealth Act No. 3105 was enacted. Section 16-A thereof, as amended by Commonwealth Act No. 342,
authorized accountants to practice their profession under a trade name. Assailing the constitutionality of the
aforementioned provision, plaintiff, an accountant, filed an action for declaratory relief in the CFI of Manila on the ground
advanced that the assailed provision is a class legislation since by its terms it excludes persons engaged in other callings
or professions from adopting, acquiring or using a trade name in connection with the practice of such callings or
professions. Included as defendants are Robert Orr Ferguson, and Hans Hausamann, foreign accountants practicing
their profession in the Philippines under the trade name “Fleming and Williamson.”

Issue: Whether plaintiff has sufficient cause of action to question the constitutionality of Commonwealth Act No. 342?

Held: No, plaintiff has no sufficient cause of action. Plaintiff’s main objection centers on the exclusive character of the
law which extends its benefits only to those engaged in the profession of accountancy. It is obvious that he seeks the
declaratory relief not for his own personal benefit, or because his rights or prerogatives as an accountant, or as an
individual, are adversely affected, but rather for the benefit of persons belonging to other professions or callings, who
are not parties to this case. He does not claim having suffered any prejudice or damage to him or to his rights or
prerogatives as an accountant by the use of the disputed name by the defendants. His complaint is rather addressed
against the propriety of the use of said trade name by the defendants because it is misleading and is liable to defraud
the public. Plaintiff, therefore, has no actual justiciable controversy against the herein defendants which may give him
the right to secure relief by asserting the unconstitutionality of the law in question. In order that an action for declaratory
relief may be entertained, it must be predicated on the following requisite facts or conditions: (1) there must be a
justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking
declaratory relief must have a legal interest in the controversy; and (4) the issue involved must be ripe for judicial
determination. These requisite facts are wanting and, therefore, the complaint must fail for lack of sufficient cause of
action.

CONCEPT OF JUS COGENS

VINUYA VS. ROMULO
G.R. No. 162230, April 28, 2010
FACTS:
This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the issuance of a
writ of preliminary mandatory injunction against the Office of the Executive Secretary, the Secretary of the DFA, the
Secretary of the DOJ, and the OSG.
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the SEC,
established for the purpose of providing aid to the victims of rape by Japanese military forces in the Philippines during
the Second World War.
Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG,
requesting assistance in filing a claim against the Japanese officials and military officers who ordered the
establishment of the “comfort women” stations in the Philippines. But officials of the Executive Department declined to
assist the petitioners, and took the position that the individual claims of the comfort women for compensation had
already been fully satisfied by Japan’s compliance with the Peace Treaty between the Philippines and Japan.
Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave abuse of
discretion amounting to lack or excess of discretion in refusing to espouse their claims for the crimes against humanity
and war crimes committed against them; and (b) compel the respondents to espouse their claims for official apology
and other forms of reparations against Japan before the International Court of Justice (ICJ) and other international
tribunals.
Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt with in the San
Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956.
On January 15, 1997, the Asian Women’s Fund and the Philippine government signed a Memorandum of
Understanding for medical and welfare support programs for former comfort women. Over the next five years, these
were implemented by the Department of Social Welfare and Development.
ISSUE:
WON the Executive Department committed grave abuse of discretion in not espousing petitioners’ claims for official
apology and other forms of reparations against Japan.
RULING:
Petition lacks merit. From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to
determine whether to espouse petitioners’ claims against Japan.
Political questions refer “to those questions which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive
branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular
measure.”
One type of case of political questions involves questions of foreign relations. It is well-established that “the conduct of
the foreign relations of our government is committed by the Constitution to the executive and legislative–‘the political’–
departments of the government, and the propriety of what may be done in the exercise of this political power is not
subject to judicial inquiry or decision.” are delicate, complex, and involve large elements of prophecy. They are and
should be undertaken only by those directly responsible to the people whose welfare they advance or imperil.
But not all cases implicating foreign relations present political questions, and courts certainly possess the authority to
construe or invalidate treaties and executive agreements. However, the question whether the Philippine government
should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for
which is demonstrably committed by our Constitution not to the courts but to the political branches. In this case, the
Executive Department has already decided that it is to the best interest of the country to waive all claims of its
nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
courts to question.
The President, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries,
and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form
of diplomatic, consular and other officials.
The Executive Department has determined that taking up petitioners’ cause would be inimical to our country’s foreign
policy interests, and could disrupt our relations with Japan, thereby creating serious implications for stability in this
region. For the to overturn the Executive Department’s determination would mean an assessment of the foreign policy
judgments by a coordinate political branch to which authority to make that judgment has been constitutionally
committed.
From a municipal law perspective, certiorari will not lie. As a general principle, where such an extraordinary length of
time has lapsed between the treaty’s conclusion and our consideration – the Executive must be given ample discretion
to assess the foreign policy considerations of espousing a claim against Japan, from the standpoint of both the
interests of the petitioners and those of the Republic, and decide on that basis if apologies are sufficient, and whether
further steps are appropriate or necessary.
In the international sphere, traditionally, the only means available for individuals to bring a claim within the
international legal system has been when the individual is able to persuade a government to bring a claim on the
individual’s behalf. By taking up the case of one of its subjects and by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects,
respect for the rules of international law.
Within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to
whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal person on
whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international
law. All they can do is resort to national law, if means are available, with a view to furthering their cause or obtaining
redress. All these questions remain within the province of municipal law and do not affect the position internationally.
Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Petitioners have not
shown that the crimes committed by the Japanese army violated jus cogens prohibitions at the time the Treaty of
Peace was signed, or that the duty to prosecute perpetrators of international crimes is an erga omnes obligation or
has attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term describing
obligations owed by States towards the community of states as a whole. Essential distinction should be drawn
between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another
State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the
importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations
erga omnes.
The term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding
conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory,
do not admit derogation, and can be modified only by general international norms of equivalent authority
WHEREFORE, the Petition is hereby DISMISSED.

POLITICAL QUESTIONS
Tanada vs Cuenco, 103 Phil. 1051

After the 1955 national elections, the membership in the Senate was overwhelmingly occupied by the Nacionalista
Party. The lone opposition senator was Lorenzo Tañada who belonged to the Citizen’s Party. Diosdado Macapagal on
the other hand was a senatorial candidate who lost the bid but was contesting it before the Senate Electoral Tribunal
(SET). But prior to a decision the SET would have to choose its members. It is provided that the SET should be
composed of 9 members comprised of the following: 3 justices of the Supreme Court, 3 senators from the majority
party and 3 senators from the minority party. But since there is only one minority senator the other two SET members
supposed to come from the minority were filled in by the NP. Tañada assailed this process before the Supreme Court.
So did Macapagal because he deemed that if the SET would be dominated by NP senators then he, as a member of
the Liberalista Party will not have any chance in his election contest. Senator Mariano Cuenco et al (members of the
NP) averred that the Supreme Court cannot take cognizance of the issue because it is a political question. Cuenco
argued that the power to choose the members of the SET is vested in the Senate alone and the remedy for Tañada
and Macapagal was not to raise the issue before judicial courts but rather to leave it before the bar of public opinion.
ISSUE: Whether or not the issue is a political question.
HELD:
No. The SC took cognizance of the case and ruled that the issue is a justiciable question. The term Political Question
connotes what it means in ordinary parlance, namely, a question of policy. It refers to those questions which, under
the Constitution, are to be decided by the people in their sovereign capacity; or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.
In this case, the issue at bar is not a political question. The Supreme Court is not being asked by Tañada to decide
upon the official acts of Senate. The issue being raised by Tañada was whether or not the elections of the 5 NP
members to the SET are valid – which is a judicial question. Note that the SET is a separate and independent body
from the Senate which does not perform legislative acts.
But how should the gridlock be resolved?
The nomination of the last two members (who would fill in the supposed seat of the minority members) must not come
from the majority party. In this case, the Chairman of the SET, apparently already appointed members that would fill in
the minority seats (even though those will come from the majority party). This is still valid provided the majority
members of the SET (referring to those legally sitting) concurred with the Chairman. Besides, the SET may set its own
rules in situations like this provided such rules comply with the Constitution.

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.

Bayan v Zamora (Public International Law)

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT v EXECUTIVE SECRETARY RONALDO
ZAMORA
G.R. No. 138570
October 10, 2000

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.
WARE VS. HYLTON

Facts of the case

This case involved the Treaty of Paris, which established peace in 1783. A Virginian owed a debt to a British subject.
A Virginia law provided for the confiscation of such debts on the ground the the debt was owed to an alien enemy. The
British subject (actually, his administrator) sued in a federal court to recover on the bond. The administrator argued
that the Treaty of Paris ensured the collection of such debts.

Question

Does the Treaty of Paris override an otherwise valid state law?

Conclusion

Four of the five justices wrote opinions. It was the practice of the day for the Court to issue opinions seriatim, or one
after another. There was no "opinion for the Court." Collectively, the justices held that federal courts had the power to
determine the constitutionality of state laws. They invalidated the Virginia law under the supremacy clause and, in the
words of a distinguished scholar of the period, "established for all time [the Supreme Court's] power of judicial review
of state laws."

DAMES & MOORE VS. REGAN

Brief Fact Summary. The Supreme Court of the United States held that the President may nullify attachments and
order the transfer of frozen Iranian assets pursuant to Section 1702(a)(1) of the International Emergency Economic
Powers Act (“IEEPA”). Based on the Court’s inferences from legislation passed by Congress (IEEPA and the Hostage
Act) regarding the President’s authority to deal with international crises and from the history of congressional
acquiescence in executive claims settlement, the President may also suspend claims pursuant to the Executive Order.

Synopsis of Rule of Law. Where Congress has a history of acquiescence, as with claims settlement, it thereby implicitly
approves of the President’s actions regarding that specific subject matter about which Congress was silent.

Facts. In response to the seizure of American personnel as hostages at the American Embassy in Iran, the President
issued various Executive Orders and regulations by which the President nullified attachments and liens on Iranian
assets in the United States, directed that theses assets be transferred to Iran, and suspended claims against Iran that
may be presented to an International Claims Tribunal. On December 19, 1979, Petitioner, Dames & Moore, filed suit in
the United Sates District Court against Defendants, the government of Iran, the Atomic Energy Organization of Iran,
and many Iranian banks, alleging that its subsidiary was a party to a contract with the Atomic Energy Organization and
that the subsidiary’s interest had been assigned to Petitioner. Petitioner alleged it was owed over 3 million dollars. The
District Court issued orders of attachment directed against the Defendants’ property and the property of certain Iranian
banks. In a January 20, 1981 Executive Agreement, the
President agreed to nullify attachments and ordered the transfer of frozen Iranian assets. On February 24, 1981, the
President ratified an earlier Order wherein he “suspended” all “claims which may be presented to the Tribunal” and
provided that such claims “shall have no legal effect in any action now pending in U.S. courts.”

Issue. Whether the President’s acts of “nullifying” the attachments and ordering the “transfer” of all frozen assets are
specifically authorized by Congress.
Whether the President has authority to suspend claims pending in American courts.

THE HOLY SEE vs. THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of
Makati, Branch 61 and STARBRIGHT SALES ENTERPRISES, INC.
G.R. No. 101949 December 1, 1994
FACTS: Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is represented
in the Philippines by the Papal Nuncio; Private respondent, Starbright Sales Enterprises, Inc., is a domestic
corporation engaged in the real estate business.
This petition arose from a controversy over a parcel of land consisting of 6,000 square meters located in the
Municipality of Paranaque registered in the name of petitioner. Said lot was contiguous with two other lots registered
in the name of the Philippine Realty Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the sellers. Later,
Licup assigned his rights to the sale to private respondent.
In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to who of the
parties has the responsibility of evicting and clearing the land of squatters. Complicating the relations of the parties
was the sale by petitioner of Lot 5-A to Tropicana Properties and Development Corporation (Tropicana).
private respondent filed a complaint with the Regional Trial Court, Branch 61, Makati, Metro Manila for annulment of
the sale of the three parcels of land, and specific performance and damages against petitioner, represented by the
Papal Nuncio, and three other defendants: namely, Msgr. Domingo A. Cirilos, Jr., the PRC and Tropicana
petitioner and Msgr. Cirilos separately moved to dismiss the complaint — petitioner for lack of jurisdiction based on
sovereign immunity from suit, and Msgr. Cirilos for being an improper party. An opposition to the motion was filed by
private respondent.
the trial court issued an order denying, among others, petitioner’s motion to dismiss after finding that petitioner “shed
off [its] sovereign immunity by entering into the business contract in question” Petitioner forthwith elevated the matter
to us. In its petition, petitioner invokes the privilege of sovereign immunity only on its own behalf and on behalf of its
official representative, the Papal Nuncio.
ISSUE:
Whether the Holy See is immune from suit insofar as its business relations regarding selling a lot to a private entity
RULING:
The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through
its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government since 1957
(Rollo, p. 87). This appears to be the universal practice in international relations.
There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the
classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of another
sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized only with regard to
public acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis
If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is
not undertaken for gain or profit.
In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business, surely the
said transaction can be categorized as an act jure gestionis. However, petitioner has denied that the acquisition and
subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said property for the site of its mission
or the Apostolic Nunciature in the Philippines. Private respondent failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not for
commercial purpose, but for the use of petitioner to construct thereon the official place of residence of the Papal
Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a receiving state, necessary for the
creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic
Relations (Arts. 20-22). This treaty was concurred in by the Philippine Senate and entered into force in the Philippines
on November 15, 1965.
The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental
character. Petitioner did not sell Lot 5-A for profit or gain. It merely wanted to dispose off the same because the
squatters living thereon made it almost impossible for petitioner to use it for the purpose of the donation. The fact that
squatters have occupied and are still occupying the lot, and that they stubbornly refuse to leave the premises, has
been admitted by private respondent in its complaint
Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public
International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his
own government to espouse his cause through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the
Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its claims.
Of course, the Foreign Office shall first make a determination of the impact of its espousal on the relations between
the Philippine government and the Holy See (Young, Remedies of Private Claimants Against Foreign States, Selected
Readings on Protection by Law of Private Foreign Investments 905, 919 [1964]). Once the Philippine government
decides to espouse the claim, the latter ceases to be a private cause.
WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against petitioner is
DISMISSED.
INTERNATIONAL CATHOLIC IMMIGRATION COMMISSION, petitioner vs. HON. PURA CALLEJA IN HER
CAPACITY AS DIRECTOR OF THE BUREAU OF LABOR RELATIONS AND TRADE UNIONS OF THE
PHILIPPINES AND ALLIED SERVICES (TUPAS) WFTU respondents.

FACTS:

ICMC an accredited refugee processing center in Morong Bataan, is a non-profit agency involved in international
humanitarian and voluntary work. It is duly registered with the United Nations Economic and Social Council
(ECOSOC) and enjoys Consultative status II. It has the activities parallel to those of the International Committee for
Migrtion (ICM) and the International Committee of the Red Cross (ICRC).

On July 14, 1986, Trade Union of the Philippines and Allied Services (TUPAS) filed with the then Ministry of Labor and
Employment a Petition for Certification Election among the rank and file members employed by the ICMC. The latter
opposed the petition on the ground that it enjoys diplomatic immunity.

On Februaury 5, 1987 Med – Arbiter Anastacio L. Bactin sustained ICMC and dismissed the petition of TUPAS for
lack of jurisdiction.

On appeal, The Director of the Bureau of Labor Relations reversed the Med – Arbiter’s Decisionand ordered the
immediate conduct of a certification election.

This present Petition for Certiorari with Preliminary Injunction assailing the BLR Order.

ISSUE:

Whether or not the grant of diplomatic privileges and immunities to ICMC extends to immunity from the application of
Philippine labor laws.

HELD:

The Petition is GRANTED, the order of the Bureau of Labor Relations for Certification election is SET ASIDE, and the
Temporary Restraining Order earlier issued is made PERMANENT.

It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity
is essentially a political question and courts should refuse to look beyond a determination by the executive branch of
the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the
government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government . . . or other officer acting under his direction. Hence, in
adherence to the settled principle that courts may not so exercise their jurisdiction . . . as to embarrass the executive
arm of the government in conducting foreign relations, it is accepted doctrine that in such cases the judicial
department of (this) government follows the action of the political branch and will not embarrass the latter by assuming
an antagonistic jurisdiction.

BASIS:

Article II of the Memorandum of Agreement between the Philippine Government and ICMC provides that ICMC shall
have a status “similar to that of a specialized agency.”
Article III, Section 4. The specialized agencies, their property and assets, wherever located and by whomsoever held,
shall enjoy immunity from every form of legal process except in so far as in any particular case they have expressly
waived their immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.
WHO VS. AQUINO

Facts: Dr. Leonce Verstuyft was assigned by WHO to its regional office in Manila as Acting Assistant Director of
Health Services. His personal effects, contained in twelve (12) crates, were allowed free entry from duties and taxes.
Constabulary Offshore Action Center (COSAC) suspected that the crates “contain large quantities of highly dutiable
goods” beyond the official needs of Verstuyft. Upon application of the COSAC officers, Judge Aquino issued a search
warrant for the search and seizure of the personal effects of Verstuyft.
Secretary of Foreign Affairs Carlos P. Romulo advised Judge Aquino that Dr. Verstuyft is entitled to immunity from
search in respect for his personal baggage as accorded to members of diplomatic missions pursuant to the Host
Agreement and requested that the search warrant be suspended. The Solicitor General accordingly joined Verstuyft
for the quashal of the search warrant but respondent judge nevertheless summarily denied the quashal. Verstuyft,
thus, filed a petition for certiorari and prohibition with the SC. WHO joined Verstuyft in asserting diplomatic immunity.

Issue:

Whether or not personal effect of Verstuyft can be exempted from search and seizure under the diplomatic immunity.

Held:

Yes. The executive branch of the Phils has expressly recognized that Verstuyft is entitled to diplomatic immunity,
pursuant to the provisions of the Host Agreement. The DFA formally advised respondent judge of the Philippine
Government's official position. The Solicitor General, as principal law officer of the gorvernment, likewise expressly
affirmed said petitioner's right to diplomatic immunity and asked for the quashal of the search warrant.

It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity
is essentially a political question and courts should refuse to look beyond a determination by the executive branch of
the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the
government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government, the Solicitor General in this case, or other officer acting
under his discretion. Courts may not so exercise their jurisdiction by seizure and detention of property, as to embarass
the executive arm of the government in conducting foreign relations.

The Court, therefore, holds the respondent judge acted without jurisdiction and with grave abuse of discretion in not
ordering the quashal of the search warrant issued by him in disregard of the diplomatic immunity of petitioner
Verstuyft. (World Health Organization vs. Aquino, G.R. No. L-35131, November 29, 1972, 48 SCRA 243)

FERNANDO, J.:
A clarification of the decision of this Court of May 3, 1974 is sought in a motion filed by petitioner. Its avowed
objective is to remove what for him could be a doubt as to the effect of our decision Civil Case No. 2984 of the Court
of First Instance of Bataan. Since affair reading there of as a matter of fact even one cursory in character could yield
no other conclusion except that such pending suit in the lower court should be dismissed, it would appear that any
misgiving entertained as to any lurking ambiguity therein is more fanciful than real. The motion for clarification is thus
denied.

1. The judgment of the Court cannot be any clearer as to the action against petitioner Donald Baer being against the
United States government, and therefore, covered by the principle of state immunity from suit. So it would appear
from the following paragraph in the opinion: "The solidity of the stand of petitioner is therefore evident. What was
sought by private respondent and what was granted by respondent judge amounted to an interference with the
performance of the duties of petitioner in the base area in accordance with the powers possessed by him under the
Philippine-American Military Bases Agreement. This point was made clear [in the petition] in these words: Assuming
for purposes of argument, that the Philippine Government, through the Bureau of Forestry, possesses the "authority to
issue a Timber License to cut logs" inside a military base, the Bases Agreement subjects the exercise of rights under
a timber license issued by the Philippine Government to the exercise by the United States of its rights, power and
authority of control within the bases; and the findings of the Mutual Defense Board, an agency of both the Philippine
and United States Governments, that "continued logging operation by Mr. Gener within the boundaries of the U.S.
Naval Base would not be consistent with the security and operation of the Base," is conclusive upon the respondent
Judge.… The doctrine of state immunity is not limited to cases which would result in a pecuniary charge against the
sovereign or would require the doing of an affirmative act by it. Prevention of a sovereign from doing an affirmative
act pertaining directly and immediately to the most important public function of any government the defense of the
state is equally as untenable as requiring it to do an affirmative act.' That such an appraisal is not opposed to the
interpretation of the relevant treaty provision by our government is [evident] in [its] aforesaid manifestation and
memorandum as amicus curiae, wherein it joined petitioner for the grant of the remedy prayed for."[1]

2. Neither should there be any doubt entertained as to that portion of the opinion, which merely reiterates the well-
settled concept that what removed the case from any judicial scrutiny is not the lack of jurisdiction over the person of
petitioner, who is not vested with diplomatic immunity, but his being held accountable for action taken in pursuance of
his official duty under the Military Bases Agreement and as such, as pointed out above, beyond the power of judicial
scrutiny. Thus: "There should be no misinterpretation of the scope of the decision reached by this Court. Petitioner,
as the Commander of the United States Naval Base in Olongapo, does not possess diplomatic immunity. He may
therefore be proceeded against in his personal capacity, or when the action taken by him cannot be imputed to the
government which he represents. Thus, after the Military Bases Agreement, in Miquiabas vs. Commanding General
and Dizon vs. The Commander General of the Philippine-Ryukus Command, both of them being habeas corpus
petitions, there was no question as to the submission to jurisdiction of the respondents. As a matter of fact, in
Miquiabas vs. Commanding General, the immediate release of the petitioner was ordered, it being apparent that the
general court martial appointed by respondent Commanding General was without jurisdiction to try petitioner.
Thereafter, in the cited cases of Syquia, Marquez Lim, and Johnson, the parties proceeded against were American
army commanding officers stationed in the Philippines. The insuperable obstacle to the jurisdiction of respondent
Judge is that a foreign sovereign without its consent is haled into court in connection with acts performed by it
pursuant to treaty provisions and thus impressed with a governmental character."[2]

3. Whoever, therefore, is assigned to take the place of former respondent judge Tito V. Tizon cannot possibly be
misled. No apprehension need be entertained then as to the effect of our decision. Civil Case No. 2984 pending in
such sala is bereft of support in law. Its dismissal is called for. Distinguished counsel for petitioner certainly is the last
person to need counsel from this Tribunal, even if such were proper. It is to be assumed that what needs to be done
will be done and that the Bataan Court of First Instance will act according to law and more specifically, to the terms of
the decision rendered by us.

WHEREFORE, the motion for clarification is denied.

Raquiza vs. Bradford, 75 Phil. 50 (1948)

FACTS: By virtue of the proclamation issued by General of the Army MacArthur, petitioners were arrested by the 306
CIC and detained under security commitment order No 385. The
petitioners Raquiza, Tee Han Kee, and Infante were charged with Espionage activity with the Japanese, active
collaboration with the enemy respectively. Power for Commander of the US
Army to proclaim by virtue of military necessity is not questioned. He based proclamation on the reasons that the
apprehended have violated due allegiance to the US and it is a military necessity. Petitioners move for writ of Habeas
Corpus.

ISSUES:
1. Whether the war terminated within the meaning of that part in the proclamation? [Note: The power of commander in
chief of the US Army to issue a proclamation providing for military measures to be taken upon the apprehension of
Filipino citizens who voluntarily have given aid, comfort and sustenance to the enemy, cannot be seriously
questioned.]

No. “The war, in the legal sense, continues until, and terminated at the same time of, some formal proclamation of
peace by an authority competent to proclaim it. It is the province of the political department, and not the judicial
department, to determine if war has ended. The fact that delivery of certain persons under custody of the US Army
has already begun does not mean that the war has, in the legal sense, already terminated, which clearly it has not.
Delivery within the power of military authorities to make even before was terminates.

2. Whether or not this court has jurisdiction or legal power to afford relief to the petitioners in the sad and sorry plight
to which they have been and are being subjected?

No. Civil Courts should not interfere. A foreign army permitted to march through a friendly country or to be stationed in
it, is exempt from civil and criminal jurisdiction of the place. Grant of free passage implies a waiver of all jurisdiction
over troops during passage (let them exercise their own discipline). Any attempt by our civil Courts to exercise
jurisdiction over US troops would be a violation of our country’s faith. On the other hand, petitioners may have
recourse to proper military authorities.

Miquibas vs. Commanding General, 80 Phil. 267 (1948)

NATURE: Original Action in the Supreme Court. Habeas corpus.

FACTS: Miquiabas is a Filipino citizen and civilian employee of the US army in the Philippines who had been charged
of disposing in the Port of Manila Area of things belonging to the US army in violation of the 94th article of War of the
US. He was arrested and a General Court-Martial was appointed. He was found guilty. As a rule, the Philippines being
a sovereign nation has jurisdiction over all offenses committed within its territory but it may, by treaty or by agreement,
consent that the US shall exercise jurisdiction over certain offenses committed within said portions of territory.

ISSUES:
1. Whether or not the offense has been committed within a US base thus giving the US jurisdiction over the case.

No. The Port of Manila Area where the offense was committed is not within a US base for it is not names in Annex A
or B of Article XXVI of the Military Base Agreement (MBA) and is merely part of the temporary quarters located within
presented limits of the city of Manila. Moreover,
extended installations and temporary quarters are not considered to have the same jurisdictional capacity as
permanent bases and are governed by Article XIII paragraphs 2 and 4. The offence at bar, therefore is in the beyond
the jurisdiction of military courts.
2. WON the offender is a member of the US armed forces

No. Under the MBA, a civilian employee is not considered as a member of the US armed forces. Even under the
articles of war, the mere fact that a civilian employee is in the service of the US Army does not make him a member of
the armed forces.

USA v. GUINTO
182 SCRA 644

FACTS:
The cases have been consolidated because they all involve the doctrine of state immunity. In GR No. 76607, private
respondents re suing several officers of the US Air Force in connection with the bidding for barbering services in Clark
Air Base. In GR No. 80018, Luis Bautista was arrested following a buy-bust operation for violation of the Dangerous
Drugs Act. Bautista then filed a complaint for damages claiming that because of the acts of the respondents, he lost
his job. In GR No. 79470, Fabian Genove filed a complaint for damages against petitioner for his dismissal as cook in
the US Air Force. In GR No. 80258, complaint for damage was filed by the respondents against petitioners for injuries
allegedly sustained by plaintiffs. All cases invoke the doctrine of state immunity as ground to dismiss the same.

ISSUE:
Are the petitioners immune from suit?

HELD:
It is clear that the petitioners in GR No. 80018 were acting in the exercise of their official functions. They cannot be
directly impleaded for the US government has not given its consent to be sued. In GR No. 79470, petitioners are not
immune for restaurants are commercial enterprises, however, claim of damages by Genove cannot be allowed on the
strength of the evidence presented. Barber shops are also commercial enterprises operated by private persons, thus,
petitioners in GR No. 76607 cannot plead any immunity from the complaint filed. In GR No. 80258, the respondent
court will have to receive the evidence of the alleged irregularity in the grant of the barbershop concessions before it
can be known in what capacity the petitioners were acting at the time of the incident.

USA v. RUIZ
GR No. L-35645; May 22, 1985

FACTS:
Sometime in May 1972, the United States invited the submission of bids for certain naval projects. Eligio de Guzman
& Co. Inc. responded to the invitation and submitted bids. Subsequently, the company received two telegrams
requesting it to confirm its price. In June 1972, the copany received a letter which said that the company did not
qualify to receive an award for the projects. The company then sued the United States of America and individual
petitioners demanding that the company perform the work on the projects, or for the petitioners to pay damages and to
issue a writ of preliminary injunction to restrain the petitioners from entering into contracts with third parties concerning
the project.

ISSUE:
1) Do the petitioners exercise governmental or proprietary functions?
2) Does the Court have jurisdiction over the case?

HELD:
The rule of State immunity exempts a State from being sued in the courts of another state without its consent or
waiver. This is a necessary consequence of the principles of independence and equality of states. However, state
immunity now extends only to governmental acts of the state. The restrictive application of State immunity is proper
only when the proceedings arise out of commercial transactions of the foreign sovereign. In this case, the projects are
integral part of the naval base which is devoted to the defense of the USA and Philippines which is, indisputably, a
function of the government. As such, by virtue of state immunity, the courts of the Philippines have no jurisdiction over
the case for the US government has not given consent to the filing of this suit.

Pedro Syquia et. al. vs. Natividad Almeda Lopez, Et. al. G.R. No. L-1648 August 17, 1949
Facts: Petitioners Pedro, Gonzalo and Leopoldo Syquia are joint owners of properties in Manila, namely, the North
Qyauia Apartments, South Syquia Apartments and Michel Apartments. In 1945, they executed contracts for lease of
the apartments to USA, with the term being until the war has ended and six months after, or unless terminated sooner
by USA, as the buildings were used for billeting and quartering officers of te US armed forces stationed in the Manila
Area. George Moore, a Commanding General of the US Army, and Erland Tillman, Chief of the Real Estate Division to
the US Army in Manila who was under the command of Moore, was said to be in control of the apartment buildings
and had authority in the name of USA to assign officers of the army to the buildings or order them to vacuate the
same. When Japan surrendered on September 2, 1945, the lease would be terminated six months after. The
petitioners approached the predecessors of Moore and Tillman and requested the buildings to be returned to them, as
per contract agreement. However, they were advised that the US Army wanted to continue their occupancy of the
buildings, and refused to execute new leases but advised that they will vacate the premises before February 1, 1947,
not the original terms of the contract agreement. Petitioner-plaintiffs sued before the Municipal Court of Manila with the
demand to get the properties as their agreement supposedly expired, and furthermore asked for increased rentals
until the premises were vacated. Respondent-defendants were part of the armed forces of the US moved to dismiss
the suit for lack of jurisdiction on the part of the court. The MC of Manila granted the motion to dismiss the suit,
sustained by the CFI of Manila, hence the petition for certiorari.
Issue: Whether the Philippine Courts have a lack of jurisdiction, considering, under the doctrine of Sovereign
Immunity, that USA has not given their consent to be a respondent.
Ruling: The case was dismissed, the Supreme Court affirming in majority the decision of the Municipal Court of
Manila.
Reason: Considering the circumstances, the real defendant party is the United States of America, as it was the U.S.
Army who were occupying the buildings, with the rent being paid for by their government. USA has not given their
consent to be sued in this case, and any action against them without the consent would constitue a lack of jurisdiction.
Sanders v. Veridano
GR No. L-46930; June 10, 1988

FACTS:
Petitioner Dale Sanders was the special services of the US Naval Station (NAVSTA) in Olongapo city. Private
respondents Anthony Rossi and Ralph Wyers are American citizens permanently residing in the Philippines and who
were employed as gameroom attendants in the special services department of NAVSTA. On October 3, 1975, the
respondents were advised that their employment had been converted from permanent full-time to permanent part-
time. In a letter addressed to petitioner Moreau, Sanders disagreed with the hearing officer’s report of the
reinstatement of private respondents to permanent full-time status plus backwages. Respondents allege that the
letters contained libellous imputations which caused them to be ridiculed and thus filed for damages against
petitioners.

ISSUE:
1) Were the petitioners acting officially or only in their private capacities when they did the acts for which the private
respondents sued them for damages?
2) Does the court have jurisdiction over the case?

HELD:
It is abundantly clear in the present case that the acts for which the petitioner are being called to account were
performed by them in the discharge of their official duties. Given the official character of the letters, the petioners
were, legally speaking, being sued as officers of the United States government. As such, the complaint cannot prosper
unless the government sought to be held ultimately liable has given its consent to be sued. The private respondents
must pursue their claim against the petitioners in accordance with the laws of the Unites States of which they are all
citizens and under whose jurisdiction the alleged offenses were committed for the Philippine courts have no
jurisdiction over the case.

FRANCISCO MALONG and ROSALINA AQUINOMALONG, petitioners v. PHILIPPINE NATIONAL RAILWAYS and
COURT OF FIRST INSTANCE OF PANGASINAN, Lingayen Branch 11, respondents

En Banc

Doctrine: implied consent

Date: August 7, 1985

Ponente: Justice Aquino

Facts:

The Malong spouses alleged in their complaint that on October 30, 1977 their son, Jaime Aquino, a paying passenger,
was killed when he fell from a PNR train while it was between Tarlac and Capas. The tragedy occurred because
Jaime had to sit near the door of a coach. The train was overloaded with passengers and baggage in view of the
proximity of All Saints Day.
The Malong spouses prayed that the PNR be ordered to pay them damages totaling P136,370.
Upon the Solicitor General's motion, the trial court dismissed the complaint. It ruled that it had no jurisdiction because
the PNR, being a government instrumentality, the action was a suit against the State (Sec. 16, Art. XV of the
Constitution).
The Malong spouses appealed to this Court pursuant to Republic Act No. 5440
R.A. No. 5440 changed the mode of appeal from courts of first instance (now Regional Trial Courts) to the Supreme
Court in cases involving only questions of law, or the constitutionality or validity of any treaty, law, ordinance, etc. or
the legality of any tax, impost, assessment or toll, etc., or the jurisdiction of any inferior court, from ordinary appeal —
i.e., by notice of appeal, record on appeal and appeal bond, under Rule 41— to appeal by certiorari, under Rule 45
Issue/s:

WON PNR is immune from suit.

WON the State acted in a sovereign capacity or in a corporate capacity when it organized the PNR for the purpose of
engaging in transportation
WON the State acted differently when it organized the PNR as successor of the Manila Railroad Company

Held: No, PNR is NOT immune. The State divested itself of its sovereign capacity when it organized the PNR which is
no different from its predecessor, the Manila Railroad Company. The PNR did not become immune from suit. It did not
remove itself from the operation of articles 1732 to 1766 of the Civil Code on common carriers

WHEREFORE, the order of dismissal is reversed and set aside. The case is remanded to the trial court for further
proceedings. Costs against the Philippine National Railways.

Ratio:

The correct rule is that "not all government entities, whether corporate or non-corporate, are immune from suits.
Immunity from suit is determined by the character of the objects for which the entity was organized." (Nat. Airports
Corp. vs. Teodoro and Phil. Airlines, Inc., 91 Phil. 203, 206; Santos vs, Santos, 92 Phil. 281, 285; Harry Lyons, Inc. vs.
USA, 104 Phil. 593.)
Suits against State agencies with respect to matters in which they have assumed to act in a private or non-
governmental capacity are not suits against the State
Like any private common carrier, the PNR is subject to the obligations of persons engaged in that private enterprise. It
is not performing any governmental function
The point is that when the government enters into a commercial business it abandons its sovereign capacity and is to
be treated like any other private corporation (Bank of the U.S. vs. Planters' Bank, 9 Wheat. 904, 6 L. ed. 244, cited in
Manila Hotel Employees Association vs. Manila Hotel Company, et al., 73 Phil. 374, 388).
There is not one law for the sovereign and another for the subject, but when the sovereign engages in business and
the conduct of business enterprises, and contracts with individuals, whenever the contract in any form comes before
the courts, the rights and obligation of the contracting parties must be adjusted upon the same principles as if both
contracting parties were private persons. Both stand upon equality before the law, and the sovereign is merged in the
dealer, contractor and suitor (People vs. Stephens, 71 N.Y. 549).
Justice Abad Santos (Separate Opinion) : All corporations organized by the government are its instrumentality by the
very reason of their creation. But that fact alone does not invest them with immunity from suit.

DEPARTMENT OF FOREIGN AFFAIRS VS. NATIONAL LABOR RELATIONS BOARD

G.R. No. 113191, 1996 September 18

FACTS

On January 27, 1993, private respondent initiated NLRC-NCR Case for his alleged illegal dismissal by Asian
Development Bank and the latter's violation of the "labor-only" contracting law. Two summonses were served, one to
the ADB and the other through the DFA. Forthwith, the ADB and the DFA notified respondent Labor Arbiter that the
ADB, as well as its President and Office, were covered by an immunity from legal processes except for borrowing,
guaranties or the sale of securities pursuant to the Agreement Establishing the Asian Development Bank (the
"Charter") and the Agreement Between the Bank and the Government of the Philippines regarding the Banker's
Headquarters (the "Headquarters Agreement). The Labor Arbiter took cognizance of the complaint on the impression
that the ADB had waived its diplomatic immunity from suit. The ADB did not appeal the decision. Instead, the DFA
referred the matter to the NLRC; in its referral, the DFA sought a "formal vacation of the void jugdgment".

ISSUES

1. Whether the ADB is correct in invoking its immunity from suit

2. Whether the ADB has descended to the level of an ordinary party to a commercial transaction giving rise to a
waiver of its immunity from suit

3. Whether the DFA has the legal standing

RULING

1. Yes. The stipulations of both the Charter and the Headquarter's Agreement establish that, except in the specified
cases of borrowing and guarantee operations, as well as the purchase, sale and underwriting of securities, the ADB
enjoys immunity from legal process of every form. The Bank's officers, on their part, enjoy immunity in respect of all
acts performed by them in their official capacity. The granting of these immunities and privileges are treaty covenants
ans commitments voluntarily assumed by the Philippine Government. Being an international organization that has
been extended diplomatic status, the ADB is independent of the municipal law.

2. No. The service contracts referred to by private respondent have not been intended by the ADB for profit or gain but
are official acts over which a waiver of immunity would not attack.

3. Yes. The DFA's function includes the determination of persons and institutions covered by diplomatic immunities, a
determination which, when challenged, entitles it to seek relief from the court so as not to seriously impair the conduct
of the country's foreign relations. The DFA must be allowed to plead its case whenever necessary or advisable to
enable it to help to keep the credibility of the Philippine government before the international community.

LIANG VS PEOPLE OF THE PHILIPPINES GR no. 125865 January 28, 2000

Petitioner: Jeffrey Liang

Respondent: People of the Philippines

FACTS:
Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for allegedly uttering
defamatory words against fellow ADB worker Joyce Cabal, he was charged before the MeTC of Mandaluyong City
with two counts of oral defamation. Petitioner was arrested by virtue of a warrant issued by the MeTC. After fixing
petitioner’s bail, the MeTC released him to the custody of the Security Officer of ADB. The next day, the MeTC judge
received an “office of protocol” from the DFA stating that petitioner is covered by immunity from legal process under
section 45 of the Agreement between the ADB and the Philippine Government regarding the Headquarters of the ADB
in the country. Based on the said protocol communication that petitioner is immune from suit, the MeTC judge without
notice to the prosecution dismissed the criminal cases. The latter filed a motion for reconsideration which was
opposed by the DFA. When its motion was denied, the prosecution filed a petition for certiorari and mandamus with
the RTC of Pasig City which set aside the MeTC rulings and ordered the latter court to enforce the warrant of arrest it
earlier issued. After the motion for reconsideration was denied, the petitioner elevated the case to the SC via a petition
for review arguing that he is covered by immunity under the Agreement and that no preliminary investigation was held
before the criminal case.

ISSUES:
(1) Whether or not the petitioner’s case is covered with immunity from legal process with regard to Section 45 of the
Agreement between the ADB and the Philippine Gov’t.
(2) Whether or not the conduct of preliminary investigation was imperative.

HELD:
(1) 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.
(2) NO. Preliminary Investigation is not a matter of right in cases cognizable by the MeTC such as this case. Being
purely a statutory right, preliminary investigation may be invoked only when specifically granted by law. The rule on
criminal procedure is clear that no preliminary investigation is required in cases falling within the jurisdiction of the
MeTC.

Hence, SC denied the petition.