INSERT WILSON VS ERMITA
or legislative authorizations.
RENE A.V. SAGUISAG , et al. vs EXECUTIVE SECRETARY
PAQUITO N. OCHOA,et al.
G.R. No. 212426
FACTS:
This is a Resolution on the Motion for Reconsideration seeking to reverse
the Decision of this Court in Saguisag et. al., v. Executive Secretary dated
12 January 2016.
Petitioners claim this Court erred when it ruled that the Enhanced Defense
Cooperation Agreement (EDCA) between the Philippines and the US was
not a treaty. In connection to this, petitioners move that EDCA must be in
the form of a treaty in order to comply with the constitutional restriction
under Section 25, Article· XVIII of the 1987 Constitution on foreign
military bases, troops, and facilities. Additionally, they reiterate their
arguments on the issues of telecommunications, taxation, and nuclear
weapons.
The principal reason for the Motion for Reconsideration is evidently
petitioners’ disagreement with the Decision that EDCA implements the
VFA and Mutual Defense Treaty (MDT).
Petitioners argue that EDCA’s provisions fall outside the allegedly limited
scope of the VFA and MDT because it provides a wider arrangement than
the VFA for military bases, troops, and facilities, and it allows the
establishment of U.S. military bases.
ISSUE:
Whether or not EDCA is a treaty.
RULING:
Petitioners detail their objections to EDCA in a similar way to their
original petition, claiming that the VFA and MDT did not allow EDCA to
contain the following provisions:
1. Agreed Locations
2. Rotational presence of personnel
3. U.S. contractors
4. Activities of U.S. contractors
We ruled in Saguisag, et. al. that the EDCA is not a treaty despite the
presence of these provisions. The very nature of EDCA, its provisions and
subject matter, indubitably categorize it as an executive agreement – a
class of agreement that is not covered by the Article XVIII Section 25
restriction – in painstaking detail. To partially quote the Decision:
Executive agreements may dispense with the requirement of Senate
concurrence because of the legal mandate with which they are concluded.
As culled from the deliberations of the Constitutional Commission, past
Supreme Court Decisions, and works of noted scholars, executive
agreements merely involve arrangements on the implementation of
existing policies, rules, laws, or agreements.
They are concluded
(1) to adjust the details of a treaty;
(2) pursuant to or upon confirmation by an act of the Legislature; or
(3) in the exercise of the President’s independent powers under the
Constitution.
The raison d’etre of executive agreements hinges on prior constitutional
The special nature of an executive agreement is not just a domestic
variation in international agreements.
International practice has accepted the use of various forms and
designations of international agreements, ranging from the traditional
notion of a treaty – which connotes a formal, solemn instrument – to
engagements concluded in modern, simplified forms that no longer
necessitate ratification.
An international agreement may take different forms: treaty, act, protocol,
agreement, concordat, compromis d’arbitrage, convention, covenant,
declaration, exchange of notes, statute, pact, charter, agreed minute,
memorandum of agreement, modus vivendi, or some other form.
Consequently, under international law, the distinction between a treaty
and an international agreement or even an executive agreement is
irrelevant for purposes of determining international rights and obligations.
However, this principle does not mean that the domestic law
distinguishing treaties, international agreements, and executive
agreements is relegated to a mere variation in form, or that the
constitutional requirement of Senate concurrence is demoted to an
optional constitutional directive. There remain two very important features
that distinguish treaties from executive agreements and translate them into
terms of art in the domestic setting.
First, executive agreements must remain traceable to an express or
implied authorization under the Constitution, statutes, or treaties. The
absence of these precedents puts the validity and effectivity of executive
agreements under serious question for the main function of the Executive
is to enforce the Constitution and the laws enacted by the Legislature, not
to defeat or interfere in the performance of these rules. In turn, executive
agreements cannot create new international obligations that are not
expressly allowed or reasonably implied in the law they purport to
implement.
Second, treaties are, by their very nature, considered superior to executive
agreements. Treaties are products of the acts of the Executive and the
Senate unlike executive agreements, which are solely executive actions.
Because of legislative participation through the Senate, a treaty is
regarded as being on the same level as a statute. If there is an
irreconcilable conflict, a later law or treaty takes precedence over one that
is prior. An executive agreement is treated differently. Executive
agreements that are inconsistent with either a law or a treaty are
considered ineffective. Both types of international agreement are
nevertheless subject to the supremacy of the Constitution. 
Subsequently, the Decision goes to great lengths to illustrate the source of
EDCA’s validity, in that as an executive agreement it fell within the
parameters of the VFA and MDT, and seamlessly merged with the whole
web of Philippine law. We need not restate the arguments here. It suffices
to state that this Court remains unconvinced that EDCA deserves treaty
status under the law.
We find no reason for EDCA to be declared unconstitutional. It fully
conforms to the Philippines’ legal regime through the MDT and VFA. It
also fully conforms to the government’s continued policy to enhance our
military capability in the face of various military and humanitarian issues
that may arise.
1. Mutual Defense Treaty; Visiting Forces Agreement; View that the
1951 Mutual Defense Treaty (MDT) and the Visiting Forces
Agreement (VFA) was in effect when the Chinese invaded certain
features within our Exclusive Economic Zone (EEZ) in the West
Philippine Sea. The Americans did not come to our aid; The
commitment of the United States (U.S.) remains ambiguous. The U.S.’
statement is that it will not interfere in those types of differences we have
with China, among others.-
—The 1951 Mutual Defense Treaty and the Visiting Forces Agreement
was in effect when the Chinese invaded certain features within our
Exclusive Economic Zone in the West Philippine Sea. The Americans did
not come to our aid. The President of the United States visited and, on the
occasion of that visit, our own President announced the completion of the
EDCA. No clear, unequivocal, and binding commitment was given with
respect to the applicability of the Mutual Defense Treaty to the entirety of
our valid legal claims in the West Philippine Sea. The commitment of the
United States remains ambiguous. The United States’ statement is that it
will not interfere in those types of differences we have with China, among
others.
8. Constitutional Law; Treaties; Power to Concur in a Treaty; The
power to concur in a treaty or an international agreement is an institutional
prerogative granted by the Constitution to the Senate, not to the entire
Legislature.-
—As correctly argued by respondent, the power to concur in a treaty or an
international agreement is an institutional prerogative granted by the
Constitution to the Senate, not to the entire Legislature. In Pimentel, Jr. v.
Office of the Executive Secretary, 462 SCRA 622 (2005), this Court did
not recognize the standing of one of the petitioners therein who was a
member of the House of Representatives. The petition in that case sought
to compel the transmission to the Senate for concurrence of the signed text
of the Statute of the International Criminal Court. Since that petition
invoked the power of the Senate to grant or withhold its concurrence in a
treaty entered into by the Executive Department, only then incumbent
Senator Pimentel was allowed to assert that authority of the Senate of
which he was a member.
10. Executive Power; The duty to faithfully execute the laws of the land
is inherent in executive power and is intimately related to the other
executive functions.-
—The duty to faithfully execute the laws of the land is inherent in
executive power and is intimately related to the other executive functions.
These functions include the faithful execution of the law in autonomous
regions; the right to prosecute crimes; the implementation of
transportation projects; the duty to ensure compliance with treaties,
executive agreements and executive orders; the authority to deport
undesirable aliens; the conferment of national awards under the
President’s jurisdiction; and the overall administration and control of the
executive department.
11. Same; Presidency; Foreign Military Bases; Despite the President’s
roles as defender of the State and sole authority in foreign relations, the
1987 Constitution expressly limits his ability in instances when it involves
the entry of foreign military bases, troops or facilities.-
—Despite the President’s roles as defender of the State and sole authority
in foreign relations, the 1987 Constitution expressly limits his ability in
instances when it involves the entry of foreign military bases, troops or
facilities. The initial limitation is found in Section 21 of the provisions on
the Executive Department: “No treaty or international agreement shall be
valid and effective unless concurred in by at least two-thirds of all the
Members of the Senate.” The specific limitation is given by Section 25 of
the Transitory Provisions, the full text of which reads as follows:
SECTION 25. After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America concerning
Military Bases, foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in by the
Senate and, when the Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum held for that purpose,
and recognized as a treaty by the other contracting State.
14. Foreign Military Bases; It is evident that the constitutional restriction
refers solely to the initial entry of the foreign military bases, troops, or
facilities. Once entry is authorized, the subsequent acts are thereafter
subject only to the limitations provided by the rest of the Constitution and
Philippine law, and not to the Section 25 requirement of validity through a
treaty.-
—It is evident that the constitutional restriction refers solely to the initial
entry of the foreign military bases, troops, or facilities. Once entry is
authorized, the subsequent acts are thereafter subject only to the
limitations provided by the rest of the Constitution and Philippine law, and
not to the Section 25 requirement of validity through a treaty.
15. Presidency; The President has the inherent power to enter into
agreements with other states, including the prerogative to conclude
binding executive agreements that do not require further Senate
concurrence.-
—As the sole organ of our foreign relations and the constitutionally
assigned chief architect of our foreign policy, the President is vested with
the exclusive power to conduct and manage the country’s interface with
other states and governments. Being the principal representative of the
Philippines, the Chief Executive speaks and listens for the nation; initiates,
maintains, and develops diplomatic relations with other states and
governments; negotiates and enters into international agreements;
promotes trade, investments, tourism and other economic relations; and
settles international disputes with other states. As previously discussed,
this constitutional mandate emanates from the inherent power of the
President to enter into agreements with other states, including the
prerogative to conclude binding executive agreements that do not require
further Senate concurrence. The existence of this presidential power is so
well-entrenched that Section 5(2)(a), Article VIII of the Constitution, even
provides for a check on its exercise. As expressed below, executive
agreements are among those official governmental acts that can be the
subject of this Court’s power of judicial review: (2) Review, revise,
reverse, modify, or affirm on appeal or certiorari, as the law or the Rules
of Court may provide, final judgments and orders of lower courts in: (a)
All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question.
16. Executive Agreements; Words and Phrases; In Commissioner of
Customs v. Eastern Sea Trading, 3 SCRA 351 (1961), executive
agreements are defined as “international agreements embodying
adjustments of detail carrying out well-established national policies and
traditions and those involving arrangements of a more or less temporary
nature.”-
—In Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351
(1961), executive agreements are defined as “international agreements
embodying adjustments of detail carrying out well-established national
policies and traditions and those involving arrangements of a more or less
temporary nature.” In Bayan Muna v. Romulo, 641 SCRA 244 (2011),
this Court further clarified that executive agreements can cover a wide
array of subjects that have various scopes and purposes. They are no
longer limited to the traditional subjects that are usually covered by
executive agreements as identified in Eastern Sea Trading.
17. Same; International Agreements; After noted constitutionalist Fr.
Joaquin Bernas quoted the Supreme Court’s (SC’s) ruling in
Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351 (1961),
the Constitutional Commission members ultimately decided that the term
“international agreements” as contemplated in Section 21, Article VII,
does not include executive agreements, and that a proviso is no longer
needed.-
—One of the distinguishing features of executive agreements is that their
validity and effectivity are not affected by a lack of Senate concurrence.
This distinctive feature was recognized as early as in Eastern Sea Trading
(1961), viz.: Treaties are formal documents which require ratification with
the approval of two-thirds of the Senate. Executive agreements become
binding through executive action without the need of a vote by the Senate
or by Congress. x 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 into 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. (Emphases supplied) That notion
was carried over to the present Constitution. In fact, the framers
specifically deliberated on whether the general term “international
agreement” included executive agreements, and whether it was necessary
to include an express proviso that would exclude executive agreements
from the requirement of Senate concurrence. After noted constitutionalist
Fr. Joaquin Bernas quoted the Court’s ruling in Eastern Sea Trading, the
Constitutional Commission members ultimately decided that the term
“international agreements” as contemplated in Section 21, Article VII,
does not include executive agreements, and that a proviso is no longer
needed.
18. Same; Same; International practice has accepted the use of various
forms and designations of international agreements, ranging from the
traditional notion of a treaty-
— which connotes a formal, solemn instrument — to engagements
concluded in modern, simplified forms that no longer necessitate
ratification.—The special nature of an executive agreement is not just a
domestic variation in international agreements. International practice has
accepted the use of various forms and designations of international
agreements, ranging from the traditional notion of a treaty — which
connotes a formal, solemn instrument — to engagements concluded in
modern, simplified forms that no longer necessitate ratification. An
international agreement may take different forms: treaty, act, protocol,
agreement, concordat, compromis d’arbitrage, convention, covenant,
declaration, exchange of notes, statute, pact, charter, agreed minute,
memorandum of agreement, modus vivendi, or some other form.
Consequently, under international law, the distinction between a treaty
and an international agreement or even an executive agreement is
irrelevant for purposes of determining international rights and obligations.
19. Same; Section 9 of Executive Order (EO) No. 459, or the Guidelines
in the Negotiation of International Agreements and its Ratification, thus,
correctly reflected the inherent powers of the President when it stated that
the Department of Foreign Affairs (DFA) “shall determine whether an
agreement is an executive agreement or a treaty.”-
—Indeed, in the field of external affairs, the President must be given a
larger measure of authority and wider discretion, subject only to the least
amount of checks and restrictions under the Constitution. The rationale
behind this power and discretion was recognized by the Court in Vinuya
v. Romulo, 619 SCRA 533 (2010), cited earlier. Section 9 of Executive
Order No. 459, or the Guidelines in the Negotiation of International
Agreements and its Ratification, thus, correctly reflected the inherent
powers of the President when it stated that the DFA “shall determine
whether an agreement is an executive agreement or a treaty.” Accordingly,
in the exercise of its power of judicial review, the Court does not look into
whether an international agreement should be in the form of a treaty or an
executive agreement, save in cases in which the Constitution or a statute
requires otherwise. Rather, in view of the vast constitutional powers and
prerogatives granted to the President in the field of foreign affairs, the task
of the Court is to determine whether the international agreement is
consistent with the applicable limitations.
20. Foreign Military Bases; Enhanced Defense Cooperation
Agreement; Visiting Forces Agreement; The admission and presence of
United States (U.S.) military and civilian personnel in Philippine territory
are already allowed under the Visiting Forces Agreement (VFA), the
treaty supposedly being implemented by Enhanced Defense Cooperation
Agreement (EDCA). What EDCA has effectively done, in fact, is merely
provide the mechanism to identify the locations in which U.S. personnel
may perform allowed activities pursuant to the VFA.-
—The admission and presence of U.S. military and civilian personnel in
Philippine territory are already allowed under the VFA, the treaty
supposedly being implemented by EDCA. What EDCA has effectively
done, in fact, is merely provide the mechanism to identify the locations in
which U.S. personnel may perform allowed activities pursuant to the
VFA. As the implementing agreement, it regulates and limits the presence
of U.S. personnel in the country.
21. Same; Same; Nowhere in Enhanced Defense Cooperation
Agreement (EDCA) are United States (U.S.) contractors guaranteed
immediate admission into the Philippines; It is neither mandatory nor
obligatory on the part of the Philippines to admit United States (U.S.)
contractors into the country.-
—Nowhere in EDCA are U.S. contractors guaranteed immediate
admission into the Philippines. Articles III and IV, in fact, merely grant
them the right of access to, and the authority to conduct certain activities
within the Agreed Locations. Since Article II(3) of EDCA specifically
leaves out U.S. contractors from the coverage of the VFA, they shall not
be granted the same entry accommodations and privileges as those
enjoyed by U.S. military and civilian personnel under the VFA.
Consequently, it is neither mandatory nor obligatory on the part of the
Philippines to admit U.S. contractors into the country. We emphasize that
the admission of aliens into Philippine territory is “a matter of pure
permission and simple tolerance which creates no obligation on the part of
the government to permit them to stay.” Unlike U.S. personnel who are
accorded entry accommodations, U.S. contractors are subject to Philippine
immigration laws. The latter must comply with our visa and passport
regulations and prove that they are not subject to exclusion under any
provision of Philippine immigration laws. The President may also deny
them entry pursuant to his absolute and unqualified power to prohibit or
prevent the admission of aliens whose presence in the country would be
inimical to public interest.
22. Same; Same; Visiting Forces Agreement; Presidency; The
President may exercise the plenary power to expel or deport U.S.
contractors as may be necessitated by national security, public safety,
public health, public morals, and national interest; In contrast, Article
111(5) of the Visiting Forces Agreement (VFA) requires a request for
removal from the Philippine government before a member of the U.S.
personnel may be “dispos[ed] x x x outside of the Philippines.”-
—In the same vein, the President may exercise the plenary power to expel
or deport U.S. contractors as may be necessitated by national security,
public safety, public health, public morals, and national interest. They may
also be deported if they are found to be illegal or undesirable aliens
pursuant to the Philippine Immigration Act and the Data Privacy Act. In
contrast, Article 111(5) of the VFA requires a request for removal from
the Philippine government before a member of the U.S. personnel may be
“dispos[ed] x x x outside of the Philippines.”
23. Same; Same; Same; Certain privileges denied to aliens are likewise
denied to foreign military contractors.-
—EDCA requires that all activities within Philippine territory be in
accordance with Philippine law. This means that certain privileges denied
to aliens are likewise denied to foreign military contractors. Relevantly,
providing security and carrying, owning, and possessing firearms are
illegal for foreign civilians. The laws in place already address issues
regarding the regulation of contractors. In the 2015 Foreign Investment
Negative list, the Executive Department has already identified
corporations that have equity restrictions in Philippine jurisdiction. Of
note is No. 5 on the list — private security agencies that cannot have any
foreign equity by virtue of Section 4 of Republic Act No. 5487; and No.
15, which regulates contracts for the construction of defense-related
structures based on Commonwealth Act No. 541.
24. Same; Same; Same; United States (U.S.) contractors are explicitly
excluded from the coverage of the Visiting Forces Agreement (VFA). As
visiting aliens, their entry, presence, and activities are subject to all laws
and treaties applicable within the Philippine territory.-
—We emphasize that U.S. contractors are explicitly excluded from the
coverage of the VFA. As visiting aliens, their entry, presence, and
activities are subject to all laws and treaties applicable within the
Philippine territory. They may be refused entry or expelled from the
country if they engage in illegal or undesirable activities. There is nothing
that prevents them from being detained in the country or being subject to
the jurisdiction of our courts. Our penal laws, labor laws, and
immigrations laws apply to them and therefore limit their activities here.
Until and unless there is another law or treaty that specifically deals with
their entry and activities, their presence in the country is subject to
unqualified Philippine jurisdiction.
25. Same; Same; Agreed Locations; The latest agreement is Enhanced
Defense Cooperation Agreement (EDCA), which proposes a novel
concept termed “Agreed Locations.”-
—The latest agreement is EDCA, which proposes a novel concept termed
“Agreed Locations.” By definition, Agreed Locations are facilities and
areas that are provided by the Government of the Philippines through the
AFP and that United States forces, United States contractors, and others as
mutually agreed, shall have the right to access and use pursuant to this
Agreement. Such Agreed Locations may be listed in an annex to be
appended to this Agreement, and may be further described in
implementing arrangements. Preliminarily, respondent already claims that
the proviso that the Philippines shall retain ownership of and title to the
Agreed Locations means that EDCA is “consistent with Article II of the
VFA which recognizes Philippine sovereignty and jurisdiction over
locations within Philippine territory.”
26. Same; Same; Same; Enhanced Defense Cooperation Agreement
(EDCA) explicitly provides that ownership of the Agreed Locations
remains with the Philippine government. What United States (U.S.)
personnel have a right to, pending mutual agreement, is access to and use
of these locations.-
—Once ownership is established, then the rights of ownership flow freely.
Article 428 of the Civil Code provides that “[t]he owner has the right to
enjoy and dispose of a thing, without other limitations than those
established by law.” Moreover, the owner “has also a right of action
against the holder and possessor of the thing in order to recover it.”
Philippine civil law therefore accords very strong rights to the owner of
property, even against those who hold the property. Possession, after all,
merely raises a disputable presumption of ownership, which can be
contested through normal judicial processes. In this case, EDCA explicitly
provides that ownership of the Agreed Locations remains with the
Philippine government. What U.S. personnel have a right to, pending
mutual agreement, is access to and use of these locations.
27. Same; Same; Same; So long as the right of ownership itself is not
transferred, then whatever rights are transmitted by agreement does not
completely divest the owner of the rights over the property, but may only
limit them in accordance with law.-
—The right of the owner of the property to allow access and use is
consistent with the Civil Code, since the owner may dispose of the
property in whatever way deemed fit, subject to the limits of the law. So
long as the right of ownership itself is not transferred, then whatever rights
are transmitted by agreement does not completely divest the owner of the
rights over the property, but may only limit them in accordance with law.
Hence, even control over the property is something that an owner may
transmit freely. This act does not translate into the full transfer of
ownership, but only of certain rights. In Roman Catholic Apostolic
Administrator of Davao, Inc. v. Land Registration Commission, 102 Phil.
596 (1957), we stated that the constitutional proscription on property
ownership is not violated despite the foreign national’s control over the
property.
28. Same; Same; Same; For actual operations, Enhanced Defense
Cooperation Agreement (EDCA) is clear that any activity must be planned
and preapproved by the Mutual Defense Board-Security Engagement
Board (MDB-SEB).-
—The legal concept of operational control involves authority over
personnel in a commander-subordinate relationship and does not include
control over the Agreed Locations in this particular case. Though not
necessarily stated in EDCA provisions, this interpretation is readily
implied by the reference to the taking of “appropriate measures to protect
United States forces and United States contractors.” It is but logical, even
necessary, for the U.S. to have operational control over its own forces, in
much the same way that the Philippines exercises operational control over
its own units. For actual operations, EDCA is clear that any activity must
be planned and preapproved by the MDB-SEB. This provision evinces the
partnership aspect of EDCA, such that both stakeholders have a say on
how its provisions should be put into effect.
29. Same; Same; Same; The Philippines retains primary responsibility
for security with respect to the Agreed Locations.-
—From the text of EDCA itself, Agreed Locations are territories of the
Philippines that the U.S. forces are allowed to access and use. By
withholding ownership of these areas and retaining unrestricted access to
them, the government asserts sovereignty over its territory. That
sovereignty exists so long as the Filipino people exist. Significantly, the
Philippines retains primary responsibility for security with respect to the
Agreed Locations. Hence, Philippine law remains in force therein, and it
cannot be said that jurisdiction has been transferred to the U.S. Even the
previously discussed necessary measures for operational control and
defense over U.S. forces must be coordinated with Philippine authorities.
Jurisprudence bears out the fact that even under the former legal regime of
the MBA, Philippine laws continue to be in force within the bases. The
difference between then and now is that EDCA retains the primary
jurisdiction of the Philippines over the security of the Agreed Locations,
an important provision that gives it actual control over those locations.
Previously, it was the provost marshal of the U.S. who kept the peace and
enforced Philippine law in the bases. In this instance, Philippine forces act
as peace officers, in stark contrast to the 1947 MBA provisions on
jurisdiction.
30. Same; Same; Same; Even if the lawfulness of the attack were not in
question, international humanitarian law standards prevent participants in
an armed conflict from targeting nonparticipants.-
—Even if the lawfulness of the attack were not in question, international
humanitarian law standards prevent participants in an armed conflict from
targeting nonparticipants. International humanitarian law, which is the
branch of international law applicable to armed conflict, expressly limits
allowable military conduct exhibited by forces of a participant in an armed
conflict. Under this legal regime, participants to an armed conflict are held
to specific standards of conduct that require them to distinguish between
combatants and non-combatants, as embodied by the Geneva Conventions
and their Additional Protocols.
31. Same; Same; Same; There is ample legal protection for the
Philippines under international law that would ensure its territorial
integrity and national security in the event an Agreed Location is
subjected to attack.-
—Any armed attack by forces of a third state against an Agreed Location
can only be legitimate under international humanitarian law if it is against
a bona fide U.S. military base, facility, or installation that directly
contributes to the military effort of the U.S. Moreover, the third state’s
forces must take all measures to ensure that they have complied with the
principle of distinction (between combatants and non-combatants). There
is, then, ample legal protection for the Philippines under international law
that would ensure its territorial integrity and national security in the event
an Agreed Location is subjected to attack. As EDCA stands, it does not
create the situation so feared by petitioners — one in which the
Philippines, while not participating in an armed conflict, would be
legitimately targeted by an enemy of the U.S.
32. Same; Same; Visiting Forces Agreement; The Visiting Forces
Agreement (VFA) already authorizes the presence of United States (U.S.)
military equipment in the country.-
—The provisions in EDCA dealing with Agreed Locations are analogous
to those in the aforementioned executive agreements. Instead of
authorizing the building of temporary structures as previous agreements
have done, EDCA authorizes the U.S. to build permanent structures or
alter or improve existing ones for, and to be owned by, the Philippines.
EDCA is clear that the Philippines retains ownership of altered or
improved facilities and newly constructed permanent or non-relocatable
structures. Under EDCA, U.S. forces will also be allowed to use facilities
and areas for “training; x x x; support and related activities; x x x;
temporary accommodation of personnel; communications” and agreed
activities. Concerns on national security problems that arise from foreign
military equipment being present in the Philippines must likewise be
contextualized. Most significantly, the VFA already authorizes the
presence of U.S. military equipment in the country. Article VII of the
VFA already authorizes the U.S. to import into or acquire in the
Philippines “equipment, materials, supplies, and other property” that will
be used “in connection with activities” contemplated therein. The same
section also recognizes that “[t]itle to such property shall remain” with the
US and that they have the discretion to “remove such property from the
Philippines at any time.”
33. Constitutional Law; Treaties; View that a ratified treaty cannot be
interpreted to require a second ratified treaty to implement the first ratified
treaty, as a fundamental rule is that a treaty must be interpreted to avoid a
“result which is manifestly absurd or unreasonable.”-
—A ratified treaty like the MDT must be interpreted to allow the
Executive to take all necessary measures to insure that the treaty’s purpose
is attained. A ratified treaty cannot be interpreted to require a second
ratified treaty to implement the first ratified treaty, as a fundamental rule
is that a treaty must be interpreted to avoid a “result which is manifestly
absurd or unreasonable.” This is particularly true to a mutual defense
treaty the purpose of which is mutual self-defense against sudden armed
attack by a third state.
34. Foreign Military Bases; Enhanced Defense Cooperation
Agreement; View that the Philippines agreed with the United States
(U.S.) to use the Mutual Defense Treaty (MDT) to preposition U.S. war
materials in strategic locations in the Philippines, particularly in the
islands of Palawan and Luzon facing the West Philippine Sea.-
—In 2012, China seized Scarborough Shoal from the Philippines, which
could offer no armed resistance to Chinese naval forces. The Scarborough
Shoal seizure finally made the Philippine Government realize that there
was an absolute need to deter China’s creeping invasion of Philippine
islands, rocks and reefs in the West Philippine Sea. Thus, the Philippines
rushed the modernization of its navy and air force. The Philippines also
agreed with the U.S. to use the MDT to preposition U.S. war materials in
strategic locations in the Philippines, particularly in the islands of Palawan
and Luzon facing the West Philippine Sea.
35. Same; Same; View that this is what the Enhanced Defense
Cooperation Agreement (EDCA) is all about-
— the prepositioning in strategic locations of war materials to successfully
resist any armed aggression.—In modern warfare, the successful
implementation of a mutual defense treaty requires the strategic
prepositioning of war materials. Before the advent of guided missiles and
drones, wars could take months or even years to prosecute. There was
plenty of time to conscript and train soldiers, manufacture guns and
artillery, and ship war materials to strategic locations even after the war
had started. Today, wars could be won or lost in the first few weeks or
even first few days after the initial outbreak of war. In modern warfare,
the prepositioning of war materials, like mobile anti-ship and anti-aircraft
missiles, is absolutely necessary and essential to a successful defense
against armed aggression, particularly for a coastal state like the
Philippines. This is what the EDCA is all about — the prepositioning in
strategic locations of war materials to successfully resist any armed
aggression. Such prepositioning will also publicly telegraph to the enemy
that any armed aggression would be repelled. The enemy must know that
we possess the capability, that is, the war materials, to defend the country
against armed aggression. Otherwise, without such capability, we
telegraph to the enemy that further seizure of Philippine islands, rocks and
reefs in the South China Sea would be a walk in the park, just like China’s
seizure of Mischief Reef and Scarborough Shoal. Without such capability,
we would practically be inviting the enemy to seize whatever Philippine
island, rock or reef it desires to seize in the West Philippine Sea.
36. Same; Same; View that unless the United States (U.S.) and the
Philippines have prepositioned anti-ship missiles in Palawan, there will be
no deterrence to China, and no swift response from U.S. and Philippine
forces.-
—If China’s navy ships attack a Philippine military ship re-supplying
Philippine-occupied islands in the Spratlys, that will be covered by the
MDT. However, unless the U.S. and the Philippines have prepositioned
anti-ship missiles in Palawan, there will be no deterrence to China, and no
swift response from U.S. and Philippine forces. The absence of any
deterrence will likely invite Chinese harassment, or even armed attack, on
Philippine resupply ships. That will lead to the loss of all Philippine-
occupied islands in the Spratlys, as well as the loss of the gas-rich Reed
Bank.
MOST REV. PEDRO ARIGO, et. al., Petitioners, vs.
SCOTT H. SWIFT, et. al., Respondents.
G.R. No. 206510               September 16, 2014
PONENTE: Villarama
TOPIC: Writ of kalikasan, UNCLOS, Immunity from suit                  The US respondents were sued in their official capacity as
FACTS:
                The USS Guardian is an Avenger-class mine countermeasures
ship of the US Navy. In December 2012, the US Embassy in the
Philippines requested diplomatic clearance for the said vessel “to enter
and exit the territorial waters of the Philippines and to arrive at the port of
Subic Bay for the purpose of routine ship replenishment, maintenance, and
crew liberty.” On January 6, 2013, the ship left Sasebo, Japan for Subic
Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa,
Japan.
                On January 15, 2013, the USS Guardian departed Subic Bay for
its next port of call in Makassar, Indonesia. On January 17, 2013 at 2:20
a.m. while transiting the Sulu Sea, the ship ran aground on the northwest
side of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast
of Palawan. No one was injured in the incident, and there have been no
reports of leaking fuel or oil.
                Petitioners claim that the grounding, salvaging and post-
salvaging operations of the USS Guardian cause and continue to cause
environmental damage of such magnitude as to affect the provinces of
Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros
Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which
events violate their constitutional rights to a balanced and healthful
ecology.
ISSUES:
1. Whether or not petitioners have legal standing.
2. Whether or not US respondents may be held liable for damages
caused by USS Guardian.
3. Whether or not the waiver of immunity from suit under VFA
applies in this case.
 HELD:
First issue: YES.
Petitioners have legal standing
                Locus standi is “a right of appearance in a court of justice on a
given question.” 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” of the act being challenged, and “calls for more than just a
generalized grievance.” However, the rule on standing is a procedural
matter which this Court has relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers and legislators when the public interest so
requires, such as when the subject matter of the controversy is of
transcendental importance, of overreaching significance to society, or of
paramount public interest.
                In the landmark case of Oposa v. Factoran, Jr., we recognized
the “public right” of citizens to “a balanced and healthful ecology which,
for the first time in our constitutional history, is solemnly incorporated in
the fundamental law.” We declared that the right to a balanced and
healthful ecology need not be written in the Constitution for it is assumed,
like other civil and polittcal rights guaranteed in the Bill of Rights, to exist
from the inception of mankind and it is an issue of transcendental
importance with intergenerational implications. Such right carries with it
the correlative duty to refrain from impairing the environment.
                On the novel element in the class suit filed by the petitioners
minors in Oposa, this Court ruled that not only do ordinary citizens have
legal standing to sue for the enforcement of environmental rights, they can
do so in representation of their own and future generations.
Second issue: YES.
commanding officers of the US Navy who had control and supervision
over the USS Guardian and its crew. The alleged act or omission resulting
in the unfortunate grounding of the USS Guardian on the TRNP was
committed while they were performing official military duties.
Considering that the satisfaction of a judgment against said officials will
require remedial actions and appropriation of funds by the US
government, the suit is deemed to be one against the US itself. The
principle of State immunity therefore bars the exercise of jurisdiction by
this Court over the persons of respondents Swift, Rice and Robling.
                During the deliberations, Senior Associate Justice Antonio T.
Carpio took the position that the conduct of the US in this case, when its
warship entered a restricted area in violation of R.A. No. 10067 and
caused damage to the TRNP reef system, brings the matter within the
ambit of Article 31 of the United Nations Convention on the Law of the
Sea (UNCLOS). He explained that while historically, warships enjoy
sovereign immunity from suit as extensions of their flag State, Art. 31
of the UNCLOS creates an exception to this rule in cases where they
fail to comply with the rules and regulations of the coastal State
regarding passage through the latter’s internal waters and the
territorial sea.
                 In the case of warships, as pointed out by Justice Carpio,
they continue to enjoy sovereign immunity subject to the following
exceptions:
Article 30: Non-compliance by warships with the laws and regulations of
the coastal State
If any warship does not comply with the laws and regulations of the
coastal State concerning passage through the territorial sea and disregards
any request for compliance therewith which is made to it, the coastal State
may require it to leave the territorial sea immediately.
Article 31: Responsibility of the flag State for damage caused by a
warship or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or
damage to the coastal State resulting from the non-compliance by a
warship or other government ship operated for non-commercial purposes
with the laws and regulations of the coastal State concerning passage
through the territorial sea or with the provisions of this Convention or
other rules of international law.
Article 32: Immunities of warships and other government ships operated
for non-commercial purposes
                With such exceptions as are contained in subsection A and in
articles 30 and 31, nothing in this Convention affects the immunities of
warships and other government ships operated for non-commercial
purposes. A foreign warship’s unauthorized entry into our internal
waters with resulting damage to marine resources is one situation in
which the above provisions may apply.
But what if the offending warship is a non-party to the UNCLOS, as in
this case, the US?
According to Justice Carpio, although the US to date has not ratified the
UNCLOS, as a matter of long-standing policy the US considers itself
bound by customary international rules on the “traditional uses of the
oceans” as codified in UNCLOS.
Moreover, Justice Carpio emphasizes that “the US refusal to join the
UNCLOS was centered on its disagreement with UNCLOS” regime of
deep seabed mining (Part XI) which considers the oceans and deep seabed
commonly owned by mankind,” pointing out that such “has nothing to do
with its the US’ acceptance of customary international rules on
navigation.”
The Court also fully concurred with Justice Carpio’s view that non-
membership in the UNCLOS does not mean that the US will disregard the
rights of the Philippines as a Coastal State over its internal waters and
territorial sea. We thus expect the US to bear “international responsibility”
under Art. 31 in connection with the USS Guardian grounding which
adversely affected the Tubbataha reefs. Indeed, it is difficult to imagine
that our long-time ally and trading partner, which has been actively
supporting the country’s efforts to preserve our vital marine resources,
would shirk from its obligation to compensate the damage caused by its
warship while transiting our internal waters. Much less can we
comprehend a Government exercising leadership in international affairs,
unwilling to comply with the UNCLOS directive for all nations to
cooperate in the global task to protect and preserve the marine
environment as provided in Article 197 of UNCLOS
Article 197: Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a regional
basis, directly or through competent international organizations, in
formulating and elaborating international rules, standards and
recommended practices and procedures consistent with this Convention,
for the protection and preservation of the marine environment, taking into
account characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present
controversy is beyond dispute. Although the said treaty upholds the
immunity of warships from the jurisdiction of Coastal States while
navigating the latter’s territorial sea, the flag States shall be required
to leave the territorial sea immediately if they flout the laws and
regulations of the Coastal State, and they will be liable for damages
caused by their warships or any other government vessel operated for
non-commercial purposes under Article 31.
Third issue: NO
                The waiver of State immunity under the VF A pertains only to
criminal jurisdiction and not to special civil actions such as the present
petition for issuance of a writ of Kalikasan. In fact, it can be inferred from
Section 17, Rule 7 of the Rules that a criminal case against a person
charged with a violation of an environmental law is to be filed separately.
                The Court considered a view that a ruling on the application or
non-application of criminal jurisdiction provisions of the VFA to US
personnel who may be found responsible for the grounding of the USS
Guardian, would be premature and beyond the province of a petition for a
writ of Kalikasan.
                The Court also found  unnecessary at this point to determine
whether such waiver of State immunity is indeed absolute. In the same
vein, we cannot grant damages which have resulted from the violation of
environmental laws. The Rules allows the recovery of damages, including
the collection of administrative fines under R.A. No. 10067, in a separate
civil suit or that deemed instituted with the criminal action charging the
same violation of an environmental law.
Arigo vs. Swift, 735 SCRA 12 (2014)
1. Same; Same; Same; View that immunity does not necessarily apply to
all the foreign respondents should the case have been brought in a timely
manner, with the proper remedy, and in the proper court.-
—Considering the flexibility in international law and the doctrines that we
have evolved so far, I am of the view that immunity does not necessarily
apply to all the foreign respondents should the case have been brought in a
timely manner, with the proper remedy, and in the proper court. Those
who have directly and actually committed culpable acts or acts resulting
from gross negligence resulting in the grounding of a foreign warship in
violation of our laws defining a tortious act or one that protects the
environment which implement binding international obligations cannot
claim sovereign immunity.
2. Remedial Law; Civil Procedure; Locus Standi; Words and Phrases;
Locus standi is “a right of appearance in a court of justice on a given
question.”-
—Locus standi is “a right of appearance in a court of justice on a given
question.” 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” of
the act being challenged, and “calls for more than just a generalized
grievance.” However, the rule on standing is a procedural matter which
this Court has relaxed for nontraditional plaintiffs like ordinary citizens,
taxpayers and legislators when the public interest so requires, such as
when the subject matter of the controversy is of transcendental
importance, of overreaching significance to society, or of paramount
public interest.
3. Constitutional Law; Balance and Healthful Ecology; In the landmark
case of Oposa v. Factoran, Jr., 224 SCRA 792 (1993), the Supreme Court
(SC) recognized the “public right” of citizens to “a balanced and healthful
ecology which, for the first time in our constitutional history, is solemnly
incorporated in the fundamental law.”-
—In the landmark case of Oposa v. Factoran, Jr., 224 SCRA 792 (1993),
we recognized the “public right” of citizens to “a balanced and healthful
ecology which, for the first time in our constitutional history, is solemnly
incorporated in the fundamental law.” We declared that the right to a
balanced and healthful ecology need not be written in the Constitution for
it is assumed, like other civil and political rights guaranteed in the Bill of
Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications. Such right
carries with it the correlative duty to refrain from impairing the
environment.
4. Remedial Law; Civil Procedure; Class Suit; On the novel element in
the class suit filed by the petitioners minors in Oposa, this Court ruled that
not only do ordinary citizens have legal standing to sue for the
enforcement of environmental rights, they can do so in representation of
their own and future generations.+
5. Constitutional Law; State Immunity from Suit; This traditional rule
of State immunity which exempts a State from being sued in the courts of
another State without the former’s consent or waiver has evolved into a
restrictive doctrine which distinguishes sovereign and governmental acts
(jure imperii) from private, commercial and proprietary acts (jure
gestionis).+
6. Same; International Law; International Law of the Sea; Words and
Phrases; The international law of the sea is generally defined as “a body
of treaty rules and customary norms governing the uses of the sea, the
exploitation of its resources, and the exercise of jurisdiction over maritime
regimes.+
7. Same; Same; Same; United Nations Convention on the Law of the
Sea; The United Nations Convention on the Law of the Sea (UNCLOS)
gives to the coastal State sovereign rights in varying degrees over the
different zones of the sea which are: 1) internal waters, 2) territorial sea,
3) contiguous zone, 4) exclusive economic zone, and 5) the high seas. It
also gives coastal States more or less jurisdiction over foreign vessels
depending on where the vessel is located.-
—The UNCLOS is a product of international negotiation that seeks to
balance State sovereignty (mare clausum) and the principle of freedom of
the high seas (mare liberum). The freedom to use the world’s marine
waters is one of the oldest customary principles of international law. The
UNCLOS gives to the coastal State sovereign rights in varying degrees
over the different zones of the sea which are: 1) internal waters, 2)
territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the
high seas. It also gives coastal States more or less jurisdiction over foreign
vessels depending on where the vessel is located.
8. Same; Same; State Immunity from Suit; Visiting Forces
Agreement; Writ of Kalikasan; The waiver of State immunity under the
Visiting Forces Agreement (VFA) pertains only to criminal jurisdiction
and not to special civil actions such as the present petition for issuance of
a writ of Kalikasan.-
—The VFA is an agreement which defines the treatment of United States
troops and personnel visiting the Philippines to promote “common
security interests” between the US and the Philippines in the region. It
provides for the guidelines to govern such visits of military personnel, and
further defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment, materials and supplies.
The invocation of US federal tort laws and even common law is thus
improper considering that it is the VFA which governs disputes involving
US military ships and crew navigating Philippine waters in pursuance of
the objectives of the agreement. As it is, the waiver of State immunity
under the VFA pertains only to criminal jurisdiction and not to special
civil actions such as the present petition for issuance of a writ of
Kalikasan. In fact, it can be inferred from Section 17, Rule 7 of the Rules
that a criminal case against a person charged with a violation of an
environmental law is to be filed separately: SEC. 17. Institution of
separate actions.—The filing of a petition for the issuance of the writ of
kalikasan shall not preclude the filing of separate civil, criminal or
administrative actions.
9. Same; Same; Same; Same; Same; A ruling on the application or non-
application of criminal jurisdiction provisions of the Visiting Forces
Agreement (VFA) to US personnel who may be found responsible for the
grounding of the USS Guardian, would be premature and beyond the
province of a petition for a writ of Kalikasan.-
—In any case, it is our considered view that a ruling on the application or
non-application of criminal jurisdiction provisions of the VFA to US
personnel who may be found responsible for the grounding of the USS
Guardian, would be premature and beyond the province of a petition for a
writ of Kalikasan. We also find it unnecessary at this point to determine
whether such waiver of State immunity is indeed absolute. In the same
vein, we cannot grant damages which have resulted from the violation of
environmental laws. The Rules allows the recovery of damages, including
the collection of administrative fines under R.A. No. 10067, in a separate
civil suit or that deemed instituted with the criminal action charging the
same violation of an environmental law.
10. Same; Same; Foreign Relations; It is settled that “the conduct of the
foreign relations of our government is committed by the Constitution to
the executive and legislative-
— ‘the political’ — departments of the government, and the propriety of
what may be done in the exercise of this political power is not subject to
judicial inquiry or decision.”—A rehabilitation or restoration program to
be implemented at the cost of the violator is also a major relief that may
be obtained under a judgment rendered in a citizens’ suit under the Rules,
viz.: RULE 5 SECTION 1. Reliefs in a citizen suit.—If warranted, the
court may grant to the plaintiff proper reliefs which shall include the
protection, preservation or rehabilitation of the environment and the
payment of attorney’s fees, costs of suit and other litigation expenses. It
may also require the violator to submit a program of rehabilitation or
restoration of the environment, the costs of which shall be borne by the
violator, or to contribute to a special trust fund for that purpose subject to
the control of the court. In the light of the foregoing, the Court defers to
the Executive Branch on the matter of compensation and rehabilitation
measures through diplomatic channels. Resolution of these issues
impinges on our relations with another State in the context of common
security interests under the VFA. It is settled that “[t]he conduct of the
foreign relations of our government is committed by the Constitution to
the executive and legislative — ‘the political’ — departments of the
government, and the propriety of what may be done in the exercise of this
political power is not subject to judicial inquiry or decision.”
11. Constitutional Law; International Law; Visiting Forces
Agreement; Treaties; View that acts done pursuant to the Visiting Forces
Agreement (VFA) take the nature of governmental acts, since both the
United States and Philippine governments recognize the VFA as a treaty
with corresponding obligations, and the presence of these two Naval
Officers and the warship in Philippine waters fell under this legal regime.-
—In this case, the two Naval Officers were acting pursuant to their
function as the commanding officers of a warship, traversing Philippine
waters under the authority of the Visiting Forces Agreement (VFA).
While the events beg the question of what the warship was doing in that
area, when it should have been headed towards Indonesia, its presence in
Philippine waters is not wholly unexplainable. The VFA is a treaty, and it
has been affirmed as valid by this Court in Bayan v. Zamora, 342 SCRA
449 (2000), and affirmed in Lim v. Executive Secretary, 380 SCRA 739
(2002), and Nicolas v. Romulo, 578 SCRA 438 (2009). It has, in the past,
been used to justify the presence of United States Armed Forces in the
Philippines. In this respect therefore, acts done pursuant to the VFA take
the nature of governmental acts, since both the United States and
Philippine governments recognize the VFA as a treaty with corresponding
obligations, and the presence of these two Naval Officers and the warship
in Philippine waters fell under this legal regime.
12. Same; Same; State Immunity from Suit; View that under the regime
of international law, there is an added dimension to sovereign immunity
exceptions: the tort exception.+
13. Same; Same; Same; View that immunity, unlike in other
jurisdictions, is determined not by the courts of law but by the executive
branches.+
14. Same; Same; Same; View that the basic concept of state immunity is
that no state may be subjected to the jurisdiction of another state without
its consent.+
15. Same; Same; Same; View that the basic concept of state immunity is
that no state may be subjected to the jurisdiction of another state without
its consent.+
16. Same; Same; Same; Writ of Kalikasan; View that should the Court
issue the Writ, it could possibly entail international responsibility for
breaching the jurisdictional immunity of a sovereign state.-
—No exception exists in Philippine or international law that would
remove the immunity of the United States in order to place it under the
jurisdiction of Philippine courts. The Writ of Kalikasan is a compulsory
writ, and its issuance initiates a legal process that would circumvent the
internationally established rules of immunity. Should the Court issue the
Writ, it could possibly entail international responsibility for breaching the
jurisdictional immunity of a sovereign state.
17. Writ of Kalikasan; View that the writ of kalikasan is not an all-
embracing legal remedy to be wielded like a political tool.-
—The writ of kalikasan is not an all-embracing legal remedy to be
wielded like a political tool. It is both an extraordinary and equitable
remedy which assists to prevent environmental catastrophes. It does not
replace other legal remedies similarly motivated by concern for the
environment and the community’s ecological welfare. Certainly, when the
petition itself alleges that remedial and preventive remedies have
occurred, the functions of the writ cease to exist. In case of disagreement,
parties need to exhaust the political and administrative arena. Only when a
concrete cause of action arises out of facts that can be proven with
substantial evidence may the proper legal action be entertained.
18. Remedial Law; Civil Procedure; Class Suits; Citizen’s Suits; View
Citizen’s suits are procedural devices that allow a genuine cause of action
to be judicially considered in spite of the social costs or negative
externalities of such initiatives. This should be clearly distinguished in our
rules and in jurisprudence from class suits that purport to represent the
whole population and unborn generations.+
19. Constitutional Law; International Law; State Immunity from
Suit; View that the doctrine of sovereign immunity is understood as a
basic right extended to states by other states on the basis of respect for
sovereignty and independence.+
20. Same; Same; Same; View that this doctrine of relative jurisdictional
immunity (sovereign immunity) of states and their agents becomes
binding in our jurisdiction as international law only through Section 2 of
Article II or Section 21 of Article VII of the Constitution.+
21. Same; Same; Same; View that this doctrine of relative jurisdictional
immunity (sovereign immunity) of states and their agents becomes
binding in our jurisdiction as international law only through Section 2 of
Article II or Section 21 of Article VII of the Constitution.+
22. Remedial Law; Civil Procedure; Jurisdiction; Environmental
Cases; View that the “environmental” nature of this petition, based
upon the alleged violation of the Tubbataha Reefs Natural Park Act,
by itself does not and should not automatically render the Rules of
Procedure for Environmental Cases applicable; This means that even
in environmental cases, Rule 3, Sections 2, 3, or 12 of the 1997 Rules of
Civil Procedure should still also apply.-
—The “environmental” nature of this petition, based upon the alleged
violation of the Tubbataha Reefs Natural Park Act, by itself does not and
should not automatically render the Rules of Procedure for Environmental
Cases applicable. At best, it must be reconciled with rules on parties as
contained in the Rules of Court. This is to preclude a situation where the
interpretation of the Rules of Procedure for Environmental Cases results in
a ruling inconsistent or contrary to established legal concepts. It is my
position that unless the remedy sought will serve the purpose of
preventing an environmental catastrophe, the traditional procedural route
should be taken. This means that even in environmental cases, Rule 3,
Sections 2, 3, or 12 of the 1997 Rules of Civil Procedure should still also
apply.
23. Remedial Law; Civil Procedure; Jurisdiction; Environmental
Cases; View that the “environmental” nature of this petition, based
upon the alleged violation of the Tubbataha Reefs Natural Park Act,
by itself does not and should not automatically render the Rules of
Procedure for Environmental Cases applicable; This means that even
in environmental cases, Rule 3, Sections 2, 3, or 12 of the 1997 Rules of
Civil Procedure should still also apply.-
—The “environmental” nature of this petition, based upon the alleged
violation of the Tubbataha Reefs Natural Park Act, by itself does not and
should not automatically render the Rules of Procedure for Environmental
Cases applicable. At best, it must be reconciled with rules on parties as
contained in the Rules of Court. This is to preclude a situation where the
interpretation of the Rules of Procedure for Environmental Cases results in
a ruling inconsistent or contrary to established legal concepts. It is my
position that unless the remedy sought will serve the purpose of
preventing an environmental catastrophe, the traditional procedural route
should be taken. This means that even in environmental cases, Rule 3,
Sections 2, 3, or 12 of the 1997 Rules of Civil Procedure should still also
apply.
24. Same; Same; Real Party-in-Interest; View that a real party-in-
interest is a litigant whose right or interest stands to benefit or get injured
by the judgment of the case.+
25. Same; Same; Representatives; Environmental Cases; View that in
environmental cases, Section 3 of Rule 3 of the 1997 Rules of Civil
Procedure may be used to bring a suit, provided that two (2) elements
concur: a) the suit is brought on behalf of an identified party whose right
has been violated, resulting in some form of damage, and b) the
representative authorized by law or the Rules of Court to represent the
victim.+
26. Same; Same; Citizen’s Suits; View that a citizen’s suit that seeks to
enforce environmental rights and obligations may be brought by any
Filipino who is acting as a representative of others, including minors or
generations yet unborn.+
27. Same; Same; Same; Environmental Cases; View that since
environmental cases necessarily involve the balancing of different types
and degrees of interests, allowing anyone from the present generation to
represent others who are yet unborn poses three (3) possible dangers.+
28. Same; Same; Res Judicata; View that the doctrine of res judicata
bars parties to litigate an issue more than once, and this is strictly applied
because “the maintenance of public order, the repose of society . . . require
that what has been definitely determined by competent tribunals shall be
accepted as irrefragable legal truth.”+
29. Same; Same; Same; View that considering the effect of res judicata,
the ruling in Oposa v. Factoran has opened a dangerous practice of
binding parties who are yet incapable of making choices for themselves,
either due to minority or the sheer fact that they do not yet exist.+
30. Same; Same; Class Suits; View that in a class suit, petitioners
necessarily bring the suit in two capacities: first, as persons directly
injured by the act or omission complained of; and second, as
representatives of an entire class who have suffered the same injury.+
31. Same; Same; Same; Environmental Cases; View that not all
environmental cases need to be brought as class suits.+
32. Same; Same; Same; Same; Wvil prorit of Kalikasan; View that the
writ of kalikasan is a remedy that covers environmental damages the
magnitude of which transcends both political and territorial boundaries.-
—The writ of kalikasan is a remedy that covers environmental damages
the magnitude of which transcends both political and territorial
boundaries. It specifically provides that the prejudice to life, health, or
property caused by an unlawful act or omission of a public official, public
employee, or a private individual or entity must be felt in at least two
cities or provinces. The petition for its issuance may be filed on behalf of
those whose right to a balanced and healthful ecology is violated, provided
that the group or organization which seeks to represent is duly accredited.
33. Same; Same; Same; Same; Same; Temporary Environmental
Protection Order; View that a Temporary Environmental Protection
Order (TEPO) is an order which either directs or enjoins a person or
government agency to perform or refrain from a certain act, for the
purpose of protecting, preserving, and/or rehabilitating the environment.+
34. Constitutional Law; International Law; State Immunity from
Suit; View that immunity does not necessarily apply to all the foreign
respondents should the case have been brought in a timely manner, with
the proper remedy, and in the proper court.-
—It is my position that doctrine on relative jurisdictional immunity of
foreign states or otherwise referred to as sovereign immunity should be
further refined. I am of the view that immunity does not necessarily apply
to all the foreign respondents should the case have been brought in a
timely manner, with the proper remedy, and in the proper court. Those
who have directly and actually committed culpable acts or acts resulting
from gross negligence resulting in the grounding of a foreign warship in
violation of our laws defining a tortious act or one that protects the
environment which implement binding international obligations cannot
claim sovereign immunity. Some clarification may be necessary to map
the contours of relative jurisdictional immunity of foreign states otherwise
known as the doctrine of sovereign immunity. The doctrine of sovereign
immunity can be understood either as a domestic or an international
concept.
35. Same; Same; Same; View that there appears to be a consensus among
states that sovereign immunity as a concept is legally binding.-
—Under international law, sovereign immunity remains to be an abstract
concept. On a basic level, it is understood as a basic right extended to
states by other states on the basis of respect for sovereignty and
independence. There appears to be a consensus among states that
sovereign immunity as a concept is legally binding. Nevertheless, legal
scholars observe that there remains to be a lack of agreement as to how it
is to be invoked or exercised in actual cases. Finke presents: States accept
sovereign immunity as a legally binding concept, but only on a very
abstract level. They agree on the general idea of immunity, but disagree on
the extent to which they actually must grant immunity in a specific case.
36. Same; Same; Same; European Convention on State Immunity;
Words and Phrases; View that in the Council of Europe’s explanatory
report, sovereign immunity is defined as “a concept of international law,
which has developed out of the principle par in parem non habet
imperium, by virtue of which one State is not subject to the jurisdiction of
another State.”-
—The European Convention on State Immunity is a treaty established
through the Council of Europe on May 16, 1972. In the Council of
Europe’s explanatory report, sovereign immunity is defined as “a concept
of international law, which has developed out of the principle par in parem
non habet imperium, by virtue of which one State is not subject to the
jurisdiction of another State.” The treaty arose out of the need to address
cases where states become involved in areas of private law: For many
years State immunity has occupied the attention of eminent jurists. It is
also the object of abundant case law. The development of international
relations and the increasing intervention of States in spheres belonging to
private law have posed the problem still more acutely by increasing the
number of disputes opposing individuals and foreign States. There are, at
present, two theories, that of absolute State immunity which is the logical
consequence of the principle stated above and that of relative State
immunity which is tending to predominate on account of the requirement
of modern conditions. According to this latter theory, the State enjoys
immunity for acts jure imperii but not for acts jure gestionis, that is to say
when it acts in the same way as a private person in relations governed by
private law. This divergence of opinion causes difficulties in international
relations. States whose courts and administrative authorities apply the
theory of absolute State immunity are led to call for the same treatment
abroad.
37. Same; Same; Visiting Forces Agreement; View that the extent of the
Visiting Forces Agreement’s (VFA’s) categorization as between the
Philippine and United States government-
— either as a “treaty”/
38. Same; Same; State Immunity from Suit; There appears to be a
general recognition that foreign states are to be afforded immunity on
account of equality of states, but the “practice” lacks uniformity.-
—There appears to be a general recognition that foreign states are to be
afforded immunity on account of equality of states, but the “practice”
lacks uniformity. Finke points out that the doctrine as exercised by
different states suffers from “substantial disagreement on detail and
substance.” The inconsistencies in state practice render the possibility of
invoking international comity even more problematic.
39. Same; Same; Same; View that the International Court of Justice’s
position that sovereign immunity remains applicable even if the action is
based upon violations of international law should be limited only to acts
during armed conflict.-
—In sum, the International Court of Justice’s position that sovereign
immunity remains applicable even if the action is based upon violations of
international law should be limited only to acts during armed conflict.
Jurisdictional Immunities of the State (Germany v. Italy) also referred to
actions commited during World War II and especially referred to the
situation of international law at that time. The majority reflected the
attitude that sovereign immunity is a customary norm. It, however,
recognizes that uniformity in state practice is far from the consensus
required to articulate specific rules pertaining to other circumstances —
such as transgressions of foreign warships of domestic legislation while
granted innocent passage. It impliedly accepted that states enjoyed wide
latitude to specify their own norms.
40. Same; Same; Same; View that as a principle of international law, the
doctrine of sovereign immunity is deemed automatically incorporated in
our domestic legal system as per Article II, Section 2 of the Constitution.-
—Sovereign immunity is a doctrine recognized by states under the
international law system. However, its characterization as a principle is
more appropriate in that “the extent to which foreign states are awarded
immunity differs from state to state.” This appears to be an accepted
arrangement in light of the different state immunity laws all over the
world. As it stands, states are allowed to draw the line in the application of
sovereign immunity in cases involving foreign states and their agents. As
a principle of international law, it is deemed automatically incorporated in
our domestic legal system as per Article II, Section 2 of the Constitution.
Considering this leeway, along with the urgency and importance of the
case at hand, the Philippines is, therefore, free to provide guidelines
consistent with international law, domestic legislation, and existing
jurisprudence.
41. Same; Same; Same; View that tortious acts or crimes committed
while discharging official functions are also not covered by sovereign
immunity.-
—Shauf v. Court of Appeals, 191 SCRA 713 (1990), evolved the doctrine
further as it stated that “[the] rational for this ruling is that the doctrine of
state immunity cannot be used as an instrument for perpetrating an
injustice.” Tortious acts or crimes committed while discharging official
functions are also not covered by sovereign immunity. Quoting the ruling
in Chavez v. Sandiganbayan, 193 SCRA 282 (1991), this court held
American naval officers personally liable for damages in Wylie v. Rarang,
209 SCRA 357 (1992), to wit:. . . The petitioners, however, were
negligent because under their direction they issued the publication without
deleting the name “Auring.” Such act or omission is ultra vires and cannot
be part of official duty. It was a tortious act which ridiculed the private
respondent.
42. Same; Same; Same; View that tortious acts or crimes committed
while discharging official functions are also not covered by sovereign
immunity.-
—Shauf v. Court of Appeals, 191 SCRA 713 (1990), evolved the doctrine
further as it stated that “[the] rational for this ruling is that the doctrine of
state immunity cannot be used as an instrument for perpetrating an
injustice.” Tortious acts or crimes committed while discharging official
functions are also not covered by sovereign immunity. Quoting the ruling
in Chavez v. Sandiganbayan, 193 SCRA 282 (1991), this court held
American naval officers personally liable for damages in Wylie v. Rarang,
209 SCRA 357 (1992), to wit:. . . The petitioners, however, were
negligent because under their direction they issued the publication without
deleting the name “Auring.” Such act or omission is ultra vires and cannot
be part of official duty. It was a tortious act which ridiculed the private
respondent.
43. Same; Same; Same; View that tortious acts or crimes committed
while discharging official functions are also not covered by sovereign
immunity.-
—Shauf v. Court of Appeals, 191 SCRA 713 (1990), evolved the doctrine
further as it stated that “[the] rational for this ruling is that the doctrine of
state immunity cannot be used as an instrument for perpetrating an
injustice.” Tortious acts or crimes committed while discharging official
functions are also not covered by sovereign immunity. Quoting the ruling
in Chavez v. Sandiganbayan, 193 SCRA 282 (1991), this court held
American naval officers personally liable for damages in Wylie v. Rarang,
209 SCRA 357 (1992), to wit:. . . The petitioners, however, were
negligent because under their direction they issued the publication without
deleting the name “Auring.” Such act or omission is ultra vires and cannot
be part of official duty. It was a tortious act which ridiculed the private
respondent.
44. Same; Same; Same; View that the Philippines has no law on the
application of sovereign immunity in cases of damages and/or violations
of domestic law involving agents of a foreign state.-
—As it stands, the Philippines has no law on the application of sovereign
immunity in cases of damages and/or violations of domestic law involving
agents of a foreign state. But our jurisprudence does have openings to hold
those who have committed an act ultra vires responsible in our domestic
courts
G.R. No. 185572               February 7, 2012
CHINA NATIONAL MACHINERY & EQUIPMENT CORP.
(GROUP), Petitioner,
vs.
HON. CESAR D. SANTAMARIA, in his official capacity as Presiding
Judge of Branch 145, Regional Trial Court of Makati City, et al.,
Respondents
Facts
On 14 September 2002, petitioner China National Machinery &
Equipment Corp. (Group) (CNMEG), represented by its chairperson, Ren
Hongbin, entered into a Memorandum of Understanding with the North
Luzon Railways Corporation (Northrail), represented by its president, Jose
L. Cortes, Jr. for the conduct of a feasibility study on a possible railway
line from Manila to San Fernando, La Union (the Northrail Project).
On 30 August 2003, the Export Import Bank of China (EXIM Bank) and
the Department of Finance of the Philippines (DOF) entered into a
Memorandum of Understanding (Aug 30 MOU), wherein China agreed to
extend Preferential Buyer’s Credit to the Philippine government to finance
the Northrail Project. The Chinese government designated EXIM Bank as
the lender, while the Philippine government named the DOF as the
borrower. Under the Aug 30 MOU, EXIM Bank agreed to extend an
amount not exceeding USD 400,000,000 in favor of the DOF, payable in
20 years, with a 5-year grace period, and at the rate of 3% per annum.
On 1 October 2003, the Chinese Ambassador to the Philippines, Wang
Chungui (Amb. Wang), wrote a letter to DOF Secretary Jose Isidro
Camacho (Sec. Camacho) informing him of CNMEG’s designation as the
Prime Contractor for the Northrail Project.
On 30 December 2003, Northrail and CNMEG executed a Contract
Agreement for the construction of Section I, Phase I of the North Luzon
Railway System from Caloocan to Malolos on a turnkey basis (the
Contract Agreement). The contract price for the Northrail Project was
pegged at USD 421,050,000.
On 26 February 2004, the Philippine government and EXIM Bank entered
into a counterpart financial agreement – Buyer Credit Loan Agreement
No. BLA 04055 (the Loan Agreement). In the Loan Agreement, EXIM
Bank agreed to extend Preferential Buyer’s Credit in the amount of USD
400,000,000 in favor of the Philippine government in order to finance the
construction of Phase I of the Northrail Project.
On 13 February 2006, respondents filed a Complaint for Annulment of
Contract and Injunction with Urgent Motion for Summary Hearing to
Determine the Existence of Facts and Circumstances Justifying the
Issuance of Writs of Preliminary Prohibitory and Mandatory Injunction
and/or TRO against CNMEG, the Office of the Executive Secretary, the
DOF, the Department of Budget and Management, the National Economic
Development Authority and Northrail. RTC Br. 145 issued an Order dated
17 March 2006 setting the case for hearing on the issuance of injunctive
reliefs. On 29 March 2006, CNMEG filed an Urgent Motion for
Reconsideration of this Order. Before RTC Br. 145 could rule thereon,
CNMEG filed a Motion to Dismiss dated 12 April 2006, arguing that the
trial court did not have jurisdiction over (a) its person, as it was an agent
of the Chinese government, making it immune from suit, and (b) the
subject matter, as the Northrail Project was a product of an executive
agreement.
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying
CNMEG’s Motion to Dismiss and setting the case for summary hearing to
determine whether the injunctive reliefs prayed for should be
issued. CNMEG then filed a Motion for Reconsideration, which was
denied by the trial court in an Order dated 10 March 2008. Thus, CNMEG
filed before the CA a Petition for Certiorari with Prayer for the Issuance of
TRO and/or Writ of Preliminary Injunction dated 4 April 2008.
In the assailed Decision dated 30 September 2008, the appellate court
dismissed the Petition for Certiorari. Subsequently, CNMEG filed a
Motion for Reconsideration, which was denied by the CA in a Resolution
dated 5 December 2008.
Issue
Whether CNMEG is entitled to immunity, precluding it from being sued
before a local court.
Ruling
There are two conflicting concepts of sovereign immunity, each widely
held and firmly established. According to the classical or absolute
theory, a sovereign cannot, without its consent, be made a respondent in
the courts of another sovereign. According to the newer or restrictive
theory, the immunity of the sovereign is recognized only with regard to
public acts or acts jure imperii of a state, but not with regard to private
acts or acts jure gestionis.
Since the Philippines adheres to the restrictive theory, it is crucial to
ascertain the legal nature of the act involved – whether the entity claiming
immunity performs governmental, as opposed to proprietary, functions.
The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign sovereign,
its commercial activities or economic affairs. Stated differently, a State
may be said to have descended to the level of an individual and can thus
be deemed to have tacitly given its consent to be sued only when it enters
into business contracts. It does not apply where the contract relates to the
exercise of its sovereign functions.
It was CNMEG that initiated the undertaking, and not the Chinese
government. The Feasibility Study was conducted not because of any
diplomatic gratuity from or exercise of sovereign functions by the Chinese
government but was plainly a business strategy employed by CNMEG
with a view to securing this commercial enterprise.
The use of the term “state corporation” to refer to CNMEG was only
descriptive of its nature as a government-owned and/or -controlled
corporation, and its assignment as the Primary Contractor did not imply
that it was acting on behalf of China in the performance of the latter’s
sovereign functions. To imply otherwise would result in an absurd
situation, in which all Chinese corporations owned by the state would be
automatically considered as performing governmental activities, even if
they are clearly engaged in commercial or proprietary pursuits.
Even assuming arguendo that CNMEG performs governmental functions,
such claim does not automatically vest it with immunity. This view finds
support in Malong v. Philippine National Railways, in which this Court
held that “immunity from suit is determined by the character of the objects
for which the entity was organized.”
In the case at bar, it is readily apparent that CNMEG cannot claim
immunity from suit, even if it contends that it performs governmental
functions. Its designation as the Primary Contractor does not automatically
grant it immunity, just as the term “implementing agency” has no precise
definition for purposes of ascertaining whether GTZ was immune from
suit. Although CNMEG claims to be a government-owned corporation, it
failed to adduce evidence that it has not consented to be sued under
Chinese law. Thus, following this Court’s ruling in Deutsche Gesellschaft,
in the absence of evidence to the contrary, CNMEG is to be presumed to
be a government-owned and -controlled corporation without an original
charter. As a result, it has the capacity to sue and be sued under Section 36
of the Corporation Code.
 An agreement to submit any dispute to arbitration may be construed as an
implicit waiver of immunity from suit.
In the United States, the Foreign Sovereign Immunities Act of 1976
provides for a waiver by implication of state immunity. In the said law,
the agreement to submit disputes to arbitration in a foreign country is
construed as an implicit waiver of immunity from suit. Although there is
no similar law in the Philippines, there is a reason to apply the legal
reasoning behind the waiver in this case.
Second issue: Whether the Contract Agreement is an executive
agreement
Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna
Convention) defines a treaty as follows:
[A]n 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.
In Bayan Muna v. Romulo, this Court held that an executive agreement is
similar to a treaty, except that the former (a) does not require legislative
concurrence; (b) is usually less formal; and (c) deals with a narrower
range of subject matters.50
Despite these differences, to be considered an executive agreement, the
following three requisites provided under the Vienna Convention must
nevertheless concur: (a) the agreement must be between states; (b) it must
be written; and (c) it must governed by international law. The first and the
third requisites do not obtain in the case at bar.
A. CNMEG is neither a government nor a government agency.
The Contract Agreement was not concluded between the Philippines and
China, but between Northrail and CNMEG.51 By the terms of the
Contract Agreement, Northrail is a government-owned or -controlled
corporation, while CNMEG is a corporation duly organized and created
under the laws of the People’s Republic of China.52 Thus, both Northrail
and CNMEG entered into the Contract Agreement as entities with
personalities distinct and separate from the Philippine and Chinese
governments, respectively.
Neither can it be said that CNMEG acted as agent of the Chinese
government. As previously discussed, the fact that Amb. Wang, in his
letter dated 1 October 2003,53 described CNMEG as a "state corporation"
and declared its designation as the Primary Contractor in the Northrail
Project did not mean it was to perform sovereign functions on behalf of
China. That label was only descriptive of its nature as a state-owned
corporation, and did not preclude it from engaging in purely commercial
or proprietary ventures.
B. The Contract Agreement is to be governed by Philippine law.
Article 2 of the Conditions of Contract,54 which under Article 1.1 of the
Contract Agreement is an integral part of the latter, states:
APPLICABLE LAW AND GOVERNING LANGUAGE
The contract shall in all respects be read and construed in accordance with
the laws of the Philippines.
The contract shall be written in English language. All correspondence and
other documents pertaining to the Contract which are exchanged by the
parties shall be written in English language.
Since the Contract Agreement explicitly provides that Philippine law shall
be applicable, the parties have effectively conceded that their rights and
obligations thereunder are not governed by international law.
It is therefore clear from the foregoing reasons that the Contract
Agreement does not partake of the nature of an executive agreement. It is
merely an ordinary commercial contract that can be questioned before the
local courts.
WHEREFORE, the instant Petition is DENIED. Petitioner China National
Machinery & Equipment Corp. (Group) is not entitled to immunity from
suit, and the Contract Agreement is not an executive agreement.
CNMEG’s prayer for the issuance of a TRO and/or Writ of Preliminary
Injunction is DENIED for being moot and academic. This case is
REMANDED to the Regional Trial Court of Makati, Branch 145, for
further proceedings as regards the validity of the contracts subject of Civil
Case No. 06-203.
1. Constitutional Law; Immunity from Suit; Restrictive Theory; Since
the Philippines adheres to the restrictive theory, it is crucial to ascertain
the legal nature of the act involved-
—whether the entity claiming immunity performs governmental, as
opposed to proprietary, functions.—In JUSMAG v. National Labor
Relations Commission, 239 SCRA 224 (1994), this Court affirmed the
Philippines’ adherence to the restrictive theory as follows: The doctrine of
state immunity from suit has undergone further metamorphosis. The view
evolved that the existence of a contract does not, per se, mean that
sovereign states may, at all times, be sued in local courts. The complexity
of relationships between sovereign states, brought about by their
increasing commercial activities, mothered a more restrictive application
of the doctrine. xxx xxx xxx As it stands now, the application of the
doctrine of immunity from suit has been restricted to sovereign or
governmental activities (jure imperii). The mantle of state immunity
cannot be extended to commercial, private and proprietary acts (jure
gestionis). Since the Philippines adheres to the restrictive theory, it is
crucial to ascertain the legal nature of the act involved—whether the entity
claiming immunity performs governmental, as opposed to proprietary,
functions. As held in United States of America v. Ruiz, 136 SCRA 487
(1985). The restrictive application of State immunity is proper only when
the proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs. Stated differently,
a State may be said to have descended to the level of an individual and can
thus be deemed to have tacitly given its consent to be sued only when it
enters into business contracts. It does not apply where the contract relates
to the exercise of its sovereign functions.
2. Constitutional Law; Immunity from Suit; International Law; Since
the Contract Agreement explicitly provides that Philippine law shall be
applicable, the parties have effectively conceded that their rights and
obligations thereunder are not governed by international law.-
—Article 2 of the Conditions of Contract, which under Article 1.1 of the
Contract Agreement is an integral part of the latter, states: APPLICABLE
LAW AND GOVERNING LANGUAGE The contract shall in all respects
be read and construed in accordance with the laws of the Philippines. The
contract shall be written in English language. All correspondence and
other documents pertaining to the Contract which are exchanged by the
parties shall be written in English language. Since the Contract Agreement
explicitly provides that Philippine law shall be applicable, the parties have
effectively conceded that their rights and obligations thereunder are not
governed by international law. It is therefore clear from the foregoing
reasons that the Contract Agreement does not partake of the nature of an
executive agreement. It is merely an ordinary commercial contract that
can be questioned before the local courts.
3. International Law; Vienna Convention; Treaties; Executive
Agreements; Words and Phrases; Article 2(1) of the Vienna
Convention on the Law of Treaties (Vienna Convention) defines a
treaty as follows: [A]n 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; An executive
agreement is similar to a treaty, except that the former (a) does not
require legislative concurrence; (b) is usually less formal; and (c) deals
with a narrower range of subject matters.-
—Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna
Convention) defines a treaty as follows: [A]n 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. In Bayan Muna v.
Romulo, 641 SCRA 244 (2011), this Court held that an executive
agreement is similar to a treaty, except that the former (a) does not require
legislative concurrence; (b) is usually less formal; and (c) deals with a
narrower range of subject matters. Despite these differences, to be
considered an executive agreement, the following three requisites
provided under the Vienna Convention must nevertheless concur: (a) the
agreement must be between states; (b) it must be written; and (c) it must
governed by international law. The first and the third requisites do not
obtain in the case at bar.
4. Same; Same; In the United States, the Foreign Sovereign Immunities
Act of 1976 provides for a waiver by implication of state immunity.
Although there is no similar law in the Philippines, there is reason to apply
the legal reasoning behind the waiver in this case.-
—In the United States, the Foreign Sovereign Immunities Act of 1976
provides for a waiver by implication of state immunity. In the said law,
the agreement to submit disputes to arbitration in a foreign country is
construed as an implicit waiver of immunity from suit. Although there is
no similar law in the Philippines, there is reason to apply the legal
reasoning behind the waiver in this case.
5. Same; Same; Although China National Machinery & Equipment Corp.
(Group) (CNMEG) claims to be a government-owned corporation, it
failed to adduce evidence that it has not consented to be sued under
Chinese law.-
—It is readily apparent that CNMEG cannot claim immunity from suit,
even if it contends that it performs governmental functions. Its designation
as the Primary Contractor does not automatically grant it immunity, just as
the term “implementing agency” has no precise definition for purposes of
ascertaining whether GTZ was immune from suit. Although CNMEG
claims to be a government-owned corporation, it failed to adduce evidence
that it has not consented to be sued under Chinese law. Thus, following
this Court’s ruling in Deutsche Gesellschaft, in the absence of evidence to
the contrary, CNMEG is to be presumed to be a government-owned and
-controlled corporation without an original charter. As a result, it has the
capacity to sue and be sued under Section 36 of the Corporation Code.
G.R. No. 213847               August 18, 2015
JUAN PONCE ENRILE vs. SANDIGANBAYAN (THIRD
DIVISION), AND PEOPLE OF THE PHILIPPINES
FACTS: The Office of the Ombudsman charged Enrile, 90 years of age,
and several others with plunder in the Sandiganbayan on the basis of their
purported involvement in the diversion and misuse of appropriations
under the Priority Development Assistance Fund (PDAF). Upon voluntary
surrender, Enrile filed his Motion for Detention at the PNP General
Hospital, and his Motion to Fix Bail. Enrile claims that before judgment of
conviction, an accused is entitled to bail as matter of right; that it is the
duty and burden of the Prosecution to show clearly and conclusively that
Enrile comes under the exception and cannot be excluded from enjoying
the right to bail; that the Prosecution has failed to establish that Enrile, if
convicted of plunder, is punishable by reclusion perpetua considering the
presence of two mitigating circumstances – his age and his voluntary
surrender; that the Prosecution has not come forward with proof showing
that his guilt for the crime of plunder is strong; and that he should not be
considered a flight risk taking into account that he is already over the age
of 90, his medical condition, and his social standing. In its Comment, the
Ombudsman contends that Enrile’s right to bail is discretionary as he is
charged with a capital offense; that to be granted bail, it is mandatory that
a bail hearing be conducted to determine whether there is strong evidence
of his guilt, or the lack of it; and that entitlement to bail considers the
imposable penalty, regardless of the attendant circumstances.
ISSUE: Is Enrile entitled to bail? If YES, on what ground(s)?
HELD: YES, Enrile is entitled to bail as a matter of right based on
humanitarian grounds.
The decision whether to detain or release an accused before and during
trial is ultimately an incident of the judicial power to hear and determine
his criminal case. The strength of the Prosecution’s case, albeit a good
measure of the accused’s propensity for flight or for causing harm to the
public, is subsidiary to the primary objective of bail, which is to ensure
that the accused appears at trial.
The Court is guided by the earlier mentioned principal purpose of bail,
which is to guarantee the appearance of the accused at the trial, or
whenever so required by the court. The Court is further mindful of the
Philippines’ responsibility in the international community arising from the
national commitment under the Universal Declaration of Human Rights
to:
x x x uphold the fundamental human rights as well as value the worth and
dignity of every person. This commitment is enshrined in Section II,
Article II of our Constitution which provides: “The State values the
dignity of every human person and guarantees full respect for human
rights.” The Philippines, therefore, has the responsibility of protecting and
promoting the right of every person to liberty and due process, ensuring
that those detained or arrested can participate in the proceedings before a
court, to enable it to decide without delay on the legality of the detention
and order their release if justified. In other words, the Philippine
authorities are under obligation to make available to every person under
detention such remedies which safeguard their fundamental right to
liberty. These remedies include the right to be admitted to bail.
This national commitment to uphold the fundamental human rights as well
as value the worth and dignity of every person has authorized the grant of
bail not only to those charged in criminal proceedings but also to
extraditees upon a clear and convincing showing: (1) that the detainee will
not be a flight risk or a danger to the community; and (2 ) that there exist
special, humanitarian and compelling circumstances.
In our view, his social and political standing and his having immediately
surrendered to the authorities upon his being charged in court indicate that
the risk of his flight or escape from this jurisdiction is highly unlikely. His
personal disposition from the onset of his indictment for plunder, formal
or otherwise, has demonstrated his utter respect for the legal processes of
this country. We also do not ignore that at an earlier time many years ago
when he had been charged with rebellion with murder and multiple
frustrated murder, he already evinced a similar personal disposition of
respect for the legal processes, and was granted bail during the pendency
of his trial because he was not seen as a flight risk.  With his solid
reputation in both his public and his private lives, his long years of public
service, and history’s judgment of him being at stake, he should be
granted bail.
N.B.
Bail for the provisional liberty of the accused, regardless of the crime
charged, should be allowed independently of the merits of the charge,
provided his continued incarceration is clearly shown to be injurious to his
health or to endanger his life. Indeed, denying him bail despite imperiling
his health and life would not serve the true objective of preventive
incarceration during the trial.
Constitutional Law; Criminal Procedure; Bail; View that bail is not a
matter of right in cases where the crime charged is plunder and the
imposable penalty is reclusion perpetua.—This Petition for Certiorari
should not be granted. The action of the Sandiganbayan in denying the
Motion to Fix Bail was proper. Bail is not a matter of right in cases where
the crime charged is plunder and the imposable penalty is reclusion
perpetua. Neither was there grave abuse of discretion by the
Sandiganbayan when it failed to release accused on bail for medical or
humanitarian reasons. His release for medical and humanitarian reasons
was not the basis for his prayer in his Motion to Fix Bail filed before the
Sandiganbayan. Neither did he base his prayer for the grant of bail in this
Petition on his medical condition.
Same; Same; Same; View that bail for humanitarian considerations is
neither presently provided in our Rules of Court nor found in any statute
or provision of the Constitution.—The majority’s opinion — other than
the invocation of a general human rights principle — does not provide
clear legal basis for the grant of bail on humanitarian grounds. Bail for
humanitarian considerations is neither presently provided in our Rules of
Court nor found in any statute or provision of the Constitution. This case
leaves this court open to a justifiable criticism of granting a privilege ad
hoc: only for one person — petitioner in this case.
Same; Same; Same; Universal Declaration of Human Rights; View that
the Universal Declaration of Human Rights, relied upon in the majority
opinion, is a general declaration to uphold the value and dignity of every
person. It does not prohibit the arrest of any accused based on lawful
causes nor does it prohibit the detention of any person accused of crimes.
—There are no specific and binding international law provisions that
compel this court to release petitioner given his medical condition. The
Universal Declaration of Human Rights, relied upon in the majority
opinion, is a general declaration to uphold the value and dignity of every
person. It does not prohibit the arrest of any accused based on lawful
causes nor does it prohibit the detention of any person accused of crimes.
It only implies that any arrest or detention must be carried out in a
dignified and humane manner.
Notes: x x x All persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.
This constitutional provision is repeated in Section 7, Rule 114 24 of the
Rules of Court , as follows:
Section 7. Capital offense or an offense punishable by reclusion perpetua
or life imprisonment, not bailable. — No person charged with a capital
offense, or an offense punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail when evidence of guilt is strong,
regardless of the stage of the criminal prosecution.
A capital offense in the context of the rule refers to an offense that, under
the law existing at the time of its commission and the application for
admission to bail, may be punished with death.25
The general rule is, therefore, that any person, before being convicted of
any criminal offense, shall be bailable, unless he is charged with a capital
offense, or with an offense punishable with reclusion perpetua or life
imprisonment, and the evidence of his guilt is strong. Hence, from the
moment he is placed under arrest, or is detained or restrained by the
officers of the law, he can claim the guarantee of his provisional liberty
under the Bill of Rights, and he retains his right to bail unless he is
charged with a capital offense, or with an offense punishable with
reclusion perpetua or life imprisonment, and the evidence of his guilt is
strong.26 Once it has been established that the evidence of guilt is strong,
no right to bail shall be recognized.27
As a result, all criminal cases within the competence of the Metropolitan
Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or
Municipal Circuit Trial Court are bailable as matter of right because these
courts have no jurisdiction to try capital offenses, or offenses punishable
with reclusion perpetua or life imprisonment. Likewise, bail is a matter of
right prior to conviction by the Regional Trial Court (RTC) for any
offense not punishable by death, reclusion perpetua , or life imprisonment,
or even prior to conviction for an offense punishable by death, reclusion
perpetua , or life imprisonment when evidence of guilt is not strong.28
On the other hand, the granting of bail is discretionary: (1) upon
conviction by the RTC of an offense not punishable by death, reclusion
perpetua or life imprisonment;29 or (2) if the RTC has imposed a penalty
of imprisonment exceeding six years, provided none of the circumstances
enumerated under paragraph 3 of Section 5, Rule 114 is present, as
follows:
(a) That he is a recidivist, quasi-recidivist, or habitual
delinquent, or has committed the crime aggravated by the
circumstance of reiteration;
(d) That the circumstances of his case indicate the probability of
flight if released on bail; or
(e) That there is undue risk that he may commit another crime
during the pendency of the appeal.
3. Certain guidelines in the fixing of a bailbond call for the presentation of
evidence and reasonable opportunity for the prosecution to refute it.
Among them are the nature and circumstances of the crime, character and
reputation of the accused, the weight of the evidence against him, the
probability of the accused appearing at the trial, whether or not the
accused is a fugitive from justice, and whether or not the accused is under
bond in other cases.
(b) That he has previously escaped from legal confinement,
evaded sentence, or violated the conditions of his bail without
valid justification;
(c) That he committed the offense while under probation,
parole, or conditional pardon;
(d) That the circumstances of his case indicate the probability of
flight if released on bail; or
(e) That there is undue risk that he may commit another crime
during the pendency of the appeal.
Certain guidelines in the fixing of a bailbond call for the presentation of
evidence and reasonable opportunity for the prosecution to refute it.
Among them are the nature and circumstances of the crime, character and
reputation of the accused, the weight of the evidence against him, the
probability of the accused appearing at the trial, whether or not the
accused is a fugitive from justice, and whether or not the accused is under
bond in other cases.