Republic of the Philippines the Philippines a totalitarian regime and placing the government under
SUPREME COURT the control and domination of an alien power, by being an instructor in
Manila
EN BANC
G.R. Nos. L-32613-14 December 27, 1972
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac,
Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy
Reyes alias "Taba," respondents.
Solicitor R. Mutuc for respondent Feliciano Co.
Jose W. Diokno for respondent Nilo Tayag.
CASTRO, J.:p
I. Statement of the Case
Posed in issue in these two cases is the constitutionality of the Anti-Subversion
Act,1 which outlaws the Communist Party of the Philippines and other "subversive
associations," and punishes any person who "knowingly, willfully and by overt acts affiliates
himself with, becomes or remains a member" of the Party or of any other similar
"subversive" organization.
On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act
was filed against the respondent Feliciano Co in the Court of First Instance of Tarlac. On
March 10 Judge Jose C. de Guzman conducted a preliminary investigation and, finding
a prima facie case against Co, directed the Government prosecutors to file the corresponding
information. The twice-amended information, docketed as Criminal Case No. 27, recites:
That on or about May 1969 to December 5, 1969, in the Municipality of
Capas, Province of Tarlac, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused, feloniously became an
officer and/or ranking leader of the Communist Party of the Philippines,
an outlawed and illegal organization aimed to overthrow the
Government of the Philippines by means of force, violence, deceit,
subversion, or any other illegal means for the purpose of establishing in
the Mao Tse Tung University, the training school of recruits of the New
People's Army, the military arm of the said Communist Party of the
Philippines.
That in the commission of the above offense, the following aggravating
circumstances are present, to wit:
(a) That the crime has been committed in contempt of or with insult to
public authorities;
(b) That the crime was committed by a band; and afford impunity.
(c) With the aid of armed men or persons who insure or afford impunity.
Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court,
sharing the respondent Nilo Tayag and five others with subversion. After preliminary
investigation was had, an information was filed, which, as amended, reads:
The undersigned provincial Fiscal of Tarlac and State Prosecutors duly
designated by the Secretary of Justice to collaborate with the Provincial
Fiscal of Tarlac, pursuant to the Order dated June 5, above entitled case,
hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR
GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA, MANUEL ALAVADO,
BENJAMIN BIE alias COMMANDER MELODY and several JOHN DOES,
whose identities are still unknown, for violation of REPUBLIC ACT No.
1700, otherwise known as the Anti-Subversion Law, committed as
follows:
That in or about March 1969 and for sometime prior thereto and
thereafter, in the Province of Tarlac, within the jurisdiction of this
Honorable Court, and elsewhere in the Philippines, the above-named
accused knowingly, willfully and by overt acts organized, joined and/or
remained as offices and/or ranking leaders, of the KABATAANG
MAKABAYAN, a subversive organization as defined in Republic Act No.
1700; that BENJAMIN BIE and COMMANDER MELODY, in addition
thereto, knowingly, willfully and by over acts joined and/or remained as a
member and became an officer and/or ranking leader not only of the
Communist Party of the Philippines but also of the New People's Army,
the military arm of the Communist Party of the Philippines; and that all
the above-named accused, as such officers and/or ranking leaders of the
aforestated subversive organizations, conspiring, confederating and
mutually helping one another, did then and there knowingly, willfully and
 feloniously commit subversive and/or seditious acts, by inciting,
instigating and stirring the people to unite and rise publicly and
tumultuously and take up arms against the government, and/or engage
in rebellious conspiracies and riots to overthrow the government of the
Republic of the Philippines by force, violence, deceit, subversion and/or
other illegal means among which are the following:
1. On several occasions within the province of Tarlac, the accused
conducted meetings and/or seminars wherein the said accused delivered
speeches instigating and inciting the people to unite, rise in arms and
overthrow the Government of the Republic of the Philippines, by force,
violence, deceit, subversion and/or other illegal means; and toward this
end, the said accused organized, among others a chapter of the
KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the
avowed purpose of undertaking or promoting an armed revolution,
subversive and/or seditious propaganda, conspiracies, and/or riots
and/or other illegal means to discredit and overthrow the Government of
the Republic of the Philippines and to established in the Philippines a
Communist regime.
2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with
FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above
subversive and/or seditious activities in San Pablo City by recruiting
members for the New People's Army, and/or by instigating and inciting
the people to organize and unite for the purpose of overthrowing the
Government of the Republic of the Philippines through armed revolution,
deceit, subversion and/or other illegal means, and establishing in the
Philippines a Communist Government.
That the following aggravating circumstances attended the commission
of the offense: (a) aid of armed men or persons to insure or afford
impunity; and (b) craft, fraud, or disguise was employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds
that (1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not
expressed in the title thereof; and (4) it denied him the equal protection of the laws.
Resolving the constitutional issues raised, the trial court, in its resolution of September 15,
1970, declared the statute void on the grounds that it is a bill of attainder and that it is vague
and overboard, and dismissed the informations against the two accused. The Government
appealed. We resolved to treat its appeal as a special civil action for certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port
facto law shall be enacted."2 A bill of attainder is a legislative act which inflicts punishment
without trial.3 Its essence is the substitution of a legislative for a judicial determination of
guilt.4 The constitutional ban against bills of attainder serves to implement the principle of
separation of powers 5 by confining legislatures to
rule-making 6 and thereby forestalling legislative usurpation of the judicial function.7 History
in perspective, bills of attainder were employed to suppress unpopular causes and political
minorities, 8 and it is against this evil that the constitutional prohibition is directed. The
singling out of a definite class, the imposition of a burden on it, and a legislative intent,
suffice to stigmatizea statute as a bill of attainder. 9
In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of
attainder because it "tars and feathers" the Communist Party of the Philippines as a
"continuing menace to the freedom and security of the country; its existence, a 'clear,
present and grave danger to the security of the Philippines.'" By means of the Act, the trial
court said, Congress usurped "the powers of the judge," and assumed "judicial magistracy by
pronouncing the guilt of the CCP without any of the forms or safeguards of judicial trial."
Finally, according to the trial court, "if the only issue [to be determined] is whether or not the
accused is a knowing and voluntary member, the law is still a bill of attainder because it has
expressly created a presumption of organizational guilt which the accused can never hope to
overthrow."
1. When the Act is viewed in its actual operation, it will be seen that it does not specify the
Communist Party of the Philippines or the members thereof for the purpose of punishment.
What it does is simply to declare the Party to be an organized conspiracy for the overthrow
of the Government for the purposes of the prohibition, stated in section 4, against
membership in the outlawed organization. The term "Communist Party of the Philippines"
issued solely for definitional purposes. In fact the Act applies not only to the Communist
Party of the Philippines but also to "any other organization having the same purpose and
their successors." Its focus is not on individuals but on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-
Management Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to
be a bill of attainder and therefore unconstitutional. Section 504 provided in its pertinent
parts as follows:
(a) No person who is or has been a member of the Communist
Party ... shall serve —
(1) as an officer, director, trustee, member of any executive board or
similar governing body, business agent, manager, organizer, or other
employee (other than as an employee performing exclusively clerical or
custodial duties) of any labor organization.
during or for five years after the termination of his membership in the
Communist Party....
(b) Any person who willfully violates this section shall be fined not more
than $10,000 or imprisoned for not more than one year, or both.
This statute specified the Communist Party, and imposes disability and penalties on its
members. Membership in the Party, without more, ipso facto disqualifies a person from
becoming an officer or a member of the governing body of any labor organization. As the
Supreme Court of the United States pointed out:
Under the line of cases just outlined, sec. 504 of the Labor Management
Reporting and Disclosure Act plainly constitutes a bill of attainder.
Congress undoubtedly possesses power under the Commerce Clause to
enact legislation designed to keep from positions affecting interstate
commerce persons who may use of such positions to bring about political
strikes. In section 504, however, Congress has exceeded the authority
granted it by the Constitution. The statute does not set forth a generally
applicable rule decreeing that any person who commits certain acts or
possesses certain characteristics (acts and characteristics which, in
Congress' view, make them likely to initiate political strikes) shall not hold
union office, and leaves to courts and juries the job of deciding what
persons have committed the specified acts or possessed the specified
characteristics. Instead, it designates in no uncertain terms the persons
who possess the feared characteristics and therefore cannot hold union
office without incurring criminal liability — members of the Communist
Party.
Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed
2d 625, 81 S CT 1357, lend a support to our conclusion. That case
involved an appeal from an order by the Control Board ordering the
Communist Party to register as a "Communist-action organization," under
the Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC sec.
781 et seq. (1958 ed). The definition of "Communist-action organization"
which the Board is to apply is set forth in sec. 3 of the Act:
[A]ny organization in the United States ... which (i)is substantially
directed, dominated, or controlled by the foreign government or foreign
organization controlling the world Communist movement referred to in
section 2 of this title, and(ii) operates primarily to advance the objectives
of such world Communist movement... 64 Stat 989, 50 USC sec. 782
(1958 ed.)
A majority of the Court rejected the argument that the Act was a bill of
attainder, reasoning that sec. 3 does not specify the persons or groups
upon which the deprivations setforth in the Act are to be imposed, but
instead sets forth a general definition. Although the Board has
determined in 1953 that the Communist Party was a "Communist-action
organization," the Court found the statutory definition not to be so
narrow as to insure that the Party would always come within it:
In this proceeding the Board had found, and the Court of Appeals has
sustained its conclusion, that the Communist Party, by virtud of the
activities in which it now engages, comes within the terms of the Act. If
the Party should at anytime choose to abandon these activities, after it is
once registered pursuant to sec. 7, the Act provides adequate means of
relief. (367 US, at 87, 6 L ed 2d at 683)
Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to
charge Communists in court, as the law alone, without more, would suffice to secure their
punishment. But the undeniable fact is that their guilt still has to be judicially established.
The Government has yet to prove at the trial that the accused joined the Party knowingly,
willfully and by overt acts, and that they joined the Party, knowing its subversive character
and with specific intent to further its basic objective, i.e., to overthrow the existing
Government by force deceit, and other illegal means and place the country under the control
and domination of a foreign power.
As to the claim that under the statute organizationl guilt is nonetheless imputed despite the
requirement of proof of knowing membership in the Party, suffice it to say that is precisely
the nature of conspiracy, which has been referred to as a "dragneet device" whereby all who
participate in the criminal covenant are liable. The contention would be correct if the statute
were construed as punishing mere membership devoid of any specific intent to further the
unlawful goals of the Party. 13 But the statute specifically required that membership must
be knowing or active, with specific intent to further the illegal objectives of the Party. That is
what section 4 means when it requires that membership, to be unlawful, must be shown to
have been acquired "knowingly, willfully and by overt acts." 14 The ingredient of specific
intent to pursue the unlawful goals of the Party must be shown by "overt acts." 15 This
constitutes an element of "membership" distinct from the ingredient of guilty knowledge.
The former requires proof of direct participation in the organization's unlawful activities,
while the latter requires proof of mere adherence to the organization's illegal objectives.
2. Even assuming, however, that the Act specifies individuals and not activities, this feature is
not enough to render it a bill of attainder. A statute prohibiting partners or employees of
securities underwriting firms from serving as officers or employees of national banks on the
basis of a legislative finding that the persons mentioned would be subject to the temptation
to commit acts deemed inimical to the national economy, has been declared not to be a bill
of attainder. 16 Similarly, a statute requiring every secret, oath-bound society having a
membership of at least twenty to register, and punishing any person who becomes a
member of such society which fails to register or remains a member thereof, was declared
valid even if in its operation it was shown to apply only to the members of the Ku Klux Klan. 17
In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor
unions to file with the Department of Labor affidavits of union officers "to the effect that
they are not members of the Communist Party and that they are not members of any
organization which teaches the overthrow of the Government by force or by any illegal or
unconstitutional method," was upheld by this Court. 19
Indeed, it is only when a statute applies either to named individuals or to easily ascertainable
members of a group in such a way as to inflict punishment on them without a judicial trial
does it become a bill of attainder. 20 It is upon this ground that statutes which disqualified
those who had taken part in the rebellion against the Government of the United States
during the Civil War from holding office, 21 or from exercising their profession, 22 or which
prohibited the payment of further compensation to individuals named in the Act on the basis
of a finding that they had engages in subversive activities, 23 or which made it a crime for a
member of the Communist Party to serve as an officer or employee of a labor union, 24 have
been invalidated as bills of attainder.
But when the judgment expressed in legislation is so universally acknowledged to be certain
as to be "judicially noticeable," the legislature may apply its own rules, and judicial hearing is
not needed fairly to make such determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring
every secret, oath-bound society with a membership of at least twenty to register, and
punishing any person who joined or remained a member of such a society failing to register.
While the statute did not specify the Ku Klux Klan, in its operation the law applied to the KKK
exclusively. In sustaining the statute against the claim that it discriminated against the Ku
Klux Klan while exempting other secret, oath-bound organizations like masonic societies and
the Knights of Columbus, the United States Supreme Court relied on common knowledge of
the nature and activities of the Ku Klux Klan. The Court said:
The courts below recognized the principle shown in the cases just cited
and reached the conclusion that the classification was justified by a
difference between the two classes of associations shown by experience,
and that the difference consisted (a) in a manifest tendency on the part
of one class to make the secrecy surrounding its purpose and
membership a cloak for acts and conduct inimical to personal rights and
public welfare, and (b) in the absence of such a tendency on the part of
the other class. In pointing out this difference one of the courts said of
the Ku Klux Klan, the principal association in the included class: "It is a
matter of common knowledge that this organization functions largely at
night, its members disguised by hoods and gowns and doing things
calculated to strike terror into the minds of the people;" and later said of
the other class: "These organizations and their purposes are well known,
many of them having been in existence for many years. Many of them are
oath-bound and secret. But we hear no complaint against them regarding
violation of the peace or interfering with the rights of others." Another of
the courts said: "It is a matter of common knowledge that the association
or organization of which the relator is concededly a member exercises
activities tending to the prejudice and intimidation of sundry classes of
our citizens. But the legislation is not confined to this society;" and later
said of the other class: "Labor unions have a recognized lawful purpose.
The benevolent orders mentioned in the Benevolent Orders Law have
already received legislative scrutiny and have been granted special
privileges so that the legislature may well consider them beneficial rather
than harmful agencies." The third court, after recognizing "the
potentialities of evil in secret societies," and observing that "the danger
of certain organizations has been judicially demonstrated," — meaning in
that state, — said: "Benevolent orders, labor unions and college
fraternities have existed for many years, and, while not immune from
hostile criticism, have on the whole justified their existence."
We assume that the legislature had before it such information as was
readily available including the published report of a hearing, before a
committee of the House of Representatives of the 57th Congress relating
to the formation, purposes and activities of the Klu Klux Klan. If so it was
advised — putting aside controverted evidence — that the order was a
revival of the Ku Klux Klan of an earlier time with additional features
borrowed from the Know Nothing and the A. P. A. orders of other
periods; that its memberships was limited to native-born, gentile,
protestant whites; that in part of its constitution and printed creed it
proclaimed the widest freedom for all and full adherence to the
Constitution of the United States; in another exacted of its member an
oath to shield and preserve "white supremacy;" and in still another
declared any person actively opposing its principles to be "a dangerous
ingredient in the body politic of our country and an enemy to the weal of
our national commonwealth;" that it was conducting a crusade against
Catholics, Jews, and Negroes, and stimulating hurtful religious and race
prejudices; that it was striving for political power and assuming a sort of
guardianship over the administration of local, state and national affairs;
and that at times it was taking into its own hands the punishment of what
some of its members conceived to be crimes. 27
In the Philippines the character of the Communist Party has been the object of continuing
scrutiny by this Court. In 1932 we found the Communist Party of the Philippines to be an
illegal association. 28 In 1969 we again found that the objective of the Party was the
"overthrow of the Philippine Government by armed struggle and to establish in the
Philippines a communist form of government similar to that of Soviet Russia and Red
China." 29 More recently, in Lansang vs. Garcia, 30 we noted the growth of the Communist
Party of the Philippines and the organization of Communist fronts among youth organizations
such as the Kabataang Makabayan (KM) and the emergence of the New People's Army. After
meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about the
existence of a sizeable group of men who have publicly risen in arms to overthrow the
government and have thus been and still are engaged in rebellion against the Government of
the Philippines.
3. Nor is it enough that the statute specify persons or groups in order that it may fall within
the ambit of the prohibition against bills of attainder. It is also necessary that it must apply
retroactively and reach past conduct. This requirement follows from the nature of a bill of
attainder as a legislative adjudication of guilt. As Justice Frankfurter observed, "frequently a
bill of attainder was ... doubly objectionable because of its ex post facto features. This is the
historic explanation for uniting the two mischiefs in one
clause — 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute]
is a bill of attainder it is also an ex post facto law. But if it is not an ex post facto law, the
reasons that establish that it is not are persuasive that it cannot be a bill of attainder." 31
Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of
the Charter of the City of Los Angeles which provided:
... [N]o person shall hold or retain or be eligible for any public office or
employment in the service of the City of Los Angeles, in any office or
department thereof, either elective or appointive, who has within five (5)
years prior to the effective date of this section advised, advocated, or
taught, or who may, after this section becomes effective, become a
member of or affiliated with any group, society, association, organization
or party which advises, advocates or teaches or has within said period of
five (5) years advised, advocated, or taught the overthrow by force or
violence of the Government of the United States of America or of the
State of California.
In upholding the statute, the Court stressed the prospective application of the Act to the
petitioner therein, thus:
... Immaterial here is any opinion we might have as to the charter
provision insofar as it purported to apply restrospectively for a five-year
period to its effective date. We assume that under the Federal
Constitution the Charter Amendment is valid to the extent that it bars
from the city's public service persons who, subsequently to its adoption
in 1941, advise, advocate, or reach the violent overthrow of the
Government or who are or become affiliated with any group doing so.
The provisions operating thus prospectively were a reasonable regulation
to protect the municipal service by establishing an employment
qualification of loyalty to the State and the United States.
... Unlike the provisions of the charter and ordinance under which
petitioners were removed, the statute in the Lovett case did not declare
general and prospectively operative standards of qualification and
eligibility for public employment. Rather, by its terms it prohibited any
further payment of compensationto named individuals or employees.
Under these circumstances, viewed against the legislative background,
the statutewas held to have imposed penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial
magistracy, them it mustbe demonstrated that the statute claimed to be a bill of
attainderreaches past conduct and that the penalties it imposesare inescapable. As the U.S.
Supreme Court observedwith respect to the U.S. Federal Subversive Activities ControlAct of
1950:
Nor is the statute made an act of "outlawry" or of attainderby the fact
that the conduct which it regulates is describedwith such particularity
that, in probability, few organizationswill come within the statutory
terms. Legislatures may act tocurb behaviour which they regard as
harmful to the public welfare,whether that conduct is found to be
engaged in by manypersons or by one. So long as the incidence of
legislation issuch that the persons who engage in the regulated conduct,
bethey many or few, can escape regulation merely by altering thecourse
of their own present activities, there can be no complaintof an
attainder. 33
This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof
expressly statesthat the prohibition therein applies only to acts committed"After the
approval of this Act." Only those who "knowingly,willfully and by overt acts affiliate
themselves with,become or remain members of the Communist Party of thePhilippines
and/or its successors or of any subversive association"after June 20, 1957, are punished.
Those whowere members of the Party or of any other subversive associationat the time of
the enactment of the law, weregiven the opportunity of purging themselves of liability
byrenouncing in writing and under oath their membershipin the Party. The law expressly
provides that such renunciationshall operate to exempt such persons from
penalliability. 34 The penalties prescribed by the Act are thereforenot inescapable.
III. The Act and the Requirements of Due Process
1. As already stated, the legislative declaration in section 2 of the Act that the Communist
Party of the Philippinesis an organized conspiracy for the overthrow of theGovernment is
inteded not to provide the basis for a legislativefinding of guilt of the members of the Party
butrather to justify the proscription spelled out in section 4. Freedom of expression and
freedom of association are sofundamental that they are thought by some to occupy
a"preferred position" in the hierarchy of constitutional values. 35 Accordingly, any limitation
on their exercise mustbe justified by the existence of a substantive evil. This isthe reason why
before enacting the statute in question Congressconducted careful investigations and then
stated itsfindings in the preamble, thus:
... [T]he Communist Party of the Philippines althoughpurportedly a
political party, is in fact an organized conspiracyto overthrow the
Government of the Republic of the Philippinesnot only by force and
violence but also by deceit, subversionand other illegal means, for the
purpose of establishing in thePhilippines a totalitarian regime subject to
alien dominationand control;
... [T]he continued existence and activities of the CommunistParty of the
Philippines constitutes a clear, present andgrave danger to the security of
the Philippines;
... [I]n the face of the organized, systematice and persistentsubversion,
national in scope but international in direction,posed by the Communist
Party of the Philippines and its activities,there is urgent need for special
legislation to cope withthis continuing menace to the freedom and
security of the country.
In truth, the constitutionality of the Act would be opento question if, instead of making these
findings in enactingthe statute, Congress omitted to do so.
In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd
failed to takeproper account of the distinction between legislative fact and adjudicative fact.
Professor Paul Freund elucidatesthe crucial distinction, thus:
... A law forbidding the sale of beverages containingmore than 3.2 per
cent of alcohol would raise a question of legislativefact, i.e., whether this
standard has a reasonable relationto public health, morals, and the
enforcement problem. Alaw forbidding the sale of intoxicating beverages
(assuming itis not so vague as to require supplementation by rule-
making)would raise a question of adjudicative fact, i.e., whether thisor
that beverage is intoxicating within the meaning of the statuteand the
limits on governmental action imposed by the Constitution. Of course
what we mean by fact in each case is itselfan ultimate conclusion
founded on underlying facts and oncriteria of judgment for weighing
them.
A conventional formulation is that legislative facts — those facts which
are relevant to the legislative judgment — will not be canvassed save to
determine whether there is a rationalbasis for believing that they exist,
while adjudicativefacts — those which tie the legislative enactment to
the litigant — are to be demonstrated and found according to the
ordinarystandards prevailing for judicial trials. 36
The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs.
Garcia, 38 is that 'if laws are seen to have a reasonable relation to a proper legislative
purpose, and are neither arbitrary nor discriminatory, the requirements of due process are
satisfied, and judicial determination to that effect renders a court functus officio." The recital
of legislative findings implements this test.
With respect to a similar statement of legislative findingsin the U.S. Federal Subversive
Activities Control Actof 1950 (that "Communist-action organizations" are controlledby the
foreign government controlling the worldCommunist movement and that they operate
primarily to"advance the objectives of such world Communist movement"),the U.S. Supreme
Court said:
It is not for the courts to reexamine the validity of theselegislative
findings and reject them....They are the productof extensive investigation
by Committes of Congress over morethan a decade and a half. Cf. Nebbia
v. New York, 291 U.S.502, 516, 530. We certainly cannot dismiss them as
unfoundedirrational imaginings. ... And if we accept them, as we mustas
a not unentertainable appraisal by Congress of the threatwhich
Communist organizations pose not only to existing governmentin the
United States, but to the United States as asovereign, independent
Nation. ...we must recognize that thepower of Congress to regulate
Communist organizations of thisnature is
extensive. 39
This statement, mutatis mutandis, may be said of thelegislative findings articulated in the
Anti-Subversion Act.
That the Government has a right to protect itself againstsubversion is a proposition too plain
to require elaboration.Self-preservation is the "ultimate value" of society. It surpasses and
transcendes every other value, "forif a society cannot protect its very structure from
armedinternal attack, ...no subordinate value can be protected" 40 As Chief Justice Vinson so
aptly said in Dennis vs. United States: 41
Whatever theoretical merit there may be to the argumentthat there is a
'right' to rebellion against dictatorial governmentsis without force where
the existing structure of government provides for peaceful and orderly
change. We rejectany principle of governmental helplessness in the face
of preparationfor revolution, which principle, carried to its logical
conclusion,must lead to anarchy. No one could conceive that it isnot
within the power of Congress to prohibit acts intended tooverthrow the
government by force and violence.
2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4
thereof), Congressreaffirmed its respect for the rule that "even throughthe governmental
purpose be legitimate and substantial,that purpose cannot be pursued by means that
broadly stiflefundamental personal liberties when the end can be more narrowly
achieved." 42 The requirement of knowing membership,as distinguished
from nominal membership, hasbeen held as a sufficient basis for penalizing membershipin a
subversive organization. 43 For, as has been stated:
Membership in an organization renders aid and encouragement to the
organization; and when membership is acceptedor retained with
knowledge that the organization is engaged inan unlawful purpose, the
one accepting or retaining membershipwith such knowledge makes
himself a party to the unlawfulenterprise in which it is engaged. 44
3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks
of "overthrow"of the Government and overthrow may be achieved by peaceful means,
misconceives the function of the phrase"knowingly, willfully and by overt acts" in section 4.
Section 2 is merely a legislative declaration; the definitionsof and the penalties prescribed for
the different acts prescribedare stated in section 4 which requires that membershipin the
Communist Party of the Philippines, to be unlawful, must be acquired "knowingly, willfully
and by overt acts." Indeed, the first "whereas" clause makes clear thatthe overthrow
contemplated is "overthrow not only by forceand violence but also be deceit, subversion and
other illegalmeans." The absence of this qualificatio in section 2 appearsto be due more to an
oversight rather than to deliberateomission.
Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal
means. Only in a metaphoricalsense may one speak of peaceful overthrow ofgovernments,
and certainly the law does not speak in metaphors.In the case of the Anti-Subversion Act, the
use ofthe word "overthrow" in a metaphorical sense is hardlyconsistent with the clearly
delineated objective of the "overthrow,"namely, "establishing in the Philippines a
totalitarianregime and place [sic] the Government under thecontrol and domination of an
alien power." What thisCourt once said in a prosecution for sedition is appropos: "The
language used by the appellant clearly imported anoverthrow of the Government by
violence, and it should beinterpreted in the plain and obvious sense in which it wasevidently
intended to be understood. The word 'overthrow'could not have been intended as referring
to an ordinarychange by the exercise of the elective franchise. The useof the whip [which the
accused exhorted his audience to useagainst the Constabulary], an instrument designed
toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation which
the appellant wouldhave us impute to the language." 45
IV. The Act and the Guaranty of Free Expression
As already pointed out, the Act is aimed against conspiracies to overthrow the Government
by force, violence orother illegal means. Whatever interest in freedom of speechand
freedom of association is infringed by the prohibitionagainst knowing membership in the
Communist Party ofthe Philippines, is so indirect and so insubstantial as to beclearly and
heavily outweighed by the overriding considerationsof national security and the
preservartion of democraticinstitutions in his country.
The membership clause of the U.S. Federal Smith Actis similar in many respects to the
membership provision ofthe Anti-Subversion Act. The former provides:
Whoever organizes or helps or attempts to organize anysociety, group, or
assembly of persons who teach, advocate, orencourage the overthrow or
destruction of any such governmentby force or violence; or becomes or is
a member of, or affiliatedwith, any such society, group or assembly of
persons, knowingthe purpose thereof —
Shall be fined not more than $20,000 or imprisoned notmore than twenty
years, or both, and shall be ineligible for emplymentby the United States
or any department or agencythereof, for the five years next following his
conviction.... 46
In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47
It was settled in Dennis that advocacy with which we arehere concerned
is not constitutionally protected speech, and itwas further established
that a combination to promote suchadvocacy, albeit under the aegis of
what purports to be a politicalparty, is not such association as is
protected by the firstAmendment. We can discern no reason why
membership, whenit constitutes a purposeful form of complicity in a
group engagingin this same forbidden advocacy, should receive
anygreater degree of protection from the guarantees of that
Amendment.
Moreover, as was held in another case, where the problemsof accommodating the exigencies
of self-preservationand the values of liberty are as complex and intricate as inthe situation
described in the legislative findings stated inthe U.S. Federal Subversive Activities Control Act
of 1950,the legislative judgment as to how that threat may best bemet consistently with the
safeguards of personal freedomsis not to be set aside merely because the judgment of
judgeswould, in the first instance, have chosen other methods. 48 For in truth, legislation,
"whether it restrains freedom tohire or freedom to speak, is itself an effort at
compromisebetween the claims of the social order and individual freedom,and when the
legislative compromise in either case isbrought to the judicial test the court stands one step
removedfrom the conflict and its resolution through law." 49
V. The Act and its Title
The respondent Tayag invokes the constitutional commandthat "no bill which may be
enacted into law shall embrace more than one subject which shall be expressed in the title of
the bill." 50
What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of
section 4 which reads:
And provided, finally, That one who conspires with anyother person to
overthrow the Government of the Republic ofthe Philippines, or the
government of any of its political subdivisionsby force, violence, deceit,
subversion or illegal means,for the purpose of placing such Government
or political subdivisionunder the control and domination of any lien
power, shallbe punished by prision correccional to prision mayor with
allthe accessory penalties provided therefor in the same code.
It is argued that the said proviso, in reality, punishes notonly membership in the Communist
Party of the Philippinesor similar associations, but as well "any conspiracyby two persons to
overthrow the national or any local governmentby illegal means, even if their intent is not to
establisha totalitarian regime, burt a democratic regime, evenif their purpose is not to place
the nation under an aliencommunist power, but under an alien democratic power likethe
United States or England or Malaysia or even an anti-communistpower like Spain, Japan,
Thailand or Taiwanor Indonesia."
The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the
Philippines and SimilarAssociations, Penalizing Membership Therein, and forOther
Purposes"), has a short title. Section 1 providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally
indicates that the subject matter is subversionin general which has for its fundamental
purpose the substitutionof a foreign totalitarian regime in place of theexisting Government
and not merely subversion by Communistconspiracies..
The title of a bill need not be a catalogue or an indexof its contents, and need not recite the
details of the Act. 51 It is a valid title if it indicates in broad but clear termsthe nature, scope,
and consequences of the proposed lawand its operation. 52 A narrow or technical
construction isto be avoided, and the statute will be read fairly and reasonablyin order not to
thwart the legislative intent. We holdthat the Anti-Subversion Act fully satisfies these
requirements.

VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot

overemphasize the needfor prudence and circumspection in its enforcement, operatingas it
does in the sensitive area of freedom of expressionand belief. Accordingly, we set the
following basic guidelines to be observed in any prosecution under the Act.The Government,
in addition to proving such circumstancesas may affect liability, must establish the following
elementsof the crime of joining the Communist Party of the Philippinesor any other
subversive association:

(1) In the case of subversive organizations other thanthe Communist Party of the Philippines,
(a) that thepurpose of the organization is to overthrow the presentGovernment of the
Philippines and to establish in thiscountry a totalitarian regime under the domination of
aforeign power; (b) that the accused joined such organization;and (c) that he did so
knowingly, willfully and byovert acts; and

(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue
the objectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the
overthrow of the Government by illegalmeans for the purpose of placing the country under
thecontrol of a foreign power; (b) that the accused joined theCPP; and (c) that he did so
willfully, knowingly and byovert acts.

We refrain from making any pronouncement as to thecrime or remaining a member of the

Communist Party ofthe Philippines or of any other subversive association: weleave this
matter to future determination.

ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two
cases are herebyremanded to the court a quo for trial on the merits. Costs de oficio.

Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.

Concepcion, C.J., concurs in the result.

Makasiar and Antonio, JJ., took no part.

 Republic of the Philippines On January 30, 2002, XXX requested his mother to pick up Ricalde at McDonald’s Bel-Air, Sta.
SUPREME COURT Rosa at past 8:00 p.m.9 Ricalde, then 31 years old,10 is a distant relative and textmate of XXX,
Manila then 10 years old.11

SECOND DIVISION After dinner, XXX’s mother told Ricalde to spend the night at their house as it was late.12 He
slept on the sofa while XXX slept on the living room floor.13
G.R. No. 211002 January 21, 2015
It was around 2:00 a.m. when XXX awoke as "he felt pain in his anus and stomach and
RICHARD RICALDE, Petitioner, something inserted in his anus."14 He saw that Ricalde "fondled his penis."15 When Ricalde
vs. returned to the sofa, XXX ran toward his mother’s room to tell her what happened.16 He also
PEOPLE OF THE PHILIPPINES, Respondent. told his mother that Ricalde played with his sexual organ.17

DECISION XXX’s mother armed herself with a knife for self-defense when she confronted Ricalde about
the incident, but he remained silent.18 She asked him to leave.19
LEONEN, J.:
XXX’s mother then accompanied XXX to the barangay hall where they were directed to report
the incident to the Sta. Rosa police station.20 The police referred them to the municipal
Even men can become victims of rape.
health center for medical examination.21 Dr. Roy Camarillo examined22 XXX and found no
signs of recent trauma in his anal orifice23 that was also "NEGATIVE for [s]permatozoa."24
Before us is a criminal case for rape through sexual assault committed against a 10-year-old
boy. Accused Richard Ricalde (Ricalde) was charged with rape as described under the second
On February 4, 2002, XXX and his mother executed their sworn statements at the Sta. Rosa
paragraph of Section 266-A of the Revised Penal Code, committed "[b ]y any person who,
police station, leading to the criminal complaint filed against Ricalde.25
under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of
sexual assault by inserting his penis into another person's mouth or anal orifice, or any
instrument or object, into the genital or anal orifice of another person." 1 Ricalde denied the accusations.26 He testified that he met XXX during the 2001 town fiesta of
Calaca, Batangas and learned that XXX’s mother is the cousin of his cousin Arlan Ricalde. 27 He
and XXX became textmates, and XXX invited him to his house. 28 On January 30, 2002, XXX’s
This is a Petition for Review2 assailing the Court of Appeals’ August 28, 2013
mother picked him up to sleep at their house.29 He slept at 10:00 p.m. on the living room sofa
Decision3 affirming Ricalde’s conviction for rape through sexual assault and January 15, 2014
while XXX slept on the floor.30 He denied the alleged rape through sexual assault.31
Resolution4 denying reconsideration.

The Regional Trial Court in its Decision32 dated June 20, 2011 found Ricalde guilty beyond
The Provincial Prosecutor of Biñan, Laguna filed an Information charging Ricalde of rape
reasonable doubt of rape through sexual assault:
through sexual assault:

WHEREFORE, this Court finds accused Richard Ricalde guilty beyond reasonable doubt of the
That on or about January 31, 2002, in the Municipality of Sta. Rosa, Province of Laguna,
crime of rape by sexual assault and, accordingly, sentences him to suffer the penalty of
Philippines, and within the jurisdiction of this Honorable Court, accused Richard Ricalde,
imprisonment ranging from four (4) years, two (2) months and one (1) day of prision
prompted with lewd design, did then and there willfully, unlawfully and feloniously inserting
correccional as minimum, to eight (8) years of prision mayor as maximum. Accused is
[sic] his penis into the anus of XXX who was then ten (10) years of age against his will and
ordered to pay [XXX] the sums of 50,000.00 as moral damages and 50,000.00 as civil
consent, to his damage and prejudice.
indemnity.

CONTRARY TO LAW.5
SO ORDERED.33

Ricalde pleaded not guilty during his arraignment on August 21, 2002.6 The prosecution
The Court of Appeals in its Decision34 dated August 28, 2013 affirmed the conviction with the
presented the victim (XXX),7 his mother, and the medico-legal as witnesses, while the
modification of lowering the amounts of damages awarded:
defense presented Ricalde as its sole witness.8

WHEREFORE, the Decision dated 20 June 2011 of Branch 34 of the Regional Trial Court of
The facts as found by the lower courts follow.
Calamba, Laguna, in Crim. Case No. 11906-B, is AFFIRMED but with MODIFICATION as to the
award of damages. Accused-appellant RICHARD RICALDE is ordered to pay the victim civil
indemnity in the amount of Thirty Thousand (30,000.00) Pesos and moral damages likewise
in the amount of Thirty Thousand (30,000.00) Pesos, both with interest at the legal rate of six
(6%) percent per annum from the date of finality of this judgment until fully paid.35
Ricalde filed this Petition praying for his acquittal.36
Petitioner argues the existence of reasonable doubt in his favor. First, the medico-legal
testified that he found "no physical signs or external signs of recent trauma [in XXX’s]
anus,"37 or any trace of spermatozoa.38 He contends that physical evidence "ranks high in
[the court’s] hierarchy of trustworthy evidence." 39
Second, XXX did not categorically say that a penis was inserted into his anal orifice, or that he
saw a penis or any object being inserted into his anal orifice.40 XXX was also able to
immediately push him away.41 Thus, no push and pull movement happened that would
explain XXX’s alleged stomach ache.42 Petitioner submits that the alleged stomach ache was
an attempt to aggravate the charge against him.43
Petitioner argues that XXX’s inconsistent testimony raises reasonable doubt on his
guilt.44 XXX claimed that he immediately pushed petitioner away, but in another instance, he
testified as follows: "I felt that he was inserting his penis inside my anus because I was even
able to hold his penis. He was also playing with my penis."45 XXX also stated in his salaysay
that "the penis reached only the periphery of his anal orifice."46
Third, XXX testified that after he had pushed petitioner away, he saw that petitioner was
wearing pants with the zipper open.47 Petitioner submits that performing anal coitus while
wearing pants with an open zipper poses a challenge — the risk of injuring the sexual organ
or having pubic hair entangled in the zipper. 48 Petitioner argues that the court must consider
every circumstance favoring the innocence of an accused. 49
Assuming he committed an offense, petitioner contends that the court should have applied
the "variance doctrine" in People v. Sumingwa,50 and the court would have found him guilty
for the lesser offense of acts of lasciviousness under Article 336 of the Revised Penal
Code.51 The petition then enumerated circumstances showing possible homosexual
affections between petitioner and XXX.52 These include the fact that they were textmates
and that petitioner played with XXX’s penis.53
Petitioner argues that this masturbation could have caused an irritation that XXX mistook as
penetration.54 XXX could also have mistaken the "overreaching fingers as a male organ trying
to enter his [anus]."55 Assuming these acts took place, these would only be considered as
acts of lasciviousness.56
The People of the Philippines counters that the prosecution proved beyond reasonable doubt
all elements of the crime charged.
The Comment57 discussed that it is neither improbable nor contrary to human experience
that XXX’s mother allowed her son to be left alone with a stranger. 58 Petitioner was not a
complete stranger, and she could not have foreseen such abuse since "rape by sexual assault
or any form of sexual abuse of a boy by a grown man is fairly uncommon in our culture."59
Petitioner’s reliance on the medico-legal’s findings deserves scant consideration.60 The
Comment quoted People v. Penilla61 in that "[a] medical examination of the victim is not
indispensable in a prosecution for rape inasmuch as the victim’s testimony alone, if credible,
is sufficient to convict the accused of the crime."62 In any case, the medico-legal testified on
the sphincter’s flexibility and how an insertion into the anal orifice would not necessarily
cause injury.63
Lastly, the prosecution established all elements of rape through sexual assault based on
XXX’s clear and categorical testimony.64 Petitioner’s defense of mere denial cannot outweigh
positive testimony.65 Consequently, petitioner’s contention that the incident only amounts to
acts of lasciviousness lacks merit.66
The issue before us for resolution is whether the prosecution proved beyond reasonable
doubt petitioner Richard Ricalde’s guilt for the crime of rape through sexual assault.
We affirm petitioner’s conviction with modification on the penalty imposed.
The Anti-Rape Law of 199767 classified rape as a crime against persons68 and amended the
Revised Penal Code to include Article 266-A on rape through sexual assault:
Article 266–A. Rape; When and How Committed.—Rape is Committed—
1) By a man who shall have carnal knowledge of a woman under any of the
following circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise
unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is
demented, even though none of the circumstances mentioned above be
present;
2) By any person who, under any of the circumstances mentioned in paragraph 1
hereof, shall commit an act of sexual assault by inserting his penis into another
person’s mouth or anal orifice, or any instrument or object, into the genital or anal
orifice of another person. (Emphasis supplied)
Rape under the second paragraph of Article 266-A is also known as "instrument or object
rape,"69 "gender-free rape,"70 or "homosexual rape."71 The gravamen of rape through sexual
assault is "the insertion of the penis into another person’s mouth or anal orifice, or any
instrument or object, into another person’s genital or anal orifice." 72
Jurisprudence holds that "the findings of the trial court, its calibration of the testimonies of
the witnesses, and its assessment of the probative weight thereof, as well as its conclusions
anchored on said findings are accorded respect if not conclusive effect."73
The trial court found that XXX’s "straightforward, unequivocal and convincing
testimony"74 sufficiently proved that petitioner committed an act of sexual assault by
inserting his penis into XXX’s anal orifice.75 There was no showing of ill motive on the part of
XXX to falsely accuse petitioner.76 The Court of Appeals accorded great weight to the trial
court’s findings and affirmed petitioner’s conviction.77
No cogent reason exists for this court to overturn the lower courts’ findings.
First, petitioner’s argument highlighting alleged inconsistencies in XXX’s testimony fails to
convince.
In a long line of cases,78 this court has given full weight and credit to the testimonies of child
victims. Their "[y]outh and immaturity are generally badges of truth and sincerity."79 XXX,
then only 10 years old, had no reason to concoct lies against petitioner.80
This court has also held that "[l]eeway should be given to witnesses who are minors,
especially when they are relating past incidents of abuse."81
Petitioner contends that XXX did not categorically say that a penis was inserted into his anal
orifice, or that he saw a penis or any object being inserted into his anal orifice.
This contradicts petitioner’s earlier statement in his appellant’s brief82 that "[a]lthough it is
true that the Supreme Court, in a long line of cases, did not rule out the possibility of rape in
cases where the victim remained physically intact at the time she or he was physically
examined, still, it bears stressing that in the instant case, the private complainant testified
that the accused-appellant’s penis fully penetrated his anus."83
The trial court also quoted portions of the transcript of XXX’s testimony in that he "felt
something was inserted in [his] anus."84
Q: That early morning of January 31, 2002, while you were sleeping at your house,
do you recall any unusual incident that happened to you?
A: Yes sir, I felt something was inserted in my anus.
....
Q: When you said that you felt something was inserted in your anus, what did you
do?
A: I felt that he was inserting his penis inside my anus because I was even able to
hold his penis. He was also playing with my penis.
Q: So when you said he was inserting his penis to your anus and he was even
playing with your private part, who is this person you are referring to as "he"?
A: Richard, sir.85
In People v. Soria,86 this court discussed that a victim need not identify what was inserted
into his or her genital or anal orifice for the court to find that rape through sexual assault was
committed:
We find it inconsequential that "AAA" could not specifically identify the particular instrument
or object that was inserted into her genital. What is important and relevant is that indeed
something was inserted into her vagina. To require "AAA" to identify the instrument or
object that was inserted into her vagina would be contrary to the fundamental tenets of due
process.87
Second, petitioner’s reliance on the medico-legal’s finding of no recent trauma in XXX’s anal
orifice, or any trace of spermatozoa, lacks merit. The absence of spermatozoa in XXX’s anal
orifice does not negate the possibility of an erection and penetration. This result does not
contradict the positive testimony of XXX that the lower courts found credible, natural, and
consistent with human nature.
This court has explained the merely corroborative character of expert testimony and the
possibility of convictions for rape based on the victim’s credible lone testimony.88
In any case, the medico-legal explained that his negative finding of trauma in the anal orifice
does not remove the possibility of an insertion considering the flexibility of the sphincter:
Q: Now, a while ago you testified that he was sodomized and your findings states [sic] that
you did not find any congestion or abrasion, can you explain to this court why you stated in
your findings that you did not find any congestion or abrasion?
A: Again, based on my examination[,] there were no external signs of recent trauma to the
anus. It should be realized that the sphincter, that is the particular portion of the anus
controlling the bowel movement, it exhibits a certain flexibility such that it can resist any
objected [sic] inserted and that area is very vascular, meaning to say, it is rich in blood
supply, such that any injuries would be healed in 24 hours or less than 24 hours, sir?89
Lastly, we address petitioner’s invocation of the "variance doctrine" citing People v.
Sumingwa.90 Section 4 in relation to Section 5 of Rule 120 of the Rules on Criminal Procedure
provides for the "variance doctrine":
SEC. 4. Judgment in case of variance between allegation and proof.—When there is variance
between the offense charged in the complaint or information and that proved, and the
offense as charged is included in or necessarily includes the offense proved, the accused shall
be convicted of the offense proved which is included in the offense charged, or of the
offense charged which is included in the offense proved.
SEC. 5. When an offense includes or is included in another.—An offense charged necessarily
includes the offense proved when some of the essential elements or ingredients of the
former, as alleged in the complaint or information, constitute the latter. And an offense
charged is necessarily included in the offense proved, when the essential ingredients of the
former continue or form part of those constituting the latter.
In Sumingwa, the accused in Criminal Case Nos. 1649 and 1654 was charged with qualified
rape but was convicted for the lesser offense of acts of lasciviousness committed against a
child under Article III, Section 5(b) of Republic Act No. 761091 since "there was no
penetration, or even an attempt to insert [the accused’s] penis into [the victim’s] vagina."92
In the instant case, no variance exists between what was charged and what was proven
during trial. The prosecution established beyond reasonable doubt all elements of the crime
of rape through sexual assault.
XXX testified that he "felt something was inserted [into his] anus."93 The slightest penetration
into one’s sexual organ distinguishes an act of lasciviousness from the crime of rape. People
v. Bonaagua94 discussed this distinction:
It must be emphasized, however, that like in the crime of rape whereby the slightest
penetration of the male organ or even its slightest contact with the outer lip or the labia
majora of the vagina already consummates the crime, in like manner, if the tongue, in an act
of cunnilingus, touches the outer lip of the vagina, the act should also be considered as
already consummating the crime of rape through sexual assault, not the crime of acts of
lasciviousness. Notwithstanding, in the present case, such logical interpretation could not be
applied. It must be pointed out that the victim testified that Ireno only touched her private
part and licked it, but did not insert his finger in her vagina. This testimony of the victim,
however, is open to various interpretation, since it cannot be identified what specific part of
the vagina was defiled by Ireno. Thus, in conformity with the principle that the guilt of an
accused must be proven beyond reasonable doubt, the statement cannot be the basis for
convicting Ireno with the crime of rape through sexual assault.95 (Emphasis supplied)
People v. Bonaagua considers a woman’s private organ since most if not all existing
jurisprudence on rape involves a woman victim. Nevertheless, this interpretation can apply
by analogy when the victim is a man in that the slightest penetration to the victim’s anal
orifice consummates the crime of rape through sexual assault.
The gravamen of the crime is the violation of the victim’s dignity. The degree of penetration
is not important. Rape is an "assault on human dignity."96
People v. Quintos97 discussed how rape causes incalculable damage on a victim’s dignity,
regardless of the manner of its commission:
The classifications of rape in Article 266-A of the Revised Penal Code are relevant only insofar
as these define the manners of commission of rape. However, it does not mean that one
manner is less heinous or wrong than the other. Whether rape is committed by
nonconsensual carnal knowledge of a woman or by insertion of the penis into the mouth of
another person, the damage to the victim’s dignity is incalculable. Child sexual abuse in
general has been associated with negative psychological impacts such as trauma, sustained
fearfulness, anxiety, self-destructive behavior, emotional pain, impaired sense of self, and
interpersonal difficulties. Hence, one experience of sexual abuse should not be trivialized just
because it was committed in a relatively unusual manner.
"The prime purpose of [a] criminal action is to punish the offender in order to deter him and
others from committing the same or similar offense, to isolate him from society, reform and
rehabilitate him or, in general, to maintain social order." Crimes are punished as retribution
so that society would understand that the act punished was wrong.
Imposing different penalties for different manners of committing rape creates a message
that one experience of rape is relatively trivial or less serious than another. It attaches
different levels of wrongfulness to equally degrading acts. Rape, in whatever manner, is a
desecration of a person’s will and body. In terms of penalties, treating one manner of
committing rape as greater or less in heinousness than another may be of doubtful
constitutionality.
However, the discriminatory treatment of these two acts with the same result was not raised
in this case. Acknowledging that every presumption must be accorded in favor of accused in
criminal cases, we have no choice but to impose a lesser penalty for rape committed by
inserting the penis into the mouth of the victim.98 (Citations omitted)
We affirm petitioner’s conviction but modify the penalty imposed by the lower court to the
penalty under Article III, Section 5(b) of Republic Act No. 7610 known as the "Special
Protection of Children Against Child Abuse, Exploitation and Discrimination Act":99
SEC. 5. Child Prostitution and Other Sexual Abuse.— Children, whether male or female, who
for money, profit, or any other consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be
children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpertua shall be
imposed upon the following:
....
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim
is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code,
for rape or lascivious conduct, as the case maybe: Provided, That the penalty for lascivious
conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its
medium period; (Emphasis supplied)
The Implementing Rules and Regulations of Republic Act No. 7610 defines "lascivious
conduct": [T]he intentional touching, either directly or through clothing, of the genitalia,
anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the
genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent
to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person,
bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.100
In People v. Chingh,101 the accused was charged with rape "for inserting his fingers and
afterwards his penis into the private part of his minor victim[.]"102 The Court of Appeals
found the accused guilty of two counts of rape: statutory rape and rape through sexual
assault.103 This court modified the penalty imposed for rape through sexual assault to the
penalty provided in Article III, Section 5(b) of Republic Act No. 7610, discussing as follows:
It is undisputed that at the time of the commission of the sexual abuse, VVV was ten (10)
years old. This calls for the application of R.A. No. 7610, or "The Special Protection of
Children Against Child Abuse, Exploitation and Discrimination Act," which defines sexual
abuse of children and prescribes the penalty therefor in Section 5(b), Article III, to wit:
....
In this case, the offended party was ten years old at the time of the commission of the
offense. Pursuant to the above-quoted provision of law, Armando was aptly prosecuted
under paragraph 2, Article 266-A of the Revised Penal Code, as amended by R.A. No. 8353,
for Rape Through Sexual Assault. However, instead of applying the penalty prescribed
therein, which is prision mayor, considering that VVV was below 12 years of age, and
considering further that Armando’s act of inserting his finger in VVV’s private part undeniably
amounted to lascivious conduct, the appropriate imposable penalty should be that provided
in Section 5 (b), Article III of R.A. No. 7610, which is reclusion temporal in its medium period.
The Court is not unmindful to the fact that the accused who commits acts of lasciviousness
under Article 366, in relation to Section 5 (b), Article III of R.A. No. 7610, suffers the more
severe penalty of reclusion temporal in its medium period than the one who commits Rape
Through Sexual Assault, which is merely punishable by prision mayor. This is undeniably
unfair to the child victim. To be sure, it was not the intention of the framers of R.A. No. 8353
to have disallowed the applicability of R.A. No. 7610 to sexual abuses committed to children.
Despite the passage of R.A. No. 8353, R.A. No. 7610 is still good law, which must be applied
when the victims are children or those "persons below eighteen (18) years of age or those
over but are unable to fully take care of themselves or protect themselves from abuse,
neglect, cruelty, exploitation or discrimination because of a physical or mental disability or
condition."104 (Emphasis supplied, citations omitted)
Thus, "for Rape Through Sexual Assault under paragraph 2, Article 266-A, [the accused
Chingh was] sentenced to suffer the indeterminate penalty of twelve (12) years, ten (10)
months and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years,
six (6) months, and twenty (20) days of reclusion temporal, as maximum."105
The imposable penalty under Republic Act No. 7610, Section 5(b) "for lascivious conduct
when the victim is under twelve (12) years of age shall be reclusion temporal in its medium
period." This penalty is higher than the imposable penalty of prision correccional for acts of
lasciviousness under Article 336 of the Revised Penal Code.
In enacting Republic Act No. 7610, the legislature intended to impose a higher penalty when
the victi m is a child.
The fact that XXX was only 10 years old when the incident happened was established by his
birth certificate, and this was admitted by the defense.106 His age of 10 years old was alleged
in the Information.107 The higher penalty under Republic Act No. 7610, as discussed in People
v. Chingh, applies in this case.
Having sex with a 10-year-old is child abuse and is punished by a special law (Republic Act No.
7610). It is a progression from the Revised Penal Code to provide greater protection for
children. Justice Velasco suggests that this is not so. He anchors his view on his interpretation
that Republic Act No. 7610 requires a showing that apart from the actual coerced sexual act
on the 10-year-old, the child must also be exploited by prostitution or by other sexual acts.
This view is inaccurate on grounds of verba legis and ratione legis.
The first paragraph of Article III, Section 5 of Republic Act No. 7610 clearly provides that
"children . . . who . . . due to the coercion . . . of any adult . . . indulge in sexual intercourse . . .
are deemed to be children exploited in prostitution and other sexual abuse." The label
"children exploited in . . . other sexual abuse" inheres in a child who has been the subject of
coercion and sexual intercourse.
Thus, paragraph (b) refers to a specification only as to who is liable and the penalty to be
imposed. The person who engages in sexual intercourse with a child already coerced is liable.
It does not make sense for the law not to consider rape of a child as child abuse. The
proposal of Justice Velasco implies that there has to be other acts of a sexual nature other
than the rape itself that will characterize rape as child abuse. One count of rape is not
enough. Child abuse, in his view, is not yet present with one count of rape.
This is a dangerous calculus which borders on judicial insensitivity to the purpose of the law.
If we adopt his view, it would amount to our collective official sanction to the idea that a
single act of rape is not debilitating to a child. That a single act of rape is not a tormenting
memory that will sear into a child’s memory, frame his or her view of the world, rob him or
her of the trust that will enable him or her to have full and diverse meaningful interactions
with other human beings. In my view, a single act of sexual abuse to a child, by law, is already
reprehensible. Our society has expressed that this is conduct which should be punishable.
The purpose and text of the law already punish that single act as child abuse.

Rape is rape. Rape of a child is clearly, definitely, and universally child abuse.

Justice Velasco further observes that the right to due process of the accused will be violated
should we impose the penalty under Republic Act No. 7610. I disagree.

The Information was clear about the facts constitutive of the offense. The facts constitutive
of the offense will suggest the crime punishable by law. The principle is that ignorantia legis
non excusat. With the facts clearly laid out in the Information, the law which punishes the
offense should already be clear and the accused put on notice of the charges against him.

Additionally, there is no argument that the accused was not represented by counsel. Clear
from the records is the entry and active participation of his lawyer up to and including this
appeal.

On the award of damages, we maintain the amount of 30,000.00 in favor of XXX as a victim
of rape through sexual assault, consistent with jurisprudence. 108

This court has stated that "jurisprudence from 2001 up to the present yields the information
that the prevailing amount awarded as civil indemnity to victims of simple rape committed
by means other than penile insertion is ₱30,000."109

This statement considered the prevailing situation in our jurisprudence where victims of rape
are all women.1âwphi1However, as in this case, men can also become victims of rape
through sexual assault, and this can involve penile insertion.

WHEREFORE, the Court of Appeals Decision in CA-G.R. C.R. No. 34387 dated August 28, 2013
is AFFIRMED with MODIFICATION in that for rape through sexual assault under Article 266-A,
paragraph 2, accused-appellant Richard Ricalde is sentenced to suffer the indeterminate
penalty of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion
temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion
temporal, as maximum. He is ordered to pay the victim civil indemnity in the amount of
₱30,000.00 and moral damages likewise in the amount of ₱30,000.00, both with interest at
the legal rate of 6% per annum from the date of finality of this judgment until fully paid.

SO ORDERED.

MARVIC M.V.F. LEONEN

Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 113213 August 15, 1994
PAUL JOSEPH WRIGHT, petitioner,
vs.
HON. COURT OF APPEALS, HON. JUDGE JOSE DE LA RAMA, RTC, BRANCH 139, MAKATI,
M.M. and HON. FRANK DRILON, SECRETARY OF JUSTICE, respondents.
Rodrigo E. Mallari for petitioner.
Aurora Salva Bautista collaborating for petitioner.
KAPUNAN, J.:
A paramount principle of the law of extradition provides that a State may not surrender any
individual for any offense not included in a treaty of extradition. This principle arises from the
reality of extradition as a derogation of sovereignty. Extradition is an intrusion into the
territorial integrity of the host State and a delimitation of the sovereign power of the State
within its own territory. 1 The act of extraditing amounts to a "delivery by the State of a
person accused or convicted of a crime, to another State within whose territorial jurisdiction,
actual or constructive, it was committed and which asks for his surrender with a view to
execute justice." 2 As it is an act of "surrender" of an individual found in a sovereign State to
another State which demands his surrender 3 , an act of extradition, even with a treaty
rendered executory upon ratification by appropriate authorities, does not imposed an
obligation to extradite on the requested State until the latter has made its own
determination of the validity of the requesting State's demand, in accordance with the
requested State's own interests.
The principles of international law recognize no right of extradition apart from that arising
from treaty. 4 Pursuant to these principles, States enter into treaties of extradition principally
for the purpose of bringing fugitives of justice within the ambit of their laws, under
conventions recognizing the right of nations to mutually agree to surrender individuals within
their jurisdiction and control, and for the purpose of enforcing their respective municipal
laws. Since punishment of fugitive criminals is dependent mainly on the willingness of host
State to apprehend them and revert them to the State where their offenses were
committed, 5 jurisdiction over such fugitives and subsequent enforcement of penal laws can
be effectively accomplished only by agreement between States through treaties of
extradition.
Desiring to make more effective cooperation between Australia and the Government of the
Philippines in the suppression of crime, 6 the two countries entered into a Treaty of
Extradition on the 7th of March 1988. The said treaty was ratified in accordance with the
provisions of Section 21, Article VII of the 1987 Constitution in a Resolution adopted by the
Senate on September 10, 1990 and became effective thirty (30) days after both States
notified each other in writing that the respective requirements for the entry into force of the
Treaty have been complied with. 7
The Treaty adopts a "non-list, double criminality approach" which provides for broader
coverage of extraditable offenses between the two countries and (which) embraces crimes
punishable by imprisonment for at least one (1) year. Additionally, the Treaty allows
extradition for crimes committed prior to the treaty's date of effectivity, provided that these
crimes were in the statute books of the requesting State at the time of their commission.
Under the Treaty, each contracting State agrees to extradite. . . "persons
. . . wanted for prosecution of the imposition or enforcement of a sentence in the Requesting
State for an extraditable offense." 8 A request for extradition requires, if the person is
accused of an offense, the furnishing by the requesting State of either a warrant for the
arrest or a copy of the warrant of arrest of the person, or, where appropriate, a copy of the
relevant charge against the person sought to be extradited. 9
In defining the extraditable offenses, the Treaty includes all offenses "punishable under the
Laws of both Contracting States by imprisonment for a period of at least one (1) year, or by a
more severe penalty." 10 For the purpose of the definition, the Treaty states that:
(a) an offense shall be an extraditable offense whether or not the laws of
the Contracting States place the offense within the same category or
denominate the offense by the same terminology;
(b) the totality of the acts or omissions alleged against the person whose
extradition is requested shall be taken into account in determining the
constituent elements of the offense. 11
Petitioner, an Australian Citizen, was sought by Australian authorities for indictable crimes in
his country. Extradition proceedings were filed before the Regional Trial Court of Makati,
which rendered a decision ordering the deportation of petitioner. Said decision was
sustained by the Court of Appeals; hence, petitioner came to this Court by way of review
on certiorari, to set aside the order of deportation. Petitioner contends that the provision of
the Treaty giving retroactive effect to the extradition treaty amounts to an ex post facto law
which violates Section 21 of Article VI of the Constitution. He assails the trial court's decision
ordering his extradition, arguing that the evidence adduced in the court below failed to show
that he is wanted for prosecution in his country. Capsulized, all the principal issues raised by
the petitioner before this Court strike at the validity of the extradition proceedings instituted
by the government against him.
The facts, as found by the Court of Appeals, 12 are undisputed:
On March 17, 1993, Assistant Secretary Sime D. Hidalgo of the
Department of Foreign Affairs indorsed to the Department of Justice
Diplomatic Note No. 080/93 dated February 19, 1993 from the
Government of Australia to the Department of Justice through Attorney
General Michael Duffy. Said Diplomatic Note was a formal request for the
extradition of Petitioner Paul Joseph Wright who is wanted for the
following indictable crimes:
1. Wright/Orr Matter — one count of Obtaining Property by Deception
contrary to Section 81(1) of the Victorian Crimes Act of 1958; and
2. Wright/Cracker Matter — Thirteen (13) counts of Obtaining Properties
by Deception contrary to Section 81(1) of the Victorian Crimes Act of
1958; one count of attempting to Obtain Property by Deception contrary
to Section 321(m) of Victorian Crimes Act of 1958; and one count of
Perjury contrary to Section 314 of Victorian Crimes Act of 1958, which
crimes were allegedly committed in the following manner:
The one (1) count of Obtaining Property by Deception
contrary to Section 81 (1) of the Victorian Crimes Act
of 1958 constitutes in Mr. Wright's and co-offender,
Herbert Lance Orr's, dishonesty in obtaining $315,250
from Mulcahy, Mendelson and Round Solicitors
(MM7R), secured by a mortgage on the property in
Bangholme, Victoria owned by Ruven Nominees Pty.
Ltd., a company controlled by a Rodney and a
Mitchell, by falsely representing that all the relevant
legal documents relating to the mortgage had been
signed by Rodney and Janine Mitchell.
The thirteen (13) counts of Obtaining Property by
Deception contrary to Section 81(1) of the Victorian
Crimes Act of 1958 constitutes in Mr. Wright's and co-
offender Mr. John Carson Craker's receiving a total of
approximately 11.2 in commission (including
$367,044 in bonus commission) via Amazon Bond Pty.
Ltd., depending on the volume of business written, by
submitting two hundred fifteen (215) life insurance
proposals, and paying premiums thereon (to the
acceptance of the policies and payment of
Pursuant to Section 5 of PD No. 1069, in relation to the Extradition Treaty
commissions) to the Australian Mutual Provident
concluded between the Republic of the Philippines and Australia on
(AMP) Society through the Office of Melbourne
September 10, 1990, extradition proceedings were initiated on April 6,
Mutual Insurance, of which respondent is an
1993 by the State Counsels of the Department of Justice before the
insurance agent, out of which life proposals none are
respondent court.
in existence and approximately 200 of which are
alleged to have been false, in one or more of the
following ways:
( i ) some policy-holders signed up only because they
were told the policies were free (usually for 2 years)
and no payments were required.
(ii) some policy-holders were offered cash
inducements ($50 or $100) to sign and had to supply
a bank account no longer used (at which a direct
debit request for payment of premiums would apply).
These policy-holders were also told no payments by
them were required.
(iii) some policy-holders were introduced through the
"Daily Personnel Agency", and again were told the
policies were free for 2 years as long as an unused
bank account was applied.
(iv) some policy-holders were found not to exist.
The one count of Attempting to Obtain Property by
Deception contrary to Section 321(m) of the Victorian
Crimes Act of 1958 constitutes in Mr. Wright's and
Mr. Craker's attempting to cause the payment of
$2,870.68 commission to a bank account in the name
of Amazon Bond Pty. Ltd. by submitting one proposal
for Life Insurance to the AMP Society, the policy-
holder of which does not exist with the end in view of
paying the premiums thereon to insure acceptance of
the policy and commission payments.
The one count of Perjury contrary to Section 314 of
Victorian Crimes Act of 1958 constitutes in Mr.
Wright's and Mr. Craker's signing and swearing before
a Solicitor holding a current practicing certificate
pursuant to the Legal Profession Practice Act (1958), a
Statutory Declaration attesting to the validity of 29 of
the most recent Life Insurance proposals of AMP
Society and containing three (3) false statements.
 In its Order dated April 13, 1993, the respondent court directed the
petitioner to appear before it on April 30, 1993 and to file his answer
within ten days. In the same order, the respondent Judge ordered the NBI
to serve summons and cause the arrest of the petitioner.
The respondent court received return of the warrant of arrest and
summons signed by NBI Senior Agent Manuel Almendras with the
information that the petitioner was arrested on April 26, 1993 at Taguig,
Metro Manila and was subsequently detained at the NBI detention cell
where petitioner, to date, continue to be held.
Thereafter, the petitioner filed his answer.
In the course of the trial, the petitioner testified that he was jobless,
married to a Filipina, Judith David, with whom he begot a child; that he
has no case in Australia; that he is not a fugitive from justice and is not
aware of the offenses charged against him; that he arrived in the
Philippines on February 25, 1990 returned to Australia on March 1, 1990,
then back to the Philippines on April 11, 1990, left the Philippines again
on April 24, 1990 for Australia and returned to the Philippines on May 24,
1990, again left for Australia on May 29, 1990 passing by Singapore and
then returned to the Philippines on June 25, 1990 and from that time on,
has not left the Philippines; and that his tourist visa has been extended
but he could not produce the same in court as it was misplaced, has
neither produced any certification thereof, nor any temporary working
visa.
The trial court, in its decision dated 14 June 1993, granting the petition for extradition
requested by the Government of Australia, concluding that the documents submitted by the
Australian Government meet the requirements of Article 7 of the Treaty of Extradition and
that the offenses for which the petitioner were sought in his country are extraditable
offenses under Article 2 of the said Treaty. The trial court, moreover, held that under the
provisions of the same Article, extradition could be granted irrespective of when the offense
— in relation to the extradition — was committed, provided that the offense happened to be
an offense in the requesting State at the time the acts or omissions constituting the same
were committed. 13
Petitioner challenged the decision of the Regional Trial Court before the Court of Appeals
assigning the following errors:
I. THAT THE HONORABLE RESPONDENT JUDGE GRAVELY ERRED IN GIVING
RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY DESPITE
THE FACT THAT THE EVIDENCE ADDUCED BY THE RESPONDENT SHOW
THAT THE ALLEGED OFFENSES FOR WHICH PETITIONER IS SOUGHT TO BE
EXTRADITED TOOK PLACE IN 1988-1989 AT THE TIME THERE WAS NO
EXTRADITION TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND
AUSTRALIA.
II. THAT THE ACT OF THE HONORABLE RESPONDENT JUDGE IN GIVING
RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY
BETWEEN THE REPUBLIC OF THE PHILIPPINES AND AUSTRALIA AMOUNTS
TO AN "EX POST FACTO LAW" AND VIOLATES SECTION 21, ARTICLE VII OF
THE 1987 CONSTITUTION.
III. THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN ORDERING
THE EXTRADITION OF PETITIONER DESPITE THE FACT THAT THE EVIDENCE
ADDUCED DO NOT SHOW THAT PETITIONER IS WANTED FOR
PROSECUTION IN AUSTRALIA.
IV. THAT THE HON. RESPONDENT JUDGE GRAVELY ABUSED HIS
DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN
MISINTERPRETING THE EXTENDED STAY OF PETITIONER AS EVIDENCE OF
PETITIONER'S DESIGN TO HIDE AND EVADE PROSECUTION IN AUSTRALIA.
V. THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN ORDERING
THE EXTRADITION OF PETITIONER WITHOUT SPECIFYING IN HIS ORDER
OR DECISION THE SPECIFIC CHARGES FOR WHICH PETITIONER IS TO
STAND TRIAL IN AUSTRALIA.
The Court of Appeals affirmed the trial court's decision on September 14, 1993 and denied
petitioner's Motion for Reconsideration on December 16, 1993. 14 Reiterating substantially
the same assignments of error which he interposed in the Court of Appeals, petitioner
challenges in this petition the validity of the extradition order issued by the trial court as
affirmed by the Court of Appeals under the Treaty. Petitioner vigorously argues that the trial
court order violates the Constitutional prohibition against ex post facto laws. He avers that
for the extradition order to be valid, the Australian government should show that he "has a
criminal case pending before a competent court" in that country "which can legally pass
judgement or acquittal or conviction upon him."
Clearly, a close reading of the provisions of the Treaty previously cited, which are relevant to
our determination of the validity of the extradition order, reveals that the trial court
committed no error in ordering the petitioner's extradition. Conformably with Article 2,
Section 2 of the said Treaty, the crimes for which the petitioner was charged and for which
warrants for his arrest were issued in Australia were undeniably offenses in the Requesting
State at the time they were alleged to have been committed. From its examination of the
charges against the petitioner, the trial court correctly determined that the corresponding
offenses under our penal laws are Articles 315(2) and 183 of the Revised Penal Code on
swindling/estafa and false testimony/perjury, respectively. 15
The provisions of Article 6 of the said Treaty pertaining to the documents required for
extradition are sufficiently clear and require no interpretation. The warrant for the arrest of
an individual or a copy thereof, a statement of each and every offense and a statement of
the acts and omissions which were alleged against the person in respect of each offense are
sufficient to show that a person is wanted for prosecution under the said article. All of these
documentary requirements were dully submitted to the trial court in its proceedings a quo.
For purposes of the compliance with the provisions of the Treaty, the signature and official
seal of the Attorney-General of Australia were sufficient to authenticate all the documents
annexed to the Statement of the Acts and Omissions, including the statement itself. 16 In
conformity with the provisions of Article 7 of the Treaty, the appropriate documents and
annexes were signed by "an officer in or of the Requesting State" 17 "sealed with . . . (a)
public seal of the Requesting State or of a Minister of State, or of a Department or officer of
the Government of the Requesting State," 18 and "certified by a diplomatic or consular officer
of the Requesting State accredited to the Requested State." 19The last requirement was
accomplished by the certification made by the Philippine Consular Officer in Canberra,
Australia.
The petitioner's contention that a person sought to be extradited should have a "criminal
case pending before a competent court in the Requesting State which can legally pass
judgement of acquittal or conviction" 20 stretches the meaning of the phrase "wanted for
prosecution" beyond the intended by the treaty provisions because the relevant provisions
merely require "a warrant for the arrest or a copy of the warrant for the arrest of the person
sought to be extradited." 21 Furthermore, the 'Charge and Warrant of Arrest Sheets' attest to
the fact that petitioner is not only wanted for prosecution but has, in fact, absconded to
evade arrest and criminal prosecution. Since a charge or information under the Treaty is
required only when appropriate, i.e., in cases where an individual charged before a
competent court in the Requesting State thereafter absconds to the Requested State, a
charge or a copy thereof is not required if the offender has in fact already absconded before
a criminal complaint could be filed. As the Court of Appeals correctly noted, limiting the
phrase "wanted for prosecution" to person charged with an information or a criminal
complaint renders the Treaty ineffective over individuals who abscond for the purpose of
evading arrest and prosecution. 22
This brings us to another point raised by the petitioner both in the trial court and in the Court
of Appeals. May the extradition of the petitioner who is wanted for prosecution by the
government of Australia be granted in spite of the fact that the offenses for which the
petitioner is sought in his country were allegedly committed prior to the date of effectivity of
the Treaty.
Petitioner takes the position that under Article 18 of the Treaty its enforcement cannot be
given retroactive effect. Article 18 states:
ENTRY INTO FORCE AND TERMINATION
This Treaty shall enter into force thirty (30) days after the date on which
the Contracting States have notified each other in writing that their
respective requirements for the entry into force of this Treaty have been
complied with.
Either contracting State may terminate this Treaty by notice in writing at
any time and it shall cease to be in force on the one hundred and
eightieth day after the day on which notice is given.
We fail to see how the petitioner can infer a prohibition against retroactive enforcement
from this provision. The first paragraph of Article 18 refers to the Treaty's date of effectivity;
the second paragraph pertains to its termination. Absolutely nothing in the said provision
relates to, much less, prohibits retroactive enforcement of the Treaty.
On the other hand, Article 2(4) of the Treaty unequivocally provides that:
4. Extradition may be granted pursuant to provisions of this Treaty
irrespective of when the offense in relation to which extradition is
requested was committed, provided that:
(a) it was an offense in the Requesting State at the time of the acts or
omissions constituting the offense; and
(b) the acts or omissions alleged would, if they had taken place in the
Territory of the Requested State at the time of the making of the request
for extradition, have constituted an offense against the laws in force in
that state.
Thus, the offenses for which petitioner is sought by his government are clearly extraditable
under Article 2 of the Treaty. They were offenses in the Requesting State at the time they
were committed, and, irrespective of the time they were committed, they fall under the
panoply of the Extradition Treaty's provisions, specifically, Article 2 paragraph 4, quoted
above.
Does the Treaty's retroactive application violate the Constitutional prohibition against ex
post facto laws? Early commentators understood ex post facto laws to include all laws of
retrospective application, whether civil or criminal. 23 However, Chief Justice Salmon P.
Chase, citing Blackstone, The Federalist and other early U.S. state constitutions in Calder
vs. Bull 24 concluded that the concept was limited only to penal and criminal statutes. As
conceived under our Constitution, ex post facto laws are 1) statutes that make an act
punishable as a crime when such act was not an offense when committed; 2) laws which,
while not creating new offenses, aggravate the seriousness of a crime; 3) statutes which
prescribes greater punishment for a crime already committed; or, 4) laws which alter the
rules of evidence so as to make it substantially easier to convict a defendant. 25 "Applying the
constitutional principle, the (Court) has held that the prohibition applies only to criminal
legislation which affects the substantial rights of the accused." 26 This being so, there is no
absolutely no merit in petitioner's contention that the ruling of the lower court sustaining the
Treaty's retroactive application with respect to offenses committed prior to the Treaty's
coming into force and effect, violates the Constitutional prohibition against ex post
facto laws. As the Court of Appeals correctly concluded, the Treaty is neither a piece of
criminal legislation nor a criminal procedural statute. "It merely provides for the extradition
of persons wanted for prosecution of an offense or a crime which offense or crime was
already committed or consummated at the time the treaty was ratified." 27
In signing the Treaty, the government of the Philippines has determined that it is within its
interests to enter into agreement with the government of Australia regarding the
repatriation of persons wanted for criminal offenses in either country. The said Treaty was
concurred and ratified by the Senate in a Resolution dated September 10, 1990. Having been
ratified in accordance with the provision of the 1987 Constitution, the Treaty took effect
thirty days after the requirements for entry into force were complied with by both
governments.

WHEREFORE, finding no reversible error in the decision of respondent Court of Appeals, we

hereby AFFIRM the same and DENY the instant petition for lack of merit.

SO ORDERED.

Davide, Jr., Bellosillo and Quiason, JJ., concur.

Cruz, J., is on leave.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No 101724 July 3, 1992
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE SANDIGANBAYAN and CEFERINO S. PAREDES, JR., respondents.
GRIÑO-AQUINO, J.:
Assailed in this petition for certiorari under Rule 45 of the Rules of Court is the resolution
promulgated on August 1, 1991 by the Sandiganbayan which granted the private
respondent's motion to quash the information for violation of the Anti-Graft and Corrupt
Practices Act (R.A. No. 3019) on the ground of prescription of the crime charged.
Two letter-complaints were filed on October 28, 1986 and December 9, 1986, with the
Tanodbayan by Teofilo Gelacio, a political leader of Governor Valentina Plaza, wife of
Congressman Democrito O. Plaza of Agusan del Sur, shortly after the private respondent had
replaced Mrs. Plaza as OIC/provincial governor of Agusan del Sur in March 1986 (p.
235, Rollo). Gelacio's complaint questioned the issuance to Governor Paredes, when he was
still the provincial attorney in 1976, of a free patent title for Lot No. 3097-8, Pls. 67, with an
area of 1,391 sq. m., more or less, in the Rosario public land subdivision in San Francisco,
Agusan del Sur.
On February 23, 1989, the tanodbayan referred the complaint to the City
Fiscal of Butuan City who subpoenaed Governor Paredes. However, the
subpoena was served on, and received by, the Station Commander of San
Francisco, Agusan del Sur, who did not serve it on Paredes. Despite the
absence of notice to Paredes, Deputized Tanodbayan/City Fiscal Ernesto
M. Brocoy conducted a preliminary investigation ex-parte. He
recommended that an information be filed in court. His recommendation
was approved by the Tanodbayan who, on August 10, 1989, filed the
following information in the Sandiganbayan where it was docketed as
TBP Case No. 86-03368:
That on or about January 21, 1976, or sometime prior or subsequent
thereto, in San Francisco, Agusan del Sur, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, a public
officer, being then the Provincial Attorney of Agusan del Sur, having been
duly appointed and qualified as such, taking advantage of his public
position, did, then and there, wilfully and unlawfully persuade, influence
and induce the Land Inspector of the Bureau of Lands, by the name of
Armando L. Luison to violate an existing rule or regulation duly
promulgated by competent authority by misrepresenting to the latter
that the land subject of an application filed by the accused with the
Bureau of Lands is disposable by a free patent when the accused well
knew that the said land had already been reserved for a school site, thus
by the accused's personal misrepresentation in his capacity as Provincial
Attorney of Agusan del Sur and applicant for a free patent, a report
favorably recommending the issuance of a free patent was given by the
said Armando L. Luison, land inspector, thereby paving the way to the
release of a decree of title, by the Register of Deeds of Agusan del Sur, an
act committed by the accused, in outright prejudice of the public interest.
(pp. 3-4, Rollo.)
Paredes was arrested upon a warrant issued by the Sandiganbayan. Claiming that the
information and the warrant of arrest were null and void because he had been denied his
right to a preliminary investigation. Paredes refused to post bail. His wife filed a petition
for habeas corpus praying this Court to order his release (Paredes vs. Sandiganbayan, 193
SCRA 464), but we denied her petition because the proper remedy was for Paredes to file a
bail bond of P20,000 fixed by the Sandiganbayan for his provisional liberty, and move to
quash the information before being arraigned.
On April 5, 1991, Paredes filed in the Sandiganbayan "An Urgent Motion to Quash
Information and to Recall Warrant of Arrest" alleging that:
1. he is charged for an offense which has prescribed:
2. the preliminary investigation, as well as the Information prepared by
the Tanodbayan and the Warrant of Arrest issued by the Sandiganbayan
were invalid for lack of notice to him of the preliminary investigation
conducted by Deputized Tanodbayan Ernesto M. Brocoy and Tanodbayan
Prosecutor Josephine Z. Fernandez; and
3. his constitutional right to due process had been violated by the long
delay in the termination of the preliminary investigation.
After the parties had filed their written arguments, the Sandiganbayan issued a resolution on
August 1, 1991 granting the motion to quash on the ground of prescription of the offense
charged. The Sandiganbayan's ratiocination of its resolution is quoted below:
The crime charged is alleged to have been committed "on or about
January 21, 1976" when the accused allegedly misrepresented to a Lands
Inspector of the Bureau of Lands that the land subject of the herein
movant's Application for a Free Patent was disposable land. This
misrepresentation allegedly resulted in the issuance of a Torrens Title
under a Free Patent to the herein accused-movant. This, the Information
avers, was prejudicial to the public interest because the land in question
had been reserved for a school site and was, therefore, not disposable.
Thus, the charge is for the violation of Sec. 3(a) of R.A. No. 3019 because
the accused had allegedly persuaded, induced and influenced the Public
Lands Inspector to violate existing law, rules and regulations by
recommending approval of the free patent application.
The accused asserts that since at the time of the alleged commission of
the crime (January 21, 1976) the period of prescription was ten (10) years
under Sec. 11 of R.A. No. 3019, the crime should have prescribed in 1986.
The prosecution seems to agree with the movant's statement as to the
term of the prescriptive period with the qualification that the period of
prescription should have commenced to run from March 28, 1985, when
the complaint was allegedly filed by the Republic for the cancellation of
the title.
xxx xxx xxx
The question then is this: when should the period of prescription have
commenced to run as to the alleged misrepresentation which persuaded,
influenced and induced the Lands Inspector of the Bureau of Lands
resulting in the approval of the application of the accused for a free
patent?
xxx xxx xxx
The Supreme Court has clearly stated that even in the case of falsification
of public documents, prescription commences from its recording with the
Registry of Deeds when the existence of the document and the
averments therein theoretically become a matter of public knowledge.
xxx xxx xxx
The matter of improper inducement, persuasion or influence upon the
Lands Inspector allegedly applied by the accused through his
misrepresentation may have been unknown to others besides the two of
them because their interaction would presumably have been private. The
fact of the improper segregation of the piece of land in question and the
grant thereof to the accused, however, became, presumptively at least, a
matter of public knowledge upon the issuance of a Torrens Title over that
parcel of non-disposable public land.
xxx xxx xxx
4. Notice to the whole world must be presumed at the very latest on May
28, 1976 when the Register of Deeds of Agusan del Sur issued Original
Certificate of Title No. 8379 in the name of the accused as a result of the
grant of the patent on the school site reservation;
5. The act of filing the approved free patent with the Registry of Deeds is
notice duly given to the various offices and officials of the government,
e.g., the Department (Ministry) of Agriculture and the Bureau of Lands,
who are affected thereby specially because it is the Bureau of Lands
which files the approved patent application with the Registry of Deeds. If
the land in question was indeed reserved for as school site, then the
Department (Ministry) of Education would also know or would be
presumed to know. (pp. 28-33, Rollo.)
The Sandiganbayan could not abide the fact that the Lands Inspector (Luison) who was
supposedly induced by Paredes to violate the law, and who did violate it by recommending
approval of Paredes' free patent application was not charged with a crime. The
Sandiganbayan concluded:
It would seriously strain credulity to say that while the violation of law,
rules or regulation by the Lands Inspector was obvious and public (since
the school site had been titled in the name of the alleged inducer
Pimentel **), the beneficiary thereof could not have been suspected of
having induced the violation itself. It would be grossly unfair and unjust
to say that prescription would run in favor of the Lands Inspector who
had actually violated the law but not to the public official who had
benefitted therefrom and who may have, therefore, instigated the
favorable recommendation for the disposition of non-disposable land.
In view of all the foregoing, the Motion to Quash the Information is
granted. (p. 36, Rollo.)
The Sandiganbayan further observed that since R.A. No. 3019 is a special law, the
computation of the period for the prescription of the crime of violating it is governed by
Section 29 of Act No. 3326 which provides as follows:
Sec. 2. Prescription shall begin to run from the day of the commission of
the violation of the law, and if the same be not known at the time, from
the discovery thereof and the institution of judicial proceedings for its
investigation and punishment.
The prescription shall be interrupted when proceedings are instituted
against the guilty person, and shall begin to run again if the proceedings
are dismissed for reasons not constituting jeopardy.
The Sandiganbayan correctly observed that "the date of the violation of the law becomes the
operative date for the commencement of the period of prescription" (p. 34, Rollo).
Assuming that Paredes did induce Lands Inspector Luison to recommend approval of his
application for free patent (which both of them denied doing), the date of the violation, for
the purpose of computing the period of prescription, would be the date of filing his
application on January 21, 1976.
The theory of the prosecution that the prescriptive period should not commence upon the
filing of Paredes' application because no one could have known about it except Paredes and
Lands Inspector Luison, is not correct for, as the Sandiganbayan pointedly observed: "it is not
only the Lands Inspector who passes upon the disposability of public land . . . other public
officials pass upon the application for a free patent including the location of the land and,
therefore, the disposable character thereof" (p. 30, Rollo). Indeed, practically all the
department personnel, who had a hand in processing and approving the application, namely:
(1) the lands inspector who inspected the land to ascertain its location and occupancy: (2)
the surveyor who prepared its technical description: (3) the regional director who assessed
the application and determined the land classification: (4) the Director of Lands who
prepared the free patent: and (5) the Department Secretary who signed it, could not have
helped "discovering" that the subject of the application was nondisposable public agricultural
land.
The Sandiganbayan correctly observed that the "crime" whether it was the filing of Paredes
application for a free patent in January 1976 or his supposedly having induced Luison to
recommend its approval, prescribed ten (10) years later, on January 21, 1986. Gelacio's
complaint, dated October 28, 1986, was filed late.
The reason for the extinction of the State's right to prosecute a crime after the lapse of the
statutory limitation period for filing the criminal action, is that:
Statutes of Limitation are construed as being acts of grace, and as a
surrendering by the sovereign of its right to prosecute or of its right to
prosecute at its discretion, and they are considered as equivalent to acts
of amnesty. Such statutes are founded on the liberal theory that
prosecutions should not be allowed to ferment endlessly in the files of
the government to explode only after witnesses and proofs necessary to
the protection of accused have by sheer lapse of time passed beyond
availability. They serve, not only to bar prosecutions on aged and
untrustworthy evidence, but also to cut off prosecution for crimes a
reasonable time after completion, when no further danger to society is
contemplated from the criminal activity. (22 CJS 573-574.)
In the absence of a special provision otherwise, the statute of limitations
begins to run on the commission of an offense and not from the time
when the offense is discovered or when the offender becomes known, or
it normally begins to run when the crime is complete. (22 CJS 585;
Emphasis supplied.)
Even if the ten-year prescriptive period commenced to run from the registration and
issuance of the free patent title by the Register of Deeds on May 28, 1976, registration being
constructive notice to the whole world, the prescriptive period would have fully run its
course on May 28, 1986, or five (5) months before Gelacio filed his complaint, and more than
thirteen (13) years before judicial proceedings were initiated in the Sandiganbayan on August
10, 1989 by the filing of the information therein.
Batas Pambansa Blg. 195 which was approved on March 16, 1982, amending Section 11 R.A.
No. 3019 by increasing from ten (10) to fifteen (15) years the period for the prescription or
extinguishment of a violation of the
Anti-Graft and Corrupt Practices Act, may not be given retroactive application to the "crime"
which was committed by Paredes in January 1976 yet, for it should be prejudicial to the
accused. It would deprive him of the substantive benefit of the shorter (10 years) prescriptive
period under Section 11, R.A. 3019, which was an essential element of the "crime" at the
time he committed it.
Protection from prosecution under a statute of limitation is a substantive
right. Where the statute fixes a period of limitation as to a prosecution
for a particular offense, the limitation so fixed is jurisdictional, and the
time within which the offense is committed is a jurisdictional fact, it being
necessary that the indictment or information be actually filed within the
time prescribed. (22 CJS 574.)
Fact that the statute of limitations is jurisdictional necessarily determined
that a prosecution within the period specified is an essential element of
the offense. (People vs. Allen, 118 P 2d, 927, Emphasis supplied.)
Unless statutes of limitation are clearly retrospective in their terms, they
do not apply to crimes previously committed (22 CJS 576; People vs. Lurd,
12 Hun 282; Martine vs. State, 24 Tex 61; Emphasis ours.)
To apply B.P. Blg. 195 to Paredes would make it an ex post facto law for it would after his
situation to his disadvantage by making him criminally liable for a crime that had already
been extinguished under the law existing when it was committed. An ex post facto law is
defined as:
A law passed after the occurrence of a fact or commission of an act,
which retrospectively changes the legal consequences or relations of such
fact or deed. By Art. I, Sec. 10 of U.S. Const., the states are forbidden to
pass "any ex post facto law". Most all state constitutions contain similar
prohibitions against ex post facto laws.
An "ex post facto law" is defined as a law which provides for the infliction
of punishment upon a person for an act done which, when it was
committed, was innocent; a law which aggravates a crime or makes it
greater than when it was committed; a law that changes the punishment
or inflicts a greater punishment than the law annexed to the crime when
 it was committed; a law that changes the rules of evidence and receives
less or different testimony than was required at the time of the
commission of the offense in order to convict the offender; a law which,
assuming to regulate civil rights and remedies only, in effect imposes a
penalty or the deprivation of a right which, when done, was lawful; a law
which deprives persons accused of crime of some lawful protection to
which they have become entitled, such as the protection of a former
conviction or acquittal, or of the proclamation of amnesty; every law
which, in relation to the offense or its consequences, alters the situation
of a person to his disadvantage. Wilensky v. Fields, Fla., 267 So. 2d 1, 5.
(Black's Law Dictionary, Fifth Edition, p. 520.)

Since an ex post facto law is proscribed by our Constitution (Sec. 22, Article 111, 1987
Constitution), the Sandiganbayan committed no reversible error in ruling that Paredes may
no longer be prosecuted for his supposed violation of R.A. 3019 in 1976, six (6) years before
B.P. Blg. 195 was approved on March 16, 1982. The new prescriptive period under that law
should apply only to those offense which were committed after the approval of B.P. 195.

WHEREFORE, the petition for review is DENIED for lack of merit. The resolution dated August
1, 1991 of the Sandiganbayan in Crim. Case No. 13800 is AFFIRMED. No costs.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Medialdea, Regalado,
Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32485 October 22, 1970
IN THE MATTER OF THE PETITION FOR THE DECLARATION OF THE PETITIONER'S RIGHTS
AND DUTIES UNDER SEC. 8 OF R.A. No. 6132.
KAY VILLEGAS KAMI, INC., petitioner.
MAKASIAR, J.:.
This petition for declaratory relief was filed by Kay Villegas Kami, Inc., claiming to be a duly
recognized and existing non-stock and non-profit corporation created under the laws of the
land, and praying for a determination of the validity of Sec. 8 of R.A. No. 6132 and a
declaration of petitioner's rights and duties thereunder. In paragraph 7 of its petition,
petitioner avers that it has printed materials designed to propagate its ideology and program
of government, which materials include Annex B; and that in paragraph 11 of said petition,
petitioner intends to pursue its purposes by supporting delegates to the Constitutional
Convention who will propagate its ideology.
Petitioner, in paragraph 7 of its petition, actually impugns because it quoted, only the first
paragraph of Sec. 8(a) on the ground that it violates the due process clause, right of
association, and freedom of expression and that it is an ex post facto law.
The first three grounds were overruled by this Court when it held that the questioned
provision is a valid limitation on the due process, freedom of expression, freedom of
association, freedom of assembly and equal protection clauses; for the same is designed to
prevent the clear and present danger of the twin substantive evils, namely, the prostitution
of electoral process and denial of the equal protection of the laws. Moreover, under the
balancing-of-interests test, the cleansing of the electoral process, the guarantee of equal
change for all candidates, and the independence of the delegates who must be "beholden to
no one but to God, country and conscience," are interests that should be accorded primacy. 1
The petitioner should therefore be accordingly guided by the pronouncements in the cases of
Imbong and Gonzales.2
The claim of petitioner that the challenged provision constitutes an ex post facto law is
likewise untenable.
An ex post facto law is one which:.
(1) makes criminal an act done before the passage of the law and which
was innocent when done, and punishes such an act;
(2) aggravates a crime, or makes it greater than it was, when committed;
(3) changes the punishment and inflicts a greater punishment than the
law annexed to the crime when committed;
(4) alters the legal rules of evidence, and authorizes conviction upon less
or different testimony than the law required at the time of the
commission of the offense;
(5) assuming to regulate civil rights and remedies only, in effect imposes
penalty or deprivation of a right for something which when done was
lawful; and
(6) deprives a person accused of a crime of some lawful protection to
which he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of amnesty.3
From the aforesaid definition as well as classification of ex post facto laws, the constitutional
inhibition refers only to criminal laws which are given retroactive effect.4
While it is true that Sec. 18 penalizes a violation of any provision of R.A. No. 6132 including
Sec. 8(a) thereof, the penalty is imposed only for acts committed after the approval of the
law and not those perpetrated prior thereto. There is nothing in the law that remotely
insinuates that Secs. 8(a) and 18, or any other provision thereof, shall apply to acts carried
out prior to its approval. On the contrary, See. 23 directs that the entire law shall be effective
upon its approval. It was approved on August 24, 1970.
WHEREFORE, the prayer of the petition is hereby denied and paragraph 1 of Sec. 8(a) of R.A.
No. 6132 is not unconstitutional. Without costs.
Reyes, J.B.L., Actg. C.J., Dizon, Makalintal and Castro, JJ., concur.
Zaldivar, J., reserves his vote.
Concepcion, C.J., is on leave.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 17958 February 27, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
LOL-LO and SARAW, defendants-appellants.
Thos. D. Aitken for appellants.
Acting Attorney-General Tuason for appellee.
MALCOLM, J.:
The days when pirates roamed the seas, when picturesque buccaneers like Captain Avery
and Captain Kidd and Bartholomew Roberts gripped the imagination, when grostesque
brutes like Blackbeard flourished, seem far away in the pages of history and romance.
Nevertheless, the record before us tells a tale of twentieth century piracy in the south seas,
but stripped of all touches of chivalry or of generosity, so as to present a horrible case of
rapine and near murder.
On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta, another
Dutch possession. In one of the boats was one individual, a Dutch subject, and in the other
boat eleven men, women, and children, likewise subjects of Holland. After a number of days
of navigation, at about 7 o'clock in the evening, the second boat arrived between the Islands
of Buang and Bukid in the Dutch East Indies. There the boat was surrounded by
six vintas manned by twenty-four Moros all armed. The Moros first asked for food, but once
on the Dutch boat, too for themselves all of the cargo, attacked some of the men, and
brutally violated two of the women by methods too horrible to the described. All of the
persons on the Dutch boat, with the exception of the two young women, were again placed
on it and holes were made in it, the idea that it would submerge, although as a matter of
fact, these people, after eleven days of hardship and privation, were succored violating them,
the Moros finally arrived at Maruro, a Dutch possession. Two of the Moro marauder were
Lol-lo, who also raped one of the women, and Saraw. At Maruro the two women were able
to escape.
Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine
Islands. There they were arrested and were charged in the Court of First Instance of Sulu with
the crime of piracy. A demurrer was interposed by counsel de officio for the Moros, based on
the grounds that the offense charged was not within the jurisdiction of the Court of First
Instance, nor of any court of the Philippine Islands, and that the facts did not constitute a
public offense, under the laws in force in the Philippine Islands. After the demurrer was
overruled by the trial judge, trial was had, and a judgment was rendered finding the two
defendants guilty and sentencing each of them to life imprisonment (cadena perpetua), to
return together with Kinawalang and Maulanis, defendants in another case, to the offended
parties, the thirty-nine sacks of copras which had been robbed, or to indemnify them in the
amount of 924 rupees, and to pay a one-half part of the costs.
A very learned and exhaustive brief has been filed in this court by the attorney de officio. By a
process of elimination, however, certain questions can be quickly disposed of.
The proven facts are not disputed. All of the elements of the crime of piracy are present.
Piracy is robbery or forcible depredation on the high seas, without lawful authority and
done animo furandi, and in the spirit and intention of universal hostility.
It cannot be contended with any degree of force as was done in the lover court and as is
again done in this court, that the Court of First Instance was without jurisdiction of the case.
Pirates are in law hostes humani generis. Piracy is a crime not against any particular state but
against all mankind. It may be punished in the competent tribunal of any country where the
offender may be found or into which he may be carried. The jurisdiction of piracy unlike all
other crimes has no territorial limits. As it is against all so may it be punished by all. Nor does
it matter that the crime was committed within the jurisdictional 3-mile limit of a foreign
state, "for those limits, though neutral to war, are not neutral to crimes." (U.S. vs. Furlong
[1820], 5 Wheat., 184.)
The most serious question which is squarely presented to this court for decision for the first
time is whether or not the provisions of the Penal Code dealing with the crime of piracy are
still in force. Article 153 to 156 of the Penal Code reads as follows:
ART. 153. The crime of piracy committed against Spaniards, or the subjects of
another nation not at war with Spain, shall be punished with a penalty ranging
from cadena temporal to cadena perpetua.
If the crime be committed against nonbelligerent subjects of another nation at war
with Spain, it shall be punished with the penalty of presidio mayor.
ART. 154. Those who commit the crimes referred to in the first paragraph of the
next preceding article shall suffer the penalty of cadena perpetua or death, and
those who commit the crimes referred to in the second paragraph of the same
article, from cadena temporal to cadena perpetua:
1. Whenever they have seized some vessel by boarding or firing upon the
same.
2. Whenever the crime is accompanied by murder, homicide, or by any of
the physical injuries specified in articles four hundred and fourteen and
four hundred and fifteen and in paragraphs one and two of article four
hundred and sixteen.
 3. Whenever it is accompanied by any of the offenses against chastity
specified in Chapter II, Title IX, of this book.
4. Whenever the pirates have abandoned any persons without means of
saving themselves.
5. In every case, the captain or skipper of the pirates.
ART. 155. With respect to the provisions of this title, as well as all others of this
code, when Spain is mentioned it shall be understood as including any part of the
national territory.
ART. 156. For the purpose of applying the provisions of this code, every person,
who, according to the Constitution of the Monarchy, has the status of a Spaniard
shall be considered as such.
The general rules of public law recognized and acted on by the United States relating to the
effect of a transfer of territory from another State to the United States are well-known. The
political law of the former sovereignty is necessarily changed. The municipal law in so far as it
is consistent with the Constitution, the laws of the United States, or the characteristics and
institutions of the government, remains in force. As a corollary to the main rules, laws
subsisting at the time of transfer, designed to secure good order and peace in the
community, which are strictly of a municipal character, continue until by direct action of the
new government they are altered or repealed. (Chicago, Rock Islands, etc., R. Co. vs. McGlinn
[1885], 114 U.S., 542.)
These principles of the public law were given specific application to the Philippines by the
Instructions of President McKinley of May 19, 1898, to General Wesley Meritt, the
Commanding General of the Army of Occupation in the Philippines, when he said:
Though the powers of the military occupant are absolute and supreme, and
immediately operate upon the political condition of the inhabitants, the municipal
laws of the conquered territory, such as affect private rights of person and
property, and provide for the punishment of crime, are considered as continuing in
force, so far as they are compatible with the new order of things, until they are
suspended or superseded by the occupying belligerent; and practice they are not
usually abrogated, but are allowed to remain in force, and to be administered by
the ordinary tribunals, substantially as they were before the occupations. This
enlightened practice is so far as possible, to be adhered to on the present occasion.
(Official Gazette, Preliminary Number, Jan. 1, 1903, p. 1. See also General Merritt
Proclamation of August 14, 1898.)
It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy were
meant to include the Philippine Islands. Article 156 of the Penal Code in relation to article 1
of the Constitution of the Spanish Monarchy, would also make the provisions of the Code
applicable not only to Spaniards but to Filipinos.
The opinion of Grotius was that piracy by the law of nations is the same thing as piracy by the
civil law, and he has never been disputed. The specific provisions of the Penal Code are
similar in tenor to statutory provisions elsewhere and to the concepts of the public law. This
must necessarily be so, considering that the Penal Code finds its inspiration in this respect in
the Novelas, the Partidas, and the Novisima Recopilacion.
The Constitution of the United States declares that the Congress shall have the power to
define and punish piracies and felonies committed on the high seas, and offenses against the
law of nations. (U.S. Const. Art. I, sec. 8, cl. 10.) The Congress, in putting on the statute books
the necessary ancillary legislation, provided that whoever, on the high seas, commits the
crime of piracy as defined by the law of nations, and is afterwards brought into or found in
the United States, shall be imprisoned for life. (U.S. Crim. Code, sec. 290; penalty formerly
death: U.S. Rev. Stat., sec. 5368.) The framers of the Constitution and the members of
Congress were content to let a definition of piracy rest on its universal conception under the
law of nations.
It is evident that the provisions of the Penal Code now in force in the Philippines relating to
piracy are not inconsistent with the corresponding provisions in force in the United States.
By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical
construction of articles of the Penal Code, like the articles dealing with the crime of piracy,
would be that wherever "Spain" is mentioned, it should be substituted by the words "United
States" and wherever "Spaniards" are mentioned, the word should be substituted by the
expression "citizens of the United States and citizens of the Philippine Islands." somewhat
similar reasoning led this court in the case of United States vs. Smith ([1919], 39 Phil., 533) to
give to the word "authority" as found in the Penal Code a limited meaning, which would no
longer comprehend all religious, military, and civil officers, but only public officers in the
Government of the Philippine Islands.
Under the construction above indicated, article 153 of the Penal Code would read as follows:
The crime of piracy committed against citizens of the United States and citizens of
the Philippine Islands, or the subjects of another nation not at war with the United
States, shall be punished with a penalty ranging from cadena temporal to cadena
perpetua.
If the crime be committed against nonbelligerent subjects of another nation at war
with the United States, it shall be punished with the penalty of presidio mayor.
We hold those provisions of the Penal code dealing with the crime of piracy, notably articles
153 and 154, to be still in force in the Philippines.
The crime falls under the first paragraph of article 153 of the Penal Code in relation to article
154. There are present at least two of the circumstances named in the last cited article as
authorizing either cadena perpetua or death. The crime of piracy was accompanied by (1) an
offense against chastity and (2) the abandonment of persons without apparent means of
saving themselves. It is, therefore, only necessary for us to determine as to whether the
penalty of cadena perpetua or death should be imposed. In this connection, the trial court,
finding present the one aggravating circumstance of nocturnity, and compensating the same
by the one mitigating circumstance of lack of instruction provided by article 11, as amended,
of the Penal Code, sentenced the accused to life imprisonment. At least three aggravating
circumstances, that the wrong done in the commission of the crime was deliberately
augmented by causing other wrongs not necessary for its commission, that advantage was
taken of superior strength, and that means were employed which added ignominy to the
natural effects of the act, must also be taken into consideration in fixing the penalty.
Considering, therefore, the number and importance of the qualifying and aggravating
circumstances here present, which cannot be offset by the sole mitigating circumstance of
lack of instruction, and the horrible nature of the crime committed, it becomes our duty to
impose capital punishment.

The vote upon the sentence is unanimous with regard to the propriety of the imposition of
the death penalty upon the defendant and appellant Lo-lo (the accused who raped on of the
women), but is not unanimous with regard to the court, Mr. Justice Romualdez, registers his
nonconformity. In accordance with provisions of Act No. 2726, it results, therefore, that the
judgment of the trial court as to the defendant and appellant Saraw is affirmed, and is
reversed as to the defendant and appellant Lol-lo, who is found guilty of the crime of piracy
and is sentenced therefor to be hung until dead, at such time and place as shall be fixed by
the judge of first instance of the Twenty-sixth Judicial District. The two appellants together
with Kinawalang and Maulanis, defendants in another case, shall indemnify jointly and
severally the offended parties in the equivalent of 924 rupees, and shall pay a one-half part
of the costs of both instances. So ordered.

Araullo, C.J., Johnson, Avanceña, Villamor, Ostrand, Johns and Romualdez, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 142396 February 11, 2003
KHOSROW MINUCHER, petitioner,
vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.
DECISION
VITUG, J.:
Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425,
otherwise also known as the "Dangerous Drugs Act of 1972," was filed against petitioner
Khosrow Minucher and one Abbas Torabian with the Regional Trial Court, Branch 151, of
Pasig City. The criminal charge followed a "buy-bust operation" conducted by the Philippine
police narcotic agents in the house of Minucher, an Iranian national, where a quantity of
heroin, a prohibited drug, was said to have been seized. The narcotic agents were
accompanied by private respondent Arthur Scalzo who would, in due time, become one of
the principal witnesses for the prosecution. On 08 January 1988, Presiding Judge Eutropio
Migrino rendered a decision acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court
(RTC), Branch 19, of Manila for damages on account of what he claimed to have been
trumped-up charges of drug trafficking made by Arthur Scalzo. The Manila RTC detailed what
it had found to be the facts and circumstances surrounding the case.
"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the
Philippines to study in the University of the Philippines in 1974. In 1976, under the regime of
the Shah of Iran, he was appointed Labor Attaché for the Iranian Embassies in Tokyo, Japan
and Manila, Philippines. When the Shah of Iran was deposed by Ayatollah Khomeini, plaintiff
became a refugee of the United Nations and continued to stay in the Philippines. He headed
the Iranian National Resistance Movement in the Philippines.
"He came to know the defendant on May 13, 1986, when the latter was brought to his house
and introduced to him by a certain Jose Iñigo, an informer of the Intelligence Unit of the
military. Jose Iñigo, on the other hand, was met by plaintiff at the office of Atty. Crisanto
Saruca, a lawyer for several Iranians whom plaintiff assisted as head of the anti-Khomeini
movement in the Philippines.
"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose
Iñigo, the defendant expressed his interest in buying caviar. As a matter of fact, he bought
two kilos of caviar from plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of
Persian carpets, pistachio nuts and other Iranian products was his business after the
Khomeini government cut his pension of over $3,000.00 per month. During their introduction
in that meeting, the defendant gave the plaintiff his calling card, which showed that he is
working at the US Embassy in the Philippines, as a special agent of the Drug Enforcement
Administration, Department of Justice, of the United States, and gave his address as US
Embassy, Manila. At the back of the card appears a telephone number in defendant’s own
handwriting, the number of which he can also be contacted.
"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for
his wife and the wife of a countryman named Abbas Torabian. The defendant told him that
he [could] help plaintiff for a fee of $2,000.00 per visa. Their conversation, however, was
more concentrated on politics, carpets and caviar. Thereafter, the defendant promised to see
plaintiff again.
"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at
Mario's Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the
merchandize but for the reason that the defendant was not yet there, he requested the
restaurant people to x x x place the same in the refrigerator. Defendant, however, came and
plaintiff gave him the caviar for which he was paid. Then their conversation was again
focused on politics and business.
"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at
Kapitolyo, Pasig. The defendant wanted to buy a pair of carpets which plaintiff valued at
$27,900.00. After some haggling, they agreed at $24,000.00. For the reason that defendant
did not yet have the money, they agreed that defendant would come back the next day. The
following day, at 1:00 p.m., he came back with his $24,000.00, which he gave to the plaintiff,
and the latter, in turn, gave him the pair of carpets.1awphi1.nét
"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's
house and directly proceeded to the latter's bedroom, where the latter and his countryman,
Abbas Torabian, were playing chess. Plaintiff opened his safe in the bedroom and obtained
$2,000.00 from it, gave it to the defendant for the latter's fee in obtaining a visa for plaintiff's
wife. The defendant told him that he would be leaving the Philippines very soon and
requested him to come out of the house for a while so that he can introduce him to his
cousin waiting in a cab. Without much ado, and without putting on his shirt as he was only in
his pajama pants, he followed the defendant where he saw a parked cab opposite the street.
To his complete surprise, an American jumped out of the cab with a drawn high-powered
gun. He was in the company of about 30 to 40 Filipino soldiers with 6 Americans, all armed.
He was handcuffed and after about 20 minutes in the street, he was brought inside the
house by the defendant. He was made to sit down while in handcuffs while the defendant
was inside his bedroom. The defendant came out of the bedroom and out from defendant's
attaché case, he took something and placed it on the table in front of the plaintiff. They also
took plaintiff's wife who was at that time at the boutique near his house and likewise
arrested Torabian, who was playing chess with him in the bedroom and both were
handcuffed together. Plaintiff was not told why he was being handcuffed and why the
privacy of his house, especially his bedroom was invaded by defendant. He was not allowed
to use the telephone. In fact, his telephone was unplugged. He asked for any warrant, but
the defendant told him to `shut up.’ He was nevertheless told that he would be able to call
for his lawyer who can defend him.
"The plaintiff took note of the fact that when the defendant invited him to come out to meet
his cousin, his safe was opened where he kept the $24,000.00 the defendant paid for the
carpets and another $8,000.00 which he also placed in the safe together with a bracelet
worth $15,000.00 and a pair of earrings worth $10,000.00. He also discovered missing upon
his release his 8 pieces hand-made Persian carpets, valued at $65,000.00, a painting he
bought for P30,000.00 together with his TV and betamax sets. He claimed that when he was
handcuffed, the defendant took his keys from his wallet. There was, therefore, nothing left in
his house.
"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in
various newspapers, particularly in Australia, America, Central Asia and in the Philippines. He
was identified in the papers as an international drug trafficker. x x x
In fact, the arrest of defendant and Torabian was likewise on television, not only in the
Philippines, but also in America and in Germany. His friends in said places informed him that
they saw him on TV with said news.
"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame
handcuffed together, where they were detained for three days without food and water."1
During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo
and moved for extension of time to file an answer pending a supposed advice from the
United States Department of State and Department of Justice on the defenses to be raised.
The trial court granted the motion. On 27 October 1988, Scalzo filed another special
appearance to quash the summons on the ground that he, not being a resident of the
Philippines and the action being one in personam, was beyond the processes of the court.
The motion was denied by the court, in its order of 13 December 1988, holding that the filing
by Scalzo of a motion for extension of time to file an answer to the complaint was a voluntary
appearance equivalent to service of summons which could likewise be construed a waiver of
the requirement of formal notice. Scalzo filed a motion for reconsideration of the court
order, contending that a motion for an extension of time to file an answer was not a
voluntary appearance equivalent to service of summons since it did not seek an affirmative
relief. Scalzo argued that in cases involving the United States government, as well as its
agencies and officials, a motion for extension was peculiarly unavoidable due to the need (1)
for both the Department of State and the Department of Justice to agree on the defenses to
be raised and (2) to refer the case to a Philippine lawyer who would be expected to first
review the case. The court a quo denied the motion for reconsideration in its order of 15
October 1989.
Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No.
17023, assailing the denial. In a decision, dated 06 October 1989, the appellate court denied
the petition and affirmed the ruling of the trial court. Scalzo then elevated the incident in a
petition for review on certiorari, docketed G.R. No. 91173, to this Court. The petition,
however, was denied for its failure to comply with SC Circular No. 1-88; in any event, the
Court added, Scalzo had failed to show that the appellate court was in error in its questioned
judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring
Scalzo in default for his failure to file a responsive pleading (answer) and (b) setting the case
for the reception of evidence. On 12 March 1990, Scalzo filed a motion to set aside the order
of default and to admit his answer to the complaint. Granting the motion, the trial court set
the case for pre-trial. In his answer, Scalzo denied the material allegations of the complaint
and raised the affirmative defenses (a) of Minucher’s failure to state a cause of action in his
complaint and (b) that Scalzo had acted in the discharge of his official duties as being merely
an agent of the Drug Enforcement Administration of the United States Department of Justice.
Scalzo interposed a counterclaim of P100,000.00 to answer for attorneys' fees and expenses
of litigation.
Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo
filed a motion to dismiss the complaint on the ground that, being a special agent of the
United States Drug Enforcement Administration, he was entitled to diplomatic immunity. He
attached to his motion Diplomatic Note No. 414 of the United States Embassy, dated 29 May
1990, addressed to the Department of Foreign Affairs of the Philippines and a Certification,
dated 11 June 1990, of Vice Consul Donna Woodward, certifying that the note is a true and
faithful copy of its original. In an order of 25 June 1990, the trial court denied the motion to
dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed
G.R. No. 94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking
that the complaint in Civil Case No. 88-45691 be ordered dismissed. The case was referred to
the Court of Appeals, there docketed CA-G.R. SP No. 22505, per this Court’s resolution of 07
August 1990. On 31 October 1990, the Court of Appeals promulgated its decision sustaining
the diplomatic immunity of Scalzo and ordering the dismissal of the complaint against him.
Minucher filed a petition for review with this Court, docketed G.R. No. 97765 and entitled
"Khosrow Minucher vs. the Honorable Court of Appeals, et. al." (cited in 214 SCRA 242),
appealing the judgment of the Court of Appeals. In a decision, dated 24 September 1992,
penned by Justice (now Chief Justice) Hilario Davide, Jr., this Court reversed the decision of
the appellate court and remanded the case to the lower court for trial. The remand was
ordered on the theses (a) that the Court of Appeals erred in granting the motion to dismiss of
Scalzo for lack of jurisdiction over his person without even considering the issue of the
authenticity of Diplomatic Note No. 414 and (b) that the complaint contained sufficient
allegations to the effect that Scalzo committed the imputed acts in his personal capacity and
outside the scope of his official duties and, absent any evidence to the contrary, the issue on
Scalzo’s diplomatic immunity could not be taken up.
The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial
court reached a decision; it adjudged:
"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered
for the plaintiff, who successfully established his claim by sufficient evidence, against the
defendant in the manner following:
"`Adjudging defendant liable to plaintiff in actual and compensatory damages of
P520,000.00; moral damages in the sum of P10 million; exemplary damages in the sum of
P100,000.00; attorney's fees in the sum of P200,000.00 plus costs.
`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court
on this judgment to answer for the unpaid docket fees considering that the plaintiff in this
case instituted this action as a pauper litigant.’"2
While the trial court gave credence to the claim of Scalzo and the evidence presented by him
that he was a diplomatic agent entitled to immunity as such, it ruled that he, nevertheless,
should be held accountable for the acts complained of committed outside his official duties.
On appeal, the Court of Appeals reversed the decision of the trial court and sustained the
defense of Scalzo that he was sufficiently clothed with diplomatic immunity during his term
of duty and thereby immune from the criminal and civil jurisdiction of the "Receiving State"
pursuant to the terms of the Vienna Convention.
Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1)
whether or not the doctrine of conclusiveness of judgment, following the decision rendered
by this Court in G.R. No. 97765, should have precluded the Court of Appeals from resolving
the appeal to it in an entirely different manner, and (2) whether or not Arthur Scalzo is
indeed entitled to diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require
1) the finality of the prior judgment, 2) a valid jurisdiction over the subject matter and the
parties on the part of the court that renders it, 3) a judgment on the merits, and 4) an
identity of the parties, subject matter and causes of action.3 Even while one of the issues
submitted in G.R. No. 97765 - "whether or not public respondent Court of Appeals erred in
ruling that private respondent Scalzo is a diplomat immune from civil suit conformably with
the Vienna Convention on Diplomatic Relations" - is also a pivotal question raised in the
instant petition, the ruling in G.R. No. 97765, however, has not resolved that point with
finality. Indeed, the Court there has made this observation -
"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed
on 13 June 1990, unequivocally states that he would present documentary evidence
consisting of DEA records on his investigation and surveillance of plaintiff and on his position
and duties as DEA special agent in Manila. Having thus reserved his right to present evidence
in support of his position, which is the basis for the alleged diplomatic immunity, the barren
self-serving claim in the belated motion to dismiss cannot be relied upon for a reasonable,
intelligent and fair resolution of the issue of diplomatic immunity."4
Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the
Philippines is a signatory, grants him absolute immunity from suit, describing his functions as
an agent of the United States Drugs Enforcement Agency as "conducting surveillance
operations on suspected drug dealers in the Philippines believed to be the source of
prohibited drugs being shipped to the U.S., (and) having ascertained the target, (he then)
would inform the Philippine narcotic agents (to) make the actual arrest." Scalzo has
submitted to the trial court a number of documents -
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;
2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;
3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;
4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department
of Foreign Affairs, dated 27 June 1990 forwarding Embassy Note No. 414 to the
Clerk of Court of RTC Manila, Branch 19 (the trial court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3');
and
8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol,
Department of Foreign Affairs, through Asst. Sec. Emmanuel Fernandez, addressed
to the Chief Justice of this Court.5
The documents, according to Scalzo, would show that: (1) the United States Embassy
accordingly advised the Executive Department of the Philippine Government that Scalzo was
a member of the diplomatic staff of the United States diplomatic mission from his arrival in
the Philippines on 14 October 1985 until his departure on 10 August 1988; (2) that the United
States Government was firm from the very beginning in asserting the diplomatic immunity of
Scalzo with respect to the case pursuant to the provisions of the Vienna Convention on
Diplomatic Relations; and (3) that the United States Embassy repeatedly urged the
Department of Foreign Affairs to take appropriate action to inform the trial court of Scalzo’s
diplomatic immunity. The other documentary exhibits were presented to indicate that: (1)
the Philippine government itself, through its Executive Department, recognizing and
respecting the diplomatic status of Scalzo, formally advised the "Judicial Department" of his
diplomatic status and his entitlement to all diplomatic privileges and immunities under the
Vienna Convention; and (2) the Department of Foreign Affairs itself authenticated Diplomatic
Note No. 414. Scalzo additionally presented Exhibits "9" to "13" consisting of his reports of
investigation on the surveillance and subsequent arrest of Minucher, the certification of the
Drug Enforcement Administration of the United States Department of Justice that Scalzo was
a special agent assigned to the Philippines at all times relevant to the complaint, and the
special power of attorney executed by him in favor of his previous counsel6 to show (a) that
the United States Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a member
of the diplomatic staff of the United States diplomatic mission from his arrival in the
Philippines on 14 October 1985 until his departure on 10 August 1988, (b) that, on May 1986,
with the cooperation of the Philippine law enforcement officials and in the exercise of his
functions as member of the mission, he investigated Minucher for alleged trafficking in a
prohibited drug, and (c) that the Philippine Department of Foreign Affairs itself recognized
that Scalzo during his tour of duty in the Philippines (14 October 1985 up to 10 August 1988)
was listed as being an Assistant Attaché of the United States diplomatic mission and
accredited with diplomatic status by the Government of the Philippines. In his Exhibit 12,
Scalzo described the functions of the overseas office of the United States Drugs Enforcement
Agency, i.e., (1) to provide criminal investigative expertise and assistance to foreign law
enforcement agencies on narcotic and drug control programs upon the request of the host
country, 2) to establish and maintain liaison with the host country and counterpart foreign
law enforcement officials, and 3) to conduct complex criminal investigations involving
international criminal conspiracies which affect the interests of the United States.
The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary
law and, by the time of its ratification on 18 April 1961, its rules of law had long become
stable. Among the city states of ancient Greece, among the peoples of the Mediterranean
before the establishment of the Roman Empire, and among the states of India, the person of
the herald in time of war and the person of the diplomatic envoy in time of peace were
universally held sacrosanct.7 By the end of the 16th century, when the earliest treatises on
diplomatic law were published, the inviolability of ambassadors was firmly established as a
rule of customary international law.8Traditionally, the exercise of diplomatic intercourse
among states was undertaken by the head of state himself, as being the preeminent
embodiment of the state he represented, and the foreign secretary, the official usually
entrusted with the external affairs of the state. Where a state would wish to have a more
prominent diplomatic presence in the receiving state, it would then send to the latter a
diplomatic mission. Conformably with the Vienna Convention, the functions of the diplomatic
mission involve, by and large, the representation of the interests of the sending state and
promoting friendly relations with the receiving state.9
The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors
or nuncios accredited to the heads of state,10 (b) envoys,11 ministers
or internuncios accredited to the heads of states; and (c) charges d' affairs12 accredited to the
ministers of foreign affairs.13 Comprising the "staff of the (diplomatic) mission" are the
diplomatic staff, the administrative staff and the technical and service staff. Only the heads
of missions, as well as members of the diplomatic staff, excluding the members of the
administrative, technical and service staff of the mission, are accorded diplomatic rank. Even
while the Vienna Convention on Diplomatic Relations provides for immunity to the members
of diplomatic missions, it does so, nevertheless, with an understanding that the same be
restrictively applied. Only "diplomatic agents," under the terms of the Convention, are vested
with blanket diplomatic immunity from civil and criminal suits. The Convention defines
"diplomatic agents" as the heads of missions or members of the diplomatic staff, thus
impliedly withholding the same privileges from all others. It might bear stressing that even
consuls, who represent their respective states in concerns of commerce and navigation and
perform certain administrative and notarial duties, such as the issuance of passports and
visas, authentication of documents, and administration of oaths, do not ordinarily enjoy the
traditional diplomatic immunities and privileges accorded diplomats, mainly for the reason
that they are not charged with the duty of representing their states in political matters.
Indeed, the main yardstick in ascertaining whether a person is a diplomat entitled to
immunity is the determination of whether or not he performs duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attaché of
the United States diplomatic mission and was accredited as such by the Philippine
Government. An attaché belongs to a category of officers in the diplomatic establishment
who may be in charge of its cultural, press, administrative or financial affairs. There could
also be a class of attaches belonging to certain ministries or departments of the government,
other than the foreign ministry or department, who are detailed by their respective
ministries or departments with the embassies such as the military, naval, air, commercial,
agricultural, labor, science, and customs attaches, or the like. Attaches assist a chief of
mission in his duties and are administratively under him, but their main function is to
observe, analyze and interpret trends and developments in their respective fields in the host
country and submit reports to their own ministries or departments in the home
government.14 These officials are not generally regarded as members of the diplomatic
mission, nor are they normally designated as having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414,
757 and 791, all issued post litem motam, respectively, on 29 May 1990, 25 October 1991
and 17 November 1992. The presentation did nothing much to alleviate the Court's initial
reservations in G.R. No. 97765, viz:
"While the trial court denied the motion to dismiss, the public respondent gravely abused its
discretion in dismissing Civil Case No. 88-45691 on the basis of an erroneous assumption that
simply because of the diplomatic note, the private respondent is clothed with diplomatic
immunity, thereby divesting the trial court of jurisdiction over his person.
"x x x x x x x x x
"And now, to the core issue - the alleged diplomatic immunity of the private respondent.
Setting aside for the moment the issue of authenticity raised by the petitioner and the
doubts that surround such claim, in view of the fact that it took private respondent one (1)
year, eight (8) months and seventeen (17) days from the time his counsel filed on 12
September 1988 a Special Appearance and Motion asking for a first extension of time to file
the Answer because the Departments of State and Justice of the United States of America
were studying the case for the purpose of determining his defenses, before he could secure
the Diplomatic Note from the US Embassy in Manila, and even granting for the sake of
argument that such note is authentic, the complaint for damages filed by petitioner cannot
be peremptorily dismissed.
"x x x x x x x x x
"There is of course the claim of private respondent that the acts imputed to him were done
in his official capacity. Nothing supports this self-serving claim other than the so-called
Diplomatic Note. x x x. The public respondent then should have sustained the trial court's
denial of the motion to dismiss. Verily, it should have been the most proper and appropriate
recourse. It should not have been overwhelmed by the self-serving Diplomatic Note whose
belated issuance is even suspect and whose authenticity has not yet been proved. The undue
haste with which respondent Court yielded to the private respondent's claim is arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued
by the Office of Protocol of the Department of Foreign Affairs and signed by Emmanuel C.
Fernandez, Assistant Secretary, certifying that "the records of the Department (would) show
that Mr. Arthur W. Scalzo, Jr., during his term of office in the Philippines (from 14 October
1985 up to 10 August 1988) was listed as an Assistant Attaché of the United States diplomatic
mission and was, therefore, accredited diplomatic status by the Government of the
Philippines." No certified true copy of such "records," the supposed bases for the belated
issuance, was presented in evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative of the executive
branch of the government. In World Health Organization vs. Aquino,15 the Court has
recognized that, in such matters, the hands of the courts are virtually tied. Amidst
apprehensions of indiscriminate and incautious grant of immunity, designed to gain
exemption from the jurisdiction of courts, it should behoove the Philippine government,
specifically its Department of Foreign Affairs, to be most circumspect, that should particularly
be no less than compelling, in its post litem motam issuances. It might be recalled that the
privilege is not an immunity from the observance of the law of the territorial sovereign or
from ensuing legal liability; it is, rather, an immunity from the exercise of territorial
jurisdiction.16 The government of the United States itself, which Scalzo claims to be acting for,
has formulated its standards for recognition of a diplomatic agent. The State Department
policy is to only concede diplomatic status to a person who possesses an acknowledged
diplomatic title and "performs duties of diplomatic nature."17 Supplementary criteria for
accreditation are the possession of a valid diplomatic passport or, from States which do not
issue such passports, a diplomatic note formally representing the intention to assign the
person to diplomatic duties, the holding of a non-immigrant visa, being over twenty-one
years of age, and performing diplomatic functions on an essentially full-time
basis.18 Diplomatic missions are requested to provide the most accurate and descriptive job
title to that which currently applies to the duties performed. The Office of the Protocol would
then assign each individual to the appropriate functional category.19
But while the diplomatic immunity of Scalzo might thus remain contentious, it was
sufficiently established that, indeed, he worked for the United States Drug Enforcement
Agency and was tasked to conduct surveillance of suspected drug activities within the
country on the dates pertinent to this case. If it should be ascertained that Arthur Scalzo was
acting well within his assigned functions when he committed the acts alleged in the
complaint, the present controversy could then be resolved under the related doctrine of
State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a long-standing
rule of customary international law then closely identified with the personal immunity of a
foreign sovereign from suit20 and, with the emergence of democratic states, made to attach
not just to the person of the head of state, or his representative, but also distinctly to the
state itself in its sovereign capacity.21 If the acts giving rise to a suit are those of a foreign
government done by its foreign agent, although not necessarily a diplomatic personage, but
acting in his official capacity, the complaint could be barred by the immunity of the foreign
sovereign from suit without its consent. Suing a representative of a state is believed to be, in
effect, suing the state itself. The proscription is not accorded for the benefit of an individual
but for the State, in whose service he is, under the maxim - par in parem, non habet
imperium - that all states are sovereign equals and cannot assert jurisdiction over one
another.22 The implication, in broad terms, is that if the judgment against an official would
require the state itself to perform an affirmative act to satisfy the award, such as the
appropriation of the amount needed to pay the damages decreed against him, the suit must
be regarded as being against the state itself, although it has not been formally impleaded.23
In United States of America vs. Guinto,24 involving officers of the United States Air Force and
special officers of the Air Force Office of Special Investigators charged with the duty of
preventing the distribution, possession and use of prohibited drugs, this Court has ruled -
"While the doctrine (of state immunity) appears to prohibit only suits against the state
without its consent, it is also applicable to complaints filed against officials of the state for
acts allegedly performed by them in the discharge of their duties. x x x. It cannot for a
moment be imagined that they were acting in their private or unofficial capacity when they
apprehended and later testified against the complainant. It follows that for discharging their
duties as agents of the United States, they cannot be directly impleaded for acts imputable to
their principal, which has not given its consent to be sued. x x x As they have acted on behalf
of the government, and within the scope of their authority, it is that government, and not the
petitioners personally, [who were] responsible for their acts."25
This immunity principle, however, has its limitations. Thus, Shauf vs. Court of
Appeals26 elaborates:
"It is a different matter where the public official is made to account in his capacity as such for
acts contrary to law and injurious to the rights of the plaintiff. As was clearly set forth by
Justice Zaldivar in Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al. (33
SCRA 368): `Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts
of government officials or officers are not acts of the State, and an action against the officials
or officers by one whose rights have been invaded or violated by such acts, for the protection
of his rights, is not a suit against the State within the rule of immunity of the State from suit.
In the same tenor, it has been said that an action at law or suit in equity against a State
officer or the director of a State department on the ground that, while claiming to act for the
State, he violates or invades the personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which he does not have, is not a
suit against the State within the constitutional provision that the State may not be sued
without its consent. The rationale for this ruling is that the doctrine of state immunity cannot
be used as an instrument for perpetrating an injustice.
"x x x x x x x x x
"(T)he doctrine of immunity from suit will not apply and may not be invoked where the
public official is being sued in his private and personal capacity as an ordinary citizen. The
cloak of protection afforded the officers and agents of the government is removed the
moment they are sued in their individual capacity. This situation usually arises where the
public official acts without authority or in excess of the powers vested in him. It is a well-
settled principle of law that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice and in bad faith or
beyond the scope of his authority and jurisdiction." 27
A foreign agent, operating within a territory, can be cloaked with immunity from suit but only
as long as it can be established that he is acting within the directives of the sending state. The
consent of the host state is an indispensable requirement of basic courtesy between the two
sovereigns. Guinto and Shauf both involve officers and personnel of the United States,
stationed within Philippine territory, under the RP-US Military Bases Agreement. While
evidence is wanting to show any similar agreement between the governments of the
Philippines and of the United States (for the latter to send its agents and to conduct
surveillance and related activities of suspected drug dealers in the Philippines), the consent
or imprimatur of the Philippine government to the activities of the United States Drug
Enforcement Agency, however, can be gleaned from the facts heretofore elsewhere
mentioned. The official exchanges of communication between agencies of the government of
the two countries, certifications from officials of both the Philippine Department of Foreign
Affairs and the United States Embassy, as well as the participation of members of the
Philippine Narcotics Command in the "buy-bust operation" conducted at the residence of
Minucher at the behest of Scalzo, may be inadequate to support the "diplomatic status" of
the latter but they give enough indication that the Philippine government has given
its imprimatur, if not consent, to the activities within Philippine territory of agent Scalzo of
the United States Drug Enforcement Agency. The job description of Scalzo has tasked him to
conduct surveillance on suspected drug suppliers and, after having ascertained the target, to
inform local law enforcers who would then be expected to make the arrest. In conducting
surveillance activities on Minucher, later acting as the poseur-buyer during the buy-bust
operation, and then becoming a principal witness in the criminal case against Minucher,
Scalzo hardly can be said to have acted beyond the scope of his official function or duties.

All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the
United States Drug Enforcement Agency allowed by the Philippine government to conduct
activities in the country to help contain the problem on the drug traffic, is entitled to the
defense of state immunity from suit.

WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concur
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 175888 February 11, 2009
SUZETTE NICOLAS y SOMBILON, Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; RAUL GONZALEZ, in his
capacity as Secretary of Justice; EDUARDO ERMITA, in his capacity as Executive Secretary;
RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government; SERGIO
APOSTOL, in his capacity as Presidential Legal Counsel; and L/CPL. DANIEL
SMITH, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 176051 February 11, 2009
JOVITO R. SALONGA, WIGBERTO E. TAÑADA, JOSE DE LA RAMA, EMILIO C. CAPULONG, H.
HARRY L. ROQUE, JR., FLORIN HILBAY, and BENJAMIN POZON, Petitioners,
vs.
DANIEL SMITH, SECRETARY RAUL GONZALEZ, PRESIDENTIAL LEGAL COUNSEL SERGIO
APOSTOL, SECRETARY RONALDO PUNO, SECRETARY ALBERTO ROMULO, The Special 16th
Division of the COURT OF APPEALS, and all persons acting in their capacity, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 176222 February 11, 2009
BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by Dr. Carol Araullo; GABRIELA,
represented by Emerenciana de Jesus; BAYAN MUNA, represented by Rep. Satur Ocampo;
GABRIELA WOMEN'S PARTY, represented by Rep. Liza Maza; KILUSANG MAYO UNO (KMU),
represented by Elmer Labog; KILUSANG MAGBUBUKID NG PILIPINAS (KMP), represented by
Willy Marbella; LEAGUE OF FILIPINO STUDENTS (LFS), represented by Vencer Crisostomo;
and THE PUBLIC INTEREST LAW CENTER, represented by Atty. Rachel Pastores, Petitioners,
vs.
PRESIDENT GLORIA MACAPAGAL-ARROYO, in her capacity as concurrent Defense
Secretary, EXECUTIVE SECRETARY EDUARDO ERMITA, FOREIGN AFFAIRS SECRETARY
ALBERTO ROMULO, JUSTICE SECRETARY RAUL GONZALEZ, AND INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO,Respondents.
DECISION
AZCUNA, J.:
These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision
of the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in
CA-G.R. SP No. 97212, dated January 2, 2007.
The facts are not disputed.
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed
Forces. He was charged with the crime of rape committed against a Filipina, petitioner
herein, sometime on November 1, 2005, as follows:
The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis,
Keith Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the
Revised Penal Code, as amended by Republic Act 8353, upon a complaint under oath filed by
Suzette S. Nicolas, which is attached hereto and made an integral part hereof as Annex "A,"
committed as follows:
"That on or about the First (1st) day of November 2005, inside the Subic Bay Freeport Zone,
Olongapo City and within the jurisdiction of this Honorable Court, the above-named
accused’s (sic), being then members of the United States Marine Corps, except Timoteo L.
Soriano, Jr., conspiring, confederating together and mutually helping one another, with lewd
design and by means of force, threat and intimidation, with abuse of superior strength and
taking advantage of the intoxication of the victim, did then and there willfully, unlawfully and
feloniously sexually abuse and have sexual intercourse with or carnal knowledge of one
Suzette S. Nicolas, a 22-year old unmarried woman inside a Starex Van with Plate No. WKF-
162, owned by Starways Travel and Tours, with Office address at 8900 P. Victor St.,
Guadalupe, Makati City, and driven by accused Timoteo L. Soriano, Jr., against the will and
consent of the said Suzette S. Nicolas, to her damage and prejudice.
CONTRARY TO LAW."1
Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and
the United States, entered into on February 10, 1998, the United States, at its request, was
granted custody of defendant Smith pending the proceedings.
During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the
RTC of Makati for security reasons, the United States Government faithfully complied with its
undertaking to bring defendant Smith to the trial court every time his presence was required.
On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its
Decision, finding defendant Smith guilty, thus:
WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient
evidence against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND
L/CPL. DOMINIC DUPLANTIS, all of the US Marine Corps assigned at the USS Essex, are hereby
ACQUITTED to the crime charged.
The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J.
SMITH, also of the US Marine Corps at the USS Essex, this Court hereby finds him GUILTY
BEYOND REASONABLE DOUBT of the crime of RAPE defined under Article 266-A, paragraph 1
(a) of the Revised Penal Code, as amended by R.A. 8353, and, in accordance with Article 266-
B, first paragraph thereof, hereby sentences him to suffer the penalty of reclusion perpetua
together with the accessory penalties provided for under Article 41 of the same Code.
Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the
Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in
the facilities that shall, thereafter, be agreed upon by appropriate Philippine and United
States authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J. SMITH is
hereby temporarily committed to the Makati City Jail.
Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S.
NICOLAS in the amount of ₱50,000.00 as compensatory damages plus ₱50,000.00 as moral
damages.
SO ORDERED.2
As a result, the Makati court ordered Smith detained at the Makati jail until further orders.
On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a
contingent of Philippine law enforcement agents, purportedly acting under orders of the
Department of the Interior and Local Government, and brought to a facility for detention
under the control of the United States government, provided for under new agreements
between the Philippines and the United States, referred to as the Romulo-Kenney Agreement
of December 19, 2006 which states:
The Government of the Republic of the Philippines and the Government of the United States
of America agree that, in accordance with the Visiting Forces Agreement signed between our
two nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to U.S.
military custody at the U.S. Embassy in Manila.
(Sgd.) Kristie A. Kenney (Sgd.) Alberto G. Romulo
Representative of the United States Representative of the Republic
of America of the Philippines
DATE: 12-19-06 DATE: December 19, 2006
and the Romulo-Kenney Agreement of December 22, 2006 which states:
The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the
United States of America agree that, in accordance with the Visiting Forces Agreement signed
between the two nations, upon transfer of Lance Corporal Daniel J. Smith, United States
Marine Corps, from the Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG)
Building, U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be
guarded round the clock by U.S. military personnel. The Philippine police and jail authorities,
under the direct supervision of the Philippine Department of Interior and Local Government
(DILG) will have access to the place of detention to ensure the United States is in compliance
with the terms of the VFA.
The matter was brought before the Court of Appeals which decided on January 2, 2007, as
follows:
WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having
become moot.3
Hence, the present actions.
The petitions were heard on oral arguments on September 19, 2008, after which the parties
submitted their memoranda.
Petitioners contend that the Philippines should have custody of defendant L/CPL Smith
because, first of all, the VFA is void and unconstitutional.
This issue had been raised before, and this Court resolved in favor of the constitutionality of
the VFA. This was in Bayan v. Zamora,4 brought by Bayan, one of petitioners in the present
cases.
Against the barriers of res judicata vis-à-vis Bayan, and stare decisis vis-à-vis all the parties,
the reversal of the previous ruling is sought on the ground that the issue is of primordial
importance, involving the sovereignty of the Republic, as well as a specific mandate of the
Constitution.
The provision of the Constitution is Art. XVIII, Sec. 25 which states:
Sec. 25. After the expiration in 1991 of the Agreement between 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.
The reason for this provision lies in history and the Philippine experience in regard to the
United States military bases in the country.
It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine
Commonwealth and, eventually, for the recognition of independence, the United States
agreed to cede to the Philippines all the territory it acquired from Spain under the Treaty of
Paris, plus a few islands later added to its realm, except certain naval ports and/or military
bases and facilities, which the United States retained for itself.
This is noteworthy, because what this means is that Clark and Subic and the other places in
the Philippines covered by the RP-US Military Bases Agreement of 1947 were not Philippine
territory, as they were excluded from the cession and retained by the US.
Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed
by the United States. Furthermore, the RP-US Military Bases Agreement was never advised
for ratification by the United States Senate, a disparity in treatment, because the Philippines
regarded it as a treaty and had it concurred in by our Senate.
Subsequently, the United States agreed to turn over these bases to the Philippines; and with
the expiration of the RP-US Military Bases Agreement in 1991, the territory covered by these
bases were finally ceded to the Philippines.
To prevent a recurrence of this experience, the provision in question was adopted in the
1987 Constitution.
The provision is thus designed to ensure that any agreement allowing the presence of foreign
military bases, troops or facilities in Philippine territory shall be equally binding on the
Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of
the situation in which the terms and conditions governing the presence of foreign armed
forces in our territory were binding upon us but not upon the foreign State.
Applying the provision to the situation involved in these cases, the question is whether or not
the presence of US Armed Forces in Philippine territory pursuant to the VFA is allowed
"under a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other
contracting State."
This Court finds that it is, for two reasons.
First, as held in Bayan v. Zamora,5 the VFA was duly concurred in by the Philippine Senate
and has been recognized as a treaty by the United States as attested and certified by the duly
authorized representative of the United States government.
The fact that the VFA was not submitted for advice and consent of the United States Senate
does not detract from its status as a binding international agreement or treaty recognized by
the said State. For this is a matter of internal United States law. Notice can be taken of the
internationally known practice by the United States of submitting to its Senate for advice and
consent agreements that are policymaking in nature, whereas those that carry out or further
implement these policymaking agreements are merely submitted to Congress, under the
provisions of the so-called Case–Zablocki Act, within sixty days from ratification.6
The second reason has to do with the relation between the VFA and the RP-US Mutual
Defense Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with
the concurrence of both the Philippine Senate and the United States Senate.
The RP-US Mutual Defense Treaty states:7
MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED
STATES OF AMERICA. Signed at Washington, August 30, 1951.
The Parties of this Treaty
Reaffirming their faith in the purposes and principles of the Charter of the United Nations
and their desire to live in peace with all peoples and all governments, and desiring to
strengthen the fabric of peace in the Pacific area.
Recalling with mutual pride the historic relationship which brought their two peoples
together in a common bond of sympathy and mutual ideals to fight side-by-side against
imperialist aggression during the last war.
Desiring to declare publicly and formally their sense of unity and their common
determination to defend themselves against external armed attack, so that no potential
aggressor could be under the illusion that either of them stands alone in the Pacific area.
Desiring further to strengthen their present efforts for collective defense for the preservation
of peace and security pending the development of a more comprehensive system of regional
security in the Pacific area.
Agreeing that nothing in this present instrument shall be considered or interpreted as in any
way or sense altering or diminishing any existing agreements or understandings between the
Republic of the Philippines and the United States of America.
Have agreed as follows:
Article I. The parties undertake, as set forth in the Charter of the United Nations, to settle any
international disputes in which they may be involved by peaceful means in such a manner
that international peace and security and justice are not endangered and to refrain in their
international relation from the threat or use of force in any manner inconsistent with the
purposes of the United Nations.
Article II. In order more effectively to achieve the objective of this Treaty, the Parties
separately and jointly by self-help and mutual aid will maintain and develop their individual
and collective capacity to resist armed attack.
Article III. The Parties, through their Foreign Ministers or their deputies, will consult together
from time to time regarding the implementation of this Treaty and whenever in the opinion
of either of them the territorial integrity, political independence or security of either of the
Parties is threatened by external armed attack in the Pacific.
Article IV. Each Party recognizes that an armed attack in the Pacific area on either of the
parties would be dangerous to its own peace and safety and declares that it would act to
meet the common dangers in accordance with its constitutional processes.
Any such armed attack and all measures taken as a result thereof shall be immediately
reported to the Security Council of the United Nations. Such measures shall be terminated
when the Security Council has taken the measures necessary to restore and maintain
international peace and security.
Article V. For the purpose of Article IV, an armed attack on either of the Parties is deemed to
include an armed attack on the metropolitan territory of either of the Parties, or on the
island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or
aircraft in the Pacific.
Article VI. This Treaty does not affect and shall not be interpreted as affecting in any way the
rights and obligations of the Parties under the Charter of the United Nations or the
responsibility of the United Nations for the maintenance of international peace and security.
Article VII. This Treaty shall be ratified by the Republic of the Philippines and the United
Nations of America in accordance with their respective constitutional processes and will
come into force when instruments of ratification thereof have been exchanged by them at
Manila.
Article VIII. This Treaty shall remain in force indefinitely. Either Party may terminate it one
year after notice has been given to the other party.
In withness whereof the undersigned Plenipotentiaries have signed this Treaty.
Done in duplicate at Washington this thirtieth day of August, 1951.
For the Republic of the Philippines:
(Sgd.) Carlos P. Romulo
(Sgd.) Joaquin M. Elizalde
(Sgd.) Vicente J. Francisco
(Sgd.) Diosdado Macapagal
For the United States of America:
(Sgd.) Dean Acheson
(Sgd.) John Foster Dulles
(Sgd.) Tom Connally
(Sgd.) Alexander Wiley8
Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability
to resist an armed attack fall squarely under the provisions of the RP-US Mutual Defense
Treaty. The VFA, which is the instrument agreed upon to provide for the joint RP-US military
exercises, is simply an implementing agreement to the main RP-US Military Defense Treaty.
The Preamble of the VFA states:
The Government of the United States of America and the Government of the Republic of the
Philippines,
Reaffirming their faith in the purposes and principles of the Charter of the United Nations
and their desire to strengthen international and regional security in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
Noting that from time to time elements of the United States armed forces may visit the
Republic of the Philippines;
Considering that cooperation between the United States and the Republic of the Philippines
promotes their common security interests;
Recognizing the desirability of defining the treatment of United States personnel visiting the
Republic of the Philippines;
Have agreed as follows:9
Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not
necessary to submit the VFA to the US Senate for advice and consent, but merely to the US
Congress under the Case–Zablocki Act within 60 days of its ratification. It is for this reason
that the US has certified that it recognizes the VFA as a binding international agreement, i.e.,
a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our
Constitution.10
The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact
that the presence of the US Armed Forces through the VFA is a presence "allowed under" the
RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified
and concurred in by both the Philippine Senate and the US Senate, there is no violation of the
Constitutional provision resulting from such presence.
The VFA being a valid and binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions.
The VFA provides that in cases of offenses committed by the members of the US Armed
Forces in the Philippines, the following rules apply:
 Article V Nothing in the Constitution prohibits such agreements recognizing immunity from
jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized
Criminal Jurisdiction subjects of such immunity like Heads of State, diplomats and members of the armed forces
contingents of a foreign State allowed to enter another State’s territory. On the contrary, the
Constitution states that the Philippines adopts the generally accepted principles of
xxx
international law as part of the law of the land. (Art. II, Sec. 2).

6. The custody of any United States personnel over whom the Philippines is to exercise
Applying, however, the provisions of VFA, the Court finds that there is a different treatment
jurisdiction shall immediately reside with United States military authorities, if they so
when it comes to detention as against custody. The moment the accused has to be detained,
request, from the commission of the offense until completion of all judicial proceedings.
e.g., after conviction, the rule that governs is the following provision of the VFA:
United States military authorities shall, upon formal notification by the Philippine authorities
and without delay, make such personnel available to those authorities in time for any
investigative or judicial proceedings relating to the offense with which the person has been Article V
charged. In extraordinary cases, the Philippine Government shall present its position to the
United States Government regarding custody, which the United States Government shall take Criminal Jurisdiction
into full account. In the event Philippine judicial proceedings are not completed within one
year, the United States shall be relieved of any obligations under this paragraph. The one xxx
year period will not include the time necessary to appeal. Also, the one year period will not
include any time during which scheduled trial procedures are delayed because United States
Sec. 10. The confinement or detention by Philippine authorities of United States personnel
authorities, after timely notification by Philippine authorities to arrange for the presence of
shall be carried out in facilities agreed on by appropriate Philippines and United States
the accused, fail to do so.
authorities. United States personnel serving sentences in the Philippines shall have the right
to visits and material assistance.
Petitioners contend that these undertakings violate another provision of the Constitution,
namely, that providing for the exclusive power of this Court to adopt rules of procedure for
It is clear that the parties to the VFA recognized the difference between custody during the
all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer of
trial and detention after conviction, because they provided for a specific arrangement to
custody of an accused to a foreign power is to provide for a different rule of procedure for
cover detention. And this specific arrangement clearly states not only that the detention shall
that accused, which also violates the equal protection clause of the Constitution (Art. III, Sec.
be carried out in facilities agreed on by authorities of both parties, but also that the
1.).
detention shall be "by Philippine authorities." Therefore, the Romulo-Kenney Agreements of
December 19 and 22, 2006, which are agreements on the detention of the accused in the
Again, this Court finds no violation of the Constitution. United States Embassy, are not in accord with the VFA itself because such detention is not
"by Philippine authorities."
The equal protection clause is not violated, because there is a substantial basis for a different
treatment of a member of a foreign military armed forces allowed to enter our territory and Respondents should therefore comply with the VFA and negotiate with representatives of
all other accused.11 the United States towards an agreement on detention facilities under Philippine authorities
as mandated by Art. V, Sec. 10 of the VFA.
The rule in international law is that a foreign armed forces allowed to enter one’s territory is
immune from local jurisdiction, except to the extent agreed upon. The Status of Forces Next, the Court addresses the recent decision of the United States Supreme Court in
Agreements involving foreign military units around the world vary in terms and conditions, Medellin v. Texas ( 552 US ___ No. 06-984, March 25, 2008), which held that treaties entered
according to the situation of the parties involved, and reflect their bargaining power. But the into by the United States are not automatically part of their domestic law unless these
principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the treaties are self-executing or there is an implementing legislation to make them
sending State only to the extent agreed upon by the parties.12 enforceable.1avvphi1

As a result, the situation involved is not one in which the power of this Court to adopt rules On February 3, 2009, the Court issued a Resolution, thus:
of procedure is curtailed or violated, but rather one in which, as is normally encountered
around the world, the laws (including rules of procedure) of one State do not extend or apply
"G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No. 176051
– except to the extent agreed upon – to subjects of another State due to the recognition of
(Jovito R. Salonga, et al. v. Daniel Smith, et al.); and G.R. No. 176222 (Bagong Alyansang
extraterritorial immunity given to such bodies as visiting foreign armed forces.
Makabayan [BAYAN], et al. v. President Gloria Macapagal-Arroyo, et al.).
The parties, including the Solicitor General, are required to submit within three (3) days a
Comment/Manifestation on the following points:
1. What is the implication on the RP-US Visiting Forces Agreement of the recent US
Supreme Court decision in Jose Ernesto Medellin v. Texas, dated March 25, 2008,
to the effect that treaty stipulations that are not self-executory can only be
enforced pursuant to legislation to carry them into effect; and that, while treaties
may comprise international commitments, they are not domestic law unless
Congress has enacted implementing statutes or the treaty itself conveys an
intention that it be "self-executory" and is ratified on these terms?
2. Whether the VFA is enforceable in the US as domestic law, either because it is
self-executory or because there exists legislation to implement it.
3. Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in
by the US Senate and, if so, is there proof of the US Senate advice and consent
resolution? Peralta, J., no part."
After deliberation, the Court holds, on these points, as follows:
First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself,
because the parties intend its provisions to be enforceable, precisely because the Agreement
is intended to carry out obligations and undertakings under the RP-US Mutual Defense
Treaty. As a matter of fact, the VFA has been implemented and executed, with the US
faithfully complying with its obligation to produce L/CPL Smith before the court during the
trial.
Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC
Sec. 112(b), inasmuch as it is the very purpose and intent of the US Congress that executive
agreements registered under this Act within 60 days from their ratification be immediately
implemented. The parties to these present cases do not question the fact that the VFA has
been registered under the Case-Zablocki Act.1avvphi1
In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the
Avena decision of the International Court of Justice (ICJ), subject matter of the Medellin
decision. The Convention and the ICJ decision are not self-executing and are not registrable
under the Case-Zablocki Act, and thus lack legislative implementing authority.
Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on
March 20, 1952, as reflected in the US Congressional Record, 82nd Congress, Second Session,
Vol. 98 – Part 2, pp. 2594-2595.
The framers of the Constitution were aware that the application of international law in
domestic courts varies from country to country.
As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF INTERNATIONAL
CRIMINAL LAW IN NATIONAL COURTS, some countries require legislation whereas others do
not.
It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec.
25, to require the other contracting State to convert their system to achieve alignment and
parity with ours. It was simply required that the treaty be recognized as a treaty by the other
contracting State. With that, it becomes for both parties a binding international obligation
and the enforcement of that obligation is left to the normal recourse and processes under
international law.
Furthermore, as held by the US Supreme Court in Weinberger v. Rossi,13 an executive
agreement is a "treaty" within the meaning of that word in international law and constitutes
enforceable domestic law vis-à-vis the United States. Thus, the US Supreme Court in
Weinberger enforced the provisions of the executive agreement granting preferential
employment to Filipinos in the US Bases here.
Accordingly, there are three types of treaties in the American system:
1. Art. II, Sec. 2 treaties – These are advised and consented to by the US Senate in
accordance with Art. II, Sec. 2 of the US Constitution.
2. Executive–Congressional Agreements: These are joint agreements of the
President and Congress and need not be submitted to the Senate.
3. Sole Executive Agreements. – These are agreements entered into by the
President. They are to be submitted to Congress within sixty (60) days of
ratification under the provisions of the Case-Zablocki Act, after which they are
recognized by the Congress and may be implemented.
As regards the implementation of the RP-US Mutual Defense Treaty, military aid or
assistance has been given under it and this can only be done through implementing
legislation. The VFA itself is another form of implementation of its provisions.
WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals’ Decision in CA-
G.R. SP No. 97212 dated January 2, 2007 is MODIFIED. The Visiting Forces Agreement (VFA)
between the Republic of the Philippines and the United States, entered into on February 10,
1998, is UPHELD as constitutional, but the Romulo-Kenney Agreements of December 19 and
22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of Foreign
Affairs is hereby ordered to forthwith negotiate with the United States representatives for
the appropriate agreement on detention facilities under Philippine authorities as provided in
Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further
orders by this Court.
The Court of Appeals is hereby directed to resolve without delay the related matters pending
therein, namely, the petition for contempt and the appeal of L/CPL Daniel Smith from the
judgment of conviction.

No costs.

SO ORDERED.

ADOLFO S. AZCUNA
Associate Justice
 Republic of the Philippines
SUPREME COURT
SECOND DIVISION
G.R. Nos. 141675-96 November 25, 2005
JESUS T. TANCHANCO and ROMEO R. LACSON, Petitioners,
vs.
THE HONORABLE SANDI-GANBAYAN (Second Division), Respondent.
DECISION
Tinga, J.:
The Court’s duty to enforce the law takes on greater imperative when in so doing, it compels
the execution of commitments made by the State to its citizens. However the modality a
right or privilege is granted by the State to a person—whether under the Constitution, a
statute or a mere contract—recognition thereof is required by the government and, if need
be, mandated by this Court.
Presently for consideration is what appears to be a broken covenant by the State, made
particularly by the Presidential Commission on Good Government (PCGG) to former National
Food Authority (NFA) Administrator Jesus Tanchanco (Tanchanco), one of the petitioners at
bar. Granted, it is a covenant that should not be lightly undertaken, involving as it does the
grant of criminal immunity. Notwithstanding, the legal order has never subscribed to the
notion that promises are meant to be broken.
We begin with the facts.
Tanchanco served as NFA Administrator from 1972 to 1986, during the presidency of
Ferdinand Marcos. His co-petitioner Romeo Lacson (Lacson) was the Deputy Administrator of
the NFA when he was the Administrator.
On 6 May 1988, Tanchanco and the PCGG entered into a Cooperation
Agreement,1 occasioned by the desire of Tanchanco to cooperate with the Philippine
government in connection with the latter’s efforts in the location and pursuit of government
properties "purloined" by Ferdinand and Imelda Marcos, their agents and others who hold
property on their behalf. In the Cooperation Agreement, the parties stipulated as follows:
NOW, THEREFORE, in consideration of the mutual covenants contained herein and intending
to be legally bound hereby, the parties agree as follows:
1. Tanchanco shall cooperate with any and all Philippine Government investigations or
prosecutions pursuant to Executive Order No. 1.
2. "Cooperation" means that Tanchanco shall provide complete, candid and absolutely
truthful disclosures, in response to any and all questions and inquiries that may be put to
him/her in connection with the Philippines’ investigations, civil actions, criminal
prosecutions, or any other proceedings whether in the Philippines, the United States or
elsewhere. Further, upon the request of the Philippines, Tanchanco will offer such
cooperation in investigations and proceedings brought by other governments, including but
not limited to the United States and Switzerland.
Cooperation also means a disgorgement of assets, if any, acquired in violation of Philippine
laws, rules and regulations. Cooperation further means a full disclosure of assets and
liabilities, beneficially owned by Tanchanco. Any assets not therein listed as Tanchanco’s
personal property, and thereafter discovered to be in Tanchanco’s name or under his/her
legal or beneficial control, directly or indirectly, as of the date of this Agreement, shall
become the property of the PCGG.
3. Should any of Tanchanco’s statements or testimonies be false, misleading or materially
incomplete, or should Tanchanco knowingly fail to act with total honesty and candor in any
such matters, the Philippines shall no longer be bound by any of its representations
contained herein. Immunities and other considerations granted in reliance thereof, shall be
null and void.
In return for the above, the Philippines hereby represents and agrees as follows:
(1) At a time to be mutually agreed upon between Tanchanco and the Philippines, the
Philippines shall move to dismiss all actions that are presently pending against Tanchanco
before the Sandiganbayan and any such other courts;
(2) The Philippines shall lift any sequestration orders against Tanchanco’s properties, if any,
and rescind hold orders it may have issued against his/her actions;
(3) The Philippines shall not bring any additional civil or criminal charges against
Tanchanco, arising from:
(A) Service in or for the Marcos government;
(B) Any other actions revealed by Tanchanco pursuant to his/her cooperation as defined in
this Agreement.
Except as expressly set forth herein, there is no understanding or agreement of any kind
between the Philippines or its counsel, and Tanchanco, concerning the possible use(s) of
his/her liability for criminal or civil prosecution by the Philippines, or any other jurisdiction.
Nothing in this Agreement between the Philippines and Tanchanco is conditioned on the
result of any proceedings that might be brought or have been brought against Ferdinand or
Imelda Marcos or others in connection with the information provided or to be provided. Thus
none of the obligations or undertakings described above are in any way dependent upon a
jury’s or court’s verdict at any trial, or the success of any criminal or civil prosecution.2
Significantly, Tanchanco was called upon as one of the witnesses for the prosecution in the
case filed against Imelda Marcos in New York for violation of the so-called RICO Act. It
appears that his testimony was elicited concerning the transfer of ₱10,000,000.00 rebate
obtained by the NFA from the Philippine National Lines to the Security Bank, as well as the
matter of the use of discretionary and/or intelligence funds by the Marcos administration
involving the funds of the NFA during Tanchanco’s administration.3
Nonetheless, a criminal case, docketed as Criminal Case No. 16950, was filed in 1991 against
Tanchanco with the Sandiganbayan for malversation of public funds in the amount of
₱10,000,000.00 from the Philippine National Bank. Tanchanco filed a Motion for
Reinvestigation, wherein he argued that the case should be dismissed as he had been
granted immunity from the said suit by the PCGG. Eventually, the Sandiganbayan First
Division agreed with Tanchanco and in a Resolution dated 27 October 2000, the case was
ordered dismissed.4
However, Criminal Case No. 16950 proved to be only just one of several attempts of the
government to prosecute Tanchanco. In 1997, a total of 22 Informations were filed with the
Sandiganbayan against Tanchanco. He was charged with 21 counts of Malversation of Public
Funds under Article 217 of the Revised Penal Code, and one count of Failure of Accountable
Officer to Render Accounts under Article 218 of the same Code.5 Lacson was charged as a co-
defendant in four of the
informations for Malversation of Public Funds.6 These cases were consolidated and raffled to
the Sandiganbayan Second Division. On 2 September 1997, Tanchanco and Lacson pleaded
not guilty to all of the charges.7
On 26 November 1997, Tanchanco and Lacson filed a Motion to Quash and/or Dismiss all 22
cases, citing as basis the Cooperation Agreement which was said to have granted immunity to
Tanchanco from criminal prosecution. They likewise presented an affidavit executed by
former Vice-President Emmanuel Pelaez, who was serving as Philippine Ambassador to the
United States at the time of the New York trial of Imelda Marcos. In his affidavit, Ambassador
Pelaez relevantly stated:
2. During my incumbency as Ambassador, I had the privilege to assist the Philippine
Government thru the Presidential Commission on Good Government (PCGG) in obtaining the
full cooperation of Mr. Jesus Tanchanco relative to its investigation on the transfer of TEN
MILLION PESOS (₱10,000,000.00) rebate obtained by the National Food Authority (NFA) from
the Philippine National Lines (PNL) to the Security Bank. The scope of investigation also
encompassed the controversial use of discretionary and/or intelligence funds by the Marcos
Administration particularly involving the funds of NFA during the administratorship of Mr.
Tanchanco.
3. In this regard, sometime May 1990, I invited Mr. Jesus Tanchanco, on behalf of PCGG, to
my office in Washington, D.C. to have an investigative meeting with Atty. Severina Rivera and
Atty. Labella, both of whom presented PCGG in cases against the Marcoses in the U.S. On this
occasion, it was explained to Mr. Tanchanco that his disclosure/testimony on the adverted
P10M fund transfer and the matter of discretionary and intelligence funds of the NFA were
indispensable to the Philippine Government’s case against the Marcoses. I urged him to
cooperate with the Government and he signified his willingness to do so.
4. After a time of reflection, Mr. Tanchanco obliged, and he thereafter had lengthy question
and answer sessions with Attys. Rivera and Labella on the aforesaid major and other
collateral issues.8
Still, the motion was denied by the Sandiganbayan Second Division in a Resolution dated 5
March 1999.9 The Sandiganbayan examined Section 5 of Executive Order (E.O.) No. 14, which
empowered the PCGG to grant immunity from criminal prosecution, and ruled that the grant
of immunity by the PCGG pertained only to offenses which may arise from the act of a
person testifying or giving information in connection with the recovery of supposed ill-gotten
wealth.
Respondent court declared that the charges of malversation and failure to render an
accounting could not be considered as falling within the immunity granted to Tanchanco as
the offenses were not related or connected to the testimony or information furnished by
Tanchanco in a proceeding concerning the recovery of the purported ill-gotten wealth of the
Marcoses. The Sandiganbayan opined that the PCGG could not have intended the grant of
immunity to extend to any other crime which Tanchanco may have committed while serving
the Marcos Administration, "such as bribery and rape," since such was beyond the scope of
the PCGG to bestow. To construe the grant of immunity so broadly, held the Sandiganbayan,
would violate the equal protection clause of the Constitution, as well as the due process
clause.10
The Sandiganbayan likewise concluded that even assuming the immunity granted by
the Cooperation Agreementcovered the offenses charged against Tanchanco, the same could
not benefit Lacson, as he was not a party to the immunity agreement.11
A Motion for Reconsideration filed by Tanchanco and Lacson was denied in
a Resolution dated 28 December 1998, the Sandiganbayan declaring therein that the crimes
to which petitioners were charged "are beyond the authority and mandate of the PCGG."12
Petitioners now argue before this Court that the grant of immunity under the Cooperation
Agreement encompassed the subject charges. They note that Tanchanco had given testimony
in the United States regarding the intelligence fund of the NFA, which was used by President
Marcos for his own personal benefit. Petitioners advert to the affidavit attesting to such
testimony by Ambassador Pelaez. It is argued that Tanchanco had complied with all his
commitments made in the Cooperation Agreement, and it would be the height of "gross
distortion of justice and both moral and legal outrage for the government now to welch on
the said Agreement" after Tanchanco had already testified against the Marcoses. Petitioners
likewise cite the relevant jurisprudence concerning the grant of immunity from criminal
prosecution by the PCGG.
The Office of the Special Prosecutor, on behalf of the People of the Philippines, cites the
comment filed by the PCGG to the Motion to Quash and/or Dismiss before the
Sandiganbayan, wherein it alleged that contrary to the terms of the Cooperation Agreement,
Tanchanco had not yet provided the PCGG "a full disclosure of assets and liabilities
beneficially owned by Tanchanco."13 This claim is countered by petitioners, who assert
before this Court that he had already submitted such disclosure to the PCGG even prior to
the execution and signing of the Cooperation Agreement.14
The Office of the Solicitor General (OSG), representing respondent Sandiganbayan, provides
a different argument against petitioners. The OSG reiterates the position of the
Sandiganbayan that the 22 charges against Tanchanco were not covered by the immunity
granted by the PCGG, which pertained only to offenses which may arise from his act in
testifying or giving information in connection with the recovery of ill-gotten wealth.15
Before delving into the merits, we make two preliminary qualifications. First, the general rule
under Rule 117 of the Rules of Criminal Procedure is that the accused may move to quash the
complaint or information at any time before entering his plea and the failure of the accused
to assert any ground of a motion to quash before he pleads to the complaint or information
shall be deemed a waiver of any objection.16 In this case, Tanchanco and Lacson had pleaded
not guilty in all the subject cases on 2 September 1997, two months before they filed the
instant Motion to Quash and/or Dismiss in November of 1997. Nonetheless, Section 9 of Rule
117 expressly qualifies that the failure to timely raise the objection of lack of jurisdiction over
the offense charged cannot be waived,17 and may be raised or considered motu proprio by
the court at any stage of the proceedings or on appeal.18 Such objection could be raised
through a motion to dismiss when it is no longer timely to file a motion to quash.19 We have
no doubt that a claim of immunity from prosecution arising from an immunity statute or
agreement is a jurisdictional question. A statutory grant of immunity enjoins the prosecution
of a criminal action and thus deprives the court of jurisdiction to proceed.20
Accordingly, the invocation of immunity may have been the proper subject of petitioners’
instant motion, and properly cognizable by the Sandiganbayan even after the plea had been
entered. We need not belabor this point further, especially since none of the parties, and
certainly not the Sandiganbayan, have either raised or considered this aspect of the case.
Second, we note that different circumstances obtain between Tanchanco and Lacson, the
latter being evidently not a party to any immunity agreement with the Philippine
government. Thus, it is proper to treat their cases separately. We first rule on Tanchanco’s
claim of immunity.
The Plain Meaning of the
Cooperation Agreement
Our first point of reference understandably is the Cooperation Agreement. Therein, we note
that the grant of immunity to Tanchanco is deliberately broad. It is stipulated that the
government "shall not bring any additional civil or criminal charges against Tanchanco arising
from: (a) service in or for the Marcos government; and (b) any other actions revealed by
Tanchanco pursuant to his/her (sic) cooperation as defined in this Agreement."21
The undertakings expressed by the Philippine government through the PCGG in
the Cooperation Agreement are quite clear-cut, even if broad in scope. Facially, it seemingly
encompasses three classes of actions committed by Tanchanco: those committed while he
was in the service of the Marcos government; those committed in behalf of the Marcos
government; and any other act revealed by him in the course of his cooperation with the
PCGG.
Especially telling are the segregations made in the classification of the acts covered by the
grant of criminal immunity. First, the distinction is laid, as signified by the conjunctive "or",
between those acts committed by Tanchanco arising from service in the Marcos government
and those committed for or in behalf of the Marcos government. The difference between
those two classes of acts is crucial, for if the agreement is construed plainly, the immunity
covers not only those acts committed by Tanchanco for the benefit or under the instruction
of the Marcoses, but even those acts of Tanchanco which may not have been tinged with the
involvement of Marcos or his government yet which nevertheless occurred during
Tanchanco’s term as NFA Administrator.
On the face of the document, we cannot simply say that the clause should be read as
covering only those acts of Tanchanco which he committed for the Marcos government while
he was in service as NFA Administrator. The use of the word "or" signifies the joinder of two
distinct concepts: "service in" and "service for", and it is our conclusion that the PCGG and
Tanchanco, in forging the Cooperation Agreement purposively intended to segregate acts
arising from "service in" and acts arising from "service for" the Marcos government.
The Cooperation Agreement also utilizes a distinction between these acts arising from
"service in or for the Marcos government", and "any other actions revealed by Tanchanco
pursuant to [his] cooperation as defined in the Agreement." This qualification is again crucial,
as it is the contention of the OSG that the scope of immunity is limited only to those offenses
which may arise from his act in testifying or giving information in connection with the
recovery of ill-gotten wealth. Immunity from criminal prosecution arising from those acts
elicited from Tanchanco in the course of his cooperation falls squarely within the second
ground for immunity, "any other actions revealed by Tanchanco pursuant to [his]
cooperation." If indeed, as the OSG suggests, the scope of immunity is limited to those
offenses that arise from Tanchanco’s act in testifying or giving information, then why the
provision of the first ground of immunity under the Cooperation Agreement, for acts arising
from "service in or service for the Marcos government"? The provision is there to effectuate
what it declares.
Other provisions of the Cooperation Agreement likewise indicate that the intent of the PCGG,
as representative of the Philippine government, was to offer Tanchanco broad protection
from criminal prosecution. The Second Whereas Clause expresses that both Tanchanco and
the PCGG "are desirous of resolving their differences and settling all litigation between
them".22 Moreover, it is stipulated that "none of the obligations or undertakings described
[herein] are in any way dependent upon a jury’s or court’s verdict at any trial, or the success
of any criminal or civil prosecution."23
We thus cannot accept the conclusion that the intent of the parties to the Cooperation
Agreement was to limit the scope of immunity to cover only offenses arising from the
testimony or information given by Tanchanco pursuant to his cooperation; or that said
agreement pertains only to those offenses committed by Tanchanco in behalf of the Marcos
government. Such limited construction is belied by the clear terms of the Cooperation
Agreement.
The reasons or motives of the PCGG in agreeing to so broad an immunity agreement are not
evidently determinable, yet ultimately excluded from the scope of judicial inquiry. In Mapa v.
Sandiganbayan,24 the Court was asked to rule on the range and power of the courts to
review the exercise of discretion of the PCGG in granting immunity pursuant to Section 5 of
E.O. No. 14. The Court, speaking through now Senior Associate Justice Reynato S. Puno, ruled
that such review "can go no further than to pass upon [the immunity grant’s] procedural
regularity", and is especially limited to the questions of "(a) whether the person claiming
immunity has provided information or testimony in any investigation conducted by the PCGG
in the discharge of its functions; (b) whether in the bona fide judgment of the PCGG, the
information or testimony given would establish the unlawful manner in which the
respondent, defendant or accused has acquired or accumulated the property or properties in
question; and (c) whether in the bona fide judgment of the PCGG, such information or
testimony is necessary to ascertain or prove the guilt or civil liability of the respondent,
defendant or accused."25
The ruling in Mapa, which was ignored by the Sandiganbayan, establishes several principles
that govern this case as seen in our subsequent discussion. But the first integral point which
we now invoke is that the reasons or motives of the PCGG in granting broad criminal
immunity to Tanchanco are beyond the scope of judicial review. The more appropriate legal
question now lies as to whether the PCGG, in entering into the Cooperation Agreement,
acted within the scope of its statutory authority to extend immunity in the first place? Does
such authority encompass the broadly granted immunity as so plainly expressed in
the Cooperation Agreement?
Statutory Authority of PCGG
To Extend Criminal Immunity
Before we examine the particular statutory authority of the PCGG to extend criminal
immunity, it is useful to recall the unique nature and mandate of the PCGG itself. The seminal
case of BASECO v. PCGG26 explained the background behind the creation of the PCGG
through E.O. No. 1.
The impugned executive orders are avowedly meant to carry out the explicit command of
the Provisional Constitution, ordained by Proclamation No. 3, that the President — in the
exercise of legislative power which she was authorized to continue to wield "(u)ntil a
legislature is elected and convened under a new Constitution" — "shall give priority to
measures to achieve the mandate of the people," among others to (r)ecover ill-gotten
properties amassed by the leaders and supporters of the previous regime and protect the
interest of the people through orders of sequestration or freezing of assets or accounts."
xxx
Executive Order No. 1 stresses the "urgent need to recover all ill-gotten wealth," and
postulates that "vast resources of the government have been amassed by former President
Ferdinand E. Marcos, his immediate family, relatives, and close associates both here and
abroad." Upon these premises, the Presidential Commission on Good Government was
created, "charged with the task of assisting the President in regard to . . . (certain specified)
matters," among which was precisely —
". . . The recovery of all ill-gotten wealth accumulated by former President Ferdinand E.
Marcos, his immediate family, relatives, subordinates and close associates, whether
located in the Philippines or abroad, including the takeover or sequestration of all business
enterprises and entities owned or controlled by them, during his administration, directly or
through nominees, by taking undue advantage of their public office and/or using their
powers, authority, influence, connections or relationship."
In relation to the takeover or sequestration that it was authorized to undertake in the
fulfillment of its mission, the PCGG was granted "power and authority" to do the following
particular acts, to wit:
1. "To sequester or place or cause to be placed under its control or possession any building or
office wherein any ill-gotten wealth or properties may be found, and any records pertaining
thereto, in order to prevent their destruction, concealment or disappearance which would
frustrate or hamper the investigation or otherwise prevent the Commission from
accomplishing its task."
"2. "To provisionally take over in the public interest or to prevent the disposal or dissipation,
business enterprises and properties taken over by the government of the Marcos
Administration or by entities or persons close to former President Marcos, until the
transactions leading to such acquisition by the latter can be disposed of by the appropriate
authorities.
"3. "To enjoin or restrain any actual or threatened commission of acts by any person or entity
that may render moot and academic, or frustrate or otherwise make ineffectual the efforts
of the Commission to carry out its task under this order."
So that it might ascertain the facts germane to its objectives, it was granted power to
conduct investigations; require submission of evidence by subpoenae ad testificandum and
duces tecum; administer oaths; punish for contempt. It was given power also to promulgate
such rules and regulations as may be necessary to carry out the purposes of . . . (its
creation.)."
 xxx
Executive Order No. 2 gives additional and more specific data and directions respecting "the
recovery of ill-gotten properties amassed by the leaders and supporters of the previous
regime." It declares that:
1) ". . . the Government of the Philippines is in possession of evidence showing that there are
assets and properties purportedly pertaining to former Ferdinand E. Marcos, and/or his wife
Mrs. Imelda Romualdez Marcos, their close relatives, subordinates, business associates,
dummies, agents or nominees which had been or were acquired by them directly or
indirectly, through or as a result of the improper or illegal use of funds or properties owned
by the government of the Philippines or any of its branches, instrumentalities, enterprises,
banks or financial institutions, or by taking undue advantage of their office, authority,
influence, connections or relationship, resulting in their unjust enrichment and causing grave
damage and prejudice to the Filipino people and the Republic of the Philippines;" and
2) ". . . said assets and properties are in the form of bank accounts, deposits, trust accounts,
shares of stocks, buildings, shopping centers, condominiums, mansions, residences, estates,
and other kinds of real and personal properties in the Philippines and in various countries of
the world."
xxx
A third executive order is relevant: Executive Order No. 14, by which the PCGG is
empowered, "with the assistance of the Office of the Solicitor General and other government
agencies, . . . to file and prosecute all cases investigated by it . . . as may be warranted by its
findings." All such cases, whether civil or criminal, are to be filed "with the Sandiganbayan,
which shall have exclusive and original jurisdiction thereof." Executive
Order No. 14 also pertinently provides that "(c)ivil suits for restitution, reparation of
damages, or indemnification for consequential damages, forfeiture proceedings provided for
under Republic Act No. 1379, or any other civil actions under the Civil Code or other existing
laws, in connection with . . . (said Executive Orders Numbered 1 and 2) may be filed
separately from and proceed independently of any criminal proceedings and may be proved
by a preponderance of evidence;" and that, moreover, the "technical rules of procedure and
evidence shall not be strictly applied to . . . (said) civil cases." 27
Executive Order No. 14, as amended by E.O. No. 14-A, defines "the jurisdiction over cases
involving the ill-gotten wealth of former President Ferdinand E. Marcos, Mrs. Imelda R.
Marcos, members of their immediate family, close relatives, subordinates, close and/or
business associates, dummies, agents and nominees."28 It is Section 5 thereof, as amended,
which authorizes the PCGG to grant immunity from criminal prosecution, in the following
manner:
Sec. 5. The Presidential Commission on Good Government is authorized to grant immunity
from criminal prosecution to any person who provides information or testifies in any
investigation conducted by such Commission to establish the unlawful manner in which
any respondent, defendant or accused has acquired or accumulated the property or
properties in question in any case where such information or testimony is necessary to
ascertain or prove the latter's guilt or his civil liability. The immunity thereby granted shall
be continued to protect the witness who repeats such testimony before the Sandiganbayan
when required to do so by the latter or by the Commission.29
From these premises, we can draw useful conclusions. Section 5 is worded in such a manner
as it does not provide any express limitations as to the scope of immunity from criminal
prosecution that the PCGG is authorized to grant. The qualifications that Section 5 do provide
relate to the character of the information or testimony before the PCGG of the grantee of
immunity, namely, that it "establish[es] the unlawful manner in which any respondent,
defendant or accused has acquired or accumulated the property or properties in question in
any case where such information or testimony is necessary to ascertain or prove the latter's
guilt or his civil liability."
While there is no doubt that the information or testimony of the grantee must pertain to the
manner of acquisition of ill-gotten wealth by the Marcoses, their close relatives and
associates, the question now before us is whether the available immunity from criminal
prosecution relates only to the prosecution of the grantee in like minded cases. The
Sandiganbayan opined in the affirmative, declaring that "[t]he charges of malversation and
failure to render an account cannot be considered within the purview of the immunity
granted to Tanchanco by the PCGG, since the offenses are not related to or connected with
the testimony or information furnished by Tanchanco in a proceeding concerning the
recovery of the purported ill-gotten wealth of the former President, his relatives and
associates."30We are constrained to disagree.
The Court has been called upon before to construe Section 5 of E.O. No. 14-A. As earlier
noted, the Court in Mapa31 held that the power of the Sandiganbayan to review such grant of
immunity by the PCGG could "go no further than to pass upon its procedural regularity."
In Chavez v. PCGG,32 the Court reiterated that the conditions under which the PCGG may
grant criminal immunity were: "(1) the person to whom criminal immunity is granted
provides information or testifies in an investigation conducted by the Commission; (2) the
information or testimony pertains to the unlawful manner in which the respondent,
defendant or accused acquired or accumulated ill-gotten property; and (3) such information
or testimony is necessary to ascertain or prove guilt or civil liability of such individual." 33
The Court in both cases adverted to the same characterization of criminal immunity under
Section 5. Notably, the Court did not affirm the belief that the scope of criminal immunity
was limited to any class of criminal acts, offenses, or cases–understandable considering that
Section 5 does not make any such qualification. Moreover, our ruling in Mapa went as far as
to squarely characterize the witness under Section 5 of E.O. No. 14-A as "completely
immunized from prosecution."34 In the same case, the Court even upheld the immunity
granted to petitioners Mapa and Vergara despite the fact that the PCGG subsequently
reversed track and acceded to the prosecution of the said petitioners.
To be certain, the Sandiganbayan’s conclusion in this case is not entirely off-base. We have
recognized in this jurisdiction that American common law generally recognizes two kinds of
statutory criminal immunity available to a witness: transactional immunity and the use-and-
derivative-use immunity.35 Transactional immunity is broader in the scope of its protection.
By its grant, a witness can no longer be prosecuted for any offense whatsoever arising out of
the act or transaction to which the testimony relates. In contrast, by the grant of use-and-
derivative-use immunity, a witness is only assured that his or her particular testimony and
evidence derived from it will not be used against him or her in a subsequent prosecution.36
Applying the broader standard of "transactional immunity", it might be argued that the
immunity which the PCGG is authorized to grant to Tanchanco should pertain only to those
acts or offenses which are the subject of the information or testimony given by him.
Considering though that the applicable law at hand does not make such a qualification, the
adoption of that view would force us into a concession that the legislative authority to grant
criminal immunity is limited to transactional or use-and-derivative-use immunity. We cannot
accept the proposition.
Transactional immunity derives from common-law tradition, which gives greater deference
to the weight of judicial precedents since the codification of laws by the legislature is atypical
in practice. In our jurisdiction though, the definition of crimes and provision of criminal
penalties are ineluctably within the sole province of the legislative branch of government. It
thus follows that this prerogative necessarily empowers the legislative to enact conditions
under which a class of persons may be immune from criminal or civil prosecution. Since the
legislature possesses sole discretion to enact statutes to such effect, it is not obliged to
conform with judge-made standards, or even traditional modalities concerning the grant of
criminal immunity. The solitary limitation on legislative grant of immunity, as with all other
legislative acts, is adherence to the Constitution.
Another consideration impels us to sustain this broad application of immunity under Section
5 of E.O. No. 14-A. We cannot ignore the special circumstances under which the PCGG was
created, and the extra-ordinary powers with which it was vested. The Freedom Constitution
itself, under which regime the body was created, recognized the need "to [r]ecover ill-gotten
properties amassed by the leaders and supporters of the [Marcos] regime". It has been
acknowledged that the PCGG is "charged with the herculean task of bailing the country out
of the financial bankruptcy and morass of the previous regime and returning to the people
what is rightfully theirs."37 For this reason, the PCGG was granted quasi-judicial
functions38 encompassing special investigatory and prosecutorial powers, among them, the
power to grant immunity.
In tracing and recovering the colossal sums of "ill-gotten wealth", the PCGG would inevitably
collide with powerful interests. Persons who would be able to assist in the prosecution of
cases of ill-gotten wealth may understandably be hesitant to cooperate with the PCGG
without the assurance of some protection, or perhaps corresponding benefit on their part.
There may be some inherent unease with the notion that persons may acquit themselves of
their own criminal culpability by striking a deal with the government, yet the process of
compromise has long been allowed in our jurisdiction, and in the jurisdiction of other states
as well.39 This holds especially true in the prosecution of ill-gotten wealth cases, which not
only involve monumental amounts, but have also ineluctably acquired immense symbolic
value.
The overwhelming need to prosecute the ill-gotten wealth cases is entrenched in statute and
public policy. The stakes being as they are, the need is apparent for a highly conducive
environment under which witnesses may be induced to cooperate with the PCGG in the
prosecution of the ill-gotten wealth cases. The authorization of the PCGG to broadly extend
criminal immunity, as is apparent in the language of Section 5, is attuned to such aims.
Certainly, Section 5 as constructed leads to a reasonable conclusion that the scope of
criminal immunity which the PCGG may offer need not be limited to prosecution relating to
the information or testimony offered by the witness. And it is apparent on the face of
the Cooperation Agreement with Tanchanco that the PCGG understood just as well that it
had the power to grant criminal immunity even over such acts which did not directly bear on
the information or testimony.
Our conclusion is also supported by the fact that based on the PCGG immunity agreements
which have come before this Court, the scope of offered immunity has proven variable. For
example, the grant of immunity accorded by the PCGG to Jose Yao Campos and his family
was qualified only by reference to Section 5 of E.O. No. 1440. On the other hand, the
immunity received by Placido Mapa and Lorenzo Vergara was limited over "any offense with
reference to which [their] testimony and information are given, including any offense and
commission of which any information, directly or indirectly derived from such testimony or
other information is used as basis thereof, except a prosecution for perjury and/or giving
false testimony."41 In Tanchanco’s case, his entitlement to criminal immunity applies to three
determinate circumstances: for acts committed while he was in the service of the Marcos
government; acts committed in behalf of the Marcos government; and any other act
revealed by him in the course of his cooperation with the PCGG.
These variances are indicative of the fact that the PCGG has the discretion to vest
appropriate levels of criminal immunity according to the particular witness. There are several
factors that may affect this choice, which may include the relative importance of the witness
to the prosecution of ill-gotten wealth cases, the degree of culpability of such cases, or even
the conditions expressed by the witness as sufficient to induce cooperation. Given the
language of Section 5, we do not doubt the latitude afforded to the PCGG in determining the
extent of criminal immunity it can afford the cooperative witness. Such is conformable to the
unprecedented power of the PCGG to grant criminal immunity. We made the following
pertinent observations in Mapa:
We observe that in contrast to our other laws on immunity, section 5 of E.O. No. 14, as
amended, confers on the PCGG the power to grant immunity alone and on its own authority.
The exercise of the power is not shared with any other authority. Nor is its exercise subject to
the approval or disapproval of another agency of government. The basic reason for vesting
the power exclusively on the PCGG lies in the principles of separation of power. The decision
to grant immunity from prosecution forms a constituent part of the prosecution process. It is
essentially a tactical decision to forego prosecution of a person for government to achieve a
higher objective. It is a deliberate renunciation of the right of the State to prosecute all who
appear to be guilty of having committed a crime. Its justification lies in the particular need of
the State to obtain the conviction of the more guilty criminals who, otherwise, will probably
elude the long arm of the law. Whether or not the delicate power should be exercised, who
should be extended the privilege, the timing of its grant, are questions addressed solely to
the sound judgment of the prosecution. The power to prosecute includes the right to
determine who shall be prosecuted and the corollary right to decide whom not to prosecute.
In reviewing the exercise of prosecutorial discretion in these areas, the jurisdiction of the
respondent court is limited. For the business of a court of justice is to be an impartial
tribunal, and not to get involved with the success or failure of the prosecution to prosecute.
Every now and then, the prosecution may err in the selection of its strategies, but such errors
are not for neutral courts to rectify, any more than courts should correct the blunders of the
defense. For fairness demands that courts keep the scales of justice at equipoise between
and among all litigants. Due process demands that courts should strive to maintain the legal
playing field perfectly even and perpetually level.42
Certainly, especially since nothing in Section 5 mandates a minimum standard of criminal
immunity, the PCGG was not obliged to grant Tanchanco so broad an exemption. Yet the
extent to which it did is permissible under E.O. No. 14-A, and we are wont to uphold the
broad grant, especially as it favors a criminal defendant. Ambiguities in immunity agreements
must be construed against the State,43 and any question of interpretation must be resolved
in favor of the
defendant,44 following the underlying fundamental principle that all doubts must be resolved
in favor of the accused.
We are not in accord with the behavior of both the government and the Sandiganbayan in
this case. We have reviewed the pertinent memoranda prepared respectively by the
Commission on Audit and the Office of the Special Prosecutor which eventually served as the
basis for the institution of the cases. From these documents, it is clear that no consideration
was given to the possible effects of the Cooperation Agreement on the viability of
prosecuting Tanchanco. The attitude of the investigators and prosecutors appears to have
been to pretend that the Cooperation Agreement did not exist at all. This fact weakens the
believability of belated claims, raised in opposition to the instant motion to quash/dismiss,
that Tanchanco had actually violated portions of the Cooperation Agreement. The indications
are that the prosecutors, prior to the institution of the case, had not considered such
agreement at all as a factor, despite the clear language therein.
If indeed the government had known as a fact that Tanchanco had violated his obligations
under the Cooperation Agreement, the very least it could have done was to notify him of
such violations, or of its intent to rescind the Cooperation Agreement. Vested rights were at
stake which affected the liberty of a person, and any deprivation or revocation therein could
not be effected in so blithe a fashion as that which occurred in this case.
Neither does it appear that the Sandiganbayan had given careful consideration to
the Cooperation Agreement when it ruled on the motion to quash/dismiss. It resorted to
generalizations such as "the offenses are not related to or connected with the testimony or
information furnished by Tanchanco"45 or "the subject matter of the informations are NFA
funds and the records do not indicate that they have any relation whatsoever to the ill-
gotten wealth of the Marcoses or their cronies."46
Yet from the results of the investigations that led to the institution of the charges, it is clear
that the cases against Tanchanco arose from the following acts or irregularities: (1) the
transfer of NFA funds either to Tanchanco’s personal account, the account of "Oplan
Wag-Wag", or a private institution; (2) the failure to account for several classes of funds
received by Tanchanco, including discretionary funds, amounts contributed to the Food
Production and Nutrition Fund, and other donations. From the Pelaez affidavit, it is clear that
the PCGG had precisely investigated the anomalous transfer of NFA funds during the Marcos
Administration, particularly the use of discretionary or intelligence funds of the NFA, and that
Tanchanco had given information relating to such investigation.
Faced with these facts, the conclusion of the Sandiganbayan that the subject informations
bore no relation either to the acquisition of ill-gotten wealth or the investigations of the
PCGG is questionable. It may be within the realm of possibility that at least some of the
charges against Tanchanco pertain to acts he performed for his own personal benefit,
without regard to the scheme implemented for the acquisition of ill-gotten wealth. Still,
neither the Sandiganbayan nor the prosecution appears to have seriously considered or laid
down such a distinction. And besides, as earlier stated, the scope of the Cooperation
Agreement itself precludes the prosecution of Tanchanco under the subject charges.
We should observe that the Sandiganbayan First Division, in a different case, had also
considered the application of the Cooperation Agreement in the criminal prosecution of
Tanchanco. The disposition of the instant motion to quash and/or dismiss of the
Sandiganbayan Second Division pales in comparison to the judicious deliberation of the First
Division, through the late Presiding Justice Francis Garchitorena. Particularly admirable was
how the First Division had applied this Court’s precedents on the authority of the PCGG to
grant criminal immunity, especially Mapa. The First Division cited the threefold test laid
down in Mapa on the parameters under which the Sandiganbayan could review the grant of
immunity, and arrived at the following crucial conclusions, namely: (i) that Tanchanco had
cooperated with the PCGG in obtaining information on the Marcos wealth; and (ii) that the
PCGG exercised bona fide judgment in deciding to grant immunity to Tanchanco. In contrast,
the Sandiganbayan Second Division, without considering Mapa and other relevant
precedents, rashly concluded without palpable basis that the Cooperation Agreement did not
cover the subject charges.47
We thus hold that the Cooperation Agreement, validly undertaken between the PCGG and
Tanchanco as it was, precludes the prosecution of Tanchanco under the subject charges. The
Sandiganbayan acted with grave abuse of discretion in refusing to dismiss the charges
despite its lack of jurisdiction to continue hearing the cases against Tanchanco. The present
petition, insofar as it relates to Tanchanco, must be granted. It goes without saying though
that this ruling does not shield all grantees under Section 5 of E.O. No. 14-A from all kinds
of criminal prosecution. The extent of immunity available to each particular grantee depends
on their respective immunity agreements with the PCGG and the surrounding facts.
Lacson Not Entitled To Immunity
A different result must obtain for petitioner Lacson. There is no legal basis that would
preclude his prosecution under the subject informations. The reason is simple. There is no
subsisting agreement by virtue of which the State granted any kind of immunity from
criminal prosecution to Lacson. Certainly, Lacson could not inveigh that
Tanchanco’s Cooperation Agreement also applies as to him since he was not a party thereto.
Nor is there, on the face of the Cooperation Agreement, any evident intention on the part of
the PCGG and Tanchanco to extend the grant of immunity to other persons as well. Besides,
even if there was such intent, it may be of doubtful validity since the authority of the PCGG
to grant immunity under Section 5-A of E.O. No. 14-A is limited to "person[s] who provide
information or testif[y] in any investigation conducted by [the PCGG]."48

Criminal immunity must be specifically granted.49 We cannot uphold a grant of criminal

immunity to a person whom the State never intended to exempt from prosecution, or who
performed no act to the benefit of the State that may have served as basis for a possible
grant of exemption. It should be emphasized that the grant of immunity to Tanchanco did
not have the effect of obviating all consequential culpabilities arising from Tanchanco’s acts.
Only Tanchanco’s own criminal liability was extirpated, for the reason that the government
saw a higher social value in eliciting information from him rather than engaging in his
prosecution. No correlative tradeoff occurred as to Lacson, so we do not see any reason in
law or in equity to exempt him as well.

It may seem unsettling to some that Lacson will have to endure criminal prosecution while
Tanchanco would be discharged, or that Tanchanco will need not answer for whatever
culpable acts of his during his service in the Marcos government. Yet the Court is not the
guarantor of karmic warrants, but only of legal ones. The Cooperation Agreement, entered
into in the judgment of the State that it would serve a higher end of justice, is a valid
document, enforceable as to Tanchanco before this Court and other courts of the land.

WHEREFORE, the petition is GRANTED IN PART. The Court hereby orders the DISMISSAL of
the SUBJECT CRIMINAL CASES INSOFAR AS PETITIONER JESUS TANCHANCO IS CONCERNED.
No pronouncement as to costs.

SO ORDERED.

DANTE O. TINGA

Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 164007 August 10, 2006
LT. (SG) EUGENE GONZALES, LT. (SG) ANDY TORRATO, LT. (SG) ANTONIO TRILLANES IV, CPT.
GARY ALEJANO, LT. (SG) JAMES LAYUG, CPT. GERARDO GAMBALA, CPT. NICANOR
FAELDON, LT. (SG) MANUEL CABOCHAN, ENS. ARMAND PONTEJOS, LT. (JG) ARTURO
PASCUA, and 1LT. JONNEL SANGGALANG, Petitioners,
vs.
GEN. NARCISO ABAYA, in his capacity as Chief of Staff of the Armed Forces of the
Philippines, and B. GEN. MARIANO M. SARMIENTO, JR., in his capacity as the Judge
Advocate General of the Judge Advocate General’s Office (JAGO), Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the Petition for Prohibition (with prayer for a temporary restraining
order) filed by the above-named members of the Armed Forces of the Philippines (AFP),
herein petitioners, against the AFP Chief of Staff and the Judge Advocate General,
respondents.
The facts are:
On July 26, 2003, President Gloria Macapagal Arroyo received intelligence reports that some
members of the AFP, with high-powered weapons, had abandoned their designated places of
assignment. Their aim was to destabilize the government. The President then directed the
AFP and the Philippine National Police (PNP) to track and arrest them.
On July 27, 2003 at around 1:00 a.m., more than 300 heavily armed junior officers and
enlisted men of the AFP – mostly from the elite units of the Army’s Scout Rangers and the
Navy’s Special Warfare Group – entered the premises of the Oakwood Premier Luxury
Apartments on Ayala Avenue, Makati City. They disarmed the security guards and planted
explosive devices around the building.
Led by Navy Lt. (SG) Antonio Trillanes IV, the troops sported red armbands emblazoned with
the emblem of the "Magdalo" faction of the Katipunan. 1 The troops then, through broadcast
media, announced their grievances against the administration of President Gloria Macapagal
Arroyo, such as the graft and corruption in the military, the illegal sale of arms and
ammunition to the "enemies" of the State, and the bombings in Davao City intended to
acquire more military assistance from the US government. They declared their withdrawal of
support from their Commander-in-Chief and demanded that she resign as President of the
Republic. They also called for the resignation of her cabinet members and the top brass of
the AFP and PNP.
About noontime of the same day, President Arroyo issued Proclamation No. 427 declaring a
state of rebellion, followed by General Order No. 4 directing the AFP and PNP to take all
necessary measures to suppress the rebellion then taking place in Makati City. She then
called the soldiers to surrender their weapons at five o’clock in the afternoon of that same
day.
In order to avoid a bloody confrontation, the government sent negotiators to dialogue with
the soldiers. The aim was to persuade them to peacefully return to the fold of the law. After
several hours of negotiation, the government panel succeeded in convincing them to lay
down their arms and defuse the explosives placed around the premises of the Oakwood
Apartments. Eventually, they returned to their barracks.
A total of 321 soldiers, including petitioners herein, surrendered to the authorities.
The National Bureau of Investigation (NBI) investigated the incident and recommended that
the military personnel involved be charged with coup d’etat defined and penalized under
Article 134-A of the Revised Penal Code, as amended. On July 31, 2003, the Chief State
Prosecutor of the Department of Justice (DOJ) recommended the filing of the corresponding
Information against them.
Meanwhile, on August 2, 2003, pursuant to Article 70 of the Articles of War, respondent
General Narciso Abaya, then AFP Chief of Staff, ordered the arrest and detention of the
soldiers involved in the Oakwood incident and directed the AFP to conduct its own separate
investigation.
On August 5, 2003, the DOJ filed with the Regional Trial Court (RTC), Makati City an
Information for coup d’etat 2against those soldiers, docketed as Criminal Case No. 03-2784
and eventually raffled off to Branch 61, presided by Judge Romeo F. Barza. 3 Subsequently,
this case was consolidated with Criminal Case No. 03-2678, involving the other accused,
pending before Branch 148 of the RTC, Makati City, presided by Judge Oscar B. Pimentel.
On August 13, 2003, the RTC directed the DOJ to conduct a reinvestigation of Criminal Case
No. 03-2784.
On the same date, respondent Chief of Staff issued Letter Order No. 625 creating a Pre-Trial
Investigation Panel tasked to determine the propriety of filing with the military tribunal
charges for violations of the Articles of War under Commonwealth Act No. 408, 4 as
amended, against the same military personnel. Specifically, the charges are: (a) violation of
Article 63 for disrespect toward the President, the Secretary of National Defense, etc., (b)
violation of Article 64 for disrespect toward a superior officer, (c) violation of Article 67 for
mutiny or sedition, (d) violation of Article 96 for conduct unbecoming an officer and a
gentleman, and (e) violation of Article 97 for conduct prejudicial to good order and military
discipline.
Of the original 321 accused in Criminal Case No. 03-2784, only 243 (including petitioners
herein) filed with the RTC, Branch 148 an Omnibus Motion praying that the said trial court
assume jurisdiction over all the charges filed with the military tribunal. They invoked Republic
Act (R.A.) No. 7055. 5
On September 15, 2003, petitioners filed with the Judge Advocate General’s Office (JAGO) a
motion praying for the suspension of its proceedings until after the RTC shall have resolved
their motion to assume jurisdiction.
On October 29, 2003, the Pre-Trial Investigation Panel submitted its Initial Report to the AFP
Chief of Staff recommending that the military personnel involved in the Oakwood incident be
charged before a general court martial with violations of Articles 63, 64, 67, 96, and 97 of the
Articles of War.
Meanwhile, on November 11, 2003, the DOJ, after conducting a reinvestigation, found
probable cause against only 31 (petitioners included) of the 321 accused in Criminal Case No.
03-2784. Accordingly, the prosecution filed with the RTC an Amended Information. 6
In an Order dated November 14, 2003, the RTC admitted the Amended Information and
dropped the charge of coup d’etat against the 290 accused.
Subsequently, or on December 12, 2003, the Pre-Trial Investigation Panel submitted its Final
Pre-Trial Investigation Report 7 to the JAGO, recommending that, following the "doctrine of
absorption," those charged with coup d’etatbefore the RTCshould not be charged before the
military tribunal for violation of the Articles of War.
For its part, the RTC, on February 11, 2004, issued an Order 8 stating that "all charges before
the court martial against the accused…are hereby declared not service-connected, but rather
absorbed and in furtherance of the alleged crime of coup d’etat." The trial court then
proceeded to hear petitioners’ applications for bail.
In the meantime, Colonel Julius A. Magno, in his capacity as officer-in-charge of the JAGO,
reviewed the findings of the Pre-Trial Investigation Panel. He recommended that 29 of the
officers involved in the Oakwood incident, including petitioners, be prosecuted before a
general court martial for violation of Article 96 (conduct unbecoming an officer and a
gentleman) of the Articles of War.
On June 17, 2004, Colonel Magno’s recommendation was approved by the AFP top brass.
The AFP Judge Advocate General then directed petitioners to submit their answer to the
charge. Instead of complying, they filed with this Court the instant Petition for Prohibition
praying that respondents be ordered to desist from charging them with violation of Article 96
of the Articles of War in relation to the Oakwood incident. 9
Petitioners maintain that since the RTC has made a determination in its Order of February 11,
2004 that the offense for violation of Article 96 (conduct unbecoming an officer and a
gentleman) of the Articles of War is not service-connected, but is absorbed in the crime
of coup d’etat, the military tribunal cannot compel them to submit to its jurisdiction.
The Solicitor General, representing the respondents, counters that R.A. No. 7055 specifies
which offenses covered by the Articles of War areservice-connected. These are violations of
Articles 54 to 70, 72 to 92, and 95 to 97. The law provides that violations of these Articles are
properly cognizable by the court martial. As the charge against petitioners is violation of
Article 96 which, under R.A. No. 7055 is a service-connected offense, then it falls under the
jurisdiction of the court martial.
Subsequently, petitioners filed with this Court a Supplemental Petition raising the additional
issue that the offense charged before the General Court Martial has prescribed. Petitioners
alleged therein that during the pendency of their original petition, respondents proceeded
with the Pre-Trial Investigation for purposes of charging them with violation of Article 96
(conduct unbecoming an officer and a gentleman) of the Articles of War; that the Pre-Trial
Investigation Panel then referred the case to the General Court Martial; that "almost two
years since the Oakwood incident on July 27, 2003, only petitioner Lt. (SG) Antonio Trillanes
was arraigned, and this was done under questionable circumstances;" 10 that in the hearing
of July 26, 2005, herein petitioners moved for the dismissal of the case on the ground that
they were not arraigned within the prescribed period of two (2) years from the date of the
commission of the alleged offense, in violation of Article 38 of the Articles of War; 11 that
"the offense charged prescribed on July 25, 2005;" 12 that the General Court Martial ruled,
however, that "the prescriptive period shall end only at 12:00 midnight of July 26,
2005;" 13 that "(a)s midnight of July 26, 2005 was approaching and it was becoming apparent
that the accused could not be arraigned, the prosecution suddenly changed its position and
asserted that 23 of the accused have already been arraigned;" 14 and that petitioners moved
for a reconsideration but it was denied by the general court martial in its Order dated
September 14, 2005. 15
In his Comment, the Solicitor General prays that the Supplemental Petition be denied for lack
of merit. He alleges that "contrary to petitioners’ pretensions, all the accused were duly
arraigned on July 13 and 18, 2005." 16 The "(r)ecords show that in the hearing on July 13,
2005, all the 29 accused were present" and, "(o)n that day, Military Prosecutor Captain Karen
Ong Jags read the Charges and Specifications from the Charge Sheet in open court (pp. 64,
TSN, July 13, 2005)." 17
The sole question for our resolution is whether the petitioners are entitled to the writ of
prohibition.
There is no dispute that petitioners, being officers of the AFP, are subject to military law.
Pursuant to Article 1 (a) of Commonwealth Act No. 408, as amended, otherwise known as
the Articles of War, the term "officer" is "construed to refer to a commissioned officer."
Article 2 provides:
Art. 2. Persons Subject to Military Law. – The following persons are subject to these articles
and shall be understood as included in the term "any person subject to military law" or
"persons subject to military law," whenever used in these articles:
(a) All officers and soldiers in the active service of the Armed Forces of the Philippines or of
the Philippine Constabulary, all members of the reserve force, from the dates of their call to
active duty and while on such active duty; all trainees undergoing military instructions; and
all other persons lawfully called, drafted, or ordered into, or to duty or for training in the said
service, from the dates they are required by the terms of the call, draft, or order to obey the
same.
Upon the other hand, Section 1 of R.A. No. 7055 reads:
SEC. 1. Members of the Armed Forces of the Philippines and other persons subject to military
law, including members of the Citizens Armed Forces Geographical Units, who commit crimes
or offenses penalized under the Revised Penal Code, other special penal laws, or local
government ordinances, regardless of whether or not civilians are co-accused, victims, or
offended parties, which may be natural or juridical persons, shall be tried by the proper civil
court, except when the offense, as determined before arraignment by the civil court, is
service-connected, in which case, the offense shall be tried by court-martial, Provided, That
the President of the Philippines may, in the interest of justice, order or direct at any time
before arraignment that any such crimes or offenses be tried by the proper civil courts.
As used in this Section, service-connected crimes or offenses shall be limited to those defined
in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as
amended.
In imposing the penalty for such crimes or offenses, the court-martial may take into
consideration the penalty prescribed therefor in the Revised Penal Code, other special laws,
or local government ordinances.
Section 1 of R.A. No. 7055, quoted above, is clear and unambiguous. First, it lays down the
general rule that members of the AFP and other persons subject to military law, including
members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses
penalized under the Revised Penal Code (like coup d’etat), other special penal laws, or local
ordinances shall be tried by the proper civil court. Next, it provides the exception to the
general rule, i.e., where the civil court, before arraignment, has determined the offense to be
service-connected, then the offending soldier shall be tried by a court martial. Lastly, the law
states an exception to the exception, i.e., where the President of the Philippines, in the
interest of justice, directs before arraignment that any such crimes or offenses be tried by
the proper civil court.
The second paragraph of the same provision further identifies the "service-connected crimes
or offenses" as "limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles
95 to 97" of the Articles of War. Violations of these specified Articles are triable by court
martial. This delineates the jurisdiction between the civil courts and the court martial over
crimes or offenses committed by military personnel.
Such delineation of jurisdiction by R.A. No. 7055 is necessary to preserve the peculiar nature
of military justice system over military personnel charged with service-connected offenses.
The military justice system is disciplinary in nature, aimed at achieving the highest form of
discipline in order to ensure the highest degree of military efficiency. 18 Military law is
established not merely to enforce discipline in times of war, but also to preserve the
tranquility and security of the State in time of peace; for there is nothing more dangerous to
the public peace and safety than a licentious and undisciplined military body. 19 The
administration of military justice has been universally practiced. Since time immemorial, all
the armies in almost all countries of the world look upon the power of military law and its
administration as the most effective means of enforcing discipline. For this reason, the court
martial has become invariably an indispensable part of any organized armed forces, it being
the most potent agency in enforcing discipline both in peace and in war. 20
Here, petitioners are charged for violation of Article 96 (conduct unbecoming an officer and a
gentleman) of the Articles of War before the court martial, thus:
All persons subject to military law, did on or about 27 July 2003 at Oakwood Hotel, Makati
City, Metro Manila, willfully, unlawfully and feloniously violate their solemn oath as officers
to defend the Constitution, the law and the duly-constituted authorities and abused their
constitutional duty to protect the people and the State by, among others, attempting to
oust the incumbent duly-elected and legitimate President by force and violence, seriously
disturbing the peace and tranquility of the people and the nation they are sworn to
protect, thereby causing dishonor and disrespect to the military profession, conduct
unbecoming an officer and a gentleman, in violation of AW 96 of the Articles of War.
CONTRARY TO LAW. (Underscoring ours)
Article 96 of the Articles of War 21 provides:
ART. 96. Conduct Unbecoming an Officer and Gentleman. – Any officer, member of the Nurse
Corps, cadet, flying cadet, or probationary second lieutenant, who is convicted of conduct
unbecoming an officer and a gentleman shall be dismissed from the service. (Underscoring
ours)
We hold that the offense for violation of Article 96 of the Articles of War is service-
connected. This is expressly provided in Section 1 (second paragraph) of R.A. No. 7055. It
bears stressing that the charge against the petitioners concerns the alleged violation of their
solemn oath as officers to defend the Constitution and the duly-constituted authorities.Such
violation allegedly caused dishonor and disrespect to the military profession. In short, the
charge has a bearing on their professional conduct or behavior as military officers. Equally
indicative of the "service-connected" nature of the offense is the penalty prescribed for the
same – dismissal from the service – imposable only by the military court.Such penalty
is purely disciplinary in character, evidently intended to cleanse the military profession of
misfits and to preserve the stringent standard of military discipline.
Obviously, there is no merit in petitioners’ argument that they can no longer be charged
before the court martial for violation of Article 96 of the Articles of War because the same
has been declared by the RTC in its Order of February 11, 2004 as "not service-connected,
but rather absorbed and in furtherance of the alleged crime of coup d’etat," hence, triable by
said court (RTC). The RTC, in making such declaration, practically amended the law which
expressly vests in the court martial the jurisdiction over "service-connected crimes or Defense.
offenses." What the law has conferred the court should not take away. It is only the
Constitution or the law that bestows jurisdiction on the court, tribunal, body or officer over Art. 64. Disrespect Toward Superior Officer.
the subject matter or nature of an action which can do so. 22 And it is only through a
constitutional amendment or legislative enactment that such act can be done. The first and
Art. 65. Assaulting or Willfully Disobeying Superior Officer.
fundamental duty of the courts is merely to apply the law "as they find it, not as they like it
to be." 23 Evidently, such declaration by the RTC constitutes grave abuse of discretion
tantamount to lack or excess of jurisdiction and is, therefore, void. Art. 66. Insubordinate Conduct Toward Non-Commissioned Officer.

In Navales v. Abaya., 24 this Court, through Mr. Justice Romeo J. Callejo, Sr., held: Art. 67. Mutiny or Sedition.

We agree with the respondents that the sweeping declaration made by the RTC (Branch 148) Art. 68. Failure to Suppress Mutiny or Sedition.
in the dispositive portion of its Order dated February 11, 2004 that all charges before the
court-martial against the accused were not service-connected, but absorbed and in Art. 69. Quarrels; Frays; Disorders.
furtherance of the crime of coup d’etat, cannot be given effect. x x x, such declaration was
made without or in excess of jurisdiction; hence, a nullity. Art. 70. Arrest or Confinement.

The second paragraph of the above provision (referring to Section 1 of R.A. No. 7055) Articles 72 to 92:
explicitly specifies what are considered "service-connected crimes or offenses" under
Commonwealth Act No. 408, as amended, also known as the Articles of War, to wit:
Art. 72. Refusal to Receive and Keep Prisoners.
Articles 54 to 70:
Art. 73. Report of Prisoners Received.
Art. 54. Fraudulent Enlistment.
Art. 74. Releasing Prisoner Without Authority.

Art. 55. Officer Making Unlawful Enlistment.

Art. 75. Delivery of Offenders to Civil Authorities.
Art. 56. False Muster.
Art. 76. Misbehavior Before the Enemy.
Art. 57. False Returns.
Art. 77. Subordinates Compelling Commander to Surrender.
Art. 58. Certain Acts to Constitute Desertion.
Art. 78. Improper Use of Countersign.
Art. 59. Desertion.
Art. 79. Forcing a Safeguard.
Art. 60. Advising or Aiding Another to Desert.
Art. 80. Captured Property to be Secured for Public Service.
Art. 61. Entertaining a Deserter.
Art. 81. Dealing in Captured or Abandoned Property.
Art. 62. Absence Without Leave.
Art. 82. Relieving, Corresponding With, or Aiding the Enemy.
Art. 63. Disrespect Toward the President, Vice-President,
Art. 83. Spies.
Congress of the Philippines, or Secretary of National
Art. 84. Military Property.–Willful or Negligent Loss, Damage
or wrongful Disposition. criminal law and generally applies to crimes punished by the same statute, 25unlike here
where different statutes are involved. Secondly, the doctrine applies only if the trial court has
Art. 85. Waste or Unlawful Disposition of Military Property jurisdiction over both offenses. Here, Section 1 of R.A. 7055 deprives civil courts of
jurisdiction over service-connected offenses, including Article 96 of the Articles of War. Thus,
the doctrine of absorption of crimes is not applicable to this case.
Issued to Soldiers.

Military law is sui generis (Calley v. Callaway, 519 F.2d 184 [1975]), applicable only to military
Art. 86. Drunk on Duty.
personnel because the military constitutes an armed organization requiring a system of
discipline separate from that of civilians (see Orloff v. Willoughby, 345 U.S. 83 [1953]).
Art. 87. Misbehavior of Sentinel. Military personnel carry high-powered arms and other lethal weapons not allowed to
civilians. History, experience, and the nature of a military organization dictate that military
Art. 88. Personal Interest in Sale of Provisions. personnel must be subjected to a separate disciplinary system not applicable to unarmed
civilians or unarmed government personnel.
Art. 88-A. Unlawful Influencing Action of Court.
A civilian government employee reassigned to another place by his superior may question his
Art. 89. Intimidation of Persons Bringing Provisions. reassignment by asking a temporary restraining order or injunction from a civil court.
However, a soldier cannot go to a civil court and ask for a restraining or injunction if his
military commander reassigns him to another area of military operations. If this is allowed,
Art. 90. Good Order to be Maintained and Wrongs Redressed. military discipline will collapse.

Art. 91. Provoking Speeches or Gestures. xxx

Art. 92. Dueling. This Court has recognized that courts-martial are instrumentalities of the Executive to enable
the President, as Commander-in-Chief, to effectively command, control, and discipline the
Articles 95 to 97: armed forces (see Ruffy v. Chief of Staff, 75 Phil. 875 [1946], citing Winthrop’s Military Law
and Precedents, 2nd edition, p. 49). In short, courts-martial form part of the disciplinary
Art. 95. Frauds Against the Government. system that ensures the President’s control, and thus civilian supremacy, over the military. At
the apex of this disciplinary system is the President who exercises review powers over
decisions of courts-martial (citing Article 50 of the Articles of War; quoted provisions
Art. 96. Conduct Unbecoming an Officer and Gentleman.
omitted).

Art. 97. General Article.

xxx

Further, Section 1 of Rep. Act No. 7055 vests on the military courts the jurisdiction over the
foregoing offenses. x x x.
It is clear from the foregoing that Rep. Act No. 7055 did not divest the military courts of
jurisdiction to try cases involving violations of Articles 54 to 70, Articles 72 to 92, and Articles
95 to 97 of the Articles of War as these are considered "service-connected crimes or
offenses." In fact, it mandates that these shall be tried by the court-martial.
Moreover, the observation made by Mr. Justice Antonio T. Carpio during the deliberation of
this case is worth quoting, thus:
The trial court aggravated its error when it justified its ruling by holding that the charge of
Conduct Unbecoming an Officer and a Gentleman is ‘absorbed and in furtherance to the
alleged crime of coup d’etat.’ Firstly, the doctrine of ‘absorption of crimes’ is peculiar to
While the Court had intervened before in courts-martial or similar proceedings, it did so
sparingly and only to release a military personnel illegally detained (Ognir v. Director of
Prisons, 80 Phil. 401 [1948] or to correct objectionable procedures (Yamashita v. Styer, 75
Phil. 563 [1945]). The Court has never suppressed court-martial proceedings on the ground
that the offense charged ‘is absorbed and in furtherance of’ another criminal charge pending
with the civil courts. The Court may now do so only if the offense charged is not one of the
service-connected offenses specified in Section 1 of RA 7055. Such is not the situation in the
present case.
With respect to the issue of prescription raised by petitioners in their Supplemental Petition,
suffice it to say that we cannot entertain the same. The contending parties are at
loggerheads as to (a) who among the petitioners were actually arraigned, and (b) the dates of
their arraignment. These are matters involving questions of fact, not within our power of
review, as we are not a trier of facts. In a petition for prohibition, such as the one at bar, only
legal issues affecting the jurisdiction of the tribunal, board or officer involved may be
resolved on the basis of the undisputed facts. 26

Clearly, the instant petition for prohibition must fail. The office of prohibition is to prevent
the unlawful and oppressive exercise of authority and is directed against proceedings that
are done without or in excess of jurisdiction, or with grave abuse of discretion, there being
no appeal or other plain, speedy, and adequate remedy in the ordinary course of
law. 27 Stated differently, prohibition is the remedy to prevent inferior courts, corporations,
boards, or persons from usurping or exercising a jurisdiction or power with which they have
not been vested by law. 28

In fine, this Court holds that herein respondents have the authority in convening a court
martial and in charging petitioners with violation of Article 96 of the Articles of War.

WHEREFORE, the instant petition for prohibition is DISMISSED.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ

Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 124491 June 1, 1999
ROQUE VICARIO Y MENDEZ, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
BELLOSILLO, J.:
ROQUE VICARIO Y MENDEZ was charged with libel by the Provincial Prosecutor of Catarman,
Northern Samar, with Judge Proceso Sidro of the Municipal Circuit Trial Court of Mondragon
San Roque, Northern Samar, as complaining witness. According to the Information, the crime
was committed when Vicario allegedly distributed and circulated in the vicinity of the
Northern Samar Provincial Hospital in Catarman photocopies of page 7 of the 20 March 1992
issue of the Philippine Daily Inquirer which contained the following
article1 —
SAMAR JUDGE WHO POCKETED BOND
CHARGED WITH GRAFT
OMBUDSMAN Conrado Vasquez yesterday filed with the Sandiganbayan
graft charges against a Northern Samar judge who pocketed the
P1,000.00 cash bond posted by a respondent in one of several cases
pending in his sala.
Charged was Judge Proceso Sidro of the Northern Samar municipal circuit
trial court in Mondragon.
Investigation showed that Sidro failed to deposit the cash bond with his
clerk-of-court, and refused to return the money even after the accused
who filed the bond was already acquitted in the case.
Private complainant Sidro alleged that petitioner's act greatly prejudiced his reputation as a
member of the bench and caused him great distress. Petitioner Vicario on the other hand
disclaimed responsibility for the distribution of the alleged libelous article, at the same time
asserting that the libel suit against him was ill-motivated for he had filed a criminal charge for
graft and corruption against Judge Sidro before the Ombudsman and an administrative
complaint for dishonesty with the Supreme Court, both due to the latter's unjustified refusal
and failure to return petitioner's cash bond of P1,000.00.
After trial, the court a quo found petitioner Vicario guilty of libel and sentenced him to pay a
fine of P200.00 with subsidiary imprisonment in case of insolvency. 2 The trial court justified
its decision by declaring that while no evidence was presented to show that Vicario
distributed copies of the news article to several persons, at least he gave one photocopy to
prosecution witness Amador Montes which amounted to publication, and that this act was
tainted with malice as it stemmed from Vicario's hatred, as evident from the manner his
testimony was delivered, towards complaining witness Sidro.3
On 28 February 1996 respondent Court of Appeals affirmed in toto the decision of the trial
court.4 Hence, this petition for review on certiorari predicated on the following
propositions5 —
First. The news item in question is a privileged matter and since it was
published in the Philippine Daily Inquirer, a nationally circulated
newspaper, without any intervention of petitioner, his act of giving a
copy to a person named Amador Montes is not a libelous act;
Second. Respondent court gravely erred in concluding that Amador
Montes saw petitioner distributing copy of the aforesaid issue of the
Philippine Daily Inquirer;
Third. Respondent court gravely erred in considering the affidavit-
complaint petitioner filed with the Ombudsman which was completely
immaterial and impertinent to the issue of whether or not the act of
petitioner in giving a copy of the Philippine Daily Inquirer to Amador
Montes where the news item was published, constitutes the crime of
libel;
Fourth. Respondent court seriously erred in citing authorities which are
not applicable in deciding whether petitioner's act of giving a copy of the
Philippine Daily Inquirer to Amador Montes constituted the crime of libel;
Fifth. Respondent court gravely erred in adopting the conclusion of the
trial court that petitioner's act of giving a copy of the Philippine Daily
Inquirer to Amador Montes was motivated by his intense hatred against
Judge Sidro, it being clear that such act was an insufficient and
inadequate evidence of the alleged intense hatred of petitioner; and,
Sixth. Respondent court gravely erred, in the final analysis, in not
acquitting petitioner on the ground of reasonable doubt.
Two (2) main issues are laid before us: (a) whether the act of merely distributing a photocopy
of an article in a newspaper reporting that graft charges had been filed against a judge
named therein constitutes libel, and (b) whether Vicario's act was proved beyond reasonable
doubt.
Libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status or circumstance tending to discredit or
cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of
one who is dead.6 Thus, the elements of libel are: (a) imputation of a discreditable act or
condition to another; (b) publication of the imputation; (c) identity of the person defamed;
and, (d) existence of malice.7
The evidence on record clearly shows that the elements above enumerated have not been
satisfactorily established as to conclude that libel was committed by petitioner. Thus, we rule
in his favor. For an incongruency exists between the evidence on one hand, and the findings
of fact and of law by the trial court and the appellate court on the other, which we must
reconcile, if not rectify.
As found by the trial court, there was no evidence at all to show that petitioner was the
source of the statements contained in the news item published by the Philippine Daily
Inquirer. Indeed, for not only was the news item by itself bereft of this information, the
records also confirmed its absence. This is why it was incorrect for the appellate court to find
that "the news item was patently culled from the Affidavit-Complaint of the appellant
imputing a criminal act on Judge Sidro filed with the Ombudsman (emphasis ours)" when no
basis, factual or legal, exists for so ruling. To be sure, the Affidavit-Complaint was merely a
narration of the facts constituting the cause of action of petitioner. Its contents never
appeared in the news article which spoke only of the filing by the Ombudsman with the
Sandiganbayan of graft charges against Judge Sidro after its investigation of a complaint that
the judge refused to return the cash bond of an accused after the latter's acquittal in a
criminal case. There is no specific reference therein to petitioner nor to his Affidavit-
Complaint. Since it has not been established that he caused the publication of the subject
article nor was the source thereof, it would be inappropriate to conclude that through the
disputed news item he ascribed a criminal act to Judge Proceso Sidro. Parenthetically, it
would have been more accurate for the appellate court to state that the news article was
culled from the resolution of the Ombudsman directing the filing of a criminal charge based
on the results of his investigation of a complaint leveled against the named judge. But then, if
it did, it would have been left with no basis at all to hold, as in fact it did, that Vicario
maliciously imputed a discreditable act to respondent judge, and there would be no more
justification for the finding that the first element of libel was established.
The trial court also opined that no suit arising from the publication was filed against the
newspaper because what appears settled is that the item was merely a fair and true report,
with no comments or remarks, of official or judicial proceedings which are not classified as
confidential. Again, a perusal of the subject news item confirms this fact. Then the trial court
proceeded to state that the accused (petitioner) however publicized the newspaper item
because "shown by competent and relevant evidence was the giving (by Vicario) of a xerox
copy of the publicized item to Amador Montes." But was petitioner indeed guilty of
republication of a libelous article?
In his appeal, petitioner disputes the existence of the elements of publication and
malice,8 arguing that inasmuch as he was not the author or originator of the subject article in
the Philippine Daily Inquirer he could not be liable for its publication. The Court of Appeals
brushed aside this proposition, declaring in the main that by having the news item machine
copied and furnishing prosecution witness Montes a copy thereof, accused-appellant thereby
endorsed and adopted the news item and hence was answerable therefor. We note the
American citations relied upon by the appellate court to support its conclusions. However,
we deem these as not authoritative, much less persuasive upon the Court, considering
further that there are dissimilarities in the facts between the cited cases and this case before
us.
Contrary to the perception of the appellate court, there was no evidence at all offered to
show that petitioner himself photocopied the article. Nor was evidence sufficiently adduced
to prove that he himself distributed photocopies of the news item to so many people,
prompting the trial court to rule as hearsay the testimony on the matter by Judge Sidro and
his protégé Amador Montes. This puts to doubt whether petitioner himself gave a copy of
the publication to Montes. Notably, Montes was not even named by the judge as one of the
original witnesses listed in the complaint he filed for preliminary investigation. The witness
named therein was a certain Hermito Pahimnayan who was never presented in court despite
his having executed an affidavit which was attached to Sidro's criminal complaint in the
Municipal Trial Court. This affidavit described not the incident of 22 May 1992 on which the
charge for libel was based but one which occurred sometime in 1991 or a year earlier during
which Vicario was said to have shown Pahimnayan a copy of his administrative complaint
against Judge Sidro. Moreover, in the affidavit executed by Judge Sidro which he also
attached to his complaint, he declared that it was Romeo Pinangay, his court messenger,
who gave him a copy of Philippine Daily Inquirer and informed him that Roque Vicario
distributed clippings of the news item to everyone in the premises of the hospital. Amador
Montes was never mentioned in this affidavit; much less was he made to execute any
affidavit to support the criminal complaint of Judge Sidro. This much he admitted on the
witness stand.9 Other than the testimony of Montes himself, an acknowledged subaltern of
the judge, no one else was presented to establish the fact of distribution by petitioner of
copies of the alleged offensive news article. The prosecution could have offered other
witnesses with more objective dispositions than Montes, but it did not do so. With these
doubts subsisting, it was therefore reversible error of the courts below to conclude that
petitioner was liable for the republication of the news article alleged to be libelous.
A person's liability for libel need not, admittedly, stem from the fact that he was the original
publisher of the discreditable act. The maker of a libelous republication or repetition,
although not liable for the results of the primary publication, is liable for the consequence of
a subsequent publication which he makes or participates in making. It is no justification that
the defamatory matter is previously published by a third person, 10 provided malice is
present. Granting arguendo the correctness of the finding by the lower courts that petitioner
did at least distribute a machine copy of the article to one Amador Montes, an acknowledged
"batos" 11 of Judge Sidro, was there sufficient basis to ascribe malice in his act?
The trial court rationalized that "the accused has all the motivations to do so (i.e., distribute a
copy to Montes) because of his intense hatred against complainant, manifested even by the
very manner he gave testimony, who would not return to him an amount that he had to
borrow from a loan shark (there is nothing to show that the same was returned to the
accused). . . . . Even so, such actuation . . . in disseminating through Montes is removed from
the protection accorded to a privileged communication under the foregoing circumstances."
This is flawed reasoning, a veritable non sequitur. It is established doctrine that the malice
that attends the dissemination of the article alleged to be libelous must attend the
distribution itself. It cannot be merely a resentment against a person, manifested
unconnectedly several months earlier or one displayed at a much later date, as what
happened in this case. A fine-tooth comb dissection of the testimony of prosecution witness
Amador Montes reveals none that would indicate, much less hint at, the attitude and mental
frame of Vicario at the time he allegedly handed over the photocopy of the news item in
question to Montes. If at all, as can be gathered from the testimonial narration, Vicario's
attitude could only be described as noncommittal.
not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public
officers in the exercise of their functions (emphasis supplied).
Paragraph 2 aforequoted refers to a qualifiedly privileged communication, the
character of which is a matter of defense that may be lost by positive proof of
express malice on the part of the accused. Once it is established that the article is
of a privileged character, the onus of proving actual malice rests on the plaintiff
who must then convince the court that the offender was prompted by malice or ill
will. When this is accomplished the defense of privilege becomes
unavailing. 14 Since the prosecution failed to establish express malice on the part of
petitioner by positive proof, its cause perforce must fail.

In order to constitute malice, ill will must be personal. So if the ill will is engendered by one's WHEREFORE, this petition is GRANTED. The decision of the Regional Trial Court of Catarman,
sense of justice or other legitimate or plausible motive, such feeling negatives actual Northern Samar, dated 11 March 1993 finding petitioner guilty of libel, and that of the Court
malice. 12 The anger observed by trial court to have been shown by the petitioner towards of Appeals dated 28 February 1996 affirming his conviction are REVERSED and SET ASIDE.
private complainant at the time the former offered his testimony in defense of libel cannot Petitioner ROQUE VICARIO Y MENDEZ is ACQUITTED of the crime charged.1âwphi1.nêt
be properly considered as malice, either in fact or in law, that accompanied the
dissemination of an alleged libelous publication. For the anger discerned of petitioner on the
SO ORDERED.
witness stand could also mean anger not only borne out of a sense of justice frustrated by
the continued refusal of Judge Sidro to return to him his cash bond, but also at being
criminally sued in court for an act which he stoutly believed was not imputable to him. This Puno, Mendoza, Quisumbing and Buena, JJ., concur.
state of mind cannot be appropriately considered malice and applied retroactively to the
time of the distribution of the alleged libelous article unless clear and convincing evidence
shows otherwise; and, there is no such contrary evidence in the case at bar. Since there is no
indication about the cause of such display of "intense hatred" by the petitioner for Judge
Sidro, the Court will grant him the benefit of the doubt under the "equipoise doctrine." 13

There was nothing defamatory in the news item. This much was found by the trial court
itself, noting that the published article was merely a factual report about the filing by the
Ombudsman of the charge of corruption against the judge with the Sandiganbayan. Of
course, it does not necessarily mean that if the news article complained of is not libelous
because it is a privileged matter, he who repeats the publication is likewise free from
accountability for the re-utterance. We recognize that a person's liability for libel does not
necessarily proceed from the fact that he was the original publisher of the discreditable act.
The maker of a libelous republication or repetition, although not liable for the results of the
primary publication, is liable for the consequences of a subsequent publication which he
makes or participates in making so long as the elements of libel are satisfied. But in every
case malice must be present, something which has not been shown in the case at bar.

The law presumes that malice is present in every defamatory imputation. However, on this
score, Art. 354 of the Revised Penal Code provides an exemption —

Art. 354. Requirement for publicity. — Every defamatory imputation is

presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following cases . . .
. 2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which are
 Republic of the Philippines A. LPG Refiller/Marketer
SUPREME COURT
Manila 1st Offense - Fine of P5,000

THIRD DIVISION 2nd Offense - Fine of P10,000

G.R. No. 159149 June 26, 2006 3rd Offense - Recommend business closure to the proper local government unit

The HONORABLE SECRETARY VINCENT S. PEREZ, in his capacity as the Secretary of the B. Dealer
Department of Energy, Petitioner,
vs.
1st Offense - Fine of P3,000
LPG REFILLERS ASSOCIATION OF THE PHILIPPINES, INC., Respondent.

2nd Offense - Fine of P7,000

DECISION

3rd Offense - Recommend business closure to the proper local government unit
QUISUMBING, J.:

C. LPG Retail Outlet

Before us is a petition for review on certiorari under Rule 45, assailing the Decision1 and
Order2 of the Regional Trial Court of Pasig City, Branch 161, in SCA Case No. 2318, which
nullified Circular No. 2000-06-010 of the Department of Energy (DOE). 1st Offense - Reprimand

The facts are undisputed. 2nd Offense - Fine of P500.00

Batas Pambansa Blg. 33, as amended, penalizes illegal trading, hoarding, overpricing,
adulteration, underdelivery, and underfilling of petroleum products, as well as possession for
trade of adulterated petroleum products and of underfilled liquefied petroleum gas (LPG)
cylinders.3 The said law sets the monetary penalty for violators to a minimum of P20,000 and
a maximum of P50,000.4
3rd Offense - Fine of P1,000.00
SECTION 6. NO TARE WEIGHT OR INCORRECT TARE WEIGHT MARKINGS. (REQUIREMENT
ON ENGRAVED TARE WEIGHT SHALL TAKE EFFECT TWO (2) YEARS AFTER EFFECTIVITY OF
THIS CIRCULAR)

On June 9, 2000, Circular No. 2000-06-010 was issued by the DOE to implement B.P. Blg. 33, A. LPG Refiller/Marketer
thus:
1st Offense - Fine of P3,000 for each cylinder
SECTION 4. NO PRICE DISPLAY BOARD –
2nd Offense - Fine of P5,000 for each cylinder
LPG Marketer/LPG Dealer/LPG Retail Outlet
3rd Offense - Recommend business closure to the proper local government unit
1st Offense - Reprimand/warning letter
B. Dealer
2nd Offense - Recommend suspension of business operation to the proper local
government unit 1st Offense - Fine of P2,000 for each cylinder

3rd Offense - Recommend business closure to the proper local government unit 2nd Offense - Fine of P4,000 for each cylinder
and initiate criminal proceedings

3rd Offense - Recommend business closure to the proper local government unit
SECTION 5. NO WEIGHING SCALE –
C. LPG Retail Outlet 2nd Offense - Fine of P5,000 for each cylinder

1st Offense - Fine of P1,000 for each cylinder 3rd Offense - Recommend business closure to the proper local government unit

2nd Offense - Fine of P2,000 for each cylinder B. Dealer

3rd Offense - Recommend business closure to the proper local government unit 1st Offense - Fine of P3,000 for each cylinder

SECTION 7. NO APPROPRIATE OR AUTHORIZED LPG SEAL 2nd Offense - Fine of P4,000 for each cylinder

A. LPG Refiller/Marketer 3rd Offense - Recommend business closure to the proper local government unit

1st Offense - Fine of P3,000 for each cylinder C. LPG Retail Outlet

2nd Offense - Fine of P5,000 for each cylinder 1st Offense - Fine of P1,000 for each cylinder

3rd Offense - Recommend business closure to the proper local government unit 2nd Offense - Fine of P2,000 for each cylinder

B. Dealer 3rd Offense - Recommend business closure to the proper local government unit

1st Offense - Fine of P2,000 for each cylinder SECTION 9. UNDERFILLED LPG CYLINDERS

2nd Offense - Fine of P4,000 for each cylinder A. LPG REFILLER/MARKETER

3rd Offense - Recommend business closure to the proper local government unit 1st Offense - Fine of P4,000 for each cylinder

C. LPG Retail Outlet 2nd Offense - Fine of P6,000 for each cylinder

1st Offense - Fine of P1,000 for each cylinder 3rd Offense - Recommend business closure to the proper local government unit

2nd Offense - Fine of P2,000 for each cylinder B. DEALER

3rd Offense - Recommend business closure to the proper local government unit 1st Offense - Fine of P3,000 for each cylinder

SECTION 8. NO TRADE NAME, UNBRANDED LPG CYLINDERS, NO SERIAL NUMBER, NO 2nd Offense - Fine of P4,000 for each cylinder
DISTINGUISHING COLOR, NO EMBOSSED IDENTIFYING MARKINGS ON CYLINDER OR
DISTINCTIVE COLLAR OR DESIGN (REQUIREMENT ON SERIAL NUMBER AND DISTINCTIVE 3rd Offense - Recommend business closure to the proper local government unit
COLLAR OR DESIGN SHALL TAKE EFFECT TWO (2) YEARS AFTER EFFECTIVITY OF THIS
CIRCULAR)
C. LPG RETAIL OUTLET

A. LPG Refiller/Marketer
1st Offense - Fine of P1,000 for each cylinder

1st Offense - Fine of P4,000 for each cylinder

2nd Offense - Fine of P2,000 for each cylinder
 3rd Offense - Recommend business closure to the proper local government unit
SECTION 10. TAMPERING, ALTERING, OR MODIFYING OF LPG CYLINDER THRU ANY MEANS
SUCH AS BUT NOT LIMITED TO CHANGING THE VALVE, REPAINTING, AND RELABELLING BY
ANY PERSON OR ENTITY OTHER THAN THE LEGITIMATE AND REGISTERED OWNER OF THE
SAME. FOR THIS PURPOSE, LPG REFILLER, MARKETER, DEALER, OR RETAIL OUTLET, AS THE
CASE MAY BE, WHO HAS POSSESSION OF SUCH ILLEGALLY TAMPERED, ALTERED, OR
OTHERWISE MODIFIED LPG CYLINDER SHALL BE HELD LIABLE FOR THIS OFFENSE
A. LPG Refiller/Marketer
1st Offense - Fine of P5,000 for each cylinder
2nd Offense - Fine of P10,000 for each cylinder
3rd Offense - Recommend business closure to the proper local government unit
B. Dealer
1st Offense - Fine of P3,000 for each cylinder
2nd Offense - Fine of P5,000 for each cylinder
3rd Offense - Recommend business closure to the proper local government unit
C. LPG Retail Outlet
1st Offense - Fine of P1,500 for each cylinder
2nd Offense - Fine of P3,000 for each cylinder
3rd Offense - Recommend business closure to the proper local government unit
SECTION 11. UNAUTHORIZED DECANTING OR REFILLING OF LPG CYLINDERS
1st Offense - Fine of P5,000 for each cylinder
2nd Offense - Fine of P10,000 for each cylinder
3rd Offense - Recommend business closure to the proper local government unit
SECTION 12. HOARDING OF PETROLEUM PRODUCTS INCLUDING LIQUEFIED PETROLEUM
GAS
1st Offense - Fine of P10,000 per cylinder
2nd Offense - Recommend business closure to the proper local government unit
plus the filing of appropriate criminal action
SECTION 13. REFUSAL TO ALLOW OR COOPERATE WITH DULY AUTHORIZED INSPECTORS OF
THE ENERGY INDUSTRY ADMINISTRATION BUREAU (EIAB) OF THE DEPARTMENT OF
ENERGY IN THE CONDUCT OF THEIR INSPECTION/INVESTIGATION, WHETHER REGULAR AND
ROUTINARY OR COMPLAINT-INITIATED
1st Offense - Fine of P10,000
2nd Offense - Recommend business closure to the proper local government unit
SECTION 14. REFUSAL OR FAILURE TO PAY FINE – The Department of Energy shall
recommend to the proper local government unit the closure of business of a respondent who
refuses or fails to pay any administrative fine without prejudice to the filing of an appropriate
criminal action if warranted.5
Respondent LPG Refillers Association of the Philippines, Inc. asked the DOE to set aside the
Circular for being contrary to law. The DOE, however, denied the request for lack of merit.
Respondent then filed a petition for prohibition and annulment with prayer for temporary
restraining order and/or writ of preliminary injunction before the trial court.
After trial on the merits, the trial court nullified the Circular on the ground that it introduced
new offenses not included in the law.6 The court intimated that the Circular, in providing
penalties on a per cylinder basis for each violation, might exceed the maximum penalty
under the law. The decretal part of its Decision reads:
IN VIEW OF THE FOREGOING, this Court renders judgment declaring DOE Circular No. 2000-
06-010 null and void and prohibits the respondent from implementing the same.
SO ORDERED.7
The trial court denied for lack of merit petitioner’s motion for reconsideration. Hence this
petition, raising the following issues:
I
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN HOLDING THAT "A CLOSE
SCRUTINY OF BP 33, PD 1865 AND R.A. NO. 8479 SHOWS THAT OFFENSES LIKE NO PRICE
DISPLAY [BOARD], NO WEIGHING SCALE, ETC. SET FORTH IN THE CIRCULAR ARE NOT
PROVIDED FOR IN ANY OF THE THREE (3) LAWS".
 II
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN HOLDING THAT "A SCRUTINY OF
THE NEW SET OF PENALTIES PROVIDED BY THE CIRCULAR SHOWS THAT THE PENALTIES THIS
TIME ARE BASED ON PER CYLINDER BASIS"; THAT "BEING SUCH, NO CEILING WAS PROVIDED
FOR AS TO THE ADMINISTRATIVE FINES"; THAT "AS ILLUSTRATED BY THE PETITIONER, FOR
JUST ONE LPG CYLINDER FOUND VIOLATING AT LEAST SEC[TIONS] 6, 7, 8, 9, 10 AND 11 OF
THE [CIRCULAR], A FINE OF P24,000.00 IS IMPOSED;" AND THAT "THIS WILL CLEARLY BE
BEYOND THE P10,000.00 PROVIDED BY THE LAWS."
III
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN HOLDING THAT SECTION 16 OF
PETITIONER’S CIRCULAR WHICH AUTHORIZES THE IMPOSITION OF PECUNIARY PENALTIES
WITH THE TOTAL FINE NOT EXCEEDING P20,000.00 FOR RETAIL OUTLETS VIOLATES THE
PENALTY CEILING OF P10,000.00 SET UNDER BP BLG. 33, AS AMENDED.
IV
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN HOLDING THAT SINCE SECTION
5(g) OF R.A. 7638 FINDS NO REFERENCE IN DOE CIRCULAR NO. 2000-06-010, THE SAME
SHOULD BE DISREGARDED.
V
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN HOLDING THAT "ON THE NEW
OFFENSES INTRODUCED IN THE CIRCULAR SUCH AS SECTIONS 4, 5, 10, 13 AND 14 AND THE
IMPOSITION OF THE GRADUATED PENALTIES ON ‘A PER CYLINDER BASIS’, THIS COURT FINDS
[NO] REASON TO DISTURB ITS FINDINGS THAT RESPONDENT-MOVANT EXCEEDED ITS
AUTHORITY. X X X IT SHOULD BE REMEMBERED THAT BP BLG. 33 AS AMENDED AND P.D.
1865 ARE CRIMINAL STATUTES AND MUST BE CONSTRUED WITH SUCH STRICTNESS AS TO
CAREFULLY SAFEGUARD THE RIGHTS OF THE DEFENDANT."
VI
WHETHER OR NOT THE COURT A QUO ERRED IN HOLDING THAT "THE ASSAILED CIRCULAR
SETS NO MAXIMUM LIMIT AS TO THE FINE THAT MAY BE IMPOSED ON AN ERRING PERSON
OR ENTITY TO WHICH FACT MOVANT CONCEDES. FOR ONE (1) CYLINDER ALONE, NOT ONLY
DOES THE CIRCULAR MAKE THE FINE EXCESSIVE TO THE EXTENT OF BEING CONFISCATORY,
BUT IT EVEN IMPOSES A PENALTY WHICH MAY EVEN GO BEYOND THAT MAXIMUM
IMPOSABLE FINE OF P50,000.00 SET BY P.D. 1865 IN ITS SEC. 4 AFTER A CRIMINAL
PROCEEDING."8
To our mind, the issue raised by petitioner may be reduced to the sole issue of whether the
Regional Trial Court of Pasig erred in declaring the provisions of the Circular null and void,
and prohibiting the Circular’s implementation.
Petitioner argues that the penalties for the acts and omissions enumerated in the Circular are
sanctioned by Sections 19 and 3-A10 of B.P. Blg. 33 and Section 2311 of Republic Act No.
8479.12 Petitioner adds that Sections 5(g)13 and 2114 of Republic Act No. 763815 also authorize
the DOE to impose the penalties provided in the Circular.
Respondent counters that the enabling laws, B.P. Blg. 33 and R.A. No. 8479, do not expressly
penalize the acts and omissions enumerated in the Circular. Neither is the Circular supported
by R.A. No. 7638, respondent claims, since the said law does not pertain to LPG traders.
Respondent maintains that the Circular is not in conformity with the law it seeks to
implement.
We resolve to grant the petition.
For an administrative regulation, such as the Circular in this case, to have the force of penal
law, (1) the violation of the administrative regulation must be made a crime by the
delegating statute itself; and (2) the penalty for such violation must be provided by the
statute itself.16
The Circular satisfies the first requirement. B.P. Blg. 33, as amended, criminalizes illegal
trading, adulteration, underfilling, hoarding, and overpricing of petroleum products. Under
this general description of what constitutes criminal acts involving petroleum products, the
Circular merely lists the various modes by which the said criminal acts may be perpetrated,
namely: no price display board, no weighing scale, no tare weight or incorrect tare weight
markings, no authorized LPG seal, no trade name, unbranded LPG cylinders, no serial
number, no distinguishing color, no embossed identifying markings on cylinder, underfilling
LPG cylinders, tampering LPG cylinders, and unauthorized decanting of LPG cylinders. These
specific acts and omissions are obviously within the contemplation of the law, which seeks to
curb the pernicious practices of some petroleum merchants.
As for the second requirement, we find that the Circular is in accord with the law. Under B.P.
Blg. 33, as amended, the monetary penalty for any person who commits any of the acts
aforestated is limited to a minimum of P20,000 and a maximum of P50,000. Under the
Circular, the maximum pecuniary penalty for retail outlets is P20,000,17 an amount within the
range allowed by law. However, for the refillers, marketers, and dealers, the Circular is silent
as to any maximum monetary penalty. This mere silence, nonetheless, does not amount to
violation of the aforesaid statutory maximum limit. Further, the mere fact that the Circular
provides penalties on a per cylinder basis does not in itself run counter to the law since all
that B.P. Blg. 33 prescribes are the minimum and the maximum limits of penalties.
Clearly, it is B.P. Blg. 33, as amended, which defines what constitute punishable acts involving
petroleum products and which set the minimum and maximum limits for the corresponding
penalties. The Circular merely implements the said law, albeit it is silent on the maximum
pecuniary penalty for refillers, marketers, and dealers. Nothing in the Circular contravenes
the law.
Noteworthy, the enabling laws on which the Circular is based were specifically intended to
provide the DOE with increased administrative and penal measures with which to effectively
curtail rampant adulteration and shortselling, as well as other acts involving petroleum
products, which are inimical to public interest. To nullify the Circular in this case would be to
render inutile government efforts to protect the general consuming public against the
nefarious practices of some unscrupulous LPG traders.

WHEREFORE, the petition is GRANTED. The assailed Circular No. 2000-06-010 of DOE is
declared valid. The Decision and Order of the Regional Trial Court of Pasig City, Branch 161, in
SCA Case No. 2318, nullifying said Circular and prohibiting its implementation are
hereby REVERSED and SET ASIDE.

No pronouncement as to costs.

SO ORDERED.

LEONARDO A. QUISUMBING
Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 159618 February 1, 2011
BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep.
LIZA L. MAZA,Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity
as Secretary of Foreign Affairs, Respondents.
DECISION
VELASCO, JR., J.:
The Case
This petition1 for certiorari, mandamus and prohibition under Rule 65 assails and seeks to
nullify the Non-Surrender Agreement concluded by and between the Republic of the
Philippines (RP) and the United States of America (USA).
The 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.2
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome Statute3 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."4 The serious crimes adverted to cover those considered grave
under international law, such as genocide, crimes against humanity, war crimes, and crimes
of aggression.5
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.6 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. 9
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.10
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.
For their part, respondents question petitioner’s standing to maintain a suit and counter that
the Agreement, being in the nature of an executive agreement, does not require Senate
concurrence for its efficacy. And for reasons detailed in their comment, respondents assert
the constitutionality of the Agreement.
The Issues
I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY
ABUSED THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
FOR CONCLUDING THE RP-US NON SURRENDER AGREEMENT BY MEANS OF
[E/N] BFO-028-03 DATED 13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS
ALREADY SIGNED THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING
RATIFICATION BY THE PHILIPPINE SENATE.
A. Whether by entering into the x x x Agreement Respondents gravely
abused their discretion when they capriciously abandoned, waived and
relinquished our only legitimate recourse through the Rome Statute of
the [ICC] to prosecute and try "persons" as defined in the x x
x Agreement, x x x or literally any conduit of American interests, who
have committed crimes of genocide, crimes against humanity, war crimes
and the crime of aggression, thereby abdicating Philippine Sovereignty.
B. Whether after the signing and pending ratification of the Rome Statute
of the [ICC] the [RP] President and the [DFA] Secretary x x x are obliged by
the principle of good faith to refrain from doing all acts which would
substantially impair the value of the undertaking as signed.
C. Whether the x x x Agreement constitutes an act which defeats the
object and purpose of the Rome Statute of the International Criminal
Court and contravenes the obligation of good faith inherent in the
signature of the President affixed on the Rome Statute of the
International Criminal Court, and if so whether the x x x Agreement is
void and unenforceable on this ground.
D. Whether the RP-US Non-Surrender Agreement is void and
unenforceable for grave abuse of discretion amounting to lack or excess
of jurisdiction in connection with its execution.
II. WHETHER 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.
III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT
THE CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE
SENATE x x x.11
The foregoing issues may be summarized into two: first, whether or not the Agreement was
contracted validly, which resolves itself into the question of whether or not respondents
gravely abused their discretion in concluding it; and second, whether or not the Agreement,
which has not been submitted to the Senate for concurrence, contravenes and undermines
the Rome Statute and other treaties. But because respondents expectedly raised it, we shall
first tackle the issue of petitioner’s legal standing.
The Court’s Ruling
This petition is bereft of merit.
Procedural Issue: Locus Standi of Petitioner
Petitioner, through its three party-list representatives, contends that the issue of the validity
or invalidity of the Agreement carries with it constitutional significance and is of paramount
importance that justifies its standing. Cited in this regard is what is usually referred to as the
emergency powers cases,12 in which ordinary citizens and taxpayers were accorded the
personality to question the constitutionality of executive issuances.
Locus standi is "a right of appearance in a court of justice on a given question." 13 Specifically,
it is "a party’s personal and substantial interest in a case where he has sustained or will
sustain direct injury as a result"14 of the act being challenged, and "calls for more than just a
generalized grievance."15 The term "interest" refers to material interest, as distinguished
from one that is merely incidental.16 The rationale for requiring a party who challenges the
validity of a law or international agreement to allege such a personal stake in the outcome of
the controversy is "to assure the concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional
questions."17
Locus standi, however, is merely a matter of procedure and it has been recognized that, in
some cases, suits are not brought by parties who have been personally injured by the
operation of a law or any other government act, but by concerned citizens, taxpayers, or
voters who actually sue in the public interest.18 Consequently, in a catena of cases,19 this
Court has invariably adopted a liberal stance on locus standi.
Going by the petition, petitioner’s representatives pursue the instant suit primarily as
concerned citizens raising issues of transcendental importance, both for the Republic and the
citizenry as a whole.
When suing as a citizen to question the validity of a law or other government action, a
petitioner needs to meet certain specific requirements before he can be clothed with
standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc.20 expounded on this requirement, thus:
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a
statute must be direct and personal. He must be able to show, not only that the law or any
government act is invalid, but also that he sustained or is in imminent danger of sustaining
some direct injury as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way. It must appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute or act complained of. In fine,
when the proceeding involves the assertion of a public right, the mere fact that he is a citizen
satisfies the requirement of personal interest.21
In the case at bar, petitioner’s representatives have complied with the qualifying conditions
or specific requirements exacted under the locus standi rule. As citizens, their interest in the
subject matter of the petition is direct and personal. At the very least, their assertions
questioning the Agreement are made of a public right, i.e., to ascertain that
the Agreement did not go against established national policies, practices, and obligations
bearing on the State’s obligation to the community of nations.
At any event, the primordial importance to Filipino citizens in general of the issue at hand
impels the Court to brush aside the procedural barrier posed by the traditional requirement
of locus standi, as we have done in a long line of earlier cases, notably in the old but oft-cited
emergency powers cases22 and Kilosbayan v. Guingona, Jr.23 In cases of transcendental
importance, we wrote again in Bayan v. Zamora,24 "The Court may relax the standing
requirements and allow a suit to prosper even where there is no direct injury to the party
claiming the right of judicial review."
Moreover, bearing in mind what the Court said in Tañada v. Angara, "that it will not shirk,
digress from or abandon its sacred duty and authority to uphold the Constitution in matters
that involve grave abuse of discretion brought before it in appropriate cases, committed by
any officer, agency, instrumentality or department of the government,"25 we cannot but
resolve head on the issues raised before us. Indeed, where an action of any branch of
government is seriously alleged to have infringed the Constitution or is done with grave
abuse of discretion, it becomes not only the right but in fact the duty of the judiciary to settle
it. As in this petition, issues are precisely raised putting to the fore the propriety of
the Agreement pending the ratification of the Rome Statute.
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.26 An exchange of notes falls "into the category of inter-governmental
agreements,"27 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.28
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.29 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.’"30As 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.31 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.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an
international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation."32 International agreements may be in
the form of (1) treaties that require legislative concurrence after executive ratification; or (2)
executive agreements that are similar to treaties, except that they do not require legislative
concurrence and are usually less formal and deal with a narrower range of subject matters
than treaties.33
Under international law, there is no difference between treaties and executive agreements in
terms of their binding effects on the contracting states concerned,34 as long as the
negotiating functionaries have remained within their powers.35 Neither, on the domestic
sphere, can one be held valid if it violates the Constitution.36 Authorities are, however,
agreed that one is distinct from another for accepted reasons apart from the concurrence-
requirement aspect.37 As has been observed by US constitutional scholars, a treaty has
greater "dignity" than an executive agreement, because its constitutional efficacy is beyond
doubt, a treaty having behind it the authority of the President, the Senate, and the
people;38 a ratified treaty, unlike an executive agreement, takes precedence over any prior
statutory enactment.39
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of
the nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner takes a
cue from Commissioner of Customs v. Eastern Sea Trading, in which the Court reproduced
the following observations made by US legal scholars: "[I]nternational agreements involving
political issues or changes of national policy and those involving international arrangements
of a permanent character usually take the form of treaties [while] those embodying
adjustments of detail carrying out well established national policies and traditions and those
involving arrangements of a more or less temporary nature take the form of executive
agreements." 40
Pressing its point, petitioner submits that the subject of the Agreement does not fall under
any of the subject-categories that are enumerated in the Eastern Sea Trading case, and that
may be covered by an executive agreement, such as commercial/consular relations, most-
favored nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and settlement of claims.
In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales
and Merchant,41 holding that an executive agreement through an exchange of notes cannot
be used to amend a treaty.
We are not persuaded.
The categorization of subject matters that may be covered by international agreements
mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the
propriety of entering, on a given subject, into a treaty or an executive agreement as an
instrument of international relations. The primary consideration in the choice of the form of
agreement is the parties’ intent and desire to craft an international agreement in the form
they so wish to further their respective interests. Verily, the matter of form takes a back seat
when it comes to effectiveness and binding effect of the enforcement of a treaty or an
executive agreement, as the parties in either international agreement each labor under
the pacta sunt servanda42 principle.
As may be noted, almost half a century has elapsed since the Court rendered its decision
in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex
and the domain of international law wider, as to include such subjects as human rights, the
environment, and the sea. In fact, in the US alone, the executive agreements executed by its
President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation,
aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and
nuclear safety, among others.43 Surely, the enumeration in Eastern Sea Trading cannot
circumscribe the option of each state on the matter of which the international agreement
format would be convenient to serve its best interest. As Francis Sayre said in his work
referred to earlier:
x x x 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-agreement act, have been negotiated with foreign
governments. x x x They cover such subjects as the inspection of vessels, navigation dues,
income tax on shipping profits, the admission of civil air craft, custom matters and
commercial relations generally, international claims, postal matters, the registration of
trademarks and copyrights, etc. x x x
And lest it be overlooked, one type of executive agreement is a treaty-authorized44 or a
treaty-implementing executive agreement,45 which necessarily would cover the same
matters subject of the underlying treaty.
But over and above the foregoing considerations is the fact that––save for the situation and
matters contemplated in Sec. 25, Art. XVIII of the Constitution46––when a treaty is required,
the Constitution does not classify any subject, like that involving political issues, to be in the
form of, and ratified as, a treaty. What the Constitution merely prescribes is that treaties
need the concurrence of the Senate by a vote defined therein to complete the ratification
process.
Petitioner’s reliance on Adolfo47 is misplaced, said case being inapplicable owing to different
factual milieus. There, the Court held that an executive agreement cannot be used to amend
a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement that
does not require the concurrence of the Senate for its ratification may not be used to amend
a treaty that, under the Constitution, is the product of the ratifying acts of the Executive and
the Senate. The presence of a treaty, purportedly being subject to amendment by an
executive agreement, does not obtain under the premises.
Considering the above discussion, the Court need not belabor at length the third main issue
raised, referring to the validity and effectivity of the Agreement without the concurrence by
at least two-thirds of all the members of the Senate. The Court has, in Eastern Sea
Trading,48 as reiterated in Bayan,49 given recognition to the obligatory effect of executive
agreements without the concurrence of the Senate:
x x x [T]he right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest
days of our history, we have entered executive agreements covering such subjects as
commercial and consular relations, most favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settlement of claims. The
validity of these has never been seriously questioned by our courts.
The Agreement Not in Contravention of the Rome Statute
It is the petitioner’s next contention that the Agreement undermines the establishment of
the ICC and is null and void insofar as it unduly restricts the ICC’s jurisdiction and infringes
upon the effectivity of the Rome Statute. Petitioner posits that the Agreement was
constituted solely for the purpose of providing individuals or groups of individuals with
immunity from the jurisdiction of the ICC; and such grant of immunity through non-surrender
agreements allegedly does not legitimately fall within the scope of Art. 98 of the Rome
Statute. It concludes that state parties with non-surrender agreements are prevented from
meeting their obligations under the Rome Statute, thereby constituting a breach of Arts.
27,50 86,51 8952 and 9053 thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that
those responsible for the worst possible crimes are brought to justice in all cases, primarily
by states, but as a last resort, by the ICC; thus, any agreement—like the non-surrender
agreement—that precludes the ICC from exercising its complementary function of acting
when a state is unable to or unwilling to do so, defeats the object and purpose of the Rome
Statute.
Petitioner would add that the President and the DFA Secretary, as representatives of a
signatory of the Rome Statute, are obliged by the imperatives of good faith to refrain from
performing acts that substantially devalue the purpose and object of the Statute, as signed.
Adding a nullifying ingredient to the Agreement, according to petitioner, is the fact that it has
an immoral purpose or is otherwise at variance with a priorly executed treaty.
Contrary to petitioner’s pretense, the Agreement does not contravene or undermine, nor
does it differ from, the Rome Statute. Far from going against each other, one complements
the other. As a matter of fact, the principle of complementarity underpins the creation of the
ICC. As aptly pointed out by respondents and admitted by petitioners, the jurisdiction of the
ICC is to "be complementary to national criminal jurisdictions [of the signatory states]."54 Art.
1 of the Rome Statute pertinently provides:
Article 1
The Court
An International Crimininal Court ("the Court") is hereby established. It x x x shall have the
power to exercise its jurisdiction over persons for the most serious crimes of international
concern, as referred to in this Statute, and shall be complementary to national criminal
jurisdictions. The jurisdiction and functioning of the Court shall be governed by the
provisions of this Statute. (Emphasis ours.)
Significantly, the sixth preambular paragraph of the Rome Statute declares that "it is the duty
of every State to exercise its criminal jurisdiction over those responsible for international
crimes." This provision indicates that primary jurisdiction over the so-called international
crimes rests, at the first instance, with the state where the crime was committed;
secondarily, with the ICC in appropriate situations contemplated under Art. 17, par. 155 of the
Rome Statute.
Of particular note is the application of the principle of ne bis in idem56 under par. 3 of Art. 20,
Rome Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that
of the ICC. As far as relevant, the provision states that "no person who has been tried by
another court for conduct x x x [constituting crimes within its jurisdiction] shall be tried by
the [International Criminal] Court with respect to the same conduct x x x."
The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of
jurisdictional conflict between the Philippines, as party to the non-surrender agreement, and
the ICC; or the idea of the Agreement substantially impairing the value of the RP’s
undertaking under the Rome Statute. Ignoring for a while the fact that the RP signed the
Rome Statute ahead of the Agreement, it is abundantly clear to us that the Rome Statute
expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes
committed within their respective borders, the complementary jurisdiction of the ICC coming
into play only when the signatory states are unwilling or unable to prosecute.
Given the above consideration, petitioner’s suggestion––that the RP, by entering into
the Agreement, violated its duty required by the imperatives of good faith and breached its
commitment under the Vienna Convention57 to refrain from performing any act tending to
impair the value of a treaty, e.g., the Rome Statute––has to be rejected outright. For nothing
in the provisions of the Agreement, in relation to the Rome Statute, tends to diminish the
efficacy of the Statute, let alone defeats the purpose of the ICC. Lest it be overlooked, the
Rome Statute contains a proviso that enjoins the ICC from seeking the surrender of an erring
person, should the process require the requested state to perform an act that would violate
some international agreement it has entered into. We refer to Art. 98(2) of the Rome
Statute, which reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender
xxxx
2. The Court may not proceed with a request for surrender which would require the
requested State to act inconsistently with its obligations under international agreements
pursuant to which the consent of a sending State is required to surrender a person of that
State to the Court, unless the Court can first obtain the cooperation of the sending State for
the giving of consent for the surrender.
Moreover, under international law, there is a considerable difference between a State-Party
and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory
state is only obliged to refrain from acts which would defeat the object and purpose of a
treaty;58 whereas a State-Party, on the other hand, is legally obliged to follow all the
provisions of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a signatory to the Rome
Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to
refrain from acts which would defeat the object and purpose of the Rome Statute. Any
argument obliging the Philippines to follow any provision in the treaty would be premature.
As a result, petitioner’s argument that State-Parties with non-surrender agreements are
prevented from meeting their obligations under the Rome Statute, specifically Arts. 27, 86,
89 and 90, must fail. These articles are only legally binding upon State-Parties, not
signatories.
Furthermore, a careful reading of said Art. 90 would show that the Agreement is not
incompatible with the Rome Statute. Specifically, Art. 90(4) provides that "[i]f the requesting
State is a State not Party to this Statute the requested State, if it is not under an international
obligation to extradite the person to the requesting State, shall give priority to the request
for surrender from the Court. x x x" In applying the provision, certain undisputed facts should
be pointed out: first, the US is neither a State-Party nor a signatory to the Rome Statute; and
second, there is an international agreement between the US and the Philippines regarding
extradition or surrender of persons, i.e., the Agreement. Clearly, even assuming that the
Philippines is a State-Party, the Rome Statute still recognizes the primacy of international
agreements entered into between States, even when one of the States is not a State-Party to
the Rome Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by
bargaining away the jurisdiction of the ICC to prosecute US nationals, government
officials/employees or military personnel who commit serious crimes of international
concerns in the Philippines. Formulating petitioner’s argument a bit differently, the RP, by
entering into the Agreement, does thereby abdicate its sovereignty, abdication being done
by its waiving or abandoning its right to seek recourse through the Rome Statute of the ICC
for erring Americans committing international crimes in the country.
We are not persuaded. As it were, the Agreement is but a form of affirmance and
confirmance of the Philippines’ national criminal jurisdiction. National criminal jurisdiction
being primary, as explained above, it is always the responsibility and within the prerogative
of the RP either to prosecute criminal offenses equally covered by the Rome Statute or to
accede to the jurisdiction of the ICC. Thus, the Philippines may decide to try "persons" of the
US, as the term is understood in the Agreement, under our national criminal justice system.
Or it may opt not to exercise its criminal jurisdiction over its erring citizens or over US
"persons" committing high crimes in the country and defer to the secondary criminal
jurisdiction of the ICC over them. As to "persons" of the US whom the Philippines refuses to
prosecute, the country would, in effect, accord discretion to the US to exercise either its
national criminal jurisdiction over the "person" concerned or to give its consent to the
referral of the matter to the ICC for trial. In the same breath, the US must extend the same
privilege to the Philippines with respect to "persons" of the RP committing high crimes within
US territorial jurisdiction.
In the context of the Constitution, there can be no serious objection to the Philippines
agreeing to undertake the things set forth in the Agreement. Surely, one State can agree to
waive jurisdiction—to the extent agreed upon—to subjects of another State due to the
recognition of the principle of extraterritorial immunity. What the Court wrote in Nicolas v.
Romulo59—a case involving the implementation of the criminal jurisdiction provisions of the
RP-US Visiting Forces Agreement—is apropos:
Nothing in the Constitution prohibits such agreements recognizing immunity from
jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized
subjects of such immunity like Heads of State, diplomats and members of the armed forces
contingents of a foreign State allowed to enter another State’s territory. x x x
To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the
postulate that some of its provisions constitute a virtual abdication of its sovereignty. Almost
every time a state enters into an international agreement, it voluntarily sheds off part of its
sovereignty. The Constitution, as drafted, did not envision a reclusive Philippines isolated
from the rest of the world. It even adheres, as earlier stated, to the policy of cooperation and
amity with all nations.60
By their nature, treaties and international agreements actually have a limiting effect on the
otherwise encompassing and absolute nature of sovereignty. By their voluntary act, nations
may decide to surrender or waive some aspects of their state power or agree to limit the
exercise of their otherwise exclusive and absolute jurisdiction. The usual underlying
consideration in this partial surrender may be the greater benefits derived from a pact or a
reciprocal undertaking of one contracting party to grant the same privileges or immunities to
the other. On the rationale that the Philippines has adopted the generally accepted principles
of international law as part of the law of the land, a portion of sovereignty may be waived
without violating the Constitution.61 Such waiver does not amount to an unconstitutional
diminution or deprivation of jurisdiction of Philippine courts.62
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.64
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.
No Grave Abuse of Discretion
Petitioner’s final point revolves around the necessity of the Senate’s concurrence in the
Agreement. And without specifically saying so, petitioner would argue that the non-
surrender agreement was executed by the President, thru the DFA Secretary, in grave abuse
of discretion.
The Court need not delve on and belabor the first portion of the above posture of petitioner,
the same having been discussed at length earlier on. As to the second portion, We wish to
state that petitioner virtually faults the President for performing, through respondents, a task
conferred the President by the Constitution—the power to enter into international
agreements.
By constitutional fiat and by the nature of his or her office, the President, as head of state
and government, is the sole organ and authority in the external affairs of the country.65 The
Constitution vests in the President the power to enter into international agreements, subject,
in appropriate cases, to the required concurrence votes of the Senate. But as earlier
indicated, executive agreements may be validly entered into without such concurrence. As
the President wields vast powers and influence, her conduct in the external affairs of the
nation is, as Bayan would put it, "executive altogether." The right of the President to enter
into or ratify binding executive agreements has been confirmed by long practice.66
In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria
Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of
the authority and discretion vested in her by the Constitution. At the end of the day, the
President––by ratifying, thru her deputies, the non-surrender agreement––did nothing more
than discharge a constitutional duty and exercise a prerogative that pertains to her office.
While the issue of ratification of the Rome Statute is not determinative of the other issues
raised herein, it may perhaps be pertinent to remind all and sundry that about the time this
petition was interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Office of
the Executive Secretary.67 As the Court emphasized in said case, the power to ratify a treaty,
the Statute in that instance, rests with the President, subject to the concurrence of the
Senate, whose role relative to the ratification of a treaty is limited merely to concurring in or
withholding the ratification. And concomitant with this treaty-making power of the President
is his or her prerogative to refuse to submit a treaty to the Senate; or having secured the
latter’s consent to the ratification of the treaty, refuse to ratify it.68 This prerogative, the
Court hastened to add, is the President’s alone and cannot be encroached upon via a writ of
mandamus. Barring intervening events, then, the Philippines remains to be just a signatory to
the Rome Statute. Under Art. 12569 thereof, the final acts required to complete the treaty
process and, thus, bring it into force, insofar as the Philippines is concerned, have yet to be
done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851,
otherwise known as the "Philippine Act on Crimes Against International Humanitarian Law,
Genocide, and Other Crimes Against Humanity." Sec. 17 of RA 9851, particularly the second
paragraph thereof, provides:
Section 17. Jurisdiction. – x x x x
In the interest of justice, the relevant Philippine authorities may dispense with the
investigation or prosecution of a crime punishable under this Act if another court or
international tribunal is already conducting the investigation or undertaking the prosecution
of such crime. Instead, the authorities may surrender or extradite suspected or accused
persons in the Philippines to the appropriate international court, if any, or to another State
pursuant to the applicable extradition laws and treaties. (Emphasis supplied.)
A view is advanced that the Agreement amends existing municipal laws on the State’s
obligation in relation to grave crimes against the law of nations, i.e., genocide, crimes against
humanity and war crimes. Relying on the above-quoted statutory proviso, the view posits
that the Philippine is required to surrender to the proper international tribunal those persons
accused of the grave crimes defined under RA 9851, if it does not exercise its primary
jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not decide to prosecute a foreign
national for violations of RA 9851, the Philippines has only two options, to wit: (1) surrender
the accused to the proper international tribunal; or (2) surrender the accused to another
State if such surrender is "pursuant to the applicable extradition laws and treaties." But the
Philippines may exercise these options only in cases where "another court or international
tribunal is already conducting the investigation or undertaking the prosecution of such
crime;" otherwise, the Philippines must prosecute the crime before its own courts pursuant
to RA 9851.
Posing the situation of a US national under prosecution by an international tribunal for any
crime under RA 9851, the Philippines has the option to surrender such US national to the
international tribunal if it decides not to prosecute such US national here. The view asserts
that this option of the Philippines under Sec. 17 of RA 9851 is not subject to the consent of
the US, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the US
before the Philippines can exercise such option, requires an amendatory law. In line with this
scenario, the view strongly argues that the Agreement prevents the Philippines—without the
consent of the US—from surrendering to any international tribunal US nationals accused of
crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851. Consequently,
the view is strongly impressed that the Agreement cannot be embodied in a simple executive
agreement in the form of an exchange of notes but must be implemented through an
extradition law or a treaty with the corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where
the Philippines adopts, as a national policy, the "generally accepted principles of
international law as part of the law of the land," the Court is further impressed to perceive
the Rome Statute as declaratory of customary international law. In other words, the Statute
embodies principles of law which constitute customary international law or custom and for
which reason it assumes the status of an enforceable domestic law in the context of the
aforecited constitutional provision. As a corollary, it is argued that any derogation from the
Rome Statute principles cannot be undertaken via a mere executive agreement, which, as an
exclusive act of the executive branch, can only implement, but cannot amend or repeal, an
existing law. The Agreement, so the argument goes, seeks to frustrate the objects of the
principles of law or alters customary rules embodied in the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced considers
the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the
concurrence of the Senate, the theory being that a Senate- ratified treaty partakes of the
nature of a municipal law that can amend or supersede another law, in this instance Sec. 17
of RA 9851 and the status of the Rome Statute as constitutive of enforceable domestic law
under Sec. 2, Art. II of the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that
the Agreement does not amend or is repugnant to RA 9851. For another, the view does not
clearly state what precise principles of law, if any, the Agreement alters. And for a third, it
does not demonstrate in the concrete how the Agreement seeks to frustrate the objectives
of the principles of law subsumed in the Rome Statute.
Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the
former merely reinforces the primacy of the national jurisdiction of the US and the
Philippines in prosecuting criminal offenses committed by their respective citizens and
military personnel, among others. The jurisdiction of the ICC pursuant to the Rome Statute
over high crimes indicated thereat is clearly and unmistakably complementary to the national
criminal jurisdiction of the signatory states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international
humanitarian law, genocide and other crimes against humanity;70 (2) provides penal
sanctions and criminal liability for their commission;71 and (3) establishes special courts for
the prosecution of these crimes and for the State to exercise primary criminal
jurisdiction.72 Nowhere in RA 9851 is there a proviso that goes against the tenor of
the Agreement.
The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the
Philippine State to surrender to the proper international tribunal those persons accused of
crimes sanctioned under said law if it does not exercise its primary jurisdiction to prosecute
such persons. This view is not entirely correct, for the above quoted proviso clearly
provides discretion to the Philippine State on whether to surrender or not a person accused
of the crimes under RA 9851. The statutory proviso uses the word "may." It is settled
doctrine in statutory construction that the word "may" denotes discretion, and cannot be
construed as having mandatory effect.73 Thus, the pertinent second pararagraph of Sec. 17,
RA 9851 is simply permissive on the part of the Philippine State.1avvphi1
Besides, even granting that the surrender of a person is mandatorily required when the
Philippines does not exercise its primary jurisdiction in cases where "another court or
international tribunal is already conducting the investigation or undertaking the prosecution
of such crime," still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said
legal proviso aptly provides that the surrender may be made "to another State pursuant to
the applicable extradition laws and treaties." The Agreement can already be considered a
treaty following this Court’s decision in Nicolas v. Romulo74 which cited Weinberger v.
Rossi.75 In Nicolas, We held that "an executive agreement is a ‘treaty’ within the meaning of
that word in international law and constitutes enforceable domestic law vis-à-vis the United
States."76
Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US
Extradition Treaty, which was executed on November 13, 1994. The pertinent Philippine law,
on the other hand, is Presidential Decree No. 1069, issued on January 13, 1977. Thus,
the Agreement, in conjunction with the RP-US Extradition Treaty, would neither violate nor
run counter to Sec. 17 of RA 9851.
The view’s reliance on Suplico v. Neda77 is similarly improper. In that case, several petitions
were filed questioning the power of the President to enter into foreign loan agreements.
However, before the petitions could be resolved by the Court, the Office of the Solicitor
General filed a Manifestation and Motion averring that the Philippine Government decided
not to continue with the ZTE National Broadband Network Project, thus rendering the
petition moot. In resolving the case, the Court took judicial notice of the act of the executive
department of the Philippines (the President) and found the petition to be indeed moot.
Accordingly, it dismissed the petitions.
In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of
an executive agreement. He stated that "an executive agreement has the force and effect of
law x x x [it] cannot amend or repeal prior laws."78 Hence, this argument finds no application
in this case seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument
cannot be found in the ratio decidendi of the case, but only in the dissenting opinion.
The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for
the reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, "[a]n offense shall be an
extraditable offense if it is punishable under the laws in both Contracting Parties x x x,"79 and
thereby concluding that while the Philippines has criminalized under RA 9851 the acts
defined in the Rome Statute as war crimes, genocide and other crimes against humanity,
there is no similar legislation in the US. It is further argued that, citing U.S. v. Coolidge, in the
US, a person cannot be tried in the federal courts for an international crime unless Congress
adopts a law defining and punishing the offense.
This view must fail.
On the contrary, the US has already enacted legislation punishing the high crimes mentioned
earlier. In fact, as early as October 2006, the US enacted a law criminalizing war crimes.
Section 2441, Chapter 118, Part I, Title 18 of the United States Code Annotated (USCA)
provides for the criminal offense of "war crimes" which is similar to the war crimes found in
both the Rome Statute and RA 9851, thus:
(a) Offense – Whoever, whether inside or outside the United States, commits a war
crime, in any of the circumstances described in subsection (b), shall be fined under
this title or imprisoned for life or any term of years, or both, and if death results to
the victim, shall also be subject to the penalty of death.
(b) Circumstances – The circumstances referred to in subsection (a) are that the
person committing such war crime or the victim of such war crime is a member of
the Armed Forces of the United States or a national of the United States (as defined
in Section 101 of the Immigration and Nationality Act).
(c) Definition – As used in this Section the term "war crime" means any conduct –
(1) Defined as a grave breach in any of the international conventions
signed at Geneva 12 August 1949, or any protocol to such convention to
which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague
Convention IV, Respecting the Laws and Customs of War on Land, signed
18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as defined in
subsection [d]) when committed in the context of and in association with
an armed conflict not of an international character; or
(4) Of a person who, in relation to an armed conflict and contrary to the
provisions of the Protocol on Prohibitions or Restrictions on the Use of
Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May
1996 (Protocol II as amended on 3 May 1996), when the United States is
a party to such Protocol, willfully kills or causes serious injury to
civilians.801avvphi1
Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:
§1091. Genocide
(a) Basic Offense – Whoever, whether in the time of peace or in time of war and
with specific intent to destroy, in whole or in substantial part, a national, ethnic,
racial or religious group as such–
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of members
of the group through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to cause the
physical destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b).81
Arguing further, another view has been advanced that the current US laws do not cover
every crime listed within the jurisdiction of the ICC and that there is a gap between the
definitions of the different crimes under the US laws versus the Rome Statute. The view used
a report written by Victoria K. Holt and Elisabeth W. Dallas, entitled "On Trial: The US Military
and the International Criminal Court," as its basis.
At the outset, it should be pointed out that the report used may not have any weight or value
under international law. Article 38 of the Statute of the International Court of Justice (ICJ)
lists the sources of international law, as follows: (1) international conventions, whether
general or particular, establishing rules expressly recognized by the contesting states; (2)
 international custom, as evidence of a general practice accepted as law; (3) the general Article 8 (d) Definition – As used in this Section
principles of law recognized by civilized nations; and (4) subject to the provisions of Article War Crimes the term "war crime" means any
59, judicial decisions and the teachings of the most highly qualified publicists of the various conduct –
nations, as subsidiary means for the determination of rules of law. The report does not fall
under any of the foregoing enumerated sources. It cannot even be considered as the 2. For the purpose of this
"teachings of highly qualified publicists." A highly qualified publicist is a scholar of public Statute, "war crimes" means: (1) Defined as a grave breach in any of
international law and the term usually refers to legal scholars or "academic writers."82 It has the international conventions signed
not been shown that the authors83 of this report are highly qualified publicists. (a) Grave breaches of at Geneva 12 August 1949, or any
the Geneva protocol to such convention to which
Conventions of 12 the United States is a party;
Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of
the crimes are nonexistent. To highlight, the table below shows the definitions of genocide August 1949, namely,
and war crimes under the Rome Statute vis-à-vis the definitions under US laws: any of the following (2) Prohibited by Article 23, 25, 27 or
acts against persons or 28 of the Annex to the Hague
property protected Convention IV, Respecting the Laws
Rome Statute US Law under the provisions of and Customs of War on Land, signed
the relevant Geneva 18 October 1907;
Article 6 §1091. Genocide Convention: x x x84
Genocide
(3) Which constitutes a grave breach
(a) Basic Offense – Whoever, whether in the time (b) Other serious of common Article 3 (as defined in
For the purpose of this Statute, "genocide" of peace or in time of war and with specific intent violations of the laws subsection [d]85) when committed in
means any of the following acts committed to destroy, in whole or in substantial part, a and customs applicable the context of and in association with
with intent to destroy, in whole or in part, national, ethnic, racial or religious group as such– in international armed an armed conflict not of an
a national, ethnical, racial or religious conflict, within the international character; or
group, as such: (1) kills members of that group; established framework
of international law, (4) Of a person who, in relation to an
(a) Killing members of the group; (2) causes serious bodily injury to namely, any of the armed conflict and contrary to the
members of that group; following acts: provisions of the Protocol on
(b) Causing serious bodily or Prohibitions or Restrictions on the Use
mental harm to members of the (3) causes the permanent impairment of xxxx of Mines, Booby-Traps and Other
group; the mental faculties of members of the Devices as amended at Geneva on 3
group through drugs, torture, or similar (c) In the case of an May 1996 (Protocol II as amended on
(c) Deliberately inflicting on the techniques; armed conflict not of 3 May 1996), when the United States
group conditions of life an international is a party to such Protocol, willfully
calculated to bring about its character, serious kills or causes serious injury to
(4) subjects the group to conditions of
physical destruction in whole or violations of article 3 civilians.86
life that are intended to cause the
in part; physical destruction of the group in common to the four
whole or in part; Geneva Conventions of
(d) Imposing measures intended 12 August 1949,
to prevent births within the namely, any of the
(5) imposes measures intended to
group; following acts
prevent births within the group; or
committed against
persons taking no
(e) Forcibly transferring children (6) transfers by force children of the active part in the
of the group to another group. group to another group; hostilities, including
members of armed
shall be punished as provided in subsection (b). forces who have laid
down their arms and
those placed hors de
 combat by sickness, Nonetheless, despite the lack of actual domestic legislation, the US notably follows the
wounds, detention or doctrine of incorporation. As early as 1900, the esteemed Justice Gray in The Paquete
any other cause: Habana89 case already held international law as part of the law of the US, to wit:

xxxx International law is part of our law, and must be ascertained and administered by the courts
of justice of appropriate jurisdiction as often as questions of right depending upon it are duly
presented for their determination. For this purpose, where there is no treaty and no
(d) Paragraph 2 (c) controlling executive or legislative act or judicial decision, resort must be had to the customs
applies to armed and usages of civilized nations, and, as evidence of these, to the works of jurists and
conflicts not of an commentators who by years of labor, research, and experience have made themselves
international character peculiarly well acquainted with the subjects of which they treat. Such works are resorted to
and thus does not by judicial tribunals, not for the speculations of their authors concerning what the law ought
apply to situations of to be, but for the trustworthy evidence of what the law really is. 90 (Emphasis supplied.)
internal disturbances
and tensions, such as
riots, isolated and Thus, a person can be tried in the US for an international crime despite the lack of domestic
sporadic acts of legislation. The cited ruling in U.S. v. Coolidge,91 which in turn is based on the holding in U.S.
violence or other acts v. Hudson,92 only applies to common law and not to the law of nations or international
of a similar nature. law.93 Indeed, the Court in U.S. v. Hudson only considered the question, "whether the Circuit
Courts of the United States can exercise a common law jurisdiction in criminal
cases."94 Stated otherwise, there is no common law crime in the US but this is considerably
(e) Other serious different from international law.
violations of the laws
and customs applicable
in armed conflicts not The US doubtless recognizes international law as part of the law of the land, necessarily
of an international including international crimes, even without any local statute. 95 In fact, years later, US courts
character, within the would apply international law as a source of criminal liability despite the lack of a local
established framework statute criminalizing it as such. So it was that in Ex Parte Quirin96 the US Supreme Court
of international law, noted that "[f]rom the very beginning of its history this Court has recognized and applied the
namely, any of the law of war as including that part of the law of nations which prescribes, for the conduct of
following acts: x x x. war, the status, rights and duties of enemy nations as well as of enemy individuals."97 It went
on further to explain that Congress had not undertaken the task of codifying the specific
offenses covered in the law of war, thus:
Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the
report itself stated as much, to wit: It is no objection that Congress in providing for the trial of such offenses has not itself
undertaken to codify that branch of international law or to mark its precise boundaries, or to
Few believed there were wide differences between the crimes under the jurisdiction of the enumerate or define by statute all the acts which that law condemns. An Act of Congress
Court and crimes within the Uniform Code of Military Justice that would expose US personnel punishing ‘the crime of piracy as defined by the law of nations is an appropriate exercise of
to the Court. Since US military lawyers were instrumental in drafting the elements of crimes its constitutional authority, Art. I, s 8, cl. 10, ‘to define and punish’ the offense since it has
outlined in the Rome Statute, they ensured that most of the crimes were consistent with adopted by reference the sufficiently precise definition of international law. x x x Similarly by
those outlined in the UCMJ and gave strength to complementarity for the US. Small areas of the reference in the 15th Article of War to ‘offenders or offenses that x x x by the law of war
potential gaps between the UCMJ and the Rome Statute, military experts argued, could be may be triable by such military commissions. Congress has incorporated by reference, as
addressed through existing military laws.87 x x x within the jurisdiction of military commissions, all offenses which are defined as such by the
law of war x x x, and which may constitutionally be included within that jurisdiction.98 x x x
The report went on further to say that "[a]ccording to those involved, the elements of crimes (Emphasis supplied.)
laid out in the Rome Statute have been part of US military doctrine for decades."88 Thus, the
argument proffered cannot stand. This rule finds an even stronger hold in the case of crimes against humanity. It has been held
that genocide, war crimes and crimes against humanity have attained the status of
customary international law. Some even go so far as to state that these crimes have attained
the status of jus cogens.99
Customary international law or international custom is a source of international law as stated
in the Statute of the ICJ.100 It is defined as the "general and consistent practice of states
recognized and followed by them from a sense of legal obligation." 101 In order to establish
the customary status of a particular norm, two elements must concur: State practice, the
objective element; and opinio juris sive necessitates, the subjective element.102
State practice refers to the continuous repetition of the same or similar kind of acts or norms
by States.103 It is demonstrated upon the existence of the following elements: (1) generality;
(2) uniformity and consistency; and (3) duration.104 While, opinio juris, the psychological
element, requires that the state practice or norm "be carried out in such a way, as to be
evidence of a belief that this practice is rendered obligatory by the existence of a rule of law
requiring it."105
"The term ‘jus cogens’ means the ‘compelling law.’"106 Corollary, "a jus cogens norm holds
the highest hierarchical position among all other customary norms and principles." 107 As a
result, jus cogens norms are deemed "peremptory and non-derogable."108 When applied to
international crimes, "jus cogens crimes have been deemed so fundamental to the existence
of a just international legal order that states cannot derogate from them, even by
agreement."109
These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state may
exercise jurisdiction over an individual who commits certain heinous and widely condemned
offenses, even when no other recognized basis for jurisdiction exists."110 "The rationale
behind this principle is that the crime committed is so egregious that it is considered to be
committed against all members of the international community"111 and thus granting every
State jurisdiction over the crime.112
Therefore, even with the current lack of domestic legislation on the part of the US, it still has
both the doctrine of incorporation and universal jurisdiction to try these crimes.
Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in
the Rome Statute is not declaratory of customary international law.
The first element of customary international law, i.e., "established, widespread, and
consistent practice on the part of States,"113 does not, under the premises, appear to be
obtaining as reflected in this simple reality: As of October 12, 2010, only 114114 States have
ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier, or on
July 1, 2002. The fact that 114 States out of a total of 194115 countries in the world, or
roughly 58.76%, have ratified the Rome Statute casts doubt on whether or not the perceived
principles contained in the Statute have attained the status of customary law and should be
deemed as obligatory international law. The numbers even tend to argue against the urgency
of establishing international criminal courts envisioned in the Rome Statute. Lest it be
overlooked, the Philippines, judging by the action or inaction of its top officials, does not
even feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years have
elapsed since the Philippine representative signed the Statute, but the treaty has not been
transmitted to the Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the
concurring elements, thus:
Custom or customary international law means "a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris] x x x." This statement contains
the two basic elements of custom: the material factor, that is how the states behave, and the
psychological factor or subjective factor, that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of states.
This includes several elements: duration, consistency, and generality of the practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the consistency
and the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes necessary to
determine why states behave the way they do. Do states behave the way they do because
they consider it obligatory to behave thus or do they do it only as a matter of
courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what
makes practice an international rule. Without it, practice is not law.116 (Emphasis added.)
Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among
the different countries in the world that the prosecution of internationally recognized crimes
of genocide, etc. should be handled by a particular international criminal court.
Absent the widespread/consistent-practice-of-states factor, the second or the psychological
element must be deemed non-existent, for an inquiry on why states behave the way they do
presupposes, in the first place, that they are actually behaving, as a matter of settled and
consistent practice, in a certain manner. This implicitly requires belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring it.117 Like the first
element, the second element has likewise not been shown to be present.
Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes
enumerated therein as evidenced by it requiring State consent. 118 Even further, the Rome
Statute specifically and unequivocally requires that: "This Statute is subject to ratification,
acceptance or approval by signatory States."119 These clearly negate the argument that such
has already attained customary status.

More importantly, an act of the executive branch with a foreign government must be
afforded great respect. The power to enter into executive agreements has long been
recognized to be lodged with the President. As We held in Neri v. Senate Committee on
Accountability of Public Officers and Investigations, "[t]he power to enter into an executive
agreement is in essence an executive power. This authority of the President to enter into
executive agreements without the concurrence of the Legislature has traditionally been
recognized in Philippine jurisprudence."120 The rationale behind this principle is the inviolable
doctrine of separation of powers among the legislative, executive and judicial branches of
the government. Thus, absent any clear contravention of the law, courts should exercise
utmost caution in declaring any executive agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US Non-
Surrender Agreement ought to be in the form of a treaty, to be effective, has to be rejected.

WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for
lack of merit. No costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice