3.
Jurisdiction & Immunities
Cases on Jurisdiction:
o People v. Lol-lo & Saraw, 43
Phil. 19 (1922)
1.PIRACY; ARTICLES 153, 154, PENAL
CODE; WHETHER IN FORCB.— The
provisions of the Penal Code relating to piracy
are not inconsistent with the corresponding
provisions in the United States.
2.ID. ; ID. ; ID.—Those provisions of the Penal
Code dealing with the crime of piracy, notably
articles 153 and 154, are still in force in the
Philippines.
3.ID. ; ID.; ID.—Article 153 of the Penal Code
now reads as follows: "The crime of piracy
committed against citizens of the United States
and citizens of the Philippine Islands, or the
subjects of another nation not at war with the
United States, shall be punished with a penalty
ranging f rom cadena temporal to cadena
perpetua. If the crime be committed against
nonbelligerent subjects of another nation at war
with the United States, it shall be punished with
the penalty of presidio mayor."
4.ID. ; DEFINED.—Piracy is robbery or forcible
depredation on the high seas, without lawful
authority and done animo furandi and in the
spirit and intention of universal hostility.
5.ID.; JURISDICTION.—Piracy is a crime not
against any particular State but against all
mankind. It may be punished in the competent
tribunal of any country where the offender may
be found or into which he may be carried. The
jurisdiction of piracy unlike all other crimes has
no territorial limits.
6.ID. ; ID.—It does not matter that the crime
was committed within the jurisdictional 3-mile
limit of a foreign state, "for those limits, though
neutral to war, are not neutral to crimes." (U. S.
vs, Furlong [1820], 5 Wheat., 184.)
7.ID. ; INSTANT CASE.—One Moro who
participated in the crime of piracy was
sentenced to death and another to life
imprisonment.
8.PUBLIC LAW; CRIMINAL LAW; EFFECT OF
TRANSFER OF TERRITORY.— The political
law of the former sovereignty is necessarily
changed. The municipal law in so far as it is
consistent with the Constitution, the laws of the
United States, or the characteristics and
institutions of the government, remains in force.
9.ID. ; ID. ; ID.—Laws subsisting at the time of
transfer, designed to secure good order and
peace in the community, which are strictly of a
municipal character, continue until by direct
action of the new government they are altered
or repealed.
10.ID.; ID.; ID.—Wherever "Spain" is
mentioned in the Penal Code, it should be
substituted by the words "United States" and
wherever "Spaniards" are mentioned, the word
should be substituted by the expression,
"citizens of the United States and citizens of
the Philippine Islands."
Facts:
On June 30, 1920, sixer vintas intercepted two
Dutch boats which were on its way in the midst
of the islands of Buang and Bukid in the Dutch
East Indies. The six vintas were manned by 24
armed Moros. The said Dutch boats were
carrying men, women and children. At first, the
Moros asked for food. But when they got on the
Dutch boats, they asked for themselves all the
vessel’s cargo, attacked nearly all of the men
and brutally violated two of the women by
methods too tremendous to be described. All of
the persons on the Dutch boat, except the two
young women, were again placed on it and
holes were made in it, the idea that it would
submerge. The Moros finally arrived at Maruro,
a Dutch possession. Two of the Moro
marauders were Lol-lo, who also raped one of
the women, and Saraw. At Maruro, the two
women were able to escape.
Lol-lo and Saraw later returned to their home in
South Ubian, Tawi-Tawi, Sulu. They were
arrested there and were charged in the Court
of First Instance of Sulu with the crime of
piracy.
Issue:
Whether or not Philippine courts have
jurisdiction over the crime of piracy alleged in
this case.
Held:
Yes, the Philippine courts have jurisdiction on
the case. Piracy is a villainy not against any
particular state but against all mankind. It
should be tried and punished in the sufficient
tribunal of any country where the offender may
be found or into which he may be carried. The
jurisdiction of piracy, unlike all other crimes,
has no territorial limits.
o Tubb v. Greiss, 78 Phil. 249
(1947)
1. INTERNATIONAL LAW; UNITED STATES
ARMY IN THE PHILIPPINES; SUBMISSION
OF AMERICAN EMPLOYEES TO MILITARY
LAW BY CONTRACT; CASE AT BAR.—In the
contract of employment entered into by
petitioners with the United States Army, they
voluntarily submitted themselves to United
States military law while serving said contract,
thereby submitting themselves to the full extent
of the authority of the United States Army in
this area. This, coupled with the fact that
petitioners are American citizens, makes their
position during the subsistence of said contract
no different from that of enlisted men,
enlistment after all being nothing more than a
contract of voluntary service in the armed
forces of one's country. Petitioners then, in
relation to the United States Army in the
Philippines and during the subsistence of their
employment contract, can be deemed to
possess the status of military personnel.
2.ID.; EXEMPTION OF FOREIGN ARMY
FROM LOCAL ClVIL AND CRIMINAL
JURISDICTION.—A foreign army allowed to
march through a friendly country or to be
stationed in it, by permission of its government
or sovereign, is exempt from the civil and
criminal jurisdiction of the place.
o Haw Pia v. China Banking, 80
Phil. 604 (1948)
1.INTERNATIONAL LAW; LAND WARFARE;
THE HAGUE REGULATIONS; UNFORESEEN
CASES.—The provisions of the Hague
Regulations, section III, on Military Authority
over Hostile Territory, which is a part of the
Hague Convention respecting the laws and
customs of war on land, are intended to serve
as a general rule of conduct for the belligerents
in their relations with each other and with the
inhabitants, but as it had not been found
possible then to concert regulations covering
all the circumstances which occur in practice,
and on the other hand it could not have been
intended by the High Contracting Parties that
the unforeseen cases should, in the absence of
a written undertaking, be left to the arbitrary
judgment of military commanders, it was
agreed that "Until a complete code of the laws
of war has been issued, the High Contracting
Parties deem it expedient to declare that in
cases not included in the Regulations adopted
by them, the inhabitants and the belligerents
remain under the protection and the rule of the
principles of international law, as they result for
the usages established among civilized
peoples, from the laws of humanity, and the
dictates of public conscience."
2.ID. ; ID.; ID.; ID.; RIGHTS OF
BELLIGERENT OCCUPANT OVER ENEMY
PUBLIC OR PRIVATE PROPERTY.—Before
the Hague Convention, it was the usage or
practice to allow or permit the confiscation or
appropriation by the belligerent occupant not
only of public but also of private property of the
enemy in a territory occupied by the belligerent
hostile army; and as such usage or practice
was allowed, a fortiori, any other act short of
confiscation was necessarily permitted. Section
III of the Hague Regulations only prohibits the
confiscation of private property by order of the
military authorities (art. 46), and pillage or
stealing and thievery thereof by individuals (art.
47); and as regards public property, article 53
provides that cash funds, and property liable to
requisition and all other movable property
belonging to the State susceptible of military
use or operation, may be confiscated or taken
possession of as a booty and utilized for the
benefit of the invader's government (II
Oppenheim, 8th ed., sec., 137; 320 & 321, War
Department; Basic Field Manual, Rules of Land
Warfare FM 27-10). The belligerents in their
effort to control enemy property within their
jurisdiction or in territories occupied by their
armed forces in order to avoid their use in aid
of the enemy and to increase their own
resources, after the Hague Convention and
specially during the first World War, had to
resort to such measures of prevention which do
not amount to a straight confiscation, as
freezing, blocking, placing under custody and
sequestrating the enemy private property. Such
acts are recognized as not repugnant to the
provisions of article 46 or any other article of
the Hague Regulations by well-known writers
on International Law, and are authorized not
only in the Army and Navy Manual of Military
Government and Civil Affairs not only of the
United States, but also in similar manuals of
Army and Navy of other civilized countries, as
well as in the Trading with the Enemy Acts of
said countries.
3.ID.; ID.; ID.; ID.; ID.; SEQUESTRATION,
PURPOSE OF.—The purpose of sequestration
is well expounded in the Annual Report of the
Office of the Alien Custodian for a period from
March 11, 1943, to June 30, 1943. "In the
absence of effective measures of control,
enemy-owned property can be used to further
the interest of the enemy and to impede our
own war effort. All enemy-controlled assets can
be used to finance propaganda, espionage,
and sabotage in this country or in countries
friendly to our cause. They can be used to
acquire stocks of strategic materials and
supplies * * * use to the enemy, they will be
diverted from our own war effort," and the
national saf ety requires the prohibition of all
unlicensed communication, direct or indirect,
with enemy and enemy-occupied territories. To
the extent that this prohibition is effective, the
residents of such territory are prevented from
exercising the rights and responsibilities of
ownership over property located in the United
States. Meanwhile, decisions affecting the
utilization of such property must be made and
carried out. Houses must be maintained and
rents collected; payments of principal and
interest on mortgages must be made for the
account of foreign debtors and foreign
creditors; stranded stocks of material and
equipment must be sold; patents must be
licensed, business enterprises must be
operated or liquidated, and foreign interest
must be represented in court actions. The
number of decisions to be made in connection
with property is in fact multiplied by a state of
war, which requires that productive resources
be shifted from one use to another so as to
conform with the requirements of a war
economy."
4.ID.; ID.; ID.; ID.; ID.; ID.; "ENEMY,"
MEANING OF; CASE AT BAR.—The
defendant-appellee, China Banking
Corporation, comes within the meaning of the
word "enemy" as used in the Trading with the
Enemy Acts of civilized countries, because not
only it was controlled by Japan's enemies,, but
it was, besides, incorporated under the laws of
a country with which Japan was at war.
5.ID.; ID.; ID.; ID.; ID.; ID.; TRADING WITH
THE ENEMY ACT OF UNITED STATES AND
OTHER COUNTRIES APPLICABLE IN
OCCUPIED HOSTILE TERRITORY.—The
Trading with the Enemy Act of the United
States, like that of the United Kingdom or Great
Britain, and those of other countries, may be
applied and enf orced in a hostile territory
occupied by the United States armed forces,
because section 2 of said Act provides "That
the words 'United States,' as used herein, shall
be deemed to mean all land and water,
continental or insular, in any way within the
jurisdiction of the United States or occupied by
the military or naval forces thereof." After the
liberation of the Philippines during World War
II, properties belonging to Japanese nationals
located in this country were taken possession
of by the Alien Property Custodian appointed
by the President of the United States under the
Trading with the Enemy Act, because, although
the Philippines was not a territory or within the
jurisdiction or national domain of the United
States, it was then occupied by the military and
naval forces thereof.
6.ID.; ID.; ID.; ID.; ID.; ID.; ID.; DIFFERENCE
BETWEEN OBLIGATIONS OF UNITED
STATES ARISING FROM APPLICATION OF
TRADING WITH THE ENEMY ACT WITHIN
NATIONAL DOMAIN AND WITHIN
OCCUPIED HOSTILE TERRITORY.—The
obligations assumed by the United States, in
applying the Trading with the Enemy Act of the
United States to properties within her national
domain, is different and distinct from those
arising from the application thereof to enemy
properties located within the hostile territory
occupied by her armed forces. In the first case,
Congress is untramelled and free to authorize
the seizure, use, or appropriation of such
properties without any compensation to the
owners, for although section 2 of the Trading
with the Enemy Act provides that "at the end of
the war any claim of any enemy or of an ally of
enemy to any money or other property received
and held by the alien property custodian or
deposited in the United States Treasury shall
be settled by Congress," the owners of the
properties seized within the national domain of
the United States are not entitled to demand its
release or compensation for its seizure, but
what would ultimately come back to them,
might be secured, not as a matter of right, but
as a matter either of grace to the vanquished or
exacted by the victor, for the case is to be
governed by the domestic laws of the United
States, and not by the Hague Regulations or
International Law (U. S. vs. Chemical
Foundation, Inc., 272 U. S., 1; United States
vs. S. S. White Dental Manufacturing
Company, 274 U. S. 402). While in the latter
case, when properties are sequestered in a
hostile occupied territory by the armed forces
of the United States, Congress can not legally
refuse to credit the compensation for them to
the States of the owners as payment on
account of the sums payable by said States
under treaties, and the owners have to look for
compensation to their States, otherwise, they
would violate article 46 of the Hague
Regulations or their pledge of good faith
implied in the act of sequestrating or taking
control of such properties.
7.ID.; ID.; ID.; ID.; ID.; ID.; ID.; JAPAN, RIGHT
OF, TO SEQUESTRATE AND LlQUIDATE
ENEMY BANKS; CASE AT BAR.—It is to be
presumed that Japan, in sequestrating and
liquidating the China Banking Corporation,
must have acted in accordance, either with her
own Manual of the Army and Navy and Civil
Affairs, or with her Trading with the Enemy Act,
and even if not, it being permitted to the Allied
Nations, specially the United States and
England, to sequestrate, impound, and block
enemy properties found within their own
domain or in enemy territories occupied during
the war by their armed forces, and it being not
contrary to the Hague Regulations or
international law, Japan had also the right to do
the same in the Philippines by virtue of the
international law principle that "what is
permitted to one belligerent is also allowed to
the other."
8.ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.;
LIQUIDATION BY JAPANESE MILITARY
ADMINISTRATION OF ENEMY BANKS NOT
A CONFISCATION; CASE AT BAR.—Taking
into consideration the acts of the Japanese
Military Administration in treating the private
properties of the so-called enemy banks, it
appears evident that Japan did not intend to
confiscate or appropriate the assets of said
banks or the debts due them from their
debtors, and thus violate article 46 or any other
article of the Hague Regulations. It is true that,
as to private personal properties of the enemy,
freezing, blocking or impounding thereof is
sufficient for the purpose of preventing their
being used in aid of the enemy; but with regard
to the funds of commercial banks like the so-
called enemy banks, it was impossible or
impracticable to attain the purpose for which
the freezing, blocking and impounding are
intended, without liquidating the said banks and
collecting the loans given by them to hundreds
if not thousands of persons scattered over the
Islands. Without doing so, their assets or
money loaned to so many persons can not
properly be impounded or blocked, in order to
prevent their being used in aid to the enemy
though the intervention of their very debtors,
and successfully wage economic as well as
military war. That the liquidation or winding up
of the business of the China Banking
Corporation and other enemy banks did not
constitute a confiscation or appropriation of
their properties or of the debts due them from
their debtors, but a mere sequestration of their
assets during the duration of the war for the
purposes already stated, is evidenced
conclusively by the facts enumerated in the
opinion.
9.ID.; ID.; ID.; ID.; ID.; ID.; ID.; OWNERS OF
PROPERTIES SEQUESTRATED, How
INDEMNIFIED.—The fact that Japanese
Military authorities failed to pay the enemy
banks the balance of the money collected by
the Bank of Taiwan from the debtors of said
banks, did not and could not change the
sequestration or impounding by them of the
bank's asset during the war, into an outright
confiscation or appropriation thereof. Aside
from the fact that it was physically impossible
for the Japanese Military authorities to do so
because they were forcibly driven out of the
Philippines or annihilated by the forces of
liberation, following the readjustment of rights
of private property on land seized by the
enemy provided by the Treaty of Versailles and
other peace treaties entered into at the close of
the first World War, the general principles
underlying such arrangements are that the
owners of properties seized, sequestrated or
impounded who are nationals of the victorious
belligerent are entitled to receive compensation
for the loss or damage inflicted on their
property by the emergency war measures
taken by the enemy, through their respective
States or Government who may officially
intervene and demand the payment of the
claim on behalf of their nationals (VI Hackworth
Digest of International Law, pp. 232, 233; II
Oppenheim, sixth edition, p. 263). Naturally, as
the Japanese war notes were issued as legal
tender for payment of all kinds at par with the
Philippine peso, by the Imperial Japanese
Government, which in its proclamations of
January 3, 1942, and February 1, 1942, "takes
full responsibility for their usage having the
correct amount to back them up" (see said
Proclamations and their official explanation, O.
T., IMA Vol. 1, pp. 39, 40), Japan is bound to
indemnify the aggrieved banks for the loss or
damage on their property, in terms of Philippine
peso or U. S. dollars at the rate of one dollar
for two pesos.
10.OBLIGATIONS AND CONTRACTS;
PAYMENT; "PERSONS AUTHORIZED TO
RECEIVE"; LIQUIDATOR OF
CORPORATION; CASE AT BAR.—As the
Japanese Military Forces had power to
sequestrate and impound the assets or funds
of the China Banking Corporation, and for that
purpose to liquidate it by collecting the debts
due to said bank from its debtors, and paying
its creditors, and therefore to appoint the Bank
of Taiwan as liquidator with the consequent
authority to make the collection, it follows
evidently that the payments by the debtors to
the Bank of Taiwan of their debts to the China
Banking Corporation have extinguished their
obligation to the latter. Said payments were
made to a person, the Bank of Taiwan,
authorized to receive them in the name of the
bank creditor under article 1162, of the Civil
Code. Because it is evident the words "a
person authorized to receive it," as used
therein, means not only a person authorized by
the same creditor, but also a person authorized
by law to do so, such as guardian, executor or
administrator of estate of a deceased, and
assignee or liquidator of a partnership or
corporation, as well as any other who may be
authorized to do so by law (Manresa, Civil
Code, 4th ed., p. 254).
11.ID.; ID.; JAPANESE WAR NOTES; LACK
OF STIPULATION LIMITING PAYMENT TO
DEFINITE SPECIES OF MONEY.—The fact
that the money with which the debts have been
paid were Japanese war notes does not affect
the validity of the payments. The provision of
article 1170 of our Civil Code to the effect that
"payment of debts of money must be made in
the specie stipulated and if it is not possible to
deliver such specie in silver or gold coins which
is a legal tender," is not applicable to the
present case, because the contract between
the parties was to pay Philippine pesos and not
some specifically defined species of money.
The Philippine peso and half-pesos including
the Philippine Treasury Certificate was and is
the legal tender in the Philippines under section
612 of the Administrative Code, as amended
by Act No. 4199. As well stated by the
Supreme Court of the United States in Knox vs.
Lee and Parker (Legal Tender Cases, 12 Wall.,
457-681; 20 Law. ed., 287). "The expectation
of the creditor and the anticipation of the debtor
may have been that the contract would be
discharged by the payment of coined metals,
but neither the expectation of one party to the
contract, respecting its fruits, nor the
anticipation of the other, constitutes its
obligation. There is a well-recognized
distinction between the expectation of the
parties to a contract and the duty imposed by it.
Aspdin vs. Austin, 5 Ad. & Bl. (N. S.) 671; Dunn
vs. Sayles, Ibid., 685; Coffin vs. Landis, 46 Pa.,
426. Were it not so, the expectation of results
would be always equivalent to a binding
engagement that they should follow. But the
obligation of contract to pay money is to pay
that which the law shall recognize as money
when the payment is to be made. If there is
anything settled by decision it is this, and we
do not understand it to be controverted." (Know
vs. Exchange Bank of Virginia, 12 Wall., 457;
20 U. S. Supreme Court Reports, 20 Law. ed.,
287, 311.) In said case it was held that the
Legal Tender Acts of Congress which made
the treasury notes legal tender for payment of
debts contracted before and after their passage
were not inappropriate for carrying into
execution the legitimate purpose of the
Government, And this court, in Rogers vs.
Smith Bell (10 Phil., 319), held that "A debt of
12,000 pesos created in 1876 can now (1908)
be paid by 12,000 of the Philippine pesos
authorized by the Act of Congress of March 2,
1903, although at the time the loan was made
which created the debt, the creditor delivered
to the debtor 12,000 pesos in gold coin."
12.INTERNATIONAL LAW; BELLIGERENT
OCCUPATION; POWER OF MILITARY
GOVERNMENT TO ISSUE CURRENCY.—
The power of the military governments
established in occupied enemy territory to
issue military currency in the exercise of their
governmental power has never been seriously
questioned. Such power is based, not only on
the occupant's general power to maintain law
and order recognized in article 43 of the Hague
Regulations (Feilchenfeld says in his treatise
on International Economic Law of Belligerent
Occupation, par. 6), but on Military necessity
as shown by the history of the use of money or
currency in wars, related in the decision.
13.ID.; ID.; ID.; THREE METHODS
ADOPTABLE BY MILITARY OCCUPANT.—
According to Feilchenfeld in his book "The
International Economic Law of Belligerent
Occupation," the occupant in exercising his
powers in regard to money and currency, may
adopt one of the following methods according
to circumstances: (1) When the coverage of the
currency of the territory occupied has become
inadequate as found in several Balkan
countries during the War of 1914-18, and "the
local currency continues to be used, an
occupant may reorganize the national currency
by appropriate methods, such as the creation
of new types and supplies of coverage"
(paragraph 272). (2) The occupant, may, and
not infrequently, use his own currency, in the
occupied region. But this method may be found
inconvenient if the coverage for their national
currency had already become inadequate, and
for that reason authorities are afraid of
exposing it to additional strain, and for that
reason an occupant may not replace the local
currency by his own currency for all currency
for all purposes, and enforce its use not only
for his own payment but also for payments
among inhabitants (paragraph 285). (3) Where
the regional currency has become inadequate
and it is deemed inadvisable by the occupant
to expose his own currency to further strain,
new types of money may be created by the
occupant. Such new currency may have a new
name and may be issued by institution created
for that purpose (paragraph 296). This last
method was the one adopted by Japan in this
country, because the coverage of the
Philippine Treasury Certificate .of the territory
occupied had become inadequate, for most if
not all the said coverage have been taken to
the United States and many millions of silver
pesos were burried or thrown into the sea near
Corregidor, and Japan did not want to use her
national currency, and expose it to additional
strains.
o Brownell v. Sunlife, 95 Phil. 228
(1954)
1. INTERNATIONAL LAW;
EXTRATERRITORIAL EFFECT OF FOREIGN
LAW; NECESSITY OF CONSENT OF
COUNTRY IN WHICH IT is SOUGHT TO BE
ENFORCED.—A foreign law may have
extraterritorial effect in a country other than the
country of origin, provided the former, in which
it is sought to be made operative, gives its
consent thereto.
2.ID. ; ID. ; ID. ; CONSENT NEED NOT BE
EXPRESS.—The consent of a State to the
operation of a foreign law within its territory
does not need to be express; it is enough that
said consent be implied from its conduct or
from that of its authorized officers.
3.ID.; ID.; ID.; ID.; PHILIPPINE PROPERTY
ACT OF 1946; BASIS OF ITS APPLICATION
IN THE PHILIPPINES.—The operation of the
Philippine Property Act of 1946 in the
Philippines is not derived from the unilateral act
of the United States Congress, which made it
expressly applicable, or from the saving
provision contained in the proclamation of
independence. It is well-settled in the United
States that its laws have no extraterritorial
effect. The application of said law in the
Philippines is based concurrently on said act
(Philippine Property Act of 1946) and on the
tacit consent thereto and the conduct of the
Philippine Government itself in receiving the
benefits of its provisions. Brownell vs. Sun Life
Assurance Company, 95 Phil. 228, No. L-5731
June 22, 1954
ROQUE:
Cases on Sovereign Immunities:
o Under Military Bases Agreement
 Lyons Inc. v. USA, 104 Phil 593
Collection case under a stevedoring contract at
the US Naval Base.
State immunity lost when state enters into
proprietary contract. Case dismissed for
failure to exhaust administrative remedies but
SC said, generally, the sovereign cannot be
sued in its own courts, or in any other, without
its consent and permission. However,
considering that the US Government, through its
agency at Subic Bay, entered into a contract
with appellant for stevedoring & miscellaneous
labor services within the Subic Bay area, a US
Navy Reservation, it is evident that it can bring
an action before our courts for any contractual
liability that that political entity may assume
under the contract.
G.R. No. L-35645 May 22, 1985
UNITED STATES OF AMERICA, CAPT.
JAMES E. GALLOWAY, WILLIAM I.
COLLINS and ROBERT GOHIER, petitioners,
vs.
HON. V. M. RUIZ, Presiding Judge of Branch
XV, Court of First Instance of Rizal and
ELIGIO DE GUZMAN & CO.,
INC., respondents.
Actions; Public Corporations; Constitutional
Law; Contracts; In suits against a foreign
government, a distinction must be made
between acts jure imperil and acts jure
gestionis. As to the former, the State immunity
prevails.—The traditional rule of State immunity
exempts a State from being sued in the courts
of another State without its consent or waiver.
This rule is a necessary consequence of the
principles of independence and equality of
States. However, the rules of International Law
are not petrified; they are constantly developing
and evolving. And because the activities of
states have multiplied, it has been necessary to
distinguish them—between sovereign and
governmental acts (jure imperii) and private,
commercial and proprietary acts (jure
gestionis). The result is that State immunity
now extends only to acts jure imperii. The
restrictive application of State immunity is now
the rule in the United States, the United
Kingdom and other states in western Europe.
(See Coquia and Defensor-Santiago, Public
International Law, pp. 207-209 [1984]).
Actions; Public Corporations; Constitutional
Law; Contracts; States may be sued only
when the proceedings arise out of
commercial transactions. Infrastructure
projects of U.S. Naval Base in Subic involve
governmental 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. In this case the
projects are an integral part of the naval base
which is devoted to the defense of both the
United States and the Philippines, indisputably
a function of the government of the highest
order; they are not utilized for nor dedicated to
commercial or business purposes.
MAKASIAR, J., dissenting:
Actions; Public Corporations; Contracts; After
U.S. Naval authorities accepted the bid for
repair of the wharves at Subic Bay Naval
Base, it waived the mantle of State immunity
from suits.—When the U.S. Government,
through its agency at Subic Bay, confirmed the
acceptance of a bid of a private company for
the repair of wharves or shoreline in the Subic
Bay area, it is deemed to have entered into a
contract and thus waived the mantle of
sovereign immunity from suit and descended to
the level of the ordinary citizen. Its consent to
be sued, therefore, is implied from its act of
entering into a contract (Santos vs. Santos, 92
Phil. 281, 284).
Same; Same; Same; Same; Military Bases;
Treaties; The majority opinion seems to mock
the joint statement of Pres. Marcos and Vice-
President Mondale that Philippine sovereignty
extends to U.S. bases here.—The majority
opinion seems to mock the provision of
paragraph 1 of the joint statement of President
Marcos and Vice-President Mondale of the
United States dated May 4, 1978 that “the
United States re-affirms that Philippine
sovereignty extends over the bases and that Its
base shall be under the command of a
Philippine Base Commander,” which is
supposed to underscore the joint Communique
of President Marcos and U.S. President Ford of
December 7, 1975, under which “they affirm
that sovereign equality, territorial integrity and
political independence of all States are
fundamental principles which both countries
scrupulously respect; and that “they confirm
that mutual respect for the dignity of each
nation shall characterize their friendship as well
as the alliance between their two countries.”
United States of America vs. Ruiz, 136 SCRA
487, No. L-35645 May 22, 1985
US vs Ruiz 136 SCRA 487
Facts:
At times material to this case, the United States
of America had a naval base in Subic,
Zambales. The base was one of those
provided in the Military Bases Agreement
between the Philippines and the United States.
US invited the submission of bids for Repair
offender system and Repair typhoon damages.
Eligio de Guzman & Co., Inc. responded to the
invitation, submitted bids and complied with the
requests based on the letters received from the
US. In June 1972, a letter was received by the
Eligio De Guzman & Co indicating that the
company did not qualify to receive an award for
the projects because of its previous
unsatisfactory performance rating on a repair
contract for the sea wall at the boat landings of
the U.S. Naval Station in Subic Bay. The
company sued the United States of America
and Messrs. James E. Galloway, William I.
Collins and Robert Gohier all members of the
Engineering Command of the U.S. Navy. The
17 complaint is to order the defendants to allow
the plaintiff to perform the work on the projects
and, in the event that specific performance was
no longer possible, to order the defendants to
pay damages. The company also asked for the
issuance of a writ of preliminary injunction to
restrain the defendants from entering into
contracts with third parties for work on the
projects. The defendants entered their special
appearance for the purpose only of questioning
the jurisdiction of this court over the subject
matter of the complaint and the persons of
defendants, the subject matter of the complaint
being acts and omissions of the individual
defendants as agents of defendant United
States of America, a foreign sovereign
which has not given her consent to this suit
or any other suit for the causes of action
asserted in the complaint." (Rollo, p. 50.)
Subsequently the defendants filed a motion to
dismiss the complaint which included an
opposition to the issuance of the writ of
preliminary injunction. The company opposed
the motion. The trial court denied the motion
and issued the writ. The defendants moved
twice to reconsider but to no avail. Hence the
instant petition which seeks to restrain
perpetually the proceedings in Civil Case No.
779-M for lack of jurisdiction on the part of the
trial court.
Issue/s:
WON the US naval base in bidding for said
contracts exercise governmental functions to
be able to invoke state immunity
Held:
No. The traditional rule of State immunity
exempts a State from being sued in the courts
of another State without its consent or waiver.
This rule is a necessary consequence of the
principles of independence and equality of
States. However, the rules of International Law
are not petrified; they are constantly developing
and evolving. And because the activities of
states have multiplied, it has been necessary to
distinguish them-between sovereign and
governmental acts (jure imperii) and
private, commercial and proprietary acts
(jure gestionis). The result is that State
immunity now extends only to acts jure imperil
(sovereign & governmental acts) 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. In this case the projects
are an integral part of the naval base which is
devoted to the defense of both the United
States and the Philippines, indisputably a
function of the government of the highest order;
they are not utilized for nor dedicated to
commercial or business purposes. 18 Correct
test for the application of State immunity is not
the conclusion of a contract by a State but the
legal nature of the act.
 Wylie v. Rarang, 209
SCRA 357
Constitutional Law; Actions; The rule that a
state may not be sued without its consent is
one of the generally accepted principles of
international law we adopted as part of our
law.—"The rule that a state may not be sued
without its consent, now expressed in Article
XVI, Section 3, of the 1987 Constitution, is one
of the generally accepted principles of
international law that we have adopted as part
of the law of our land under Article II, Section 2.
Same; Same; Same; The doctrine is also
applicable to complaints filed against officials of
the state for acts allegedly performed by them
in the discharge of their duties.—While the
doctrine appears to prohibit only suits against
the state without its consent, it is also
applicable to complaints filed against officials of
the state for acts allegedly performed by them
in the discharge of their duties. The rule is that
if the judgment against such officials will
require the state itself to perform an affirmative
act to satisfy the same, such as the
appropriation of the amount needed to pay the
damages awarded against them, the suit must
be regarded as against the state itself although
it has not been formally impleaded. (Garcia v.
Chief of Staff, 16 SCRA 120) In such a
situation, the state may move to dismiss the
complaint on the ground that it has been filed
without its consent.
Same; Same; Same; Consent of the state to be
sued may be manifested expressly or
impliedly.—The consent of the state to be sued
may be manifested expressly or impliedly.
Express consent may be embodied in a
general law or a special law. Consent is implied
when the state enters into a contract it itself
commences litigation.
Same; Same; Same; Same; Not all contracts
entered into by the government will operate as
a waiver of its non-suability.—The above rules
are subject to qualification. Express consent is
effected only by the will of the legislature
through the medium of a duly enacted statute.
(Republic v. Purisima, 78 SCRA 470) We have
held that not all contracts entered into by the
government will operate as a waiver of its non-
suability; distinction must be made between
its sovereign and proprietary acts. (United
States of America v. Ruiz, 136 SCRA 487) As
for the filing of a complaint by the government,
suability will result only where the government
is claiming affirmative relief from the defendant.
Same; Civil Law; Damages.—The general rule
is that public officials can be held personally
accountable for acts claimed to have been
performed in connection with official duties
where they have acted ultra vires or where
there is showing of bad faith.
Same; Same; Same; Negligence; Fault or
negligence covers not only acts not punishable
by law but also acts criminal in character
whether intentional or voluntary or negligent.—
"Fault" or "negligence" in this Article covers not
only acts "not punishable by law" but also acts
criminal in character, whether intentional or
voluntary or negligent."
Same; Same; Same; Moral damages
recoverable in case of libel, slander or any
other form of defamation.—Moreover, Article
2219(7) of the Civil Code provides that moral
damages may be recovered in case of libel,
slander or any other form of defamation. In
effect, the offended party in these cases is
given the right to receive from the guilty party
moral damages for injury to his feelings and
reputation in addition to punitive or exemplary
damages.
Same; Same; Same; Same; Imputation of theft
contained in the POD dated February 3, 1978
is a defamation against the character and
reputation of the private respondent.—Indeed
the imputation of theft contained in the POD
dated February 3, 1978 is a defamation against
the character and reputation of the private
respondent. Petitioner Wylie himself admitted
that the Office of the Provost Marshal explicitly
recommended the deletion of the name Auring
if the article were published. 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.
 USA v. Reyes, 219 SCRA
192
Remedial Law; Civil Procedure; Intervention;
The grant of intervention is discretionary upon
the court and may be allowed only upon a prior
motion for leave with notice to all the parties in
the action.—Since it was not impleaded as an
original party, the public petitioner could, on its
own volition, join in the case only by
intervening therein; such intervention, the grant
of which is discretionary upon the court, may
be allowed only upon a prior motion for leave
with notice to all the parties in the action. Of
course, Montoya could have also impleaded
the public petitioner as an additional defendant
by amending the complaint if she so believed
that the latter is an indispensable or necessary
party.
Same; Same; Certiorari; Mere pendency of a
special civil action for certiorari commenced in
relation to a case pending before a lower court
does not interrupt the course of the latter when
there is no writ of injunction restraining it.—The
filing of the instant petition and the knowledge
thereof by the trial court did not prevent the
latter from proceeding with Civil Case No. 224-
87. "It is elementary that the mere pendency of
a special civil action for certiorari, commenced
in relation to a case pending before a lower
Court, does not interrupt the course of the latter
when there is no writ of injunction restraining it.
Constitutional Law; Action; Doctrine of State
Immunity; While the doctrine appears to
prohibit only suits against the state without
its consent, it is also applicable to
complaints filed against officials of the
state for acts allegedly performed by them
in the discharge of their duties.—While the
doctrine appears to prohibit only suits against
the state without its consent, it is also
applicable to complaints filed against officials of
the state for acts allegedly performed by them
in the discharge of their duties. The rule is that
if the judgment against such officials will
require the state itself to perform an affirmative
act to satisfy the same, such as the
appropriation of the amount needed to pay the
damages awarded against them, the suit must
be regarded as against the state itself although
it has not been formally impleaded. It must be
noted, however, that the rule is not so all-
encompassing as to be applicable under all
circumstances.
Same; Same; Same; Unauthorized acts of
government officials or officers are not acts
of the State and an action against the
officials or officers by one whose rights
have been invaded or violated by such acts
for the protection of his rights is not a suit
against the State within the rule of immunity
of the State from suit.—lt is a different matter
where the public official is made to account in
his capacity as such for acts contrary to law
and injurious to the rights of plaintiff. As was
clearly set forth by Justice Zaldivar in Director
of the Bureau of Telecommunications, et al. vs.
Aligaen, etc., et al. Inasmuch as the State
authorizes only legal acts by its officers,
unauthorized acts of government officials or
officers are not acts of the State, and an action
against the officials or officers by one whose
rights have been invaded or violated by such
acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of
the State from suit.
Same; Same; Same; The rationale for this
ruling is that the doctrine of State immunity
cannot be used as an instrument for
perpetrating an injustice.—In the same tenor,
it has been said that an action at law or suit in
equity against a State officer or the director of a
State department on the ground that, while
claiming to act for the State, he violates or
invades the personal and property rights of the
plaintiff, under an unconstitutional act or under
an assumption of authority which he does not
have, is not a suit against the State within the
constitutional provision that the State may not
be sued without its consent. The rationale for
this ruling is that the doctrine of state immunity
cannot be used as an instrument for
perpetrating an injustice.
Same; Same; Same; The doctrine of immunity
from suit will not apply and may not be invoked
where the public official is being sued in his
private and personal capacity as an ordinary
citizen.—The aforecited authorities are clear on
the matter. They state that the doctrine of
immunity from suit will not apply and may not
be invoked where the public official is being
sued in his private and personal capacity as an
ordinary citizen. The cloak of protection
afforded the officers and agents of the
government is removed the moment they are
sued in their individual capacity. This situation
usually arises where the public official acts
without authority or in excess of the powers
vested in him. It is a well-settled principle of law
that a public official may be liable in his
personal private capacity for whatever damage
he may have caused by his act done with
malice and in bad faith, or beyond the scope of
his authority or jurisdiction.
Same; Same; Same; Agents and officials of the
United States armed forces stationed in Clark
Air Base are no exception to the rule.—The
agents and officials of the United States armed
forces stationed in Clark Air Base are no
exception to this rule. In the case of United
States of America, et al. vs. Guinto, etc., et al.,
ante, we declared: It bears stressing at this
point that the above observations do not confer
on the United States of America blanket
immunity for all acts done by it or its agents in
the Philippines. Neither may the other
petitioners claim that they are also insulated
from suit in this country merely because they
have acted as agents of the United States in
the discharge of their official functions. United
States of America vs. Reyes, 219 SCRA 192,
G.R. No. 79253 March 1, 1993
G.R. No. 108813 December 15, 1994
JUSMAG PHILIPPINES, petitioner,
vs.
THE NATIONAL LABOR RELATIONS
COMMISSION (Second Division) and
FLORENCIO SACRAMENTO, Union
President, JPFCEA, respondents.
Doctrine of State Immunity; A suit against
JUSMAG is one against the United States
Government, and in the absence of any waiver
or consent of the latter to the suit, the
complaint against JUSMAG cannot prosper.—
From the foregoing, it is apparent that when
JUSMAG took the services of private
respondent, it was performing a governmental
function on behalf of the United States
pursuant to the Military Assistance Agreement
dated March 21, 1947. Hence, we agree with
petitioner that the suit is, in effect, one against
the United States Government, albeit it was not
impleaded in the complaint. Considering that
the United States has not waived or consented
to the suit, the complaint against JUSMAG
cannot prosper.
Same; International Law; Immunity of State
from suit is one of the universally recognized
principles of international law that the
Philippines recognizes and adopts as part of
the law of the land.—In this jurisdiction, we
recognize and adopt the generally accepted
principles of international law as part of the law
of the land. Immunity of State from suit is one
of these universally recognized principles. In
inter-national law, “immunity” is commonly
understood as the exemption of the state and
its organs from the judicial jurisdiction of
another state. This is anchored on the principle
of the sovereign equality of states under which
one state cannot assert jurisdiction over
another in violation of the maxim par in parem
non habet imperium (an equal has no power
over an equal).
Same; As it stands now, the application of
the doctrine of immunity from suit has been
restricted to sovereign or governmental
activities (jure imperii), and does not extend
to commercial, private and proprietary acts
(jure gestionis).—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. Thus, in United States of America vs.
Ruiz, we clarified that our pronouncement in
Harry Lyons, supra, with respect to the waiver
of State immunity, was obiter and “has no
value as an imperative authority.” 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). JUSMAG Philippines vs. NLRC, 239
SCRA 224, G.R. No. 108813 December 15,
1994
JUSMAG Philippines vs. NLRC (Article XVI
Sec. 3) (Foreign Government)
Facts:
Florencio Sacramento (private respondent)
was one of the 74 security assistance support
personnel (SASP) working at the Joint United
States Military Assistance Group to the
Philippines (JUSMAG-Phils.). He had been
with JUSMAG from 1969-1992. When
dismissed, he held the position of Illustrator 2
and incumbent Pres. of JUSMAG Phils.-
Filipino Civilian Employees Assoc., a labor org.
duly registered with DOLE. His services were
terminated allegedly due to the abolition of his
position.Sacramento filed complaint w/
DOLE on the ground that he was illegally
suspended and dismissed from service by
JUSMAG. He asked for reinstatement.
JUSMAG filed Motion to Dismiss invoking
immunity from suit. Labor arbiter Cueto in an
Order dismissed the complaint "for want of
jurisdiction". Sacramento appealed to NLRC.
NLRC reversed the ruling of the labor arbiter
and held that petitioner had lost its right not to
be sued bec. (1) the principle of estoppel-that
JUSMAG failed to refute the existence of
employer-employee rel. (2)JUSMAG has
waived its right to immunity from suit when it
hired the services of private respondent.
Hence, this petition.
Issue:
W/N JUSMAG has immunity from suit
Held:
Yes. When JUSMAG took the services of
private respondent, it was performing a
governmental function on behalf of the United
States pursuant to the Military Assistance
Agreement between the Phils. and America*
JUSMAG consists of Air, Naval and Army
group and its primary task was to advise and
assist the Phils. on air force, army and naval
matters. A suit against JUSMAG is one against
the United States government, and in the
absence of any waiver or consent of the latter
to the suit, the complaint against JUSMAG
cannot prosper. Immunity of State from suit is
one of the universally recognized principles of
international law that the Phils. recognizes and
adopts as part of the law of the land. Immunity
is commonly understood as the exemption of
the state and its organs from the judicial
jurisdiction of another state and anchored on
the principle of the sovereign equality of states
under which one state cannot assert
jurisdiction over another in violation of the
maxim par in parem non habeat imperium (an
equal has no power over an equal) As it stands
now, the application of the doctrine of immunity
from suit has been restricted to sovereign or
governmental activities and does not extend to
commercial, private and proprietary acts. 22 A
suit against JUSMAG is one against the United
States Government and in the absence of any
waiver or consent of the latter to the suit, the
complaint against JUSMAG cannot prosper. In
this jurisdiction we recognize and adopt the
generally accepted principles of international
law as part of the law of the land. Immunity of
state from suit is one of these universally
recognized principles. In international law
“immunity” is commonly understood as the
exemption of the state and its organs from the
judicial jurisdiction of another state. This is
anchored on the principle of sovereignty of
equal states under which one state cannot
assert jurisdiction over another in violation of
the maxim par in parem non habet imperium
(an equal power has no power over an equal).
As it now stands, the application of the doctrine
of immunity from suit has been restricted to
sovereign or governmental activities (jus
imperii) and does not extend to commercial,
private and proprietary acts (jus gestionis).
o International Organizations
G.R. No. L-35131 November 29, 1972
THE WORLD HEALTH ORGANIZATION and
DR. LEONCE VERSTUYFT, petitioners,
vs.
HON. BENJAMIN H. AQUINO, as Presiding
Judge of Branch VIII, Court of First Instance
of Rizal, MAJOR WILFREDO CRUZ, MAJOR
ANTONIO G. RELLEVE, and CAPTAIN
PEDRO S. NAVARRO of the Constabulary
Offshore Action Center
(COSAC), respondents.
Constitutional Iaw; Separation of Powers;
International law; Court should respect
diplomatic immunities of foreign officials
recognized by the government.—It is a
recognized principle of international law and
under our system of separation of powers that
diplomatic immunity is essentially a political
question and courts should refuse to look
beyond a determination by the executive
branch of the government, and where the plea
of diplomatic immunity is recognized and
affirmed by the executive branch of
government as in the case at bar, it is then the
duty of the courts to accept the claim of
immunity upon appropriate suggestion by the
principal law officer of the government, the
solicitor general in this case, or other officer
acting under his direction.
International law; Treaties; Philippines is bound
by the treaty respecting the privileges and
immunities of UN officials.—The Philippine
Government is bound by the procedure laid
down in Article VII of the Convention on the
Privileges and Immunities of the Specialized
Agencies of the United Nations for
consultations between the Host State and the
United Nations agency concerned to determine
in the first instance the fact of occurrence of the
abuse alleged, and if so, to ensure that no
repetition occurs and for other recourses. This
is a treaty commitment voluntarily assumed by
the Philippine Government and as such, has
the force and effect of law.
Same; Statutory prohibition against violation of
diplomatic immunities cited.—Republic Act 75
declares as null and void writs or processes
sued out or prosecuted whereby inter alia the
person of an ambassador or public minister is
arrested or imprisoned or his goods or chattels
are seized or attached and makes it a penal
offense for "every person by whom the same is
obtained or prosecuted, whether as party or as
attorney, and every officer concerned in
executing it "to obtain or enforce such writ or
process." World Health Organization vs.
Aquino, 48 SCRA 242, No. L-35131 November
29, 1972
WORLD HEALTH ORGANIZATION and
VERSTUYFT vs AQUINO G.R. No. L-35131
FACTS:
An Original Action for Certiorari and Prohibition
to set aside respondent judge’s refusal to
quash a search warrant issued by him at the
instance of respondents COSAC (Constabulary
Offshore Action Center) officers for the search
and seizure of the personal effects of petitioner
official of the WHO (World Health Organization)
24 Notwithstanding his being entitled to
diplomatic immunity, as duly recognized by the
executive branch of the Philippine Government
and to prohibit respondent judge from further
proceedings in the matter. Upon filing of the
petition, the Court issued on June 6, 1972 a
restraining order enjoining respondents from
executing the search warrant in question.
Respondents COSAC officers filed their
answer joining issue against petitioners and
seeking to justify their act of applying for and
securing from respondent judge the warrant for
the search and seizure of ten crates consigned
to petitioner Verstuyft and stored at the Eternit
Corporation warehouse on the ground that they
“contain large quantities of highly dutiable
goods” beyond the official needs of said
petitioner “and the only lawful way to reach
these articles and effects for purposes of
taxation is through a search warrant.” It is
undisputed in the record that petitioner Dr.
Leonce Verstuyft, who was assigned on
December 6, 1971 by the WHO from his last
station in Taipei to the Regional Office in
Manila as Acting Assistant Director of Health
Services, is entitled to diplomatic immunity,
pursuant to the Host Agreement executed on
July 22, 1951 between the Philippine
Government and the World Health
Organization. When petitioner Verstuyft’s
personal effects contained in twelve (12) crates
entered the Philippines as unaccompanied
baggage on January 10, 1972, they were
accordingly allowed free entry from duties and
taxes. The crates were directly stored at the
Eternit Corporation’s warehouse at
Mandaluyong, Rizal, “pending his relocation
into permanent quarters upon the offer of Mr.
Berg, Vice President of Eternit who was once a
patient of Dr. Verstuyft in the Congo.”
ISSUE:
Whether or not respondent judge committed a
grave abuse in discretion in issuing the
temporary restraining order against the
execution or enforcement of the search
warrant.
HELD:
Such diplomatic immunity carries with it,
among other diplomatic privileges and
immunities, personal inviolability, inviolability of
the official’s properties, exemption from local
jurisdiction, and exemption from taxation and
customs duties. It is a recognized principle of
international law and under our system of
separation of powers that diplomatic immunity
is essentially a political question and courts
should refuse to look beyond a determination
by the executive branch of the government,[8]
and where the plea of diplomatic immunity is
recognized and affirmed by the executive
branch of the government as 25 in the case at
bar, it is then the duty of the courts to accept
the claim of immunity upon appropriate
suggestion by the principal law officer of the
government. The Philippine Government is
bound by the procedure laid down in Article VII
of the Convention on the Privileges and
Immunities of the Specialized Agencies of the
United Nations, for consultations between the
Host State and the United Nations agency
concerned to determine, in the first instance
the fact of occurrence of the abuse alleged,
and if so, to ensure that no repetition occurs
and for other recourses. This is a treaty
commitment voluntarily assumed by the
Philippine Government and as such, has the
force and effect of law. The Court, therefore,
holds that respondent judge acted without
jurisdiction and with grave abuse of discretion
in not ordering the quashal of the search
warrant issued by him in disregard of the
diplomatic immunity of petitioner Verstuyft.
ACCORDINGLY, the writs of certiorari and
prohibition prayed for are hereby granted, and
the temporary restraining order heretofore
issued against execution or enforcement of the
questioned search warrant, which is hereby
declared null and void, is hereby made
permanent. The respondent court is hereby
commanded to desist from further proceedings
in the matter. No costs, none having been
prayed for. The clerk of court is hereby directed
to furnish a copy of this decision to the
Secretary of Justice for such action as he may
find appropriate with regard to the matters
mentioned in paragraph 3 hereof. So ordered.
[G.R. No. 97765. September 24, 1992.]
KHOSROW MINUCHER, Petitioner, v. THE
HONORABLE COURT OF APPEALS and
ARTHUR W. SCALZO, JR., Respondents.
De Leon, De Leon, Casanova Associates
for Petitioner.
Luna, Sison, & Manas for Private
Respondent.
Civil Procedure; Jurisdiction over the person of
defendant, how acquired; Waiver of defect in
service of summons.—Jurisdiction over the
person of the defendant is acquired either by
his voluntary appearance or by the service of
summons upon him. While in the instant case,
private respondent’s counsel filed, on 26
October 1988, a motion to quash summons
because being outside the Philippines and
being a non-resident alien, he is beyond the
processes of the court, which was properly
denied by the trial court, he had in effect
already waived any defect in the service of the
summons by earlier asking, on two (2)
occasions, for an extension of time to file an
answer, and by ultimately filing an Answer with
Counterclaim. There is no question that the trial
court acquired jurisdiction over the person of
the private respondent.
Political Law; International Law; Diplomatic
immunity from suit; Private respondent may be
held liable for acts committed beyond his
official duties.—And now to the core issue—the
alleged diplomatic immunity of the private
respondent. Setting aside for the moment the
issue of authenticity raised by the petitioner
and the doubts that surround such a claim, in
view of the fact that it took private respondent
one (1) year, eight (8) months and seventeen
(17) days from the time his counsel filed on 12
September 1988 a Special Appearance and
Motion asking for a first extension of time to file
the Answer because the Departments of State
and Justice of the United States of America
were studying the case for the purpose of
determining his defenses, before he could
secure the Diplomatic Note from the U.S.
Embassy in Manila, and even granting for the
sake of argument that such note is authentic,
the complaint for damages filed by the
petitioner still cannot be peremptorily
dismissed. Said complaint contains sufficient
allegations which indicate that the private
respondent committed the imputed acts in his
personal capacity and outside the scope of his
official duties and functions. As described in
the complaint, he committed criminal acts for
which he is also civilly liable. In the Special
Appearance to Quash Summons earlier
alluded to, on the other hand, private
respondent maintains that the claim for
damages arose “from an alleged tort.” Whether
such claim arises from criminal acts or from
tort, there can be no question that private
respondent was sued in his personal capacity
for acts committed outside his official functions
and duties. In the decision acquitting the
petitioner in the criminal case involving the
violation of the Dangerous Drugs Act, copy of
which is attached to his complaint for damages
and which must be deemed as an integral part
thereof, the trial court gave full credit to
petitioner’s theory that he was a victim of a
frame-up instigated by the private respondent.
Thus, there is a prima facie showing in the
complaint that indeed private respondent could
be held personally liable for the acts committed
beyond his official functions or duties. Minucher
vs. Court of Appeals, 214 SCRA 242, G.R. No.
97765 September 24, 1992
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTION;
CERTIORARI; DISMISSAL OF ACTION
BASED ON ERRONEOUS ASSUMPTION, A
GRAVE ABUSE OF DISCRETION. — While
the trial court correctly denied the motion to
dismiss, the public respondent gravely abused
its discretion in dismissing Civil Case No. 88-
45691 on the basis of an erroneous
assumption that simply because of the
Diplomatic Note, the private respondent is
clothed with diplomatic immunity, thereby
divesting the trial court of jurisdiction over his
person. Private respondent himself, in his Pre-
trial Brief filed on 13 June 1990, unequivocally
states that he would present documentary
evidence consisting of DEA records on his
investigation and surveillance of plaintiff and on
his position and duties as DEA special agent in
Manila. Having thus reserved his right to
present evidence in support of his position,
which is the basis for the alleged diplomatic
immunity, the barren self-serving claim in the
belated motion to dismiss cannot be relied
upon for a reasonable, intelligent and fair
resolution of the issue of diplomatic immunity.
The public respondent then should have
sustained the trial court’s denial of the motion
to dismiss. Verily, such should have been the
most proper and appropriate recourse. It
should not have been overwhelmed by the self-
serving Diplomatic Note whose belated
issuance is even suspect and whose
authenticity has not yet been proved. The
undue haste with which respondent Court
yielded to the private respondent’s claim is
arbitrary.
2. ID.; ACTIONS; MOTION TO DISMISS;
GROUNDS; LACK OF CAUSE OF ACTION
WHERE DEFENDANT IS A DIPLOMAT. — It
may at once be stated that even if the private
respondent enjoys diplomatic immunity, a
dismissal of the case cannot be ordered on the
ground of lack of jurisdiction over his person,
but rather for lack of a cause of action because
even if he committed the imputed act and could
have been otherwise made liable therefor, his
immunity would bar any suit against him in
connection therewith and would prevent
recovery of damages arising therefrom.
3. ID.; ID.; JURISDICTION OVER THE
PERSON, HOW ACQUIRED; CASE AT BAR.
— Jurisdiction over the person of the defendant
is acquired either by his voluntary appearance
or by the service of summons upon him. While
in the instant case, private respondent’s
counsel filed, on 26 October 1988, a motion to
quash summons because being outside the
Philippines and being a non-resident alien, he
is beyond the processes of the court, which
was properly denied by the trial court, he had in
effect already waived any defect in the service
of the summons by earlier asking, on two (2)
occasions, for an exension of time to file an
answer, and by ultimately filing an Answer with
Counterclaim. There is no question that the trial
court acquired jurisdiction over the person of
the private Respondent.
4. ID.; ID.; MOTION TO DISMISS; CASE
SHOULD NOT BE DISMISSED WHERE
THERE IS SUFFICIENT ALLEGATION OF
PERSONAL LIABILITY OF DEFENDANT;
CASE AT BAR. — And now to the core issue
— the alleged diplomatic immunity of the
private Respondent. Setting aside for the
moment the issue of authenticity raised by the
petitioner and the doubts that surround such a
claim, in view of the fact that it took private
respondent one (1) year, eight (8) months and
seventeen (17) days from the time his counsel
filed on 12 September 1988 a Special
Appearance and Motion asking for a first
extension of time to file the Answer because
the Departments of State and Justice of the
United States of America were studying the
case for the purpose of determining his
defenses, before he could secure the
Diplomatic Note from the U.S. Embassy in
Manila, and even granting for the sake of
argument that such note is authentic, the
complaint for damages filed by the petitioner
still cannot be peremptorily dismissed. Said
complaint contains sufficient allegations which
indicate that the private respondent committed
the imputed acts in his personal capacity and
outside the scope of his official duties and
functions. As described in the complaint, he
committed criminal acts for which he is also
civilly liable. In the Special Appearance to
Quash Summons earlier alluded to, on the
other hand, private respondent maintains that
the claim for damages arose "from an alleged
tort." Whether such claim arises from criminal
acts or from tort, there can be no question that
private respondent was sued in his personal
capacity for acts committed outside his official
functions and duties. In the decision acquitting
the petitioner in the criminal case involving the
violation of the Dangerous Drugs Act, copy of
which is attached to his complaint for damages
and which must be deemed as an integral part
thereof, the trial court gave full credit to
petitioner’s theory that he was a victim of a
frame-up instigated by the private Respondent.
Thus, there is a prima facie showing in the
complaint that indeed private respondent could
be held personally liable for the acts committed
beyond his official functions or duties.
Minucher vs. CA – Mendiola
Facts:
Minucher is an Iranian national. He came to the
Philippines to study in the University of the
Philippines in 1974. In 1976, under the regime
of the Shah of Iran, he was appointed Labor
Attaché for the Iranian Embassies in Tokyo,
Japan and Manila, Philippines. When the Shah
of Iran was deposed by Ayatollah Khomeini, he
became a refugee of the United Nations and
continued to stay in the Philippines. Minucher
was introduced to Scalzo, who was an informer
of the Intelligence Unit of the military. On
several occasions, Minucher and Scalzo
entered into contracts of sale wherein Scalzo
bought caviar, rugs, etc. from Minucher.
Minucher expressed his desire to acquire a US
Visa. Scalzo told Minucher that he can help
him in exchange for $2k. One day, Scalzo
came back again to plaintiff's house and
directly proceeded to the latter's bedroom,
where the latter and his countryman, Abbas
Torabian, were playing chess. Minucher
opened his safe in the bedroom and obtained
$2,000.00 from it, gave it to the defendant for
the latter's fee in obtaining a visa for plaintiff's
wife. The defendant told him that he would be
leaving the Philippines very soon and
requested him to come out of the house for a
while so that he can introduce him to his cousin
waiting in a cab. Without much ado, and
without putting on his shirt as he was only in
his pajama pants, he followed the defendant
where he saw a parked cab opposite the street.
To his complete surprise, an American jumped
out of the cab with a drawn high-powered gun.
He was in the company of about 30 to 40
Filipino soldiers with 6 Americans, all armed.
He was handcuffed and after about 20 minutes
in the street, he was brought inside the house
by the defendant. He was made to sit down
while in handcuffs while the defendant was
inside his bedroom. . He asked for any warrant,
but the defendant told him to `shut up.’ He was
nevertheless told that he would be able to call
for his lawyer who can defend him. As a result
of the search, the agents found heroin inside
the house of Minucher. Minucher filed a
complaint against Scalzo. The lower court
adjudged Scalzo to be liable to pay Minucher
damages. However, the CA reversed saying
that Scalzo is absolutely immune because he is
clothed with diplomatic immunity by virtue of
the Vienna convention. Minucher files this
appeal. Still, Scalzo still claims that he may not
be proceeded against by Minucher, because
he is an agent of the US Drugs Enforcement
Agency. Scalzo, in fact, submitted several
documents showing that the Philippines,
through the DFA, recognized his status as a
person with diplomatic immunity.
Issue:
W/N Scalzo has diplomatic immunity.
Held:
Scalzo has immunity. The main yardstick in
ascertaining whether a person is a diplomat
entitled to immunity is the determination of
whether or not he performs duties of
diplomatic nature. Also, vesting a person
with diplomatic immunity is a prerogative of
the executive branch of the government.
The consent or imprimatur of the Philippine
government to the activities of the United
States Drug Enforcement Agency, can be
gleaned from the facts mentioned. The official
exchanges of communication between
agencies of the government of the two
countries, certifications from officials of both
the Philippine Department of Foreign Affairs
and the United States Embassy, as well as the
participation of members of the Philippine
Narcotics Command in the “buy-bust operation”
conducted at the residence of Minucher at the
behest of Scalzo, may be inadequate to
support the "diplomatic status" of the latter but
they give enough indication that the Philippine
government has given its imprimatur, if not
consent, to the activities within Philippine
territory of agent Scalzo of the United States
Drug Enforcement Agency. The job description
of Scalzo has tasked him to conduct
surveillance on suspected drug suppliers and,
after having ascertained the target, to inform
local law enforcers who would then be
expected to make the arrest. In conducting
surveillance activities on Minucher, later acting
as the poseur-buyer during the buy-bust
operation, and then becoming a principal
witness in the criminal case against Minucher,
Scalzo hardly can be said to have acted
beyond the scope of his official function or
duties. All told, this Court is constrained to rule
that respondent Arthur Scalzo, an agent of the
United States Drug Enforcement Agency
allowed by the Philippine government to
conduct activities in the country to help contain
the problem on the drug traffic, is entitled to the
defense of state immunity from suit. N.B. It
might be recalled that the privilege is not an
immunity from the observance of the law of the
territorial sovereign or from ensuing legal
liability; it is, rather, an immunity from the
exercise of territorial jurisdiction
 SEAFDEC v. Acosta, 226
SCRA 49
G.R. No. 101949 December 1, 1994
THE HOLY SEE, petitioner,
vs.
THE HON. ERIBERTO U. ROSARIO, JR., as
Presiding Judge of the Regional Trial Court
of Makati, Branch 61 and STARBRIGHT
SALES ENTERPRISES, INC., respondents.
Remedial Law; Motion to Dismiss; Appeal; An
order denying a motion to dismiss is not
reviewable by the appellate courts except when
it is clear in the records that the trial court has
no alternative but to dismiss the complaint.—A
preliminary matter to be threshed out is the
procedural issue of whether the petition for
certiorari under Rule 65 of the Revised Rules
of Court can be availed of to question the order
denying petitioner’s motion to dismiss. The
general rule is that an order denying a motion
to dismiss is not reviewable by the appellate
courts, the remedy of the movant being to file
his answer and to proceed with the hearing
before the trial court. But the general rule
admits of exceptions, and one of these is when
it is very clear in the records that the trial court
has no alternative but to dismiss the complaint
(Philippine National Bank v. Florendo, 206
SCRA 582 [1992]; Zagada v. Civil Service
Commission, 216 SCRA 114 [1992]). In such a
case, it would be a sheer waste of time and
energy to require the parties to undergo the
rigors of a trial.
Public International Law; Diplomatic Immunity;
Non-suability; Courts and Practices; A state or
international agency requests the Foreign
Office of the state where it is sued to convey to
the court that it is entitled to immunity.—In
Public International Law, when a state or
international agency wishes to plead sovereign
or diplomatic immunity in a foreign court, it
requests the Foreign Office of the state where
it is sued to convey to the court that said
defendant is entitled to immunity.
Same; Same; Same; In the Philippines, the
practice is for the government sovereign or the
international organization to first secure an
executive endorsement of its claim of
sovereign or diplomatic immunity.—In the
Philippines, the practice is for the foreign
government or the international organization to
first secure an executive endorsement of its
claim of sovereign or diplomatic immunity. But
how the Philippine Foreign Office conveys its
endorsement to the courts varies. In
International Catholic Migration Commission v.
Calleja, 190 SCRA 130 (1990), the Secretary
of Foreign Affairs just sent a letter directly to
the Secretary of Labor and Employment,
informing the latter that the respondent-
employer could not be sued because it enjoyed
diplomatic immunity. In World Health
Organization v. Aquino, 48 SCRA 242 (1972),
the Secretary of Foreign Affairs sent the trial
court a telegram to that effect. In Baer v. Tizon,
57 SCRA 1 (1974), the U.S. Embassy asked
the Secretary of Foreign Affairs to request the
Solicitor General to make, in behalf of the
Commander of the United States Naval Base
at Olongapo City, Zambales, a “suggestion” to
respondent Judge. The Solicitor General
embodied the “suggestion” in a Manifestation
and Memorandum as amicus curiae.
Same; Same; Same.—In the case at bench,
the Department of Foreign Affairs, through the
Office of Legal Affairs moved with this Court to
be allowed to intervene on the side of
petitioner. The Court allowed the said
Department to file its memorandum in support
of petitioner’s claim of sovereign immunity.
Same; Same; Same; Statehood; In 1929,
through the Lateran Treaty, Italy recognized
the exclusive dominion and sovereign
jurisdiction of the Holy See over the Vatican
City.—In 1929, Italy and the Holy See entered
into the Lateran Treaty, where Italy recognized
the exclusive dominion and sovereign
jurisdiction of the Holy See over the Vatican
City. It also recognized the right of the Holy
See to receive foreign diplomats, to send its
own diplomats to foreign countries, and to
enter into treaties according to International
Law (Garcia, Questions and Problems In
International Law, Public and Private 81
[1948]).
Same; Same; Same; Same; The Lateran
Treaty established the statehood of the Vatican
City.—The Lateran Treaty established the
statehood of the Vatican City “for the purpose
of assuring to the Holy See absolute and
visible independence and of guaranteeing to it
indisputable sovereignty also in the field of
international relations” (O’Connell, I
International Law 311 [1965]).
Same; Same; Same; Same; Despite its size
and object, the Vatican City has an
independent government of its own, with the
Pope, who is also head of the Roman Catholic
Church, as the Holy See or Head of State, in
conformity with its traditions, and the demands
of its mission in the world.—The Vatican City
fits into none of the established categories of
states, and the attribution to it of “sovereignty”
must be made in a sense different from that in
which it is applied to other states (Fenwick,
International Law 124-125 [1948]; Cruz,
International Law 37 [1991]). In a community of
national states, the Vatican City represents an
entity organized not for political but for
ecclesiastical purposes and international
objects. Despite its size and object, the Vatican
City has an independent government of its
own, with the Pope, who is also head of the
Roman Catholic Church, as the Holy See or
Head of State, in conformity with its traditions,
and the demands of its mission in the world.
Indeed, the world-wide interests and activities
of the Vatican City are such as to make it in a
sense an “international state” (Fenwick, supra.
125; Kelsen, Principles of International Law
160 [1956]).
Same; Same; Same; Same; Same; It is the
Holy See that is the international person.—
Inasmuch as the Pope prefers to conduct
foreign relations and enter into transactions as
the Holy See and not in the name of the
Vatican City, one can conclude that in the
Pope’s own view, it is the Holy See that is the
international person.
Same; Same; Same; The Holy See, through its
Ambassador, the Papal Nuncio, has had
diplomatic representations with the Philippine
government since 1957.—The Republic of the
Philippines has accorded the Holy See the
status of a foreign sovereign. The Holy See,
through its Ambassador, the Papal Nuncio, has
had diplomatic representations with the
Philippine government since 1957 (Rollo, p.
87). This appears to be the universal practice
in international relations.
Same; Same; Same; The right of a foreign
sovereign to acquire property, real or personal,
in a receiving state, necessary for the creation
and maintenance of its diplomatic mission, is
recognized in the 1961 Vienna Convention on
Diplomatic Relations.—Lot 5-A was acquired
by petitioner as a donation from the
Archdiocese of Manila. The donation was
made not for commercial purpose, but for the
use of petitioner to construct thereon the official
place of residence of the Papal Nuncio. The
right of a foreign sovereign to acquire property,
real or personal, in a receiving state, necessary
for the creation and maintenance of its
diplomatic mission, is recognized in the 1961
Vienna Convention on Diplomatic Relations
(Arts. 20-22). This treaty was concurred in by
the Philippine Senate and entered into force in
the Philippines on November 15, 1965.
Same; Same; Same; Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to
dispose off the same because the squatters
living thereon made it almost impossible for
petitioner to use it for the purpose of the
donation.—The decision to transfer the
property and the subsequent disposal thereof
are likewise clothed with a governmental
character. Petitioner did not sell Lot 5-A for
profit or gain. It merely wanted to dispose off
the same because the squatters living thereon
made it almost impossible for petitioner to use
it for the purpose of the donation. The fact that
squatters have occupied and are still occupying
the lot, and that they stubbornly refuse to leave
the premises, has been admitted by private
respondent in its complaint (Rollo, pp. 26, 27).
Same; Same; Same; The issue of Petitioner’s
non-suability can be determined by the trial
court without going to trial in the light of the
pleadings, particularly the admission of the
private respondent.—The issue of petitioner’s
non-suability can be determined by the trial
court without going to trial in the light of the
pleadings, particularly the admission of private
respondent. Besides, the privilege of sovereign
immunity in this case was sufficiently
established by the Memorandum and
Certification of the Department of Foreign
Affairs. As the department tasked with the
conduct of the Philippines’ foreign relations
(Administrative Code of 1987, Book IV, Title I,
Sec. 3), the Department of Foreign Affairs has
formally intervened in this case and officially
certified that the Embassy of the Holy See is a
duly accredited diplomatic mission to the
Republic of the Philippines exempt from local
jurisdiction and entitled to all the rights,
privileges and immunities of a diplomatic
mission or embassy in this country (Rollo, pp.
156-157). The determination of the executive
arm of government that a state or
instrumentality is entitled to sovereign or
diplomatic immunity is a political question that
is conclusive upon the courts (International
Catholic Migration Commission v. Calleja, 190
SCRA 130 [1990]). Where the plea of immunity
is recognized and affirmed by the executive
branch, it is the duty of the courts to accept this
claim so as not to embarrass the executive arm
of the government in conducting the country’s
foreign relations (World Health Organization v.
Aquino, 48 SCRA 242 [1972]). As in
International Catholic Migration Commission
and in World Health Organization, we abide by
the certification of the Department of Foreign
Affairs.
Same; Same; Same; Under both Public
International Law and Transnational Law, a
person who feels aggrieved by the acts of a
foreign sovereign can ask his own government
to espouse his cause through diplomatic
channels.—Private respondent is not left
without any legal remedy for the redress of its
grievances. Under both Public International
Law and Transnational Law, a person who
feels aggrieved by the acts of a foreign
sovereign can ask his own government to
espouse his cause through diplomatic
channels.
Same; Same; Same; Private respondent can
ask the Philippine government, through the
Foreign Office, to espouse its claims against
the Holy See.—Private respondent can ask the
Philippine government, through the Foreign
Office, to espouse its claims against the Holy
See. Its first task is to persuade the Philippine
government to take up with the Holy See the
validity of its claims. Of course, the Foreign
Office shall first make a determination of the
impact of its espousal on the relations between
the Philippine government and the Holy See
(Young, Remedies of Private Claimants
Against Foreign States, Selected Readings on
Protection by Law of Private Foreign
Investments 905, 919 [1964]). Once the
Philippine government decides to espouse the
claim, the latter ceases to be a private cause.
Holy See, The vs. Rosario, Jr., 238 SCRA 524,
G.R. No. 101949 December 1, 1994
Facts:
The Holy See exercises sovereignty over the
Vatican City in Rome and is represented in the
Philippines by the Papal Nuncio Rosario is the
judge of RTC of Makati. Private respondent is
Starbright Sales Enterprises Inc, engaged in
the real estate business. Msgr. Cirilos in behalf
of the Holy See and Philippine Realty
Corporation (PRC) sold to Ramon Licup 3
parcels of land in Paranaque. The agreement
was made on the condition that Licup give
P100k as earnest money and that the sellers
will clear the lots of squatters. Licup paid the
earnest money and later on transferred his
rights to Starbright. Starbright demanded from
the sellers that they clear the lots of squatters.
Msgr. Cirilos informed Starbright that this
cannot be done because the squatters refuse
to leave. He then gave the option that either
Starbright clear the lots them selves or that the
earnest money be returned to them. Starbright
then proposed that if they themselves will
remove the squatters, the purchase price
should be reduced. Msgr. Cirilos refused such
offer, returned the earnest money and
demanded payment of the whole price. Later
on, Starbright discovered that the lots have
been sold to Tropicana. Msgr. Cirilos called for
dismissal of the case for lack of jurisdiction
based on sovereign immunity from suit. DFA
later on intervened in the case (the DFA always
intervenes in cases involving diplomatic
immunity)
Issue:
W/N the court has jurisdiction over the Holy
See
Held:
No, the court has no jurisdiction over the Holy
See In PIL, when a state or international
agency wishes to plead sovereign or diplomatic
immunity, it requests the Foreign office of the
state where it is to convey to the court that it is
entitled to immunity. In the Philippines, the
practice is to first secure an executive
endorsement of its claim of sovereign or
diplomatic immunity. See the case for history of
the sovereignty of the Vatican (The Lateran
Treaty established the statehood of the Vatican
City) The Philippines has accorded the Holy
See the status of foreign sovereign. It had
diplomatic representations with the country
since 1957. Sec 2 of Article 2 of the 1987
Constitution adopts principles of International
Law. Principles of Intl. Law are deemed
incorporated as part of the law of the land.
Where the plea of immunity is recognized
and affirmed by the executive branch, it is
the duty of the courts to accept this claim
so as not to embarrass the executive arm of
the government.
THE HOLY SEE vs. THE HON. ERIBERTO U.
ROSARIO, JR.and STARBRIGHT SALES
ENTERPRISES, INC. 238 SCRA 524 (G.R.
No. 101949 December 1, 1994)
FACTS:
This is a controversy over a parcel of land in
Parañaque City. Lot 5-A, registered under the
name of the Holy See, was contiguous to Lot 5-
B and 5-D registered in the name of Philippine
Realty Corporation (PRC). The land was
donated by the Archdiocese of Manila to the
Papal Nuncio, which represents the Holy See,
who exercises sovereignty over the Vatican
City, Rome, Italy, for his residence. Said lots
were sold through Msgr. Domingo CirilosJr
acting as agent, to Ramon Licup who assigned
his rights to respondents Starbright Sales
Enterprises, Inc. Squatters of said land refused
to vacate the lots, creating a dispute between
Starbright Sales Enterprises Inc. and Holy See
because both were unsure whose responsibility
was it to evict the squatters from said lots.
Respondent Starbright Sales Enterprises Inc.
insists that Holy See should clear the property
while Holy See says that respondent
corporation should do it or the earnest money
(P100,000) will be returned,which Msgr. Cirilos,
the agent, subsequently did. The same lots
were then sold to Tropicana Properties and
Development Corporation. 12 Starbright Sales
Enterprises, Inc. filed a suit for annulment of
the sale of the three lots, and specific
performance and damages against
petitioner(represented by the Papal Nuncio),
and Msgr. Cirilos, PRC as well as Tropicana
Properties and Development Corporation. The
Holy See and Msgr. Cirilos moved to dismiss
the petition for lack of jurisdiction based on
sovereign immunity from suit. RTC denied the
motion on ground that petitioner already "shed
off" its sovereign immunity by entering into a
business contract. The subsequent Motion for
Reconsideration was also denied hence this
special civil action for certiorari was forwarded
to the Supreme Court.
ISSUE:
Whether or not Holy See can claim sovereign
immunity from suit.
HELD:
The Supreme Court held that Holy See may
properly claim sovereign immunity for its
nonsuability. The Republic of the Philippines
has accorded the Holy See the status of a
foreign sovereign. The Holy See, through its
Ambassador, the Papal Nuncio, has had
diplomatic representations with the Philippine
government since 1957 . As expressed in Sec.
2 Art II of the 1987 Constitution, generally
accepted principles of International Law are
adopted by our Courts and are deemed
incorporated as part of the laws of the land as
a condition and consequence of our admission
in the society of nations. It was noted in Article
31(A) of the 1961 Vienna Convention on
Diplomatic Relations that diplomatic envoy
shall be granted immunity from civil and
administrative jurisdiction of the receiving state
over any real action relating to private
immovable property situated in the territory of
the receiving state which the envoy holds on
behalf of the sending state for the purposes of
the mission. If the petitioner has bought and
sold lands in the ordinary course of real estate
business, surely, the said transaction can be
categorized as an act jure gestionis (private
act). However, petitioner has denied that the
acquisition and subsequent disposal of the lot
were made for profit but claimed that it
acquired said property for the site of its mission
or the Apostolic Nunciature in the Philippines,
as public act or act jure imperii . The
Department of Foreign Affairs (DFA) certified
that the Embassy of the Holy See is a duly
accredited diplomatic missionary to the
Republic of the Philippines and is thus
exempted from local jurisdiction and is entitled
to the immunity rights of a diplomatic mission
or embassy in this Court. The Holy See is
immune from suit because the act of selling the
lot of concern is non-propriety in nature. The lot
was acquired through a donation from the
Archdiocese of Manila, not for a commercial
purpose, but for the use of petitioner to
construct the official place of residence of 13
the Papal Nuncio thereof. The transfer of the
property and its subsequent disposal are
likewise clothed with a governmental (non-
proprietal) character as petitioner sold the lot
not for profit or gain rather because it merely
cannot evict the squatters living in said
property. Supreme Court granted the petition
and dismissed the complaint against petitioner.
 ICMC v. Calleja, G.R. No.
85750, September 28,
1990
Political Law; Public International Law; Nature
of Specialized Agencies; Specialized agencies
are international organizations.—"Specialized
agencies" are international organizations
having functions in particular fields. The term
appears in Articles 57 and 63 of the Charter of
the United Nations: "The Charter, while it
invests the United Nations with the general
task of promoting progress and international
cooperation in economic, social, health,
cultural, educational and related matters,
contemplates that these tasks will be mainly
fulfilled not by organs of the United Nations
itself but by autonomous international
organizations established by inter-
governmental agreements outside the United
Nations. There are now many such
international agencies having functions in many
different fields, e.g. in posts,
telecommunications, railways, canals, rivers,
sea transport, civil aviation, meteorology,
atomic energy, finance, trade, education and
culture, health and refugees. Some are virtually
world-wide in their membership, some are
regional or otherwise limited in their
membership. The Charter provides that those
agencies which have 'wide international
responsibilities' are to be brought into
relationship with the United Nations by
agreements entered into between them and the
Economic and Social Council, are then to be
known as 'specialized agencies.'"
Same; Same; Grant of lmmunity. Immunity to
ICMC and IRRI is granted to avoid interference
by the host country in their internal workings.—
The grant of immunity from local jurisdiction to
ICMC and IRRI is clearly necessitated by their
international character and respective
purposes. The objective is to avoid the danger
of partiality and interference by the host
country in their internal workings. The exercise
of jurisdiction by the Department of Labor in
these instances would defeat the very purpose
of immunity, which is to shield the affairs of
international organizations, in accordance with
international practice, from political pressure or
control by the host country to the prejudice of
member States of the organization, and to
ensure the unhampered performance of their
functions.
Same; Same; Convention on the Privileges
and Immunities of the Specialized Agencies
of the United Nations. ICMC employees are
not without recourse whenever there are
disputes to be settled.—Section 31 of the
Convention on the Privileges and Immunities of
the Specialized Agencies of the United Nations
provides that "each specialized agency shall
make provision for appropriate modes of
settlement of: (a) disputes arising out of
contracts or other disputes of private character
to which the specialized agency is a party."
Moreover, pursuant to Article IV of the
Memorandum of Agreement between ICMC
and the Philippine Government, whenever
there is any abuse of privilege by ICMC, the
Government is free to withdraw the privileges
and immunities accorded. Thus: "Article IV.
Cooperation with Government Authorities.—1.
The Commission shall cooperate at all times
with the appropriate authorities of the
Government to ensure the observance of
Philippine laws, rules and regulations, facilitate
the proper administration of justice and prevent
the occurrences of any abuse of the privileges
and immunities granted its officials and alien
employees in Article III of this Agreement to the
Commission. "2. In the event that the
Government determines that there has been an
abuse of the privileges and immunities granted
under this Agreement, consultations shall be
held between the Government and the
Commission to determine whether any such
abuse has occurred and, if so, the Government
shall withdraw the privileges and immunities
granted the Commission and its officials."
Same; Same; IRRI employees have recourse
to the Council of lRRI Employees and
Management (CIEM) in cases affecting
employer-employee relations.—Neither are the
employees of IRRI without remedy in case of
dispute with management as, in fact, there had
been organized a forum for better
management-employee relationship as
evidenced by the formation of the Council of
IRRI Employees and Management (CIEM)
wherein "both management and employees
were and still are represented for purposes of
maintaining mutual and beneficial cooperation
between IRRI and its employees." The
existence of this Union factually and tellingly
belies the argument that Pres. Decree No.
1620, which grants to IRRI the status,
privileges and immunities of an international
organization, deprives its employees of the
right to self-organization.
G.R. No. 125865 March 26, 2001
JEFFREY LIANG (HUEFENG), petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
NOTE: 2000 CASE
International Law; Foreign Affairs; Diplomatic
Immunity; Courts; Due Process; Courts cannot
blindly adhere and take on its face a
communication from the Department of Foreign
Affairs that a particular person is covered by
any immunity; Due process is a right of the
accused as much as it is of the prosecution.—
Courts cannot blindly adhere and take on its
face the communication from the DFA that
petitioner is covered by any immunity. The
DFA’s determination that a certain person is
covered by immunity is only preliminary which
has no binding effect in courts. In receiving ex-
parte the DFA’s advice and in motu proprio
dismissing the two criminal cases without
notice to the prosecution, the latter’s right to
due process was violated. It should be noted
that due process is a right of the accused as
much as it is of the prosecution. The needed
inquiry in what capacity petitioner was acting at
the time of the alleged utterances requires for
its resolution evidentiary basis that has yet to
be presented at the proper time. At any rate, it
has been ruled that the mere invocation of
the immunity clause does not ipso facto
result in the dropping of the charges.
Same; Same; Same; Criminal Law; Slander;
Slandering a person could not possibly be
covered by the immunity agreement between
the Asian Development Bank and the Republic
of the Philippines because our laws do not
allow the commission of a crime, such as
defamation, in the name of official duty.—
Slandering a person could not possibly be
covered by the immunity agreement because
our laws do not allow the commission of a
crime, such as defamation, in the name of
official duty. The imputation of theft is ultra
vires and cannot be part of official functions. It
is well-settled principle of law that a public
official may be liable in his personal private
capacity for whatever damage he may have
caused by his act done with malice or in bad
faith or beyond the scope of his authority or
jurisdiction. It appears that even the
government’s chief legal counsel, the Solicitor
General, does not support the stand taken by
petitioner and that of the DFA.
Courts; Criminal Procedure; Preliminary
Investigation; Preliminary investigation is not a
matter of right in cases cognizable by the
MeTC—being purely a statutory right, it may be
invoked only when specifically granted by
law.—On the contention that there was no
preliminary investigation conducted, suffice it to
say that preliminary investigation is not a
matter of right in cases cognizable by the
MeTC such as the one at bar. Being purely a
statutory right, preliminary investigation may be
invoked only when specifically granted by law.
The rule on criminal procedure is clear that no
preliminary investigation is required in cases
falling within the jurisdiction of the MeTC.
Besides, the absence of preliminary
investigation does not affect the court’s
jurisdiction nor does it impair the validity of the
information or otherwise render it defective.
Liang vs. People, 323 SCRA 692, G.R. No.
125865 January 28, 2000
NOTE: 2001 CASE
International Law; Diplomatic Immunity;
International Organizations; Asian
Development Bank; The slander of a person,
by any stretch, cannot be considered as falling
within the purview of the immunity granted to
ADB officers and personnel—slander cannot
be considered as an act performed in an official
capacity.—After a careful deliberation of the
arguments raised in petitioner’s and
intervenor’s Motions for Reconsideration, we
find no cogent reason to disturb our Decision of
January 28, 2000. As we have stated therein,
the slander of a person, by any stretch,
cannot be considered as falling within the
purview of the immunity granted to ADB
officers and personnel. Petitioner argues that
the Decision had the effect of prejudging the
criminal case for oral defamation against him.
We wish to stress that it did not. What we
merely stated therein is that slander, in
general, cannot be considered as an act
performed in an official capacity. The issue of
whether or not petitioner’s utterances
constituted oral defamation is still for the trial
court to determine.
PUNO, J., Concurring Opinion:
International Law; Diplomatic Immunity;
International Organizations: Words and
Phrases; “International Organization,”
Defined.—The term “international
organizations”—“is generally used to describe
an organization set up by agreement between
two or more states. Under contemporary
international law, such organizations are
endowed with some degree of international
legal personality such that they are capable of
exercising specific rights, duties and powers.
They are organized mainly as a means for
conducting general international business in
which the member states have an interest.”
Same; Same; Same; Same; “International
Public Officials,” Defined.—International public
officials have been defined as: “x x x persons
who, on the basis of an international treaty
constituting a particular international
community, are appointed by this international
community, or by an organ of it, and are under
its control to exercise, in a continuous way,
functions in the interest of this particular
international community, and who are subject
to a particular personal status.”
Same; Same; Same; Same; “Specialized
Agencies,” Defined.—“Specialized agencies”
are international organizations having functions
in particular fields, such as posts,
telecommunications, railways, canals, rivers,
sea transport, civil aviation, meteorology,
atomic energy, finance, trade, education and
culture, health and refugees.
Same; Same; Same; The nature and degree of
immunities vary depending on who the
recipient is.—A perusal of the immunities
provisions in various international conventions
and agreements will show that the nature and
degree of immunities vary depending on who
the recipient is.
Same; Same: Same; “Diplomatic Immunities”
and “International Immunities,”
Distinguished.—There are three major
differences between diplomatic and
international immunities. Firstly, one of the
recognized limitations of diplomatic immunity is
that members of the diplomatic staff of a
mission may be appointed from among the
nationals of the receiving State only with the
express consent of that State; apart from
inviolability and immunity from jurisdiction in
respect of official acts performed in the
exercise of their functions, nationals enjoy only
such privileges and immunities as may be
granted by the receiving State. International
immunities may be specially important in
relation to the State of which the official is a
national. Secondly, the immunity of a
diplomatic agent from the jurisdiction of the
receiving State does not exempt him from the
jurisdiction of the sending State; in the case of
international immunities there is no sending
State and an equivalent for the jurisdiction of
the sending State therefore has to be found
either in waiver of immunity or in some
international disciplinary or judicial procedure.
Thirdly, the effective sanctions which secure
respect for diplomatic immunity are the
principle of reciprocity and the danger of
retaliation by the aggrieved State; international
immunities enjoy no similar protection.
Same; Same; Same; Methods of Granting
Privileges and Immunities to Personnel of
International Organizations.—Positive
international law has devised three methods of
granting privileges and immunities to the
personnel of international organizations. The
first is by simple conventional stipulation, as
was the case in the Hague Conventions of
1899 and 1907. The second is by internal
legislation whereby the government of a state,
upon whose territory the international
organization is to carry out its functions,
recognizes the international character of the
organization and grants, by unilateral
measures, certain privileges and immunities to
better assure the successful functioning of the
organization and its personnel. In this situation,
treaty obligation for the state in question to
grant concessions is lacking. Such was the
case with the Central Commission of the Rhine
at Strasbourg and the International Institute of
Agriculture at Rome. The third is a combination
of the first two. In this third method, one finds a
conventional obligation to recognize a certain
status of an international organization and its
personnel, but the status is described in broad
and general terms. The specific definition and
application of those general terms are
determined by an accord between the
organization itself and the state wherein it is
located. This is the case with the League of
Nations, the Permanent Court of Justice, and
the United Nations. The Asian Development
Bank and its Personnel fall under this third
category.
Same; Same; Same; The legal relationship
between an ambassador and the state to which
he is accredited is entirely different from the
relationship between the international official
and those states upon whose territory he might
carry out his functions—the privileges and
immunities of diplomats and those of
international officials rest upon different legal
foundations.—There is a connection between
diplomatic privileges and immunities and those
extended to international officials. The
connection consists in the granting, by
contractual provisions, of the relatively well-
established body of diplomatic privileges and
immunities to international functionaries. This
connection is purely historical. Both types of
officials find the basis of their special status in
the necessity of retaining functional
independence and freedom from interference
by the state of residence. However, the legal
relationship between an ambassador and the
state to which he is accredited is entirely
different from the relationship between the
international official and those states upon
whose territory he might carry out his functions.
The privileges and immunities of diplomats and
those of international officials rest upon
different legal foundations. Whereas those
immunities awarded to diplomatic agents are a
right of the sending state based on customary
international law, those granted to international
officials are based on treaty or conventional
law. Customary international law places no
obligation on a state to recognize a special
status of an international official or to grant him
jurisdictional immunities. Such an obligation
can only result from specific treaty provisions.
Same; Same; Same; The present tendency is
to reduce privileges and immunities of
personnel of international organizations to a
minimum.—Looking back over 150 years of
privileges and immunities granted to the
personnel of international organizations, it is
clear that they were accorded a wide scope of
protection in the exercise of their functions—
The Rhine Treaty of 1804 between the German
Empire and France which provided “all the
rights of neutrality” to persons employed in
regulating navigation in the international
interest; The Treaty of Berlin of 1878 which
granted the European Commission of the
Danube “complete independence of territorial
authorities” in the exercise of its functions; The
Covenant of the League which granted
“diplomatic immunities and privileges.” Today,
the age of the United Nations finds the scope
of protection narrowed. The current tendency is
to reduce privileges and immunities of
personnel of international organizations to a
minimum. The tendency cannot be considered
as a lowering of the standard but rather as a
recognition that the problem on the privileges
and immunities of international officials is new.
The solution to the problem presented by the
extension of diplomatic prerogatives to
international functionaries lies in the general
reduction of the special position of both types
of agents in that the special status of each
agent is granted in the interest of function. The
wide grant of diplomatic prerogatives was
curtailed because of practical necessity and
because the proper functioning of the
organization did not require such extensive
immunity for its officials. While the current
direction of the law seems to be to narrow the
prerogatives of the personnel of international
organizations, the reverse is true with respect
to the prerogatives of the organizations
themselves, considered as legal entities.
Historically, states have been more generous
in granting privileges and immunities to
organizations than they have to the personnel
of these organizations.
Same; Same; Same; There can be no dispute
that international officials are entitled to
immunity only with respect to acts performed in
their official capacity, unlike international
organizations which enjoy absolute
immunity.—On the other hand, international
officials are governed by a different rule.
Section 18(a) of the General Convention on
Privileges and Immunities of the United Nations
states that officials of the United Nations shall
be immune from legal process in respect of
words spoken or written and all acts performed
by them in their official capacity. The
Convention on Specialized Agencies carries
exactly the same provision. The Charter of the
ADB provides under Article 55(i) that officers
and employees of the bank shall be immune
from legal process with respect to acts
performed by them in their official capacity
except when the Bank waives immunity.
Section 45 (a) of the ADB Headquarters
Agreement accords the same immunity to the
officers and staff of the bank. There can be no
dispute that international officials are entitled to
immunity only with respect to acts performed in
their official capacity, unlike international
organizations which enjoy absolute immunity.
Same; Same; Same; The current status of the
law does not maintain that states grant
jurisdictional immunity to international officials
for acts of their private lives.—Section 18 (a) of
the General Convention has been interpreted
to mean that officials of the specified
categories are denied immunity from local
jurisdiction for acts of their private life and
empowers local courts to assume jurisdiction in
such cases without the necessity of waiver. It
has earlier been mentioned that historically,
international officials were granted diplomatic
privileges and immunities and were thus
considered immune for both private and official
acts. In practice, this wide grant of diplomatic
prerogatives was curtailed because of practical
necessity and because the proper functioning
of the organization did not require such
extensive immunity for its officials. Thus, the
current status of the law does not maintain that
states grant jurisdictional immunity to
international officials for acts of their private
lives. This much is explicit from the Charter and
Headquarters Agreement of the ADB which
contain substantially similar provisions to that
of the General Convention.
Same; Same; Same; The inclination is to place
the competence to determine the nature of an
act as private or official in the courts of the
state concerned.—It appears that the
inclination is to place the competence to
determine the nature of an act as private or
official in the courts of the state concerned.
That the prevalent notion seems to be to leave
to the local courts determination of whether or
not a given act is official or private does not
necessarily mean that such determination is
final. If the United Nations questions the
decision of the Court, it may invoke
proceedings for settlement of disputes between
the organization and the member states as
provided in Section 30 of the General
Convention. Thus, the decision as to whether a
given act is official or private is made by the
national courts in the first instance, but it may
be subjected to review in the international level
if questioned by the United Nations.
Same; Same; Same; Asian Development Bank;
Officials of international organizations enjoy
“functional” immunities, that is, only those
necessary for the exercise of their functions of
the organization and the fulfillment of its
purposes; Officials and employees of the
Asian Development Bank are subject to the
jurisdiction of the local courts for their
private acts, notwithstanding the absence
of a waiver of immunity.—Under the Vienna
Convention on Diplomatic Relations, a
diplomatic envoy is immune from criminal
jurisdiction of the receiving State for all acts,
whether private or official, and hence he cannot
be arrested, prosecuted and punished for any
offense he may commit, unless his diplomatic
immunity is waived. On the other hand,
officials of international organizations enjoy
“functional” immunities, that is, only those
necessary for the exercise of the functions of
the organization and the fulfillment of its
purposes. This is the reason why the ADB
Charter and Headquarters Agreement explicitly
grant immunity from legal process to bank
officers and employees only with respect to
acts performed by them in their official
capacity, except when the Bank waives
immunity. In other words, officials and
employees of the ADB are subject to the
jurisdiction of the local courts for their private
acts, notwithstanding the absence of a waiver
of immunity.
Same; Same; Same; Same; The immunity of
the Asian Development Bank is absolute
whereas the immunity of its officials and
employees is restricted only to official acts.—
Petitioner cannot also seek relief under the
mantle of “immunity from every form of legal
process” accorded to ADB as an international
organization. The immunity of ADB is absolute
whereas the immunity of its officials and
employees is restricted only to official acts.
This is in consonance with the current trend in
international law which seeks to narrow the
scope of protection and reduce the privileges
and immunities granted to personnel of
international organizations, while at the same
time aims to increase the prerogatives of
international organizations.
Same; Same; Same; Same; The authority of
the Department of Foreign Affairs, or even the
Asian Development Bank for that matter, to
certify that the Bank’s officials and employees
are entitled to immunity is limited only to acts
done in their official capacity.—Considering
that bank officials and employees are covered
by immunity only for their official acts, the
necessary inference is that the authority of the
Department of Affairs, or even of the ADB for
that matter, to certify that they are entitled to
immunity is limited only to acts done in their
official capacity. Stated otherwise, it is not
within the power of the DFA, as the agency in
charge of the executive department’s foreign
relations, nor the ADB, as the international
organization vested with the right to waive
immunity, to invoke immunity for private acts of
bank officials and employees, since no such
prerogative exists in the first place. If the
immunity does not exist, there is nothing to
certify. Liang vs. People, 355 SCRA 125, G.R.
No. 125865 March 26, 2001
FACTS:
Two criminal informations for grave oral
defamation were filed by CABAL, a member of
the clerical staff of the Asian Development
Bank against LIANG, a Chinese national who
was employed as an Economist by the said
bank • MTC of Mandaluyong City, acting
pursuant to an advice from the Department of
Foreign Affairs that LIANG enjoyed immunity
from legal processes, dismissed the case • On
petition for certiorari and mandamus, the RTC
set aside the order of the MTC • Hence, this
petition • LIANG argues for the diplomatic
immunity of the ADB, its officials and staff, from
legal and judicial processes in the Philippines
ISSUE
W/N LIANG CAN CLAIM DIPLOMATIC
IMMUNITY FOR COMPLAINTS AGAINST HIM
FOR GRAVE ORAL DEFAMATION HELD NO,
SLANDER CANNOT BE SAID TO BE
COVERED BY THE IMMUNITY GRANTED TO
ADB EMPLOYEES REGARDING ACTS
PERFORMED BY THEM IN THEIR OFFICIAL
CAPACITY
RATIO •
Nowhere in the assailed decision is diplomatic
immunity denied • However, the issue in this
case is not really about diplomatic immunity but
whether or not the statements allegedly made
by LIANG were uttered while in the
performance of his official functions, in order
for this case to fall squarely under the
provisions of Section 45 (a) of the "Agreement
Between the Asian Development Bank and the
Government of the Republic of the Philippines
Regarding the Headquarters of the Asian
Development Bank ," to wit: Officers and staff
of the Bank, including for the purpose of this
Article experts and consultants performing
missions for the Bank, shall enjoy the following
privileges and immunities: (a) Immunity from
legal process with respect to acts performed by
them in their official capacity except when the
Bank waives the immunity. • After careful
consideration, the Court held that it had no
cogent reason to disturb its Decision of
January 28, 2000. As the Court has stated
therein, the slander of a person, by any
stretch, cannot be considered as falling
within the purview of the immunity granted
to ADB officers and personnel
o Sovereign (Head of State)
Immunities
 Forbes v. Chuoco Tiaco,
16 Phil. 534 (1910)
THE GOVERNMENT OF THE UNITED
STATES IN THE PHILIPPINE ISLANDS,
POWERS OF.—The Government of the United
States in the Philippine Islands is a government
possessed with "all the military, civil, and
judicial powers necessary to govern the
Philippine Islands" and as such has the power,
through its political department, to deport aliens
whose presence in the territory is found to be
injurious to the public good and the domestic
tranquillity of the people. Deportation or
expulsion is a police measure having for its
object the purging of the State of obnoxious
foreigners. It is a sort of national disinfectant.
2.THE GOVERNOR-GENERAL, POWERS
OF.—The Governor-General, acting in his
political and executive capacity, is invested
with plenary power to deport obnoxious aliens
whose continued presence in the territory is
found by him to be injurious to the public
interest, and in the absence of express and
prescribed rules as to the method of deporting
or expelling them, he may use such methods
as his official judgment and good conscience
may dictate.
3.GOVERNMENT, SEPARATE
DEPARTMENTS OF; ONE DEPARTMENT
SHOULD NOT INTERFERE WITH THE
PERFORMANCE OF THE DUTIES OF
ANOTHER.—In a government of separate and
independent departments, executive,
legislative, and judicial, with separate and
distinct functions, one department will not
attempt to interfere with the performance of the
exclusive duties of another. To permit such an
interference would destroy the independence
of the separate departments and would make
one subject to the control of the others. For the
judiciary to interfere, for the purpose of
questioning the manner of exercising the legal
and political duties of the chief executive head
of the Government or to control the action of
the legislative department, would, in effect,
destroy the independence of the departments
of the Government and would make all
departments subject to the ultimate control of
the judicial. Such a conclusion or condition was
never contemplated by the organizers of the
Government.
4.AGENTS OF THE GOVERNMENT,
RATIFICATION OF ACTS OF.—An act done
by an agent of the Government, though in
excess of his authority, being ratified and
adopted by the Government, is held to be
equivalent to previous authority.
5.ALIEN, RIGHT OF HIS GOVERNMENT TO
RECALL HIM FROM FOREIGN
TERRITORY.—The mere fact that a citizen or
subject is out of the territory of his country does
not relieve him from that allegiance which he
owes to his government, and his government
may, under certain conditions, properly and
legally request his return. Such request for his
return is a sufficient justification on the part of
the authority of the country in which he resides
for his deliverance to a proper agent or
authority that he may be carried to his native
land.
6."DUE PROCESS OF LAW."—Due process of
law means such an exercise of the powers of
the government as the settled maxims of law
permit and sanction and under such
safeguards for the protection of individual rights
as those maxims prescribe for the class of
cases to which the one in question belongs. It
has been repeatedly decided when a
government is dealing with the political rights of
aliens that it is not governed by that "due
process of law" which governs it in dealing with
the civil rights of aliens. It is familiar that what is
due process of law depends on the particular
circumstances. It varies with the subject-matter
and the necessities of the situation. Thus
summary proceedings suffice for taxes and
executive decisions for the exclusion of aliens
from the country. Property may be taxed and
sold for the payment of such taxes without the
owner thereof having had any notice whatever
either of the levy or of the sale.
7.ALIENS; CERTIFICATE OF ADMISSION,
REVOCATION OF.—An alien can not insist
upon residing in a foreign territory simply
because he holds a certificate of admission
justifying his right to remain therein, as against
an act of the executive department of the
government which attempts to deport him. The
certificate is a mere license and may be
revoked by the government at any time. An
alien's right to remain in the territory of a
foreign government is purely a political one and
may be terminated at the will of such
government.
8.CHIEF EXECUTIVE HEAD OF THE STATE,
DUTIES OF.—Generally the duties of the chief
executive authority of the State are defined by
a constitution or by a law. There are certain
inherent powers, however, vested in the chief
executive authority of the State which are
universally denominated political, which may or
may not be defined either by the constitution or
by law. These inherent powers would continue
to exist f or the .preservation of the life and
integrity of the State and the peace and
quietude of its people, even though the
constitution were destroyed and every letter of
the statutes were repealed. This must
necessarily be true, or, otherwise, the hands of
the chief executive authority of the Government
might, at times, be paralyzed in his efforts to
maintain the existence of the Government. The
United States Government never intended to
create in the Philippine Islands a Government
without giving it adequate power to preserve
itself and to protect the highest interests of the
people of the Archipelago.
9.GOVERNOR-GENERAL NOT LIABLE IN
DAMAGES FOR THE PERFORMANCE OF A
LEGAL DUTY.—No one can be held legally
responsible in damages, or otherwise, for doing
in a legal manner what he had authority under
the law to do. The Governor-General had
authority, under the law, to deport or expel the
defendants, and the circumstance justifying the
deportation and the method of carrying it out
are left to him. He can not, therefore, be held
liable in damages for the exercise of such
power.
Per MORELAND, J., with whom concurs
TRENT, J., concurring:
10.GOVERNOR-GENERAL AND JUDGES;
EXEMPTION FROM CIVIL LIABILITY.—The
same general considerations of public policy
and convenience which demand for judges of
courts of superior jurisdiction immunity f rom
civil suits f or damages arising f rom acts done
by them in the course of the performance of
their official functions apply to the acts of the
Governor-General of the Philippine Islands
when engaged in the discharge of the duties
imposed upon him by law.
11.EXEMPTION OF JUDGES; IMMUNITY
RESTS ON PUBLIC POLICY.—The exemption
from liability of the judges of courts of superior
jurisdiction for acts performed in the discharge
of their official duty rests in public policy.
12.ID. ; THE TEST OF JUDICIAL LIABILITY.—
The test of judicial liability is not jurisdiction.
Such liability depends wholly upon the nature
of the question which is being determined
when the error complained of is committed by
the court. If such question is one the
determination of which requires the exercise of
judicial functions, the judge is not liable, even
though there is in reality an absolute failure of
jurisdiction over the whole subject-matter.
13.ID.; NOT LIABLE IN DAMAGES WHILE
EXERCISING JUDICIAL FUNCTIONS.—
Whenever and wherever a judge of a court of
superior jurisdiction exercises judicial functions,
he will not be personally liable in civil damages
for the result of his action, utterly regardless of
whether he ever had jurisdiction of the subject-
matter of the action or not.
14. ID.; ID.; THE RULE OF LIABILITY.—The
rule of liability is: If the question is one which a
judge, qualified in the average way for the
position occupied by the offending judge or for
a similar judicial position, would regard as a
real question, then it is one whose
determination requires the exercise of judicial
functions. But if it is one so clear that a judge,
qualified as aforesaid, would not regard as a
real question, then it is one whose
determination does not require the exercise of
judicial functions. In the former case, the judge
is not liable; in the latter, he is.
15.ID. ; ID. ; A JUDGE ACTS JUDICIALLY
WHEN DECIDING WHETHER. HE HAS
JURISDICTION; JURISDICTION TO
DETERMINE THE QUESTION OF
JURISDICTION.—A judge acts judicially as
purely and as perfectly when he is determining,
at the very inception of the proceeding, the
question of whether or not he has any
jurisdiction whatever in the premises, as he
does when, later in the case, he decides what
the extent of that jurisdiction is. The court
always has jurisdiction to determine whether it
has jurisdiction over the subject-matter before
it.
16.ID.; ID.; EXEMPTION FROM CIVIL
LIABILITY NOTWITHSTANDING BAD
MOTIVES.—The exemption of judges from civil
liability can not be affected by the motives with
which their judicial acts are performed. The
purity of their motives can not, in this way, be
the subject of judicial inquiry in a civil action.
(Bradley vs. Fisher, 80 U. S., 335.)
17.ID.; ID.; NOT LIABLE IN CIVIL ACTION
FOR ACTING IN EXCESS OF JURISDICTION,
ALTHOUGH ACTING CORRUPTLY.—Judges
of courts of superior or general jurisdiction are
not liable in civil actions for their judicial acts,
even when such acts are in excess of their
jurisdiction and are alleged to have been done
maliciously or corruptly. (Bradley vs. Fisher, 80
U. S., 335.)
18.THE JUDICIARY CAN NOT MULCT THE
GOVERNOR-GENERAL IN DAMAGES.—The
judiciary can not mulct the Governor-General
personally in damages which result from the
performance of his official duty any more than it
can a member of the Philippine Commission or
the Philippine Assembly. Public policy forbids
it.
19.THE JUDICIARY HAS THE POWER TO
DECLARE AN ACT OF THE GovERNOR-
GENERAL ILLEGAL AND VOID.—The
judiciary has full power to, and will when the
matter is properly presented to it and the
occasion justly warrants it, declare an act of the
Governor-General illegal and void, and place
as nearly as possible in status quo any person
who has been deprived of his liberty or his
property by such act. This remedy is assured to
every person, however humble or of whatever
country, when his personal or property rights
have been invaded, even by the highest
authority of the State.
20.THE GOVERNOR-GENERAL IS LlABLE
WHEN HE ACTS OUTSIDE OF HlS POWER
WlTHOUT EXERCISING DlSCRETION AND
JUDGMENT.—The chief executive is liable
when he acts in a case so clearly outside of his
power and authority that he can not be said to
have exercised discretion and judgment, that
is, the judicial faculty, in determining whether
he had authority or not. In such case he acts,
not as Governor-General, but as a private
individual, and, as such, must answer for the
consequences of his act.
21.GOVERNOR-GENERAL'S AUTHORITY TO
DETERMINE WHETHER HE HAS
AUTHORITY TO DEPORT ALIENS; NOT
LlABLE IN DAMAGES.—It appearing in the
case at bar that the question whether or not the
Governor-General had power and authority to
expel a domiciled alien being one the
determination of which required the exercise of
the judicial faculty, it being a question
concerning the results reached on the
resolution of which two men, qualified in the
usual way for the position he occupied, might
really differ, he can not be held personally
liable for the damages resulting from an act
perf ormed in pursuance of such determination,
even though he was wrong in such
determination and the act performed in
pursuance thereof was in violation of law. By
virtue of the nature of his functions, he is as
much under the obligation and the necessity of
determining whether he has the power and
authority to act, as he is of acting when that
power and authority are conceded. He should,
therefore, be protected in that determination
within the limits heretofore stated.
Forbes, etc., vs. Chuoco Tiaco and
Crossfield., 16 Phil. 534, No. 6157 July 30,
1910
 Kuroda v. Jalandoni, supra
Kuroda vs. Jalandoni G.R. L-2662, March
26, 1949
Facts:
1. Petitioner Sheginori Kuroda was the former
Lt. General of the Japanese Army and
commanding general of the Japanese forces
during the occupation (WWII) in the country.
He was tried before the Philippine Military
Commission for War Crimes and other
atrocities committed against military and
civilians. The military commission was
establish under Executive Order 68.
2. Petitioner assails the validity of EXecutive
Order 68 arguing it is unconstitutional and
hence the military commission did not have the
jurisdiction to try him on the following grounds:
- that the Philippines is not a signatory to the
Hague Convention (War Crimes) 3. Petitioner
likewise assails that the US is not a party of
interest in the case hence the 2 US
prosecutors cannot practice law in the
Philippines.
Issue:
Whether or not EXecutive Order 68 is
constitutional thus the military tribunal
jurisdiction is valid
HELD:
1. Executive Order 68 is constitutional hence
the tribunal has jurisdiction to try Kuroda. EO
68 was enacted by the President and was in
accordance with Sec. 3, Art. 2 of Constitution
which renounces war as an instrument of
national policy. Hence it is in accordance with
generally accepted principles of international
law including the Hague Convention and
Geneva Convention, and other international
jurisprudence established by the UN, including
the principle that all persons (military or civilian)
guilty of plan, preparing, waging a war of
aggression and other offenses in violation of
laws and customs of war. The Philippines may
not be a signatory to the 2 conventions at that
time but the rules and regulations of both are
wholly based on the generally accepted
principles of international law. They were
accepted even by the 2 belligerent nations (US
and Japan)
2. As to the participation of the 2 US
prosecutors in the case, the US is a party of
interest because its country and people have
been greatly aggrieved by the crimes which
petitioner was being charged of.
3. Moreover, the Phil. Military Commission is a
special military tribunal and rules as to parties
and representation are not governed by the
rules of court but the provision of the special
law cited in the foregoing.
  David v. Arroyo, G.R. No.
171396, 3 May 2006
Constitutional Law; Separation of Powers;
Checks and Balances; Judicial Review; One of
the greatest contributions of the American
system to this country is the concept of judicial
review enunciated in Marbury v. Madison, 1
Cranch 137 (1803).—One of the greatest
contributions of the American system to this
country is the concept of judicial review
enunciated in Marbury v. Madison, 1 Cranch
137 (1803). This concept rests on the
extraordinary simple foundation—The
Constitution is the supreme law. It was
ordained by the people, the ultimate source of
all political authority. It confers limited powers
on the national government. x x x If the
government consciously or unconsciously
oversteps these limitations there must be some
authority competent to hold it in control, to
thwart its unconstitutional attempt, and thus to
vindicate and preserve inviolate the will of the
people as expressed in the Constitution. This
power the courts exercise. This is the
beginning and the end of the theory of judicial
review.
Same; Same; Same; Same; Requisites; The
power of judicial review does not repose upon
the courts a “self-starting capacity.”—The
power of judicial review does not repose upon
the courts a “self-starting capacity.” Courts may
exercise such power only when the following
requisites are present: first, there must be an
actual case or controversy; second, petitioners
have to raise a question of constitutionality;
third, the constitutional question must be raised
at the earliest opportunity; and fourth, the
decision of the constitutional question must be
necessary to the determination of the case
itself.
Same; Same; Same; Same; Same; Words and
Phrases; An actual case or controversy
involves a conflict of legal right, an opposite
legal claims susceptible of judicial resolution—
it is “definite and concrete, touching the legal
relations of parties having adverse legal
interest,” a real and substantial controversy
admitting of specific relief.—An actual case or
controversy involves a conflict of legal right, an
opposite legal claims susceptible of judicial
resolution. It is “definite and concrete, touching
the legal relations of parties having adverse
legal interest”; a real and substantial
controversy admitting of specific relief. The
Solicitor General refutes the existence of such
actual case or controversy, contending that the
present petitions were rendered “moot and
academic” by President Arroyo’s issuance of
PP 1021.
Same; Same; Same; Same; Same; Moot and
Academic Questions; The “moot and
academic” principle is not a magical formula
that can automatically dissuade the courts in
resolving a case; Courts will decide cases,
otherwise moot and academic, if: first, there is
a grave violation of the Constitution, second,
the exceptional character of the situation and
the paramount public interest is involved, third,
when constitutional issue raised requires
formulation of controlling principles to guide the
bench, the bar, and the public, and fourth, the
case is capable of repetition yet evading
review.—A moot and academic case is one
that ceases to present a justiciable controversy
by virtue of supervening events, so that a
declaration thereon would be of no practical
use or value. Generally, courts decline
jurisdiction over such case or dismiss it on
ground of mootness. The Court holds that
President Arroyo’s issuance of PP 1021 did not
render the present petitions moot and
academic. During the eight (8) days that PP
1017 was operative, the police officers,
according to petitioners, committed illegal acts
in implementing it. Are PP 1017 and G.O. No. 5
constitutional or valid? Do they justify these
alleged illegal acts? These are the vital issues
that must be resolved in the present petitions. It
must be stressed that “an unconstitutional act
is not a law, it confers no rights, it imposes no
duties, it affords no protection; it is in legal
contemplation, inoperative.” The “moot and
academic” principle is not a magical formula
that can automatically dissuade the courts in
resolving a case. Courts will decide cases,
otherwise moot and academic, if: first, there is
a grave violation of the Constitution; second,
the exceptional character of the situation and
the paramount public interest is involved; third,
when constitutional issue raised requires
formulation of controlling principles to guide the
bench, the bar, and the public; and fourth, the
case is capable of repetition yet evading
review.
Same; Same; Same; Same; Same; Locus
Standi; Words and Phrases; Locus standi is
defined as “a right of appearance in a court of
justice on a given question.”—Locus standi is
defined as “a right of appearance in a court of
justice on a given question.” In private suits,
standing is governed by the “real-parties-in
interest” rule as contained in Section 2, Rule 3
of the 1997 Rules of Civil Procedure, as
amended. It provides that “every action must
be prosecuted or defended in the name of the
real party in interest.” Accordingly, the “real-
party-in interest” is “the party who stands to be
benefited or injured by the judgment in the suit
or the party entitled to the avails of the suit.”
Succinctly put, the plaintiff’s standing is based
on his own right to the relief sought.
Same; Same; Same; Same; Same; Same; The
difficulty of determining locus standi arises in
public suits, as here, the plaintiff who asserts a
“public right” in assailing an allegedly illegal
official action, does so as a representative of
the general public.—The difficulty of
determining locus standi arises in public suits.
Here, the plaintiff who asserts a “public right” in
assailing an allegedly illegal official action,
does so as a representative of the general
public. He may be a person who is affected no
differently from any other person. He could be
suing as a “stranger,” or in the category of a
“citizen,” or ‘taxpayer.” In either case, he has to
adequately show that he is entitled to seek
judicial protection. In other words, he has to
make out a sufficient interest in the vindication
of the public order and the securing of relief as
a “citizen” or “taxpayer.
Same; Same; Same; Same; Same; Same;
Taxpayer’s Suits; Citizen’s Suits; The plaintiff in
a taxpayer’s suit is in a different category from
the plaintiff in a citizen’s suit—in the former, the
plaintiff is affected by the expenditure of public
funds, while in the latter, he is but the mere
instrument of the public concern.—Case law in
most jurisdictions now allows both “citizen” and
“taxpayer” standing in public actions. The
distinction was first laid down in Beauchamp v.
Silk, where it was held that the plaintiff in a
taxpayer’s suit is in a different category from
the plaintiff in a citizen’s suit. In the former, the
plaintiff is affected by the expenditure of public
funds, while in the latter, he is but the mere
instrument of the public concern. As held by
the New York Supreme Court in People ex rel
Case v. Collins: “In matter of mere public right,
however . . . the people are the real parties . . .
It is at least the right, if not the duty, of every
citizen to interfere and see that a public offence
be properly pursued and punished, and that a
public grievance be remedied.” With respect to
taxpayer’s suits, Terr v. Jordanheld that “the
right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of
public funds to his injury cannot be denied.”
Same; Same; Same; Same; Same; Same;
Same; Same; “Direct Injury” Test; To prevent
just about any person from seeking judicial
interference in any official policy or act with
which he disagreed with, and thus hinders the
activities of governmental agencies engaged in
public service, the United States Supreme
Court laid down the more stringent “direct
injury” test, which test has been adopted in this
jurisdiction.—To prevent just about any person
from seeking judicial interference in any official
policy or act with which he disagreed with, and
thus hinders the activities of governmental
agencies engaged in public service, the United
States Supreme Court laid down the more
stringent “direct injury” test in Ex Parte Levitt,
later reaffirmed in Tileston v. Ullman. The same
Court ruled that for a private individual to
invoke the judicial power to determine the
validity of an executive or legislative action, he
must show that he has sustained a direct injury
as a result of that action, and it is not sufficient
that he has a general interest common to all
members of the public. This Court adopted the
“direct injury” test in our jurisdiction. In People
v. Vera, 65 Phil. 56 (1937), it held that the
person who impugns the validity of a statute
must have “a personal and substantial interest
in the case such that he has sustained, or will
sustain direct injury as a result.” The Vera
doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate, Manila
Race Horse Trainers’ Association v. De la
Fuente, Pascual v. Secretary of Public Works
and Anti-Chinese League of the Philippines v.
Felix.
Same; Same; Same; Same; Same; Same;
Being a mere procedural technicality, the
requirement of locus standi may be waived by
the Court in the exercise of its discretion, such
as in cases of “transcendental importance,” or
where the issues raised have “far-reaching
implications.”—Being a mere procedural
technicality, the requirement of locus standi
may be waived by the Court in the exercise of
its discretion. This was done in the 1949
Emergency Powers Cases, Araneta v.
Dinglasan, 84 Phil. 368 (1949), where the
“transcendental importance” of the cases
prompted the Court to act liberally. Such
liberality was neither a rarity nor accidental. In
Aquino v. Comelec, 62 SCRA 275 (1975), this
Court resolved to pass upon the issues raised
due to the “far-reaching implications” of the
petition notwithstanding its categorical
statement that petitioner therein had no
personality to file the suit. Indeed, there is a
chain of cases where this liberal policy has
been observed, allowing ordinary citizens,
members of Congress, and civic organizations
to prosecute actions involving the
constitutionality or validity of laws, regulations
and rulings.
Same; Same; Same; Same; Same; Same;
Requisites in order that Taxpayers, Voters,
Concerned Citizens and Legislators may be
Accorded Standing to Sue; Recent decisions
show a certain toughening in the Court’s
attitude toward legal standing.—By way of
summary, the following rules may be culled
from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and
legislators may be accorded standing to sue,
provided that the following requirements are
met: (1) cases involve constitutional issues; (2)
for taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax
measure is unconstitutional; (3) for voters,
there must be a showing of obvious interest in
the validity of the election law in question; (4)
for concerned citizens, there must be a
showing that the issues raised are of
transcendental importance which must be
settled early; and (5) for legislators, there must
be a claim that the official action complained of
infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain
toughening in the Court’s attitude toward legal
standing.
Same; Same; Same; Same; Same; Same; It is
in the interest of justice that those affected by
Presidential Proclamation (PP) 1017 can be
represented by their Congressmen in bringing
to the attention of the Court the alleged
violations of their basic rights.—In G.R. No.
171485, the opposition Congressmen alleged
there was usurpation of legislative powers.
They also raised the issue of whether or not
the concurrence of Congress is necessary
whenever the alarming powers incident to
Martial Law are used. Moreover, it is in the
interest of justice that those affected by PP
1017 can be represented by their
Congressmen in bringing to the attention of the
Court the alleged violations of their basic rights.
Same; Same; Same; Same; Same; Same;
When the issue concerns a public right, it is
sufficient that the petitioner is a citizen and has
an interest in the execution of the laws.—In
G.R. No. 171400, (ALGI), this Court applied the
liberality rule in Philconsa v. Enriquez, 235
SCRA 506 (1994), Kapatiran Ng Mga
Naglilingkod sa Pamahalaan ng Pilipinas, Inc.
v. Tan, Association of Small Landowners in the
Philippines, Inc. v. Secretary of Agrarian
Reform, Basco v. Philippine Amusement and
Gaming Corporation, 197 SCRA 52 (1991),
and Tañada v. Tuvera, 136 SCRA 27 (1985),
that when the issue concerns a public right, it is
sufficient that the petitioner is a citizen and has
an interest in the execution of the laws.
Same; Same; Same; Same; Same; Same;
Organizations may be granted standing to
assert the rights of their members.—In G.R.
No. 171483, KMU’s assertion that PP 1017 and
G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it
legal standing. Organizations may be granted
standing to assert the rights of their members.
We take judicial notice of the announcement by
the Office of the President banning all rallies
and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O.
No. 5.
Same; Same; Same; Same; Same; Same;
National officers of the Integrated Bar of the
Philippines (IBP) have no legal standing where
they failed to allege any direct or potential
injury which the IBP as an institution or its
members may suffer as a consequence of the
issuance of PP 1017 and G.O. No. 5.—In G.R.
No. 171489, petitioners, Cadiz, et al., who are
national officers of the Integrated Bar of the
Philippines (IBP) have no legal standing,
having failed to allege any direct or potential
injury which the IBP as an institution or its
members may suffer as a consequence of the
issuance of PP No. 1017 and G.O. No. 5. In
Integrated Bar of the Philippines v. Zamora,
338 SCRA 81 (2000), the Court held that the
mere invocation by the IBP of its duty to
preserve the rule of law and nothing more,
while undoubtedly true, is not sufficient to
clothe it with standing in this case. This is too
general an interest which is shared by other
groups and the whole citizenry. However, in
view of the transcendental importance of the
issue, this Court declares that petitioner have
locus standi.
Same; Same; Same; Same; Same; Same; The
claim of a petitioner that she is a media
personality does not aid her where there is no
showing that the enforcement of the issuances
in question prevented her from pursuing her
occupation, and neither does her submission
that she has a pending electoral protest before
the Presidential Electoral Tribunal have any
relevance where she has not sufficiently shown
that PP 1017 will affect the proceedings or
result of her case.—In G.R. No. 171424, Loren
Legarda has no personality as a taxpayer to file
the instant petition as there are no allegations
of illegal disbursement of public funds. The fact
that she is a former Senator is of no
consequence. She can no longer sue as a
legislator on the allegation that her
prerogatives as a lawmaker have been
impaired by PP 1017 and G.O. No. 5. Her
claim that she is a media personality will not
likewise aid her because there was no showing
that the enforcement of these issuances
prevented her from pursuing her occupation.
Her submission that she has pending electoral
protest before the Presidential Electoral
Tribunal is likewise of no relevance. She has
not sufficiently shown that PP 1017 will affect
the proceedings or result of her case. But
considering once more the transcendental
importance of the issue involved, this Court
may relax the standing rules.
Same; Same; Same; Presidency; Parties; It is
not proper to implead President Arroyo as
respondent—settled is the doctrine that the
President, during his tenure of office or actual
incumbency, may not be sued in any civil or
criminal case, and there is no need to provide
for it in the Constitution or law; It will degrade
the dignity of the high office of the President,
the Head of State, if he can be dragged into
court litigations while serving as such.—It is not
proper to implead President Arroyo as
respondent. Settled is the doctrine that the
President, during his tenure of office or actual
incumbency, may not be sued in any civil or
criminal case, and there is no need to provide
for it in the Constitution or law. It will degrade
the dignity of the high office of the President,
the Head of State, if he can be dragged into
court litigations while serving as such.
Furthermore, it is important that he be freed
from any form of harassment, hindrance or
distraction to enable him to fully attend to the
performance of his official duties and functions.
Unlike the legislative and judicial branch, only
one constitutes the executive branch and
anything which impairs his usefulness in the
discharge of the many great and important
duties imposed upon him by the Constitution
necessarily impairs the operation of the
Government. However, this does not mean that
the President is not accountable to anyone.
Like any other official, he remains accountable
to the people but he may be removed from
office only in the mode provided by law and
that is by impeachment.
Presidency; Calling-Out Power; Declaration of
State of National Emergency; Petitioners failed
to show that President Arroyo’s exercise of the
calling-out power, by issuing PP 1017, is totally
bereft of factual basis.—As to how the Court
may inquire into the President’s exercise of
power, Lansang adopted the test that “judicial
inquiry can go no further than to satisfy the
Court not that the President’s decision is
correct,” but that “the President did not act
arbitrarily.” Thus, the standard laid down is not
correctness, but arbitrariness. In Integrated Bar
of the Philippines, this Court further ruled that
“it is incumbent upon the petitioner to show that
the President’s decision is totally bereft of
factual basis” and that if he fails, by way of
proof, to support his assertion, then “this Court
cannot undertake an independent investigation
beyond the pleadings.” Petitioners failed to
show that President Arroyo’s exercise of the
calling-out power, by issuing PP 1017, is totally
bereft of factual basis. A reading of the Solicitor
General’s Consolidated Comment and
Memorandum shows a detailed narration of the
events leading to the issuance of PP 1017, with
supporting reports forming part of the records.
Mentioned are the escape of the Magdalo
Group, their audacious threat of the Magdalo
D-Day, the defections in the military,
particularly in the Philippine Marines, and the
reproving statements from the communist
leaders. There was also the Minutes of the
Intelligence Report and Security Group of the
Philippine Army showing the growing alliance
between the NPA and the military. Petitioners
presented nothing to refute such events. Thus,
absent any contrary allegations, the Court is
convinced that the President was justified in
issuing PP 1017 calling for military aid.
Same; Same; Same; In times of emergency,
our Constitution reasonably demands that we
repose a certain amount of faith in the basic
integrity and wisdom of the Chief Executive
but, at the same time, it obliges him to operate
within carefully prescribed procedural
limitations.—In the final analysis, the various
approaches to emergency of the above political
theorists—from Lock’s “theory of prerogative,”
to Watkins’ doctrine of “constitutional
dictatorship” and, eventually, to McIlwain’s
“principle of constitutionalism”—ultimately aim
to solve one real problem in emergency
governance, i.e., that of allotting increasing
areas of discretionary power to the Chief
Executive, while insuring that such powers will
be exercised with a sense of political
responsibility and under effective limitations
and checks. Our Constitution has fairly coped
with this problem. Fresh from the fetters of a
repressive regime, the 1986 Constitutional
Commission, in drafting the 1987 Constitution,
endeavored to create a government in the
concept of Justice Jackson’s “balanced power
structure.” Executive, legislative, and judicial
powers are dispersed to the President, the
Congress, and the Supreme Court,
respectively. Each is supreme within its own
sphere. But none has the monopoly of power in
times of emergency. Each branch is given a
role to serve as limitation or check upon the
other. This system does not weaken the
President, it just limits his power, using the
language of McIlwain. In other words, in times
of emergency, our Constitution reasonably
demands that we repose a certain amount of
faith in the basic integrity and wisdom of the
Chief Executive but, at the same time, it
obliges him to operate within carefully
prescribed procedural limitations.
Same; Same; Same; Freedom of Expression;
Facial Challenges; Overbreadth Doctrine; The
overbreadth doctrine is an analytical tool
developed for testing “on their faces” statutes
in free speech cases, also known under the
American Law as First Amendment cases; A
plain reading of PP 1017 shows that it is not
primarily directed to speech or even speech-
related conduct—it is actually a call upon the
AFP to prevent or suppress all forms of lawless
violence.—A facial review of PP 1017, using
the overbreadth doctrine, is uncalled for. First
and foremost, the overbreadth doctrine is an
analytical tool developed for testing “on their
faces” statutes in free speech cases, also
known under the American Law as First
Amendment cases. A plain reading of PP 1017
shows that it is not primarily directed to speech
or even speech-related conduct. It is actually a
call upon the AFP to prevent or suppress all
forms of lawless violence. In United States v.
Salerno, the US Supreme Court held that “we
have not recognized an ‘overbreadth’ doctrine
outside the limited context of the First
Amendment” (freedom of speech).
Same; Same; Same; Same; Same; Same; The
overbreadth doctrine is not intended for testing
the validity of a law that “reflects legitimate
state interest in maintaining comprehensive
control over harmful, constitutionally
unprotected conduct”—“overbreadth claims, if
entertained at all, have been curtailed when
invoked against ordinary criminal laws that are
sought to be applied to protected conduct.”—
The overbreadth doctrine is not intended for
testing the validity of a law that “reflects
legitimate state interest in maintaining
comprehensive control over harmful,
constitutionally unprotected conduct.”
Undoubtedly, lawless violence, insurrection
and rebellion are considered “harmful” and
“constitutionally unprotected conduct.” In
Broadrick v. Oklahoma, it was held: It remains
a ‘matter of no little difficulty’ to determine
when a law may properly be held void on its
face and when ‘such summary action’ is
inappropriate. But the plain import of our cases
is, at the very least, that facial overbreadth
adjudication is an exception to our traditional
rules of practice and that its function, a limited
one at the outset, attenuates as the otherwise
unprotected behavior that it forbids the State to
sanction moves from ‘pure speech’ toward
conduct and that conduct—even if
expressive—falls within the scope of otherwise
valid criminal laws that reflect legitimate state
interests in maintaining comprehensive
controls over harmful, constitutionally
unprotected conduct. Thus, claims of facial
overbreadth are entertained in cases involving
statutes which, by their terms, seek to regulate
only “spoken words” and again, that
“overbreadth claims, if entertained at all, have
been curtailed when invoked against ordinary
criminal laws that are sought to be applied to
protected conduct.” Here, the incontrovertible
fact remains that PP 1017 pertains to a
spectrum of conduct, not free speech, which is
manifestly subject to state regulation.
Same; Same; Same; Same; Same; Same;
Facial invalidation of laws is considered as
“manifestly strong medicine,” to be used
“sparingly and only as a last resort,” and is
“generally disfavored.”—Facial invalidation of
laws is considered as “manifestly strong
medicine,” to be used “sparingly and only as a
last resort,” and is “generally disfavored”; The
reason for this is obvious. Embedded in the
traditional rules governing constitutional
adjudication is the principle that a person to
whom a law may be applied will not be heard to
challenge a law on the ground that it may
conceivably be applied unconstitutionally to
others, i.e., in other situations not before the
Court. A writer and scholar in Constitutional
Law explains further: The most distinctive
feature of the overbreadth technique is that it
marks an exception to some of the usual rules
of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is
unconstitutional as applied to him or her; if the
litigant prevails, the courts carve away the
unconstitutional aspects of the law by
invalidating its improper applications on a case
to case basis. Moreover, challengers to a law
are not permitted to raise the rights of third
parties and can only assert their own interests.
In overbreadth analysis, those rules give way;
challenges are permitted to raise the rights of
third parties; and the court invalidates the
entire statute “on its face,” not merely “as
applied for” so that the overbroad law becomes
unenforceable until a properly authorized court
construes it more narrowly. The factor that
motivates courts to depart from the normal
adjudicatory rules is the concern with the
“chilling;” deterrent effect of the overbroad
statute on third parties not courageous enough
to bring suit. The Court assumes that an
overbroad law’s “very existence may cause
others not before the court to refrain from
constitutionally protected speech or
expression.” An overbreadth ruling is designed
to remove that deterrent effect on the speech
of those third parties.
Same; Same; Same; Same; Same; Same;
“Void for Vagueness” Doctrine; Related to the
“overbreadth” doctrine is the “void for
vagueness doctrine” which holds that “a law is
facially invalid if men of common intelligence
must necessarily guess at its meaning and
differ as to its application,” and like
overbreadth, it is said that a litigant may
challenge a statute on its face only if it is vague
in all its possible applications.—Petitioners
likewise seek a facial review of PP 1017 on the
ground of vagueness. This, too, is
unwarranted. Related to the “overbreadth”
doctrine is the “void for vagueness doctrine”
which holds that “a law is facially invalid if men
of common intelligence must necessarily guess
at its meaning and differ as to its application.” It
is subject to the same principles governing
overbreadth doctrine. For one, it is also an
analytical tool for testing “on their faces”
statutes in free speech cases. And like
overbreadth, it is said that a litigant may
challenge a statute on its face only if it is vague
in all its possible applications. Again,
petitioners did not even attempt to show that
PP 1017 is vague in all its application. They
also failed to establish that men of common
intelligence cannot understand the meaning
and application of PP 1017. Same; Same;
Same; Under the calling-out power, the
President may summon the armed forces to aid
him in suppressing lawless violence, invasion
and rebellion.—Under the calling-out power,
the President may summon the armed forces
to aid him in suppressing lawless violence,
invasion and rebellion. This involves ordinary
police action. But every act that goes beyond
the President’s calling-out power is considered
illegal or ultra vires. For this reason, a
President must be careful in the exercise of his
powers. He cannot invoke a greater power
when he wishes to act under a lesser power.
There lies the wisdom of our Constitution, the
greater the power, the greater are the
limitations.
Same; Same; Same; In declaring a state of
national emergency, President Arroyo did not
only rely on Section 18, Article VII of the
Constitution, a provision calling on the AFP to
prevent or suppress lawless violence, invasion
or rebellion but also relied on Section 17,
Article XII, a provision on the State’s
extraordinary power to take over privately-
owned public utility and business affected with
public interest—indeed, PP 1017 calls for the
exercise of an awesome power.—President
Arroyo’s declaration of a “state of rebellion”
was merely an act declaring a status or
condition of public moment or interest, a
declaration allowed under Section 4 cited
above. Such declaration, in the words of
Sanlakas, is harmless, without legal
significance, and deemed not written. In these
cases, PP 1017 is more than that. In declaring
a state of national emergency, President
Arroyo did not only rely on Section 18, Article
VII of the Constitution, a provision calling on
the AFP to prevent or suppress lawless
violence, invasion or rebellion. She also relied
on Section 17, Article XII, a provision on the
State’s extraordinary power to take over
privately-owned public utility and business
affected with public interest. Indeed, PP 1017
calls for the exercise of an awesome power.
Obviously, such Proclamation cannot be
deemed harmless, without legal significance, or
not written, as in the case of Sanlakas.
Same; Same; Same; Martial Law; PP 1017 is
not a declaration of Martial Law—it is plain
therein that what the President invoked was
her calling-out power.—Some of the petitioners
vehemently maintain that PP 1017 is actually a
declaration of Martial Law. It is no so. What
defines the character of PP 1017 are its
wordings. It is plain therein that what the
President invoked was her calling-out power.
The declaration of Martial Law is a “warn[ing] to
citizens that the military power has been called
upon by the executive to assist in the
maintenance of law and order, and that, while
the emergency lasts, they must, upon pain of
arrest and punishment, not commit any acts
which will in any way render more difficult the
restoration of order and the enforcement of
law.”
Same; Same; Same; Same; A reading of PP
1017 operative clause shows that it was lifted
from Former President Marcos’ Proclamation
No. 1081; We all know that it was PP 1081
which granted President Marcos legislative
powers.—A reading of PP 1017 operative
clause shows that it was lifted from Former
President Marcos’ Proclamation No. 1081,
which partly reads: NOW, THEREFORE, I,
FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon
me by Article VII, Section 10, Paragraph (2) of
the Constitution, do hereby place the entire
Philippines as defined in Article 1, Section 1 of
the Constitution under martial law and, in my
capacity as their Commander-in-Chief, do
hereby command the Armed Forces of the
Philippines, to maintain law and order
throughout the Philippines, prevent or suppress
all forms of lawless violence as well as any act
of insurrection or rebellion and to enforce
obedience to all the laws and decrees, orders
and regulations promulgated by me personally
or upon my direction. We all know that it was
PP 1081 which granted President Marcos
legislative power. Its enabling clause states: “to
enforce obedience to all the laws and decrees,
orders and regulations promulgated by me
personally or upon my direction.” Upon the
other hand, the enabling clause of PP 1017
issued by President Arroyo is: to enforce
obedience to all the laws and to all decrees,
orders and regulations promulgated by me
personally or upon my direction.”
Same; Same; Same; Presidential Decrees;
President Arroyo’s ordinance power is limited
to Executive Orders, Administrative Orders,
Proclamations, Memorandum Orders,
Memorandum Circulars, and General or
Special Orders—she cannot issue decrees
similar to those issued by Former President
Marcos under PP 1081.—The President is
granted an Ordinance Power under Chapter 2,
Book III of Executive Order No. 292
(Administrative Code of 1987). She may issue
any of the following: Sec. 2. Executive
Orders.—Acts of the President providing for
rules of a general or permanent character in
implementation or execution of constitutional or
statutory powers shall be promulgated in
executive orders. Sec. 3. Administrative
Orders.—Acts of the President which relate to
particular aspect of governmental operations in
pursuance of his duties as administrative head
shall be promulgated in administrative orders.
Sec. 4. Proclamations.—Acts of the President
fixing a date or declaring a status or condition
of public moment or interest, upon the
existence of which the operation of a specific
law or regulation is made to depend, shall be
promulgated in proclamations which shall have
the force of an executive order. Sec. 5.
Memorandum Orders.—Acts of the President
on matters of administrative detail or of
subordinate or temporary interest which only
concern a particular officer or office of the
Government shall be embodied in
memorandum orders. Sec. 6. Memorandum
Circulars.—Acts of the President on matters
relating to internal administration, which the
President desires to bring to the attention of all
or some of the departments, agencies, bureaus
or offices of the Government, for information or
compliance, shall be embodied in
memorandum circulars. Sec. 7. General or
Special Orders.—Acts and commands of the
President in his capacity as Commander-in-
Chief of the Armed Forces of the Philippines
shall be issued as general or special orders.
President Arroyo’s ordinance power is limited
to the foregoing issuances. She cannot issue
decrees similar to those issued by Former
President Marcos under PP 1081. Presidential
Decrees are laws which are of the same
category and binding force as statutes because
they were issued by the President in the
exercise of his legislative power during the
period of Martial Law under the 1973
Constitution.
Same; Same; Same; Same; PP 1017 is
unconstitutional insofar as it grants President
Arroyo the authority to promulgate “decrees.”—
This Court rules that the assailed PP 1017 is
unconstitutional insofar as it grants President
Arroyo the authority to promulgate “decrees.”
Legislative power is peculiarly within the
province of the Legislature. Section 1, Article VI
categorically states that “[t]he legislative power
shall be vested in the Congress of the
Philippines which shall consist of a Senate and
a House of Representatives.” To be sure,
neither Martial Law nor a state of rebellion nor
a state of emergency can justify President
Arroyo’s exercise of legislative power by
issuing decrees.
Same; Same; Same; Same; With respect to
“laws,” President Arroyo cannot call the military
to enforce or implement certain laws, such as
customs laws, laws governing family and
property relations, laws on obligations and
contracts and the like—she can only order the
military, under PP 1017, to enforce laws
pertinent to its duty to suppress lawless
violence.—As this Court stated earlier,
President Arroyo has no authority to enact
decrees. It follows that these decrees are void
and, therefore, cannot be enforced. With
respect to “laws,” she cannot call the military to
enforce or implement certain laws, such as
customs laws, laws governing family and
property relations, laws on obligations and
contracts and the like. She can only order the
military, under PP 1017, to enforce laws
pertinent to its duty to suppress lawless
violence.
Same; Same; Same; President Arroyo could
validly declare the existence of a state of
national emergency even in the absence of a
Congressional enactment but the exercise of
emergency powers, such as the taking over of
privately owned public utility or business
affected with public interest, is a different
matter.—It may be pointed out that the second
paragraph of the above provision refers not
only to war but also to “other national
emergency.” If the intention of the Framers of
our Constitution was to withhold from the
President the authority to declare a “state of
national emergency” pursuant to Section 18,
Article VII (calling-out power) and grant it to
Congress (like the declaration of the existence
of a state of war), then the Framers could have
provided so. Clearly, they did not intend that
Congress should first authorize the President
before he can declare a “state of national
emergency.” The logical conclusion then is that
President Arroyo could validly declare the
existence of a state of national emergency
even in the absence of a Congressional
enactment. But the exercise of emergency
powers, such as the taking over of privately
owned public utility or business affected with
public interest, is a different matter. This
requires a delegation from Congress.
Same; Same; Same; Considering that Section
17 of Article XII and Section 23 of Article VI,
previously quoted, relate to national
emergencies, they must be read together to
determine the limitation of the exercise of
emergency powers.—Courts have often said
that constitutional provisions in pari materia are
to be construed together. Otherwise stated,
different clauses, sections, and provisions of a
constitution which relate to the same subject
matter will be construed together and
considered in the light of each other.
Considering that Section 17 of Article XII and
Section 23 of Article VI, previously quoted,
relate to national emergencies, they must be
read together to determine the limitation of the
exercise of emergency powers.
Same; Same; Same; Emergency Powers;
Requisites for Valid Delegation; Generally,
Congress is the repository of emergency
powers.—Generally, Congress is the repository
of emergency powers. This is evident in the
tenor of Section 23 (2), Article VI authorizing it
to delegate such powers to the President.
Certainly, a body cannot delegate a power not
reposed upon it. However, knowing that during
grave emergencies, it may not be possible or
practicable for Congress to meet and exercise
its powers, the Framers of our Constitution
deemed it wise to allow Congress to grant
emergency powers to the President, subject to
certain conditions, thus: (1) There must be a
war or other emergency. (2) The delegation
must be for a limited period only. (3) The
delegation must be subject to such restrictions
as the Congress may prescribe. (4) The
emergency powers must be exercised to carry
out a national policy declared by Congress.
Same; Same; Same; Same; Section 17, Article
XII must be understood as an aspect of the
emergency powers clause, and the taking over
of private business affected with public interest
is just another facet of the emergency powers
generally reposed upon Congress—Section 17
refers to Congress, not the President.—Section
17, Article XII must be understood as an aspect
of the emergency powers clause. The taking
over of private business affected with public
interest is just another facet of the emergency
powers generally reposed upon Congress.
Thus, when Section 17 states that the “the
State may, during the emergency and under
reasonable terms prescribed by it, temporarily
take over or direct the operation of any
privately owned public utility or business
affected with public interest,” it refers to
Congress, not the President. Now, whether or
not the President may exercise such power is
dependent on whether Congress may delegate
it to him pursuant to a law prescribing the
reasonable terms thereof.
Same; Same; Same; Same; Words and
Phrases; Emergency, as a generic term,
connotes the existence of conditions suddenly
intensifying the degree of existing danger to life
or well-being beyond that which is accepted as
normal—implicit in this definitions are the
elements of intensity, variety, and perception;
Emergencies, as perceived by legislature or
executive in the United States since 1933,
have been occasioned by a wide range of
situations, classifiable under three (3) principal
heads: a) economic, b) natural disaster, and c)
national security; “Emergency,” as
contemplated in our Constitution, may include
rebellion, economic crisis, pestilence or
epidemic, typhoon, flood, or other similar
catastrophe of nationwide proportions or
effect.—Petitioner Cacho-Olivares, et al.
contends that the term “emergency” under
Section 17, Article XII refers to “tsunami,”
“typhoon,” “hurricane” and “similar
occurrences.” This is a limited view of
“emergency.” Emergency, as a generic term,
connotes the existence of conditions suddenly
intensifying the degree of existing danger to life
or well-being beyond that which is accepted as
normal. Implicit in this definitions are the
elements of intensity, variety, and perception.
Emergencies, as perceived by legislature or
executive in the United States since 1933,
have been occasioned by a wide range of
situations, classifiable under three (3) principal
heads: a) economic, b) natural disaster, and c)
national security. “Emergency,” as
contemplated in our Constitution, is of the
same breadth. It may include rebellion,
economic crisis, pestilence or epidemic,
typhoon, flood, or other similar catastrophe of
nationwide proportions or effect.
Same; Same; Same; Same; While the
President alone can declare a state of national
emergency, however, without legislation, he
has no power to take over privately-owned
public utility or business affected with public
interest.—Following our interpretation of
Section 17, Article XII, invoked by President
Arroyo in issuing PP 1017, this Court rules that
such Proclamation does not authorize her
during the emergency to temporarily take over
or direct the operation of any privately owned
public utility or business affected with public
interest without authority from Congress. Let it
be emphasized that while the President alone
can declare a state of national emergency,
however, without legislation, he has no power
to take over privately-owned public utility or
business affected with public interest. The
President cannot decide whether exceptional
circumstances exist warranting the take over of
privately-owned public utility or business
affected with public interest. Nor can he
determine when such exceptional
circumstances have ceased. Likewise, without
legislation, the President has no power to point
out the types of businesses affected with public
interest that should be taken over. In short, the
President has no absolute authority to exercise
all the powers of the State under Section 17,
Article VII in the absence of an emergency
powers act passed by Congress.
Same; Same; Same; Same; One of the
misfortunes of an emergency, particularly, that
which pertains to security, is that military
necessity and the guaranteed rights of the
individual are often not compatible.—One of
the misfortunes of an emergency, particularly,
that which pertains to security, is that military
necessity and the guaranteed rights of the
individual are often not compatible. Our history
reveals that in the crucible of conflict, many
rights are curtailed and trampled upon. Here,
the right against unreasonable search and
seizure; the right against warrantless arrest;
and the freedom of speech, of expression, of
the press, and of assembly under the Bill of
Rights suffered the greatest blow.
Same; Same; Same; Judicial Review; Courts
are not at liberty to declare statutes invalid
although they may be abused and misabused
and may afford an opportunity for abuse in the
manner of application—the validity of a statute
or ordinance is to be determined from its
general purpose and its efficiency to
accomplish the end desired, not from its effects
in a particular case.—Settled is the rule that
courts are not at liberty to declare statutes
invalid although they may be abused and
misabused and may afford an opportunity for
abuse in the manner of application. The validity
of a statute or ordinance is to be determined
from its general purpose and its efficiency to
accomplish the end desired, not from its effects
in a particular case. PP 1017 is merely an
invocation of the President’s calling-out power.
Its general purpose is to command the AFP to
suppress all forms of lawless violence, invasion
or rebellion. It had accomplished the end
desired which prompted President Arroyo to
issue PP 1021. But there is nothing in PP 1017
allowing the police, expressly or impliedly, to
conduct illegal arrest, search or violate the
citizens’ constitutional rights. Now, may this
Court adjudge a law or ordinance
unconstitutional on the ground that its
implementor committed illegal acts? The
answer is no. The criterion by which the validity
of the statute or ordinance is to be measured is
the essential basis for the exercise of power,
and not a mere incidental result arising from its
exertion. This is logical. Just imagine the
absurdity of situations when laws maybe
declared unconstitutional just because the
officers implementing them have acted
arbitrarily. If this were so, judging from the
blunders committed by policemen in the cases
passed upon by the Court, majority of the
provisions of the Revised Penal Code would
have been declared unconstitutional a long
time ago.
Same; Same; Same; General orders are “acts
and commands of the President in his capacity
as Commander-in-Chief of the Armed Forces
of the Philippines”—they are internal rules
issued by the executive officer to his
subordinates precisely for the proper and
efficient administration of law.—President
Arroyo issued G.O. No. 5 to carry into effect
the provisions of PP 1017. General orders are
“acts and commands of the President in his
capacity as Commander-in-Chief of the Armed
Forces of the Philippines.” They are internal
rules issued by the executive officer to his
subordinates precisely for the proper and
efficient administration of law. Such rules and
regulations create no relation except between
the official who issues them and the official
who receives them. They are based on and are
the product of, a relationship in which power is
their source, and obedience, their object. For
these reasons, one requirement for these rules
to be valid is that they must be reasonable, not
arbitrary or capricious. G.O. No. 5 mandates
the AFP and the PNP to immediately carry out
the “necessary and appropriate actions and
measures to suppress and prevent acts of
terrorism and lawless violence.”
Same; Same; Same; Searches and Seizures;
The plain import of the language of the
Constitution is that searches, seizures and
arrests are normally unreasonable unless
authorized by a validly issued search warrant
or warrant of arrest.—The Constitution
provides that “the right of the people to be
secured in their persons, houses, papers and
effects against unreasonable search and
seizure of whatever nature and for any purpose
shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon
probable cause to be determined personally by
the judge after examination under oath or
affirmation of the complainant and the
witnesses he may produce, and particularly
describing the place to be searched and the
persons or things to be seized.”The plain
import of the language of the Constitution is
that searches, seizures and arrests are
normally unreasonable unless authorized by a
validly issued search warrant or warrant of
arrest. Thus, the fundamental protection given
by this provision is that between person and
police must stand the protective authority of a
magistrate clothed with power to issue or
refuse to issue search warrants or warrants of
arrest.
Same; Same; Same; Right of Assembly; Words
and Phrases; “Assembly” means a right on the
part of the citizens to meet peaceably for
consultation in respect to public affairs—it is a
necessary consequence of our republican
institution and complements the right of
speech; The right of the people to peaceably
assemble is not to be limited, much less
denied, except on a showing of a clear and
present danger of a substantive evil that
Congress has a right to prevent.—”Assembly”
means a right on the part of the citizens to
meet peaceably for consultation in respect to
public affairs. It is a necessary consequence of
our republican institution and complements the
right of speech. As in the case of freedom of
expression, this right is not to be limited, much
less denied, except on a showing of a clear
and present danger of a substantive evil that
Congress has a right to prevent. In other
words, like other rights embraced in the
freedom of expression, the right to assemble is
not subject to previous restraint or censorship.
It may not be conditioned upon the prior
issuance of a permit or authorization from the
government authorities except, of course, if the
assembly is intended to be held in a public
place, a permit for the use of such place, and
not for the assembly itself, may be validly
required.
Same; Same; Same; Same; Peaceable
assembly cannot be made a crime.—The
ringing truth here is that petitioner David, et al.
were arrested while they were exercising their
right to peaceful assembly. They were not
committing any crime, neither was there a
showing of a clear and present danger that
warranted the limitation of that right. As can be
gleaned from circumstances, the charges of
inciting to sedition and violation of BP 880 were
mere afterthought. Even the Solicitor General,
during the oral argument, failed to justify the
arresting officers’ conduct. In De Jonge v.
Oregon, it was held that peaceable assembly
cannot be made a crime, thus: Peaceable
assembly for lawful discussion cannot be made
a crime. The holding of meetings for peaceable
political action cannot be proscribed. Those
who assist in the conduct of such meetings
cannot be branded as criminals on that score.
The question, if the rights of free speech and
peaceful assembly are not to be preserved, is
not as to the auspices under which the meeting
was held but as to its purpose; not as to the
relations of the speakers, but whether their
utterances transcend the bounds of the
freedom of speech which the Constitution
protects. If the persons assembling have
committed crimes elsewhere, if they have
formed or are engaged in a conspiracy against
the public peace and order, they may be
prosecuted for their conspiracy or other
violations of valid laws. But it is a different
matter when the State, instead of prosecuting
them for such offenses, seizes upon mere
participation in a peaceable assembly and a
lawful public discussion as the basis for a
criminal charge.
Same; Same; Same; Same; The wholesale
cancellation of all permits to rally is a blatant
disregard of the principle that “freedom of
assembly is not to be limited, much less
denied, except on a showing of a clear and
present danger of a substantive evil that the
State has a right to prevent”—tolerance is the
rule and limitation is the exception.—On the
basis of the above principles, the Court
likewise considers the dispersal and arrest of
the members of KMU, et al. (G.R. No. 171483)
unwarranted. Apparently, their dispersal was
done merely on the basis of Malacañang’s
directive canceling all permits previously issued
by local government units. This is arbitrary. The
wholesale cancellation of all permits to rally is a
blatant disregard of the principle that “freedom
of assembly is not to be limited, much less
denied, except on a showing of a clear and
present danger of a substantive evil that the
State has a right to prevent.” Tolerance is the
rule and limitation is the exception. Only upon a
showing that an assembly presents a clear and
present danger that the State may deny the
citizens’ right to exercise it. Indeed,
respondents failed to show or convince the
Court that the rallyists committed acts
amounting to lawless violence, invasion or
rebellion. With the blanket revocation of
permits, the distinction between protected and
unprotected assemblies was eliminated.
Same; Same; Same; Same; Under BP 880, the
authority to regulate assemblies and rallies is
lodged with the local government units; When a
person’s right is restricted by government
action, it behooves a democratic government to
see to it that the restriction is fair, reasonable,
and according to procedure.—Under BP 880,
the authority to regulate assemblies and rallies
is lodged with the local government units. They
have the power to issue permits and to revoke
such permits after due notice and hearing on
the determination of the presence of clear and
present danger. Here, petitioners were not
even notified and heard on the revocation of
their permits.
The first time they learned of it was at the time
of the dispersal. Such absence of notice is a
fatal defect. When a person’s right is restricted
by government action, it behooves a
democratic government to see to it that the
restriction is fair, reasonable, and according to
procedure.
Same; Same; Same; Searches and Seizures;
The warrantless search of the Daily Tribune’s
offices is illegal.—G.R. No. 171409, (Cacho-
Olivares, et al.) presents another facet of
freedom of speech i.e., the freedom of the
press. Petitioners’ narration of facts, which the
Solicitor General failed to refute, established
the following: first, the Daily Tribune’s offices
were searched without warrant; second, the
police operatives seized several materials for
publication; third, the search was conducted at
about 1:00 o’ clock in the morning of February
25, 2006; fourth, the search was conducted in
the absence of any official of the Daily Tribune
except the security guard of the building; and
fifth, policemen stationed themselves at the
vicinity of the Daily Tribune offices. x x x The
search is illegal. Rule 126 of The Revised
Rules on Criminal Procedure lays down the
steps in the conduct of search and seizure.
Section 4 requires that a search warrant be
issued upon probable cause in connection with
one specific offence to be determined
personally by the judge after examination
under oath or affirmation of the complainant
and the witnesses he may produce. Section 8
mandates that the search of a house, room, or
any other premise be made in the presence of
the lawful occupant thereof or any member of
his family or in the absence of the latter, in the
presence of two (2) witnesses of sufficient age
and discretion residing in the same locality.
And Section 9 states that the warrant must
direct that it be served in the daytime, unless
the property is on the person or in the place
ordered to be searched, in which case a
direction may be inserted that it be served at
any time of the day or night. All these rules
were violated by the CIDG operatives.
Same; Same; Same; Same; Freedom of the
Press; The search of the Daily Tribune’s offices
also violated freedom of the press; The best
gauge of a free and democratic society rests in
the degree of freedom enjoyed by its media.—
The search violated petitioners’ freedom of the
press. The best gauge of a free and democratic
society rests in the degree of freedom enjoyed
by its media. In the Burgos v. Chief of Staff this
Court held that—As heretofore stated, the
premises searched were the business and
printing offices of the “Metropolitan Mail” and
the “We Forum” newspapers. As a
consequence of the search and seizure, these
premises were padlocked and sealed, with the
further result that the printing and publication of
said newspapers were discontinued. Such
closure is in the nature of previous restraint or
censorship abhorrent to the freedom of the
press guaranteed under the fundamental law,
and constitutes a virtual denial of petitioners’
freedom to express themselves in print. This
state of being is patently anathematic to a
democratic framework where a free, alert and
even militant press is essential for the political
enlightenment and growth of the citizenry.
Same; Same; Same; Same; Same; The search
and seizure of materials for publication, the
stationing of policemen in the vicinity of the The
Daily Tribune offices, and the arrogant warning
of government officials to media, are plain
censorship—it is that officious functionary of
the repressive government who tells the citizen
that he may speak only if allowed to do so, and
no more and no less than what he is permitted
to say on pain of punishment should he be so
rash as to disobey; The Supreme Court cannot
tolerate the blatant disregard of a constitutional
right even if it involves the most defiant of our
citizens—freedom to comment on public affairs
is essential to the vitality of a representative
democracy.—While admittedly, the Daily
Tribune was not padlocked and sealed like the
“Metropolitan Mail” and “We Forum”
newspapers in the above case, yet it cannot be
denied that the CIDG operatives exceeded
their enforcement duties. The search and
seizure of materials for publication, the
stationing of policemen in the vicinity of the The
Daily Tribune offices, and the arrogant warning
of government officials to media, are plain
censorship. It is that officious functionary of the
repressive government who tells the citizen
that he may speak only if allowed to do so, and
no more and no less than what he is permitted
to say on pain of punishment should he be so
rash as to disobey.Undoubtedly, the The Daily
Tribune was subjected to these arbitrary
intrusions because of its anti-government
sentiments. This Court cannot tolerate the
blatant disregard of a constitutional right even if
it involves the most defiant of our citizens.
Freedom to comment on public affairs is
essential to the vitality of a representative
democracy. It is the duty of the courts to be
watchful for the constitutional rights of the
citizen, and against any stealthy
encroachments thereon. The motto should
always be obsta principiis.
Same; Same; Same; PP 1017 is constitutional
insofar as it constitutes a call by the President
for the AFP to prevent or suppress lawless
violence but PP 1017’s extraneous provisions
giving the President express or implied power
(1) to issue decrees, (2) to direct the AFP to
enforce obedience to all laws even those not
related to lawless violence as well as decrees
promulgated by the President, and (3) to
impose standards on media or any form of prior
restraint on the press, are ultra vires and
unconstitutional.—The Court finds and so holds
that PP 1017 is constitutional insofar as it
constitutes a call by the President for the AFP
to prevent or suppress lawless violence. The
proclamation is sustained by Section 18, Article
VII of the Constitution and the relevant
jurisprudence discussed earlier. However, PP
1017’s extraneous provisions giving the
President express or implied power (1) to issue
decrees; (2) to direct the AFP to enforce
obedience to all laws even those not related to
lawless violence as well as decrees
promulgated by the President; and (3) to
impose standards on media or any form of prior
restraint on the press, are ultra vires and
unconstitutional. The Court also rules that
under Section 17, Article XII of the Constitution,
the President, in the absence of a legislation,
cannot take over privately-owned public utility
and private business affected with public
interest.
Same; Same; Same; Words and Phrases; The
words “acts of terrorism” found in G.O. No. 5
have not been legally defined and made
punishable by Congress and should thus be
deemed deleted from the said G.O.—The
Court finds G.O. No. 5 valid. It is an Order
issued by the President—acting as
Commander-in-Chief—addressed to subalterns
in the AFP to carry out the provisions of PP
1017. Significantly, it also provides a valid
standard—that the military and the police
should take only the “necessary and
appropriate actions and measures to suppress
and prevent acts of lawless violence.” But the
words “acts of terrorism” found in G.O. No. 5
have not been legally defined and made
punishable by Congress and should thus be
deemed deleted from the said G.O. While
“terrorism” has been denounced generally in
media, no law has been enacted to guide the
military, and eventually the courts, to determine
the limits of the AFP’s authority in carrying out
this portion of G.O. No. 5.
Same; Same; Same; It is well to remember that
military power is a means to an end and
substantive civil rights are ends in themselves;
How to give the military the power it needs to
protect the Republic without unnecessarily
trampling individual rights is one of the eternal
balancing tasks of a democratic state; Two vital
principles of constitutionalism: the maintenance
of legal limits to arbitrary power, and, political
responsibility of the government to the
governed.—It is well to remember that military
power is a means to an end and substantive
civil rights are ends in themselves. How to give
the military the power it needs to protect the
Republic without unnecessarily trampling
individual rights is one of the eternal balancing
tasks of a democratic state. During emergency,
governmental action may vary in breadth and
intensity from normal times, yet they should not
be arbitrary as to unduly restrain our people’s
liberty. Perhaps, the vital lesson that we must
learn from the theorists who studied the various
competing political philosophies is that, it is
possible to grant government the authority to
cope with crises without surrendering the two
vital principles of constitutionalism: the
maintenance of legal limits to arbitrary power,
and political responsibility of the government to
the governed.
PANGANIBAN, C.J., Concurring Opinion:
Presidency; Declaration of a State of National
Emergency; Judicial Review; Supreme Court;
Some of those who drafted PP 1017 may be
testing the outer limits of presidential
prerogatives and the perseverance of the
Supreme Court in safeguarding the people’s
constitutionally enshrined liberty.—The Dissent
dismisses all the Petitions, grants no reliefs to
petitioners, and finds nothing wrong with PP
1017. It labels the PP a harmless
pronouncement—“an utter superfluity”—and
denounces the ponencia as an “immodest
show of brawn” that “has imprudently placed
the Court in the business of defanging paper
tigers.” Under this line of thinking, it would be
perfectly legal for the President to reissue PP
1017 under its present language and nuance. I
respectfully disagree. Let us face it. Even
Justice Tinga concedes that under PP 1017,
the police—“to some minds”—“may have flirted
with power.” With due respect, this is a
masterful understatement. PP 1017 may be a
paper tiger, but—to borrow the colorful words
of an erstwhile Asian leader—it has nuclear
teeth that must indeed be defanged. Some of
those who drafted PP 1017 may be testing the
outer limits of presidential prerogatives and the
perseverance of this Court in safeguarding the
people’s constitutionally enshrined liberty. They
are playing with fire, and unless prudently
restrained, they may one day wittingly or
unwittingly burn down the country. History will
never forget, much less forgive, this Court if it
allows such misadventure and refuses to strike
down abuse at its inception. Worse, our people
will surely condemn the misuse of legal hocus
pocus to justify this trifling with constitutional
sanctities.
YNARES-SANTIAGO, J., Concurring Opinion:
Presidency; Declaration of a State of National
Emergency; Section 17, Article XII provision is
not self-executing as to be validly invoked by
the President without congressional
authorization—the President, with all the
powers vested in her by Article VII, cannot
arrogate unto herself the power to take over or
direct the operation of any privately owned
public utility or business affected with public
interest without Congressional authorization.—
The use of the word “State” as well as the
reference to “reasonable terms” under Section
17, Article XII can only pertain to Congress. In
other words, the said provision is not self-
executing as to be validly invoked by the
President without congressional authorization.
The provision merely declares a state
economic policy during times of national
emergency. As such, it cannot be taken to
mean as authorizing the President to exercise
“takeover” powers pursuant to a declaration of
a state of national emergency. The President,
with all the powers vested in her by Article VII,
cannot arrogate unto herself the power to take
over or direct the operation of any privately
owned public utility or business affected with
public interest without Congressional
authorization. To do so would constitute an
ultra vires act on the part of the Chief
Executive, whose powers are limited to the
powers vested in her by Article VII, and cannot
extend to Article XII without the approval of
Congress. Thus, the President’s authority to
act in times of national emergency is still
subject to the limitations expressly prescribed
by Congress. This is a featured component of
the doctrine of separation of powers,
specifically, the principle of checks and
balances as applicable to the political branches
of government, the executive and the
legislature.
Same; Same; Freedom of Speech; We should
bear in mind that in a democracy, constitutional
liberties must always be accorded supreme
importance in the conduct of daily life; It is the
function of speech to free men from the
bondage of irrational fear.—It cannot be
gainsaid that government action to stifle
constitutional liberties guaranteed under the Bill
of Rights cannot be preemptive in meeting any
and all perceived or potential threats to the life
of the nation.
Such threats must be actual, or at least gravely
imminent, to warrant government to take
proper action. To allow government to preempt
the happening of any event would be akin to
“putting the cart before the horse,” in a manner
of speaking. State action is proper only if there
is a clear and present danger of a substantive
evil which the state has a right to prevent. We
should bear in mind that in a democracy,
constitutional liberties must always be
accorded supreme importance in the conduct
of daily life. At the heart of these liberties lies
freedom of speech and thought—not merely in
the propagation of ideas we love, but more
importantly, in the advocacy of ideas we may
oftentimes loathe. As succinctly articulated by
Justice Louis D. Brandeis: Fear of serious
injury cannot alone justify suppression of free
speech and assembly. x x x It is the function of
speech to free men from the bondage of
irrational fears. To justify suppression of free
speech there must be reasonable ground to
believe that the danger apprehended is
imminent. There must be reasonable ground to
believe that the evil to be prevented is a
serious one. x x x But even advocacy of
violation, however reprehensible morally, is not
a justification for denying free speech where
the advocacy falls short of incitement and there
is nothing to indicate that the advocacy would
be immediately acted on. The wide difference
between advocacy and incitement, between
preparation and attempt, between assembling
and conspiracy, must be borne in mind. In
order to support a finding of clear and present
danger it must be shown either that immediate
serious violence was to be expected or was
advocated, or that the past conduct furnished
reason to believe that such advocacy was then
contemplated.
TINGA, J., Dissenting Opinion:
Supreme Court; Judicial Review; The majority,
by its ruling, has imprudently placed the Court
in the business of defanging paper tigers.—I
regret to say that the majority, by its ruling
today, has imprudently placed the Court in the
business of defanging paper tigers. The
immodest show of brawn unfortunately comes
at the expense of an exhibition by the Court of
a fundamental but sophisticated understanding
of the extent and limits of executive powers
and prerogatives, as well as those assigned to
the judicial branch. I agree with the majority on
some points, but I cannot join the majority
opinion, as it proceeds to rule on non-
justiciable issues based on fears that have not
materialized, departing as they do from the
plain language of the challenged issuances to
the extent of second-guessing the Chief
Executive. I respectfully dissent.
Presidency; Calling-Out Power; The “calling-
out” of the police does not derive from the
commander-in-chief clause but from the power
of the President as Chief Executive under
Section 1, Article VII, and the power of
executive control under Section 18, Article
VII.—Insofar as PP 1017 is concerned, the
calling out power is definitely involved, in view
of the directive to the Armed Forces of the
Philippines to “suppress all forms of lawless
violence.” But there are nuances to the calling
out power invoked in PP 1017 which the
majority does not discuss. The directive “to
suppress all forms of lawless violence” is
addressed not only to the Armed Forces but to
the police as well. The “calling out” of the police
does not derive from Section 17, Article VII, or
the commander-in-chief clause, our national
police being civilian in character. Instead, the
calling out of the police is sourced from the
power of the President as Chief Executive
under Section 1, Article VII, and the power of
executive control under Section 18, Article VII.
Moreover, while the permissible scope of
military action is limited to acts in furtherance of
suppressing lawless violence, rebellion,
invasion, the police can be commanded by the
President to execute all laws without distinction
in light of the presidential duty to execute all
laws.
Same; Same; Declaration of a State of National
Emergency; Neither the declaration of a state
of emergency under PP 1017 nor the
invocation of the calling out power therein
authorizes warrantless arrests, searches or
seizures; the infringement of the right to free
expression, peaceable assembly and
association and other constitutional or statutory
rights.—If it cannot be made more clear,
neither the declaration of a state of emergency
under PP 1017 nor the invocation of the calling
out power therein authorizes warrantless
arrests, searches or seizures; the infringement
of the right to free expression, peaceable
assembly and association and other
constitutional or statutory rights. Any public
officer who nonetheless engaged or is
engaging in such extra-constitutional or extra-
legal acts in the name of PP 1017 may be
subjected to the appropriate civil, criminal or
administrative liability.
Same; Same; Same; Unlike in the 1987
Constitution, which was appropriately crafted
with an aversion to the excesses of Marcosian
martial rule, the 1935 Constitution under which
PP 1081 was issued left no intervening
safeguards that tempered or limited the
declaration of martial law.—Let us examine the
differences between PP No. 1081 and PP
1017. First, while PP 1017 merely declared the
existence of a state of rebellion, an act
ultimately observational in character, PP 1081
“placed the entire Philippines under martial
law,” an active implement that, by itself,
substituted civilian governmental authority with
military authority. Unlike in the 1986
Constitution, which was appropriately crafted
with an aversion to the excesses of Marcosian
martial rule, the 1935 Constitution under which
PP 1081 was issued left no intervening
safeguards that tempered or limited the
declaration of martial law. Even the contrast in
the verbs used, “place” as opposed to
“declare,” betrays some significance. To
declare may be simply to acknowledge the
existence of a particular condition, while to
place ineluctably goes beyond mere
acknowledgement, and signifies the imposition
of the actual condition even if it did not exist
before.
Same; Same; Same; Words and Phrases;
“Laws and decrees” in PP 1017 do not relate
only to those promulgated by President Arroyo,
but other laws enacted by past sovereigns,
whether they be in the form of the Marcos
presidential decrees, or acts enacted by the
American Governor-General such as the
Revised Penal Code.—Further proof that “laws
and decrees” stand as a class distinct from
“orders and regulations” is the qualifying
phrase “promulgated by me,” which necessarily
refers only to orders and regulations.
Otherwise, PP 1017 would be ridiculous in the
sense that the obedience to be enforced only
relates to laws promulgated by President
Arroyo since she assumed office in 2001.
“Laws and decrees” do not relate only to those
promulgated by President Arroyo, but other
laws enacted by past sovereigns, whether they
be in the form of the Marcos presidential
decrees, or acts enacted by the American
Governor-General such as the Revised Penal
Code. Certainly then, such a qualification
sufficiently addresses the fears of the majority
that PP 1017 somehow empowers or
recognizes the ability of the current President
to promulgate decrees. Instead, the majority
pushes an interpretation that, if pursued to its
logical end, suggests that the President by
virtue of PP 1017 is also arrogating unto
herself, the power to promulgate laws, which
are in the mold of enactments from Congress.
Again, in this respect, the grouping of “laws”
and “decrees” separately from “orders” and
“regulations” signifies that the President has
not arrogated unto herself the power to issue
decrees in the mold of the infamous Marcos
decrees.
Same; The unique nature of the office affords
the President the opportunity to profoundly
influence the public discourse, not necessarily
through the enactment or enforcement of laws,
but specially by the mere expediency of taking
a stand on the issues of the day.—The unique
nature of the office affords the President the
opportunity to profoundly influence the public
discourse, not necessarily through the
enactment or enforcement of laws, but
specially by the mere expediency of taking a
stand on the issues of the day. Indeed, the
President is expected to exercise leadership
not merely through the proposal and enactment
of laws, but by making such vital stands. U.S.
President Theodore Roosevelt popularized the
notion of the presidency as a “bully pulpit,” in
line with his belief that the President was the
steward of the people limited only by the
specific restrictions and prohibitions appearing
in the Constitution, or impleaded by Congress
under its constitutional powers.
Same; The President, as head of state, very
well has the capacity to use the office to garner
support for those great national quests that
define a civilization.—Yet the President is not
precluded, in the exercise of such role, to be
merely responsive. The popular expectation in
fact is of a pro-active, dynamic chief executive
with an ability to identify problems or concerns
at their incipience and to respond to them with
all legal means at the earliest possible time.
The President, as head of state, very well has
the capacity to use the office to garner support
for those great national quests that define a
civilization, as President Kennedy did when by
a mere congressional address, he put America
on track to the goal of placing a man on the
moon. Those memorable presidential
speeches memorized by schoolchildren may
have not, by themselves, made operative any
law, but they served not only merely symbolic
functions, but help profoundly influence
towards the right direction, the public opinion in
the discourse of the times. Perhaps there was
no more dramatic example of the use of the
“bully pulpit” for such noble purposes than in
1964, when an American President from Texas
stood before a Congress populated by many
powerful bigots, and fully committed himself as
no other President before to the cause of civil
rights with his intonation of those lines from the
civil rights anthem, “we shall overcome.”
Same; Declaration of a State of National
Emergency; The declaration of a state of
emergency, on premises of a looming armed
threat which have hardly been disputed, falls
within such proper functions of the President as
the defender of the Constitution—it was
designed to inform the people of the existence
of such a threat, with the expectation that the
citizenry would not aid or abet those who would
overturn through force the democratic
government.—The President as Chief
Government Spokesperson of the democratic
ideals is entrusted with a heady but
comfortable pursuit. But no less vital, if
somewhat graver, is the role of the President
as the Chief Defender of the democratic way of
life. The “calling out” power assures the
President such capability to a great extent, yet
it will not fully suffice as a defense of
democracy. There is a need for the President
to rally the people to defend the Constitution
which guarantees the democratic way of life,
through means other than coercive. I assert
that the declaration of a state of emergency, on
premises of a looming armed threat which have
hardly been disputed, falls within such proper
functions of the President as the defender of
the Constitution. It was designed to inform the
people of the existence of such a threat, with
the expectation that the citizenry would not aid
or abet those who would overturn through force
the democratic government. At the same time,
the Proclamation itself does not violate the
Constitution as it does not call for or put into
operation the suspension or withdrawal of any
constitutional rights, or even create or diminish
any substantive rights.
Same; Same; The fact that Section 17, Article
XII, is purposely ambivalent as to whether the
President may exercise the power therein with
or without congressional approval leads me to
conclude that it is constitutionally permissible to
recognize exceptions, such as in extreme
situations wherein obtention of congressional
authority is impossible or inexpedient
considering the emergency.—I concede that it
is fundamentally sound to construe Section 17
as requiring congressional authority or
approval before the takeover under the
provision may be effected. After all, the taking
over of a privately owned public utility or
business affected with public interest would
involve an infringement on the right of private
enterprise to profit; or perhaps even
expropriation for a limited period.
Constitutionally, the taking of property can only
be accomplished with due process of law, and
the enactment of appropriate legislation
prescribing the terms and conditions under
which the President may exercise the powers
of the State under Section 17 stands as the
best assurance that due process of law would
be observed. The fact that Section 17 is
purposely ambivalent as to whether the
President may exercise the power therein with
or without congressional approval leads me to
conclude that it is constitutionally permissible to
recognize exceptions, such as in extreme
situations wherein obtention of congressional
authority is impossible or inexpedient
considering the emergency. I thus dissent to
any proposition that such requirement is
absolute under all circumstances. I maintain
that in such extreme situations, the President
may exercise such authority subject to judicial
review. It should be admitted that some
emergencies are graver and more imminent
than others. It is not within the realm of
impossibility that by reason of a particularly
sudden and grave emergency, Congress may
not be able to convene to grant the necessary
congressional authority to the President.
Certainly, if bombs from a foreign invader are
falling over Manila skies, it may be difficult, not
to mention unnecessarily onerous, to require
convening Congress before the President may
exercise the functions under Section 17, Article
XII. The proposition of the majority may be
desirable as the general rule, but the correct
rule that should be adopted by the Court
should not be so absolute so as to preclude the
exercise by the President of such power under
extreme situations.
Same; Same; In truth, the Court’s
pronouncement on Section 17, Article XII, is
actually obiter.—Considering that the
authorized or actual takeover under Section 17,
Article XII, is not presented as a properly
justiciable issue. Nonetheless, and consistent
with the general tenor, the majority has
undertaken to decide this non-justiciable issue,
and to even place their view in the dispositive
portion in a bid to enshrine it as doctrine. In
truth, the Court’s pronouncement on this point
is actually obiter. It is hoped that should the
issue become ripe for adjudication before this
Court, the obiter is not adopted as a precedent
without the qualification that in extreme
situations wherein congressional approval is
impossible or highly impractical to obtain, the
powers under Section 17, Article XII may be
authorized by the President.
Freedom of Expression; Overbreadth Doctrine;
“Void for Vagueness” Doctrine; The two
concepts of vagueness and overbreadth
doctrines, while related, are distinct from each
other—the doctrine of overbreadth applies
generally to statutes that infringe upon freedom
of speech while the “void-for-vagueness”
doctrine applies to criminal laws, not merely
those that regulate speech or other
fundamental constitutional right (not merely
those that regulate speech or other
fundamental constitutional rights).—As I noted
in my Separate Opinion in Romualdez v.
Sandiganbayan, 435 SCRA 371, 395-406
(2004), citing Justice Kapunan, there is a viable
distinction between “void for vagueness” and
“overbreadth” which the majority sadly ignores.
A view has been proffered that “vagueness and
overbreadth doctrines are not applicable to
penal laws.” These two concepts, while related,
are distinct from each other. On one hand, the
doctrine of overbreadth applies generally to
statutes that infringe upon freedom of speech.
On the other hand, the “void-for-vagueness”
doctrine applies to criminal laws, not merely
those that regulate speech or other
fundamental constitutional right. (not merely
those that regulate speech or other
fundamental constitutional rights.) The fact that
a particular criminal statute does not infringe
upon free speech does not mean that a facial
challenge to the statute on vagueness grounds
cannot succeed. The distinction may prove
especially crucial since there has been a long
line of cases in American Supreme Court
jurisprudence wherein penal statutes have
been invalidated on the ground that they were
“void for vagueness.” As I cited in Romualdez
v. Sandiganbayan, these cases are Connally v.
General Construction Co., Lanzetta v. State of
New Jersey, Bouie v. City of Columbia,
Papachristou v. City of Jacksonville, Kolender
v. Lawson, and City of Chicago v. Morales.
Granting that perhaps as a general rule,
overbreadth may find application only in “free
speech” cases, it is on the other hand very
settled doctrine that a penal statute regulating
conduct, not speech, may be invalidated on the
ground of “void for vagueness.” In Romualdez,
I decried the elevation of the suspect and
radical new doctrine that the “void for
vagueness” challenge cannot apply other than
in free speech cases. My view on this point has
not changed, and insofar as the ponencia
would hold otherwise, I thus dissent.
Criminal Law; Terrorism; Even without an
operative law specifically defining terrorism, the
State already has the power to suppress and
punish such acts of terrorism, insofar as such
acts are already punishable, as they almost
always are, in our extant general penal laws.—
The majority correctly concludes that General
Order No. 5 is generally constitutional.
However, they make an unnecessary
distinction with regard to “acts of terrorism,”
pointing out that Congress has not yet passed
a law defining and punishing terrorism or acts
of terrorism. That may be the case, but does
the majority seriously suggest that the
President or the State is powerless to suppress
acts of terrorism until the word “terrorism” is
defined by law? Terrorism has a widely
accepted meaning that encompasses many
acts already punishable by our general penal
laws. There are several United Nations and
multilateral conventions on terrorism, as well as
declarations made by the United Nations
General Assembly denouncing and seeking to
combat terrorism. There is a general sense in
international law as to what constitutes
terrorism, even if no precise definition has been
adopted as binding on all nations. Even without
an operative law specifically defining terrorism,
the State already has the power to suppress
and punish such acts of terrorism, insofar as
such acts are already punishable, as they
almost always are, in our extant general penal
laws. The President, tasked with the execution
of all existing laws, already has a sufficient
mandate to order the Armed Forces to combat
those acts of terrorism that are already
punishable in our Revised Penal Code, such as
rebellion, coup d’etat, murder, homicide, arson,
physical injuries, grave threats, and the like.
Indeed, those acts which under normal
contemplation would constitute terrorism are
associated anyway with or subsumed under
lawless violence, which is a term found in the
Constitution itself. Thus long ago, the State has
already seen it fit to punish such acts.
Declaration of a State of National Emergency;
Judicial Review; Searches and Seizures; The
problem with directly adjudicating that the
injuries inflicted on David, et al., as illegal,
would be that such would have been done with
undue haste, through an improper legal
avenue, without the appropriate trial of facts,
and without even impleading the particular
officers who effected the arrests/searches/
seizures.—I respectfully disagree with the
manner by which the majority would treat the
“void as applied” argument presented by the
petitioners. The majority adopts the tack of
citing three particular injuries alleged by the
petitioners as inflicted with the implementation
of PP 1017. The majority analyzes the alleged
injuries, correlates them to particular violations
of the Bill of Rights, and ultimately concludes
that such violations were illegal. The problem
with this approach is that it would forever deem
the Court as a trier or reviewer at first instance
over questions involving the validity of
warrantless arrests, searches, seizures and the
dispersal of rallies, all of which entail a
substantial level of factual determination. I
agree that PP 1017 does not expand the
grounds for warrantless arrests, searches and
seizures or dispersal of rallies, and that the
proclamation cannot be invoked before any
court to assert the validity of such unauthorized
actions. Yet the problem with directly
adjudicating that the injuries inflicted on David,
et al., as illegal, would be that such would have
been done with undue haste, through an
improper legal avenue, without the appropriate
trial of facts, and without even impleading the
particular officers who effected the
arrests/searches/seizures.
Same; Same; Same; While the Court will not
be harmed by a symbolic reaffirmation of
commitment to the principles in the Bill of
Rights, it will be harmed by a ruling that unduly
and inappropriately expands the very limited
function of the Court as a trier of facts on first
instance.—I understand that the injurious acts
complained of by the petitioners upon the
implementation of PP 1017 are a source of
grave concern. Indubitably, any person whose
statutory or constitutional rights were violated
in the name of PP 1017 or General Order No. 5
deserves redress in the appropriate civil or
criminal proceeding, and even the minority
wishes to makes this point as emphatically
clear, if not moreso, as the majority. Yet a
ruling from this Court, without the proper
factual basis or prayer for remuneration for the
injury sustained, would ultimately be merely
symbolic. While the Court will not be harmed
by a symbolic reaffirmation of commitment to
the principles in the Bill of Rights, it will be
harmed by a ruling that unduly and
inappropriately expands the very limited
function of the Court as a trier of facts on first
instance. Same; Same; The function of the
Supreme Court is to make legal
pronouncements not based on “obvious” facts,
but on proven facts.—In my dissent in Teves v.
Sandiganbayan, 447 SCRA 309, 335-348
(2004), I alluded to the fact that our legal
system may run counter-intuitive in the sense
that the seemingly or obviously guilty may still,
after trial, be properly acquitted or exonerated;
to the extent that even an accused who
murders another person in front of live
television cameras broadcast to millions of sets
is not yet necessarily guilty of the crime of
murder or homicide. Hence, the necessity of a
proper trial so as to allow the entire factual
milieu to be presented, tested and evaluated
before the court. In my theoretical example, the
said accused should nonetheless be acquitted
if the presence of exempting circumstances is
established. The same principle applies in
these cases. Certainly, we in the Court can all
agree that PP 1017 cannot be invoked to justify
acts by the police or military officers that go
beyond the Constitution and the laws. But the
course of prudence dictates that the
pronouncement of such a doctrine, while
enforceable in a court of law, should not yet
extend itself to specific examples that have not
yet been properly litigated. The function of this
Court is to make legal pronouncements not
based on “obvious” facts, but on proven facts.
Same; By deciding non-justiciable issues and
prejudging cases and controversies without a
proper trial on the merits, the majority has
diminished the potency of the Court’s
constitutional power in favor of rhetorical
statements that afford no quantifiable relief—it
is for the poet and the politician to pen beautiful
paeans to the people’s rights and liberties, it is
for the Court to provide for viable legal means
to enforce and safeguard these rights and
liberties.—The country-wide attention that the
instant petitions have drawn should not make
the Court lose focus on its principal mission,
which is to settle the law of the case. On the
contrary, the highly political nature of these
petitions should serve as forewarning for the
Court to proceed ex abundante cautelam, lest
the institution be unduly dragged into the
partisan mud. The credibility of the Court is
ensured by making decisions in accordance
with the Constitution without regard to the
individual personalities involved; with sights set
on posterity, oblivious of the popular flavor of
the day. By deciding non-justiciable issues and
prejudging cases and controversies without a
proper trial on the merits, the majority has
diminished the potency of this Court’s
constitutional power in favor of rhetorical
statements that afford no quantifiable relief. It is
for the poet and the politician to pen beautiful
paeans to the people’s rights and liberties, it is
for the Court to provide for viable legal means
to enforce and safeguard these rights and
liberties. When the passions of these times die
down, and sober retrospect accedes, the
decision of this Court in these cases will be
looked upon as an extended advisory opinion.
David vs. Macapagal-Arroyo, 489 SCRA 160,
G.R. No. 171409, G.R. No. 171483, G.R. No.
171400, G.R. No. 171489, G.R. No. 171424
May 3, 2006
 Hilao v. Estate of Ferdinand Marcos,
Judgment of Feb 1985 & Opinion/Order of
November 1995
 Ex Parte Pinochet, 38
ILM 581 (March 1999)
Regina v. Bartle and Commissioner of
Police, Ex parte Pinochet
Citation. U.K. House of Lords, 2 W.L.R. 827,
38 LLM. 581 (1999)
Brief Fact Summary. Siting his status as a
former head of state, Pinochet (D) claimed that
he was immune from prosecution.
Synopsis of Rule of Law. The provision of the
Torture Convention is not consistent with the
notion of continued immunity for former head of
states.
Facts. Pinochet (D), the former head of state of
Chile, was considered by the House of Lords
(P) to have contravened the provisions of the
Torture Convention. This convention became
law on the 8th of December 1988 and Chile,
Spain and the United Kingdom were all parties
to it. But Pinochet (D), siting the fact that he
was a former head of state, he was immune
under the principle of international law.
Issue. Is the provision of the Torture
Convention consistent with the notion of
continued immunity for former head of states?
Held. NO. The provision of the Torture
Convention is not consistent with the notion of
continued immunity for former head of states.
Pinochet (D) was not acting in any capacity
that gives rise to immunity if as alleged; he
masterminded and authorized torture after the
8th of December 1988 because these acts
clearly contravene international law. Hence, the
torture proceedings brought against the
defendant should only continue on the
allegation that torture in pursuance of a
conspiracy to commit torture was being
committed by the defendant after he lost his
immunity in December 1988.
Discussion. Under common law, a former
head of state enjoys immunity for official acts
done while in office, this implies that the court
also took cognizance of common law in this
case. Ensuring that no safe haven is available
to torturers is the primary aim of the Torture
Convention.
 Clinton v. Jones, 520
U.S. 681
Clinton v. Jones
Citation. 142 F.3d 496, 330 U.S. App. D.C. 48,
26 Med. L. Rptr. 1660 (D.C. Cir. 1998)
Brief Fact Summary. The Respondent, Paula
Jones Corbin (Respondent), filed a complaint
containing four counts against the Petitioner,
President Clinton (Petitioner), alleging the
Petitioner made unwanted sexual advances
towards her when he was the Governor of
Arkansas.
Synopsis of Rule of Law. The United States
Constitution (Constitution) does not
automatically grant the President of the United
States immunity from civil lawsuits based upon
his private conduct unrelated to his official
duties as President.
Facts. The Respondent filed a complaint
against the Petitioner alleging that the
Petitioner made unwanted sexual advances
towards her when he was the Governor of
Arkansas. The Petitioner filed motions asking
the district court to dismiss the case on
grounds of presidential immunity and to prohibit
the Respondent from re-filing the suit until after
the end of his presidency. The district court
rejected the presidential immunity argument,
but held that no trial would take place until the
Petitioner was no longer president. Both parties
appealed to the United States Supreme Court
(Supreme Court), which granted certiorari.
Issue. Whether the President can be involved
in a lawsuit during his presidency for actions
that occurred before the tenure of his
presidency and that were not related to official
duties of the presidency?
Held. Affirmed.
The President of the United States can be
involved in a lawsuit during his tenure for
actions not related to his official duties as
President.
It was an abuse of discretion of the District
Court to order a stay of this lawsuit until after
the President’s tenure. The District Court’s
decision to order a stay was premature and a
lengthy and categorical stay takes no account
whatsoever of the Respondent’s interest in
bringing the suit to trial.
Concurrence. It is important to recognize that
civil lawsuits could significantly interfere with
the public duties of an official. The concurring
judge believed that ordinary case-management
principles were likely to prove insufficient to
deal with private civil lawsuits, unless
supplemented with a constitutionally based
requirement that district courts schedule
proceedings so as to avoid significant
interference with the President’s ongoing
discharge of his official responsibilities.
Discussion. A sitting President of The United
States does not have immunity from civil
lawsuits based on the President’s private
actions unrelated to his public actions as
President. The doctrine of separation of powers
does not require federal courts to stay all
private actions against the President until he
leaves office. The doctrine of separation of
powers is concerned with the allocation of
official power among the three co-equal
branches of government.
 Belgium v. Senegal, ICJ,
20 July 2012
FACTS: Hissene Habre, the former President
of the Republic of Chad, allegedly committed
torture and other crimes against humanity. The
Kingdom of Belgium (plaintiff) filed an
application with the International Court of
Justice, seeking to compel the Republic of
Senegal (defendant) to prosecute Habre or
otherwise extradite him to Belgium for
prosecution there. Belgium based the
application on the United Nations Convention
against Torture and Other Cruel, Inhuman or
Degrading Treatment of Punishment and
customary international law.
Introduction
In the post-war era, certainly in the post-Soviet
era, a global norm erga omnes has arisen: “aut
dedere, aut judicare”:[2] a state must either
extradite or prosecute persons residing on their
territory who have violated peremptory norms
of international law (i.e., jus cogens).[3] The
norm is potentially powerful in the protection of
human rights and could prevent international
criminals from residing in safe exile while
relying on misappropriated wealth to bribe local
officials.
Recently, Belgium has brought a case to the
International Court of Justice (“ICJ”), seeking to
compel Senegal to either extradite or try the
former Chadean Head of State, Hissène
Habré. Habré had committed various brutal
violations of human rights during his rule[4] in
violation of the Convention Against Torture
(“CAT”)[5] and customary international
law.[6] The case is still in the preliminary
stages. Nevertheless, it raises several issues
which have been litigated before and which are
of burning interest for international law and
indeed for international relations.
Procedurally, Belgium had asked the ICJ to
order Senegal to keep the former Chadean
head of state under house arrest so that he
would not flee Senegal. The ICJ denied that
motion noting, essentially, that the relevant
jurisdictional instrument specifically provides
that State Parties must seek arbitration on that
point,[7] and that the court only intervenes with
preliminary measures in the event one party’s
interests may be prejudiced
otherwise.[8] Senegal justifies its non-
prosecution by the argument that Senegal does
not regard international law’s well recognized
crimes against humanity as a part of domestic
Senegalese law because such a provision is
not found in the Senegalese Penal Code.[9]
From this position one can infer that Senegal is
dualist[10] as to treaty law. “Dualists” regard
the national and international legal systems as
hermetically separate with autonomous rules of
interpretation. “Monists,” in contrast, view the
international and national legal systems as
interdependent and united, part of a seamless
whole.[11]
While the ICJ did not grant Belgium’s request
to keep the former Chadean dictator under
house arrest[12] it also did not reject the case
out of hand on jurisdictional grounds.[13] Given
the issues, all of which are topical, and the
particular procedural history it is likely the case
will wind its way through the ICJ to a final
judgment on at least some of the merits. This
note raises the substantive legal issues in the
case at bar to show why the case will be heard
and likely garner much attention:
Head of State Immunity
The first issue which would arise on the merits
will likely be the immunity of Habré as a head
of state.[14] The better resolution to that issue
is that heads of state, at least after the end of
their office, are liable for violations of
peremptory norms of international law (jus
cogens) committed during their term of office,
even where such violations of international law
are viewed as acts of state under domestic
law.[15] However, from past ICJ cases it is not
clear that the court will in fact reach this
conclusion, as it is entirely possible that the ICJ
will avoid reaching the substance of the case.
In the past the ICJ has relied on head of
state/ministerial immunity to avoid reaching the
merits.[16] In contrast, the British House of
Lords, Britain’s highest appellate court,
recognizes that heads of state are not immune
for acts of state which violate of jus cogens
obligations.[17] The ICJ could also use
jurisdictional questions as an excuse to avoid
reaching the merits. It has tried to establish, in
dictum, a distinction between relative and
absolute universal jurisdiction as justifying a
finding of “no
jurisdiction”.[18] However, Belgium v.
Senegal gives the ICJ the chance to reach the
logical and just outcome which it should have
reached in Belgium v. Congo: that no one,
even the (former) head of state is immune for
violations of jus cogens, and that procedural
formalism will not block substantive justice.
Universal Jurisdiction over Jus Cogens
Violators
The universal jurisdiction of all states over
criminals who violate jus cogens norms is at
issue in Belgium v. Senegal. Again, the court
has every opportunity to avoid the issue due to
the complexity of jurisdiction. The court could
rely on the fine distinctions between jurisdiction
to proscribe (the right of a state to legislate the
positive law), jurisdiction to adjudicate (the right
of state judicial intervention), and jurisdiction to
enforce (the right of a state to take executive
action),[19] or the distinction it makes between
absolute and relative universal
jurisdiction.[20] These jurisdictional maneuvers
could be undertaken again, if the ICJ so
wishes, either to deny its own power to hear
the case (in practice) or the power of Belgium
(if only theoretically). Should the ICJ repeat the
errors it made in Congo v. Belgium[21] it would
further erode its own legitimacy. The logic of
contemporary international law is that universal
jurisdiction is admissible in cases of violations
of jus cogens because such violations are
crimes against all states.
Obligation to Prosecute or Extradite
Perhaps the trickiest issue is the one squarely
before the court: the obligation of a state to
either prosecute or extradite those who violate
jus cogens.[22] Senegal has the legal right to
maintain a strict dualism, to regard customary
international law or international treaties as
separate from its own domestic law and thus
not cognizable before the Senegalese courts.
However, that choice does not exonerate
Senegal from its international obligations. The
extradite-or-punish rule is clearly a part of
international law, whether by treaty or by
custom, as confirmed in treaties. By failing to
either extradite or prosecute Habré, Senegal
has breached its legal obligation to other
states.
The natural and logical remedy to such a
breach would be the extradition of Habré to a
state which in fact would prosecute him.
Universal jurisdiction is recognized in Belgian
law for breaches of jus cogens.[23] In such
cases, Belgium asserts its right to prosecute
jus cogens violators world-wide, and is
perfectly within its rights in doing so, just as
Senegal is within its rights to affirm that
international law is not part of its domestic law.
Appropriate Remedy
The issue then is what remedy is appropriate
for the state which wishes to prosecute a
fugitive who takes refuge in a dualist[24] state
such as Senegal when the dualist state refuses
to honor its obligations under international law?
Clearly, Senegal is legally responsible for its
breach of the international law: but what is the
correct remedy? The logical and natural
remedy is not monetary damages, or an
apology, but the extradition of the fugitive
suspect, here, Habré.
Suppose however that Senegal refuses to
extradite, even if ordered to do so by the ICJ?
This would justify Belgium to take self help
remedies such as retorsion[25] or
reprisal.[26] For example, Belgium could then
legally impose sanctions on Senegal. Most
uses of force would be disproportional, but if
Belgium were to abduct Habré such may be
justifiable as a proportional use of minimal
force to compel Senegal to comply with its
international obligations. In contrast, the
assassination of M. Habré would clearly be
disproportional.
While the ICJ may be reluctant to order
Senegal to extradite Habré, as it does not have
its own means of enforcing its
judgments[27] and must rely on States to do
so, extradition would be the just outcome. This
would involve relying on Belgium to invoke self-
help remedies should Senegal refuse to
prosecute or extradite the fugitive suspect. Any
self-help remedies would be subject to the
general principle of proportionality of crime to
punishment in international law.[28] Thus, while
the abduction of Habré may be justifiable as a
proportional remedy,[29] his assassination
would not be (because such action would be
disproportionate. [30]
Conclusion
As can be seen there are tense legal and
practical issues at stake in Belgium v.
Senegal. The ICJ can avoid some of these by
using a variety of jurisdictional moves as it did
in Belgium v. Congo, such as by asserting
head of state immunity,[31] a lack of its own
jurisdiction, or the lack of jurisdiction of foreign
countries over Habré, at least while he is
resident in Senegal.[32]The fact that the ICJ
ruled against Belgium on the issue of keeping
Habré under house arrest is a harbinger of
such moves. At the same time, to the extent
that the court has not divested itself of
jurisdiction, at least at this preliminary stage,
the court has the chance to rectify its confused
decision in Belgium v. Congo.[33] The
alternative to the rule of law via principled and
brave decisions by the ICJ is the rule of force.
While it is unlikely that Belgium would go so far
as to assassinate or even kidnap Habré, given
the current erosion in interstate relations it is to
be hoped that the court will have the courage
to reverse the dangerous trend of the last ten
years where the world has seen
assassinations, kidnappings, extradition to
countries which torture and secret
imprisonment as regular state practices. By
imposing the rule of law on Senegal, the court
makes it more likely that other states will also
respect international law. By failing to do so,
the ICJ makes it more likely states will resort to
self-help remedies outside the limits
international law imposes with regard to
proportionality or necessity.[34]
Congo v. Belgium, ICJ Reports, 14 February
2002
Brief Fact Summary. Belgium’s (D)
international arrest warrant against the
Democratic Republic of Congo’s (D.R.C.) (P)
foreign minister was contended by the D.R.C.
(P) on the ground that the arrest contravened
international law by purporting to exercise
jurisdiction over another state’s foreign minister
and an order of provisional measures of
protection on the ground that the warrant
effectively prevented the foreign minister from
leaving the D.R.C. (P) was sought by the
defendant
Synopsis of Rule of Law. Where a foreign
minister is suspected of humanitarian
violations, such a minister enjoys full immunity
from criminal jurisdiction in another state’s
court.
Facts. The Belgian law provides for universal
jurisdiction in the case of grave breaches of the
Geneva Conventions, crimes against humanity
and other serious offenses. Relying on this law,
a Belgian judge issued an international arrest
warrant for the foreign minister of the D.R.C (P)
on the premise of grave violations of
humanitarian laws to be tried in Belgium. The
Belgium law also denotes that any immunity
which is conferred by an individual’s official
capacity does not curtail the application of
universal jurisdiction.
The arrest warrant was circulated
internationally and the International Criminal
Police Organization (Interpol) was also notified.
This action of Belgium was therefore the basis
of D.R.C. (P) suit against it at the International
Court of Justice (I.C.J.). The D.R.C. (P)
asserted that the warrant against its foreign
minister was a clear violation of international
law because Belgium purported by this act to
exercise jurisdiction over its foreign minister.
D.R.C. (P) also claimed that its minister should
also enjoy immunity equivalent to that enjoyed
by diplomats and heads of states. In addition to
this, the plaintiff also sought an order of
provisional measures of protection on the
ground that the warrant effectively curtailed the
foreign minister from leaving the D.R.C. (p).
The I.C.J. thus gave its judgment on this case.
Issue. Where a foreign minister is suspected of
humanitarian violations, does such a minister
enjoy full immunity from criminal jurisdiction in
another state’s court?
Held. (Judge not identified in casebook
excerpt) Yes. Where a foreign minister is
suspected of humanitarian violations and even
war crimes, such a minister enjoys full
immunity from criminal jurisdiction in another
state’s court. Acting as the state’s
representative in international meeting and
negotiations, travelling internationally and
overseeing the smooth running of the state’s
diplomatic activities are duties which a foreign
minister performs. The foreign minister also
has the power to bind the state in the course of
his duties and he must be in constant
communication with his state and its diplomatic
missions around the world as well as with
representatives of other states. Hence,
because of the office he holds and not because
of his person, a minister is recognized under
international law as a representative of the
state.
Drawing from this submission, it can therefore
be established that an acting Minister of
Foreign Affairs enjoys full immunity from
criminal jurisdiction and inviolability so that he
or she may not be hindered in the discharge of
his or her duties. The safety nest provided by
this immunity is regardless of whether the
purported crimes were committed in the
minister’s “official or private” capacity and
regardless of when the offense occurred.
Hence on this premise, the argument of
Belgium that immunities is not applicable to
foreign ministers when they are accused of
committing war crimes or crimes against
humanity is nullified.
However and with much emphasis, immunity
from jurisdiction which a serving minister
enjoys does not imply that such minister take
pleasure for the crimes he or she commits of
have committed. As jurisdictional immunity is
procedural, so too is criminal responsibility a
matter of substantive law, so that jurisdictional
immunity does not operate to exempt the
minister who may under certain circumstances,
be held accountable for his crimes.
The minister may thus be brought before the
courts in his/her own state and may lose
his/her immunity once his/her state waives it.
The minister also do not enjoy such immunity
after he vacates office and may subsequently
be charged for acts committed prior to or
subsequent to the time he/she was in office as
well as in respect of acts committed during the
time he/she was in office in a private capacity.
The International criminal courts may also try
the minister where they have the jurisdiction to
do so.
Discussion. The tenability of the claim of
universal jurisdiction by domestic courts was
not decided in this case although some of the
judges in a separate opinion expressed the
belief that universal jurisdiction is allowed in the
cases of those offenses considered the most
heinous by the international community, so that
the warrant for the arrest of the plaintiffs foreign
minister did not as such contravene
international law.
It therefore shows that there is no common
ground amongst the judges on the issue of
universal jurisdiction as exercised by
domestic/local courts. In any event therefore,
there is always a precedent when a domestic
court exercises universal jurisdiction. For
instance, Israel claimed universal jurisdiction
when it kidnapped the former Nazi Adolf
Eichmann from Argentina in 1961 and tried him
in an Israeli court and executed him.
Doe v. UNOCAL, 963 F.Supp. 880 (1997)
 Germany v. Italy (3
February 2012),
including Dissenting
Opinion of Cançado
Trindade
On 23 December 2008, the Federal Republic of
Germany instituted proceedings against the
Italian Republic, requesting the Court to
declare that Italy had failed to respect the
jurisdictional immunity which Germany enjoys
under international law by allowing civil claims
to be brought against it in the Italian courts
seeking reparation for injuries caused by
violations of international humanitarian law
committed by the Third Reich during the
Second World War. In addition, Germany
asked the Court to find that Italy had also
violated Germany’s immunity by taking
measures of constraint against Villa Vigoni,
German State property situated in Italian
territory. Finally, Germany requested the Court
to declare that Italy had breached Germany’s
jurisdictional immunity by declaring enforceable
in Italy decisions of Greek civil courts rendered
against Germany on the basis of acts similar to
those which had given rise to the claims
brought before Italian courts. Germany referred
in particular to the judgment rendered against it
in respect of the massacre committed by
German armed forces during their withdrawal
in 1944, in the Greek village of in
the Distomo case.
As basis for the Court’s jurisdiction, Germany
invoked Article 1 of the European Convention
for the Peaceful Settlement of Disputes of 29
April 1957, ratified by Italy on 29 January 1960
and by Germany on 18 April 1961.
The Memorial of Germany and the Counter-
Memorial of Italy were filed within the time-
limits fixed by the Order of the Court of 29 April
2009. In its Counter-Memorial, Italy, referring to
Article 80 of the Rules of Court, made a
counter-claim “with respect to the question of
the reparation owed to Italian victims of grave
violations of international humanitarian law
committed by forces of the German Reich”.
Italy based the Court’s jurisdiction to entertain
that counter-claim on Article 1 of the European
Convention, taken together with Article 36,
paragraph 1, of the Statute of the Court. Italy
further asserted that there was “a direct
connection between the facts and law upon
which [it] relies in rebutting Germany’s claim
and the facts and law upon which [it] relies to
support its counter-claim”. The Court found that
the counter-claim presented by Italy was
inadmissible, because the dispute that Italy
intended to bring before the Court by way of its
counter-claim related to facts and situations
existing prior to the entry into force as between
the parties of the European Convention for the
Peaceful Settlement of Disputes of 29 April
1957, which formed the basis of the Court’s
jurisdiction in the case (Order of 6 July 2010).
After the filing of the aforementioned Memorial
and Counter-Memorial, the Court authorized
the submission of a Reply by Germany and a
Rejoinder by Italy.
On 13 January 2011, Greece filed an
Application requesting permission to intervene
in the case. In its Application, Greece stated
that it wished to intervene in the aspect of the
procedure relating to judgments rendered by its
own courts on the Distomo massacre and
enforced (exequatur) by the Italian courts. The
Court, in an Order of 4 July 2011, considered
that it might find it necessary to consider the
decisions of Greek courts in the Distomo case,
in light of the principle of State immunity, for
the purposes of making findings with regard to
Germany’s submission that Italy had breached
its jurisdictional immunity by declaring
enforceable in Italy decisions of Greek courts
founded on violations of international
humanitarian law committed by the German
Reich during the Second World War. This
permitted the conclusion that Greece had an
interest of a legal nature which might have
been affected by the judgment in the case and,
consequently, that Greece could be permitted
to intervene as a non-party “in so far as this
intervention is limited to the decisions of Greek
courts [in the Distomo case]”.
In its Judgment rendered on 3 February 2012,
the Court first examined the question whether
Italy had violated Germany’s jurisdictional
immunity by allowing civil claims to be brought
against that State in the Italian courts. The
Court noted in this respect that the question
which it was called upon to decide was not
whether the acts committed by the Third Reich
during the Second World War were illegal, but
whether, in civil proceedings against Germany
relating to those acts, the Italian courts were
obliged to accord Germany immunity. The
Court held that the action of the Italian courts in
denying Germany immunity constituted a
breach of Italy’s international obligations. It
stated in this connection that, under customary
international law as it presently stood, a State
was not deprived of immunity by reason of the
fact that it was accused of serious violations of
international human rights law or the
international law of armed conflict. The Court
further observed that, assuming that the rules
of the law of armed conflict which prohibited
murder, deportation and slave labour were
rules of jus cogens, there was no conflict
between those rules and the rules on State
immunity. The two sets of rules addressed
different matters. The rules of State immunity
were confined to determining whether or not
the courts of one State could exercise
jurisdiction in respect of another State. They
did not bear upon the question whether or not
the conduct in respect of which the
proceedings were brought was lawful or
unlawful. Finally, the Court examined Italy’s
argument that the Italian courts were justified in
denying Germany immunity, because all other
attempts to secure compensation for the
various groups of victims involved in the Italian
proceedings had failed. The Court found no
basis in the relevant domestic or international
practice that international law made the
entitlement of a State to immunity dependent
upon the existence of effective alternative
means of securing redress.
The Court then addressed the question
whether a measure of constraint taken against
property belonging to Germany located on
Italian territory constituted a breach by Italy of
Germany’s immunity. Italy had registered a
legal charge on the property in question
following a decision by the Italian courts
declaring that the judgments of the Greek
courts were enforceable in Italy and awarding
pecuniary damages against Germany. The
Court noted that Villa Vigoni was being used
for governmental purposes that were entirely
non-commercial ; that Germany had in no way
consented to the registration of the legal
charge in question, nor allocated Villa Vigoni
for the satisfaction of the judicial claims against
it. Since the conditions permitting a measure of
constraint to be taken against property
belonging to a foreign State had not been met
in this case, the Court concluded that Italy had
violated its obligation to respect Germany’s
immunity from enforcement.
Finally, the Court examined the question
whether Italy had violated Germany’s immunity
by declaring enforceable in Italy civil judgments
rendered by Greek courts against Germany in
proceedings arising out of the massacre
committed in the Greek village of Distomo by
the armed forces of the Third Reich in 1944. It
considered that the relevant question was
whether the Italian courts had respected
Germany’s immunity in allowing the application
for exequatur, and not whether the Greek court
having rendered the judgment of
which exequaturwas sought had respected
Germany’s jurisdictional immunity. It observed
that a court seised of an application
for exequatur of a foreign judgment rendered
against a third State had to ask itself whether,
in the event that it had itself been seised of the
merits of a dispute identical to that which was
the subject of the foreign judgment, it would
have been obliged under international law to
accord immunity to the respondent State. It
found that the decisions of the Italian courts
declaring enforceable in Italy the civil
judgments rendered against Germany by
Greek courts in proceedings arising out of the
massacre committed in Greece in 1944
constituted a violation by Italy of its obligation
to respect the jurisdictional immunity of
Germany.
Accordingly, the Court declared that Italy must,
by enacting appropriate legislation, or by
resorting to other methods of its choosing,
ensure that the decisions of its courts and
those of other judicial authorities infringing the
immunity which Germany enjoyed under
international law cease to have effect.
It should be noted that, on 14 January 2013,
the Italian Parliament adopted a draft law
concerning the accession of Italy to the United
Nations Convention on Jurisdictional
Immunities of States and Their Property, and
provisions adapting national law. This law was
published in the Official Journal of the Italian
Republic on 29 January 2013. Article 3 thereof,
entitled “Compliance with the judgments of the
International Court of Justice” states that the
International Court of Justice having excluded
the possibility of certain acts of another State
being submitted to the Italian civil jurisdiction,
the court hearing the dispute relating to those
acts shall find on its own motion that it lacks
jurisdiction, even when a preliminary judgment
establishing its jurisdiction has already
become res judicata, and whatever the state or
phase of the proceedings. It adds that any
ruling having the effect of res judicata which is
not consonant with a judgment of the
International Court of Justice, even where that
judgment is rendered subsequently, may also
be subject to revision for lack of civil
jurisdiction.
o Kidnapping/Extradition Cases
Israel v. Eichmann, 36 ILR 277 (Israel
Supreme Court, 1962)
penalty. Mr. Eichman appeal from Israel
Supreme court affirming the judgment.
REASONING The abhorrent crimes define in
the law are not crimes under Israel law alone.
These crimes which stuck at the whole
mankind and shocked the conscience of nation
are great offence against the law of nations
itself. Therefore so far from international law
negating or limiting the jurisdiction of countries
with respect of such crimes. International law is
in the absent of an international court. In need
judicial and legislative organization of every
country to give effect to its criminal interdiction
and bright criminal to trial. This jurisdiction to
try crime under international law is universal.
 Ker v. Illinois, 119 U.S.
436

CASE NAME- Eichmann Case

1. Ker was convicted
PARTIES- Israel vs. Eichmann YEAR-1962 of larceny in IL.

PRINCIPLEThe principle of this case is 2. He was in Lima,

responsibility for crime and international Peru.
adduction.
3. A warrant for his
FACT OF THE CASE Adolf Eichman was extradition had been
illegally adducted from Argentina member of issued but was not
Facts:
Israeli secret services, by order of them Israel presented when the
Prime Minister. David Ben Gurion to stand trial person who was to
in Israel. He charged under the Nazi and Nazi receive him into
collaborates Law 1950 with 15 countries of war custody from the
crime and crimes against community. Under Peruvian authorities
Nazi regime Eichman, by his own had him forcibly
administration was in charge or foreign the arrested.
emigration of 150000 Jews from Australia. He
is the main person responsibility for fuel
solution the systematic of some 42-43 million
Jews. After the war se escaped Argentina and Does this breach
lived with his family. In 1960 Israel force due process under
kidnaps him in Argentina and came ti seal in Issues: the 14th?
box Israel for trial.

ISSUE

 Whether the Israel Law permit to prosecute Laws of the US do

the offender for the acts done outside the not grant a citizen
boundaries of Israel  Whether a state can protection in other
Rule:
punish an offender for the crime which took countries.
place before the establishment of the state. 
Where the Eichmann was guilty by the
international adduction.  Where the Eichmann
can get protective from Argentina. Analysis:

DECESION It was held that the court found

Conclusion: held that a fugitive
guilty Mr. Eichmann and decides on death
kidnapped from
 abroad could not
claim any violation
of the Constitution,
laws or treaties of
the United States.
United States v. Alvarez-Machain, 504 U.S.
655 (1991)
Brief Fact Summary. Alvarez-Machain (D)
abducted from Mexico for trial in the U.S. (P)
by Drug Enforcement Agency (DEA) agents,
contended that his abduction was illegal
because of an extradition treaty between the
United States (P) and Mexico.
Synopsis of Rule of Law. The presence of an
extradition treaty between the United States
and another country does not necessarily
preclude obtaining a citizen of that nation
through abduction.
Facts. Agents of the DEA abducted Alvarez-
Machain (D) from his office in Mexico because
he was wanted in the U.S. (P) for alleged
complicity in the torture-murder of a DEA
agent. But by contending that his abduction
violated a U.S.-Mexico extradition treaty,
Alvarez (D) sought to dismiss the indictment.
His prayer was granted by the district court and
the indictment was dismissed. The court of
appeals affirmed while the U.S. Supreme Court
granted review.
Issue. Does the presence of an extradition
treaty between the United States and another
country does not necessarily preclude
obtaining a citizen of that nation through
abduction?
Held. (Rehnquist, C.J.) No. The presence of an
extradition treaty between the United States
and another country does not necessarily
preclude obtaining a citizen of that nation
through abduction. It has been established that
abduction, in and of itself, does not invalidate
prosecution against a foreign national. The only
question to be answered is whether the
abduction violates any extradition treaty that
may be in effect between the U.S. (P) and the
nation in which the abductee was to be found.
The international law applies only to situations
where no extradition treaty exists, so it is
irrelevant here. Since the extradition treaty
does not prohibit an abduction as it occurred in
this case, then it is not illegal. Reversed.
Dissent. (Stevens, J.). the majority opinion
fails to distinguish between acts of private
citizens, which do not violate any treaty
obligations and conduct expressly authorized
by the executive branch, which undoubtedly
constitutes a fragrant violation of international
law and a breach of the U.S. (P) treaty
obligations.
Discussion. Alvarez (D) lost this battle but
won the war. In 1993, he was tried in Los
Angeles. The trial judge Edward Rafeedie
dismissed the case for lack of evidence at the
close of the prosecution case. The judge used
some harsh language in his order, apparently
believing the case should never have been
brought.
Sosa v. Alvarez-Machain, 542 U.S. 692
(2004)
Brief Fact Summary. Alvarez-Machain (P)
argued he was detained against his will by
bounty hunter and brought to the United
States.
Synopsis of Rule of Law. The abduction of a
foreign national does not amount to an
“arbitrary arrest” within the meaning of the
Universal Declaration of Human Rights and the
International Covenant on Civil and Political
Rights.
Facts. Alvarez-Machain (P) argued he was
detained against his will by bounty hunter and
brought to the United States.
Issue. Does the abduction of a foreign national
amount to an “arbitrary arrest” within the
meaning of the Universal Declaration of Human
Rights and the International Covenant on Civil
and Political Rights?
Held. No. The abduction of a foreign national
does not amount to an “arbitrary arrest” within
the meaning of the Universal Declaration of
Human Rights and the International Covenant
on Civil and Political Rights. Obligations as a
matter of international law is not imposed by
the Declaration and while the Covenant binds
the United States as a matter of international
law, the U.S. ratified it on the express
understanding that it was not self-executing,
and therefore did not itself create obligations
that were enforceable in the federal courts.
Discussion. This case shows the concept of
self-determination under international law. No
document can give rise to obligations as a
matter of international law that does not
expressly purport to do so, and there no state
which can be bound to any international pact
without its consent.
Brief Fact Summary. Alvarez (P) argued that
he was held against his will by bounty hunters
and brought to the United States.
Synopsis of Rule of Law. International law is
part of U.S. law.
Facts. The claim of Alvarez (P) was that the
bounty hunters who brought him to the United
States detained him against his will.
Issue. Is international law part of the U.S. law?
Held. (Souter, J.) yes. International is part of
U.S. law. The first principal element of the law
of nations covers the general norms regarding
the relationship of nation states, which is the
purview of the Executive and Legislative
Branches of government. The second principal
element of the law of nations falls within the
judiciary, which is a body of judge-made law
regulating the conduct of individuals situated
outside domestic boundaries.
There is also a sphere in which the rule binding
individuals for the benefit of other individuals
overlaps with the norms of state relationships,
including violation of safe conducts,
infringement of the rights of ambassadors and
piracy. Hence, international norms intended for
the protection of individual may be considered
by the court..
Discussion. A seminal case for the concept
that international law is part of U.S. domestic
law is excerpted by this short case and that
international norms may be considered in
determining individual rights in federal cases.
 State v. Ebrahim, 26
February 1991, 2 SALR
553
 US v. Purganan (Mark
Jimenez Cases) = 2 cases
SC & MFR, G.R. No.
148571, 24 September
2002
4. International Responsibility
 Cases:
Corfu Channel Case, ICJ Reports, 9 April
1949
Facts: • October 1944, the British Navy verified
that no mines existed through the North Corfu
Channel in the territory of Albania. The channel
was again checked (one in January and the
other in February 1945) and had negative
results. October 22, 1946 a squadron of British
warships (the Mauritius, Leander, Saumarez,
and Volage) left the port of Corfu and
proceeded through the channel. While in
Alabanian territorial waters, two of the warships
(Saumarez and Volage) struck floating mines
and sustained serious damage. 44 British
officers and crew members died, while 42 were
injured. November 1946, British mine sweepers
went through the North Corfu Channel, cut 22
moored mines and took them to Malta for
examination. By a Special Agreement, the
British government instituted proceedings
against Albania in the International Court of
Justice (ICJ), demanding compensation for
damage to its ships and for the loss of lives.
Albania’s contention is that there was no proof
that such mines that damaged the ships were
their own. It also asserted that coastal States
have a right to regulate the passage of foreign
ships through its territorial waters, and that
prior authorization to pass should be acquired.
Since Britain did not obtain prior authorization,
its passage was not innocent. For this breach
of international law, Albania demands
compensation from Britain.
Issue:
Should Albania be held responsible for the
mines that struck the British warships?
Held:
Yes, Albania is responsible under international
law for the damage and loss of lives, and that it
owned a duty to pay compensation to Great
Britain. Before and after the incident, the
Albanian Government’s attitude showed its
intention to keep a jealous watch on its
territorial waters. And when the Albania came
to know of the minefield, it protested strongly
against the minesweeping conducted by Britain
but not to the laying of mines. It is but showing
that Albania desired the presence of such
mines. Moreover, the layout of the minefield
shows that this could only be accomplished by
stationing a look-out post near the coasts (that
is in Albania). The inevitable conclusion is that
the laying of the minefield could not have been
done without the knowledge of Albania. It is
then its duty to notify and warn ships
proceeding through the Strait. Its failure to
undertake such constitutes neglect of its
international responsibility. As to the argument
on passage through territorial waters, the ICJ
ruled that the North Corfu Channel constituted
a frontier between Albania and Greece, that a
part of it is wholly within the territorial waters of
these 2 States, and that the Strait is of special
importance to Greece. Hence, the Channel
belongs to a class of international highways
through which passage cannot be prohibited by
a coastal State in time of peace. Moreover, the
passage of the British warships through the
Channel was carried out in such manner that is
consistent with the principle of innocent
passage—the guns were in a normal position
and not targeted to the shores.
Brief Fact Summary. The fact that the
Albanian (P) authorities did not make the
presence of mines in its waters was the basis
of the United Kingdom (D) claim against them.
Synopsis of Rule of Law. International
obligations in peace time are created through
elementary consideration.
Facts. The explosion of mines in the Albanian
(P) waters resulted in the death of a British
naval personnel. It was on this basis that the
United Kingdom (D) claimed that Albania (P)
was internationally responsible for damages.
Issue. Are international obligations in time of
peace created through elementary
consideration?
Held. Yes. International obligations in peace
time are created through elementary
consideration. Every state has an obligation not
to knowingly allow its territory to be used for
acts contrary to the rights of other states.
Discussion. In this case, the Court found that
the Hague Convention of 1907 could not be
applied but the Convention was applicable only
in time of war. It was on the basis of the
principle of freedom of maritime communication
that this case was decided.
Rainbow Warrior Arbitration (Report)
CASE NAME- Rainbow warrior incident
PARTIES- New Zealand vs. France
YEAR-1985
PRINCIPLE Where a state sends its agents
abroad to commit acts which are illegal under
international or municipal law of the target
country, it is customary for the state to take
responsibility for the act and issue
compensation. However its agents are usually
granted immunity from local courts. In this case
however, New Zealand managed to call out the
French state under international law and try its
agents under its own municipal law.
FACT OF THE CASE
The rainbow Warrior was a ship belonged to
Green Peace. It anchored at the port of the
New Zealand. Its main purpose was to oversee
France Nuclear Test activities in the Pacific. At
that moment France was conducting the test
upon the island of Bikini. France being
desperate to get rid of this ship sent two naval
officers to sensory the ship, Rainbow warrior,
and that was successfully done by them. New
Zealand at first filed a suit in the ICJ claiming
damages from France. Later the case was
withdrawn and they became agree to mediate
the matter under the mediation of UN secretary
General.
ISSUE
Whether France has incurred state
responsibility by destroying the ship Rainbow
Warrior anchored in New Zealand?
DECESION
The Secretary General decided that the alleged
act was imputable to France and awarded New
Zealand 7 million US dollar as compensation.
But New Zealand refused accept money rather
claimed that —-
 France must apologies and must promise not
to repeat such act of infringing territorial
integrity in future and
 The two accused naval officers who
committed the offense in person would stay in
New Zealand‘s‘ island for 3 years during which
period they would not be permitted to leave
New Zealand. France agreed to comply with
their two conditions.
REASONING
France violated the territorial integrity of New
Zealand which affected the legitimate interest
of New Zealand.
US Diplomatic & Consular Staff (US v. Iran),
ICJ Reports, 1980
CASE NAME- Iran Case
PARTIES- U.S.A Vs Iran YEAR- 1980
PRINCIPLE
To entire into mission area without permission
or protect to destroy in mission area and not to
violation in peace of mission or take necessary
steps because of not to reduce the dignity of
mission which is a special duty of a state.
FACT OF THE CASE
The United States Embassy at teharan in Iran
overruled a military group and hundreds of
several students. They are not permitted by the
president of Iran Al Khowameni. They
controlled over the documents and arcades to
entire into the diplomatic mission area and
captured by the officials. By Iran authority was
not protest them. ISSUE Whether the Iranian
Government was bound to provide force to
secure U.S.A Embassy and its personals? 
Whether Iran Government was bound to
provide compensation or not?  Whether Iran
Government breached any International Law or
not?
DECESION
International courts of Justice held that though
Iran government was bound to protect the
diplomatic mission. So that Iran Government
was not do this they are bound to pay
compensative.
REASONING
 Violation of official correspondents.
 Violation of achieves and documents.
 Violation of Vienna Convention 1961 22(1)
and 22(2)
o Doe v. UNOCAL, 395 F.3d 932
(9th Circuit); 403 F.3d 708
Chorzow Factory Case, supra
PRINCIPLE
It is a general principle of international law that
any breach of an engagement involves an
obligation to make reparation.
FACT OF THE CASE
There was an agreement between Germany
and Poland and that bilateral treaty was known
as the Geneva Upper Silesia convention 1922.
it had been provided in that treaty that on
transfer of sovereignty of certain territories from
Germany to Poland after the 1st world war,
existing proprietary right were to be maintained
except that the Polish Government was
granted a right of expropriation under certain
condition with respects of all property
belonging to German nationals in Upper
Silesia. The present dispute arose when
Poland seized to companies there in breach of
its international obligation under the Upper
Silesia convention of 1922. The Germany
demanded compensation from the Poland.
ISSUE
The issues of the case were as follows: 
Whether the convention of 1922 creates any
obligation on the part of the Poland.  Where
seizure of the 2 companies by the Polish
Government is contrary to its international
obligation, whether Poland is bound to make
reparation to Germany.  If there appears any
breach of international obligation, whether
Poland is bounty to make reparation to
Germany.
DECESION
The reparation of wrong may consist in an
indemnity corresponding to the damage which
is contrary of International Law. Right or
interests of an individual the violation of which
rights cause damages are always in a different
plain to rights belonging to a state, which rights
may also be infringed by the same act.
REASONING
In deciding the case the court considered the
following the reasons to be applied:  The
action of Poland was not expropriation in its
real sense, it was rather a seizure of property,
right and interest which could not be
expropriated even against compensation, save
under the special conditions fixed by Art. 7 of
the Upper Silesia convention of 1922. in doing
so, therefore, Poland acted contrary to its
obligations.  It is general principle of
international law and even a general concept of
law that a breach of an agreement involves a
duty to make reparation.  Reparation is the
expendable complement of a failure to apply a
convention and there is no necessity for this to
be stated in the convention itself. This case is
one of an unlawful expropriation and in such
cases expropriating sates must in addition to
paying the compensation due in respect of
lawful expropriation, pay also damages for any
loss continued by the injured party.
Prosecutor v. Tadic, supra
Citation. Int’l Crim. Tribunal for the Former
Yugoslavia, Decision on Interlocutory Appeal
on Jurisdiction, 1995. Appeals Chamber, Case
No. IT-94-1-ar72, 35 I.L.M. 32 (1996).
Brief Fact Summary. For committing war
crimes at a Serb-run concentration camp in
Bosnia-Herzegovina, Tadic (D) was prosecuted
in court.
Synopsis of Rule of Law. Plea against the
International Tribunal jurisdiction can be
examined by the International Tribunal based
on the invalidity of its establishment by the
Security Council.
Facts. For committing war crimes at a Serb-run
concentration camp in Bosnia-Herzegovina,
Tadic (D) was prosecuted in Court. The
jurisdiction of the tribunal was however
challenged by Tadic (D) on the ground that it
exceeded the authority of the U.N. Security
Council. This argument of Tadic (D) was
dismissed by the trial court but Tadic (D)
appealed.
Issue. Can plea against the International
Tribunal jurisdiction be examined by the
International Tribunal based on the invalidity of
its establishment by the Security Council?
Held. Yes. Plea against the International
Tribunal jurisdiction can be examined by the
International Tribunal based on the invalidity of
its establishment by the Security Council. The
criteria for establishing an International
Tribunal includes the establishment in
accordance with the proper international
standards, the provision of guarantees of
fairness, justice, and evenhandedness, in full
conformity with internationally recognized
human rights instruments. Hence, a tribunal
like the one created in this case must be
endowed with primacy over national courts.
Discussion. The authority of the Security
Council to establish a tribunal for the
determination of a criminal charge was
attacked by Tadic (D). So long as it is
“established by law”, the tribunal is authorized
to be established for the determination of these
charges. The Council requires that it be “set up
by a competent organ in keeping with relevant
legal procedures and that it observes the
requirements of procedural fairness”
Advisory Opinion on the Legal
Consequences of the Construction of a Wall
in the Occupied Palestinian Territories
Facts:
(Facts are really short.) Israel constructed a
wall in the Occupied Palestinian Territory
including in and around east Jerusalem. The
question on which the advisory opinion of the
Court has been requested is set forth in
resolution ES-10/14 adopted by the General
Assembly of the United Nations on 8
December 2003 at its Tenth Emergency
Special Session.
Issue:
W/N the court has jurisdiction to issue an
advisory position.
Held:
The Court has Jurisdiction. The Court has
already indicated that the subject of the present
request for an advisory opinion falls within the
competence of the General Assembly under
the Charter.
Even if Article 12, paragraph 1, of the Charter
provides that: “While the Security Council is
exercising in respect of any dispute or situation
the functions assigned to it in the present
Charter, the General Assembly shall not make
any recommendation with regard to that
dispute or situation unless the Security Council
so requests.” a request for an advisory opinion
is not in itself a “recommendation” by the
General Assembly “with regard to [a] dispute or
situation”.
As regards the practice of the United Nations,
both the General Assembly and the Security
Council initially interpreted and applied Article
12 to the effect that the Assembly could not
make a recommendation on a question
concerning the maintenance of international
peace and security while the matter remained
on the Security Council’s agenda. However,
this interpretation of Article 12 has evolved
subsequently. Thus the General Assembly
deemed itself entitled in 1961 to adopt
recommendations in the matter of the Congo
(resolutions 1955 (XV) and 1600 (XVI)) and in
1963 in respect of the Portuguese colonies
(resolution 1913 (XVIII)) while those cases still
appeared on the Council’s agenda, without the
Council having adopted any recent resolution
concerning them.
Issue:
W/N the Court cannot exercise jurisdiction to
issue an opinion because of contentious
matters between Israel and Palestine.
Held:
The Court can exercise its jurisdiction. One of
the arguments is to the effect that the Court
should not exercise its jurisdiction in the
present case because the request concerns a
contentious matter between Israel and
Palestine, in respect of which Israel has not
consented to the exercise of that jurisdiction.
According to this view, the subject-matter of the
question posed by the General Assembly “is an
integral part of the wider Israeli-Palestinian
dispute concerning questions of terrorism,
security, borders, settlements, Jerusalem and
other related matters”. Israel has emphasized
that it has never consented to the settlement of
this wider dispute by the Court or by any other
means of compulsory adjudication; on the
contrary, it contends that the parties repeatedly
agreed that these issues are to be settled by
negotiation, with the possibility of an
agreement that recourse could be had to
arbitration. The Court observes that the lack of
consent to the Court’s contentious jurisdiction
by interested States has no bearing on the
Court’s jurisdiction to give an advisory opinion.
In an Advisory Opinion of 1950, the Court
explained that:
“The consent of States, parties to a dispute, is
the basis of the Court’s jurisdiction in
contentious cases. The situation is different in
regard to advisory proceedings. The Court’s
reply is only of an advisory character: as such,
it has no binding force. It follows that no State,
whether a Member of the United Nations or
not, can prevent the giving of an Advisory
Opinion which the United Nations considers to
be desirable in order to obtain enlightenment
as to the course of action it should take.
Issue:
W/N building of the wall violates the right of the
Palestinian people to self-determination.
Held:
The building of the wall violates the self-
determination doctrine.
As regards the principle of the right of peoples
to self-determination, the Court observes that
the existence of a “Palestinian people” is no
longer in issue. Such existence has moreover
been recognized by Israel in the exchange of
letters of 9 September 1993 between Mr.
Yasser Arafat, President of the Palestine
Liberation Organization (PLO) and Mr. Yitzhak
Rabin, Israeli Prime Minister. In that
correspondence, the President of the PLO
recognized “the right of the State of Israel to
exist in peace and security” and made various
other commitments. In reply, the Israeli Prime
Minister informed him that, in the light of those
commitments, “the Government of Israel has
decided to recognize the PLO as the
representative of the Palestinian people”.
Bosnia Case (Application of the Convention
on the Prevention and Punishment of the
Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro),
supra
Brief Fact Summary. Following the genocide
of Bosnia Muslims, a suit was brought against
Serbia and Montenegro (D) by Bosnia and
Herzegovina (P).
Synopsis of Rule of Law. The obligation
under the Genocide Convention binds the
contracting parties to the Convention not to
commit, through their organs or persons or
groups whose conduct is attributable to them,
genocide and the other acts enumerated in
Article II.
Facts. A suit was brought against the Federal
Republic of Yugoslavia (Serbia and
Montenegro) (D) under the Genocide
Convention by Bosnia and Herzegovina (P).
The plaintiffs alleged that Serbia (D)
contravened the Convention by committing
genocide against Bosnia’s (P) Muslim
population. The International Court of Justice in
this first part of the case threw more light on
the provisions of the Genocide Convention,
including the undertaking to “prevent and
punish” genocide in Article I, the definition of
genocide in Article II, and the phase
“responsibility of a State for genocide” in Article
IX. (See Chapter 8, pages 54-55 for additional
facts in this case).
Issue. Are the obligation under the Genocide
Convention binding on the contracting parties
and do they prevent the parties from
committing, through their organs or persons or
groups whose conducts are attributable to
them, genocide and other acts enumerated in
Article II?
Held. Yes. The obligation under the Genocide
Convention binds the contracting parties to the
Convention not to commit, through their organs
or persons or group whose conduct is
attributable to them, genocide and other acts
enumerated in Article II.
The obligation imposed on the parties is
dependent on the ordinary meaning of the
terms of the Convention, read in context and in
light of the Convention’s object and purpose.
Resorting to supplementary means of
interpretation, including the Convention’s
preparatory work and the circumstances of its
conclusion are the means of resolving the
confusions associated to terms, context and
purpose.
The parties under the Convention are under an
obligation not to commit genocide
themselves. This obligation is not imposed
expressly by the Convention but the effect of
Article II is to prohibit states from committing
genocide themselves. The logic behind the
Convention is that the prohibition follows from
the fact that the Article categorizes genocide as
an international law crime and by agreeing to
such a categorization, the parties must logically
undertake not to commit the act described. It
also follows from the expressly stated
obligation to prevent the commission of acts of
genocide.
Serbia (D) further postulated that the drafting
history of the Convention shows that the states
are not directly responsible under the
Convention for acts of genocide, but heat
states have civil responsibility to prevent and
punish genocide committed by individuals. The
drafting history also throws more light on the
fact the Chairman of the Sixth Committee
believed that Article IX as modified provided for
state responsibility for genocide.
Discussion. Serbia’s (D) violations of its
obligation stems not only from the Genocide
Convention, but also from two protective
measures issued by the I.C.J. in April and
September 1993, under which the former
Federal Republic of Yugoslavia was ordered
explicitly to prevent the crimes of genocide and
to make sure that such crimes were not
committed by military or paramilitary formations
operating under its control or with its support.
Serbia (D) did not make any effort to prevent
the July 1995 Srebrenica massacre despite the
order, although according to the I.C.J, it should
have “been aware of the serious danger that
acts of genocide would be committed”.
o Trail Smelter Case
State Responsibility, Harris Casebook, 1994 &
2004 editions
1994 edition
o Union Bridge Company Claim
(US v. Great Britain), 1924
Youmans Claim (US v. Mexico), 1926
CASE NAME- Youman’s Case
PARTIES- USA vs. Mexico YEAR-1926
FACT OF THE CASE:
A lieutenant of State forces in a town in Mexico
was ordered by the Mayor of the town to
proceed with troops to suppress a riots and
attacks against certain American citizens.
Instead of dispersing the rioters, the troops did
just the reverse- they joined the rioters cause.
They started firing the house in which the
American‘s taken refuse. In the process, the
entire American‘s succeeded to fly though the
back door, except one- Mr. Youman, and he
was killed. USA lodged a claim against Mexico
for compensation of her national and the case
was sent to Arbitration Council.
ISSUE:
Whether the ultra virus act of the Mexican
soldiers would be imputable to Mexican state
responsibility?
REASONING
The principle of international law regarding
state responsibility is that a state shall be
responsible for the act of the persons under its
authority even though they acted ultra virus.
Here the soldiers were under the authority of
Mexico, tough they killed the American
disobeying the superior authority. · The acts of
the Mexican soldiers were directly imputable
upon the state. So Mexico cannot be exempted
from the responsibility.
Zafiro Claim (Great Britain v. US), 1925
o Bolivar Railway Company Claim
(Great Britain v. Venezuela),
1903
2004Edition
2005 Neer Claim (US v. Mexico), 1926
CASE NAME- Neer Claims
PARTIES- USA vs. Mexico YEAR- 1926
PRINCIPLE
In this case, the court affirmed the doctrine of
objective responsibility of the state. According
to this doctrine the responsibility for the acts
committed by its officials or its organs develop
upon the state itself.
FACT OF THE CASE
Paul Neer, an American citizen was
superintendent of a mine near Guanacvi, state
of Durango, Mexico. On November 10 1924, at
about 8 p.m. He and his wife were riding from
the village to their nearby home. In that way
they were stopped by a group of armed man.
The American was killed. Mrs. Neer summoned
help, and the village authority went to the
scene where it took place. On the following
morning the local judge examined some
witness including Mrs. Neer. Several days
passed during within a number of suspects
were arrested but released subsequently
because of lack of evident. Mrs. Neer filed a
claim of $1,00,000 for her and her daughters,
charging that the Mexican authorities showed
an utmost negligence in investigation of her
husband‘s death. The claim was placed before
him US-Mexican General Claims Commission.
ISSUE
How to determine the degree of lack of due
diligence on the part of the Mexican
authorities? Because of lack of due diligence to
what extent it creates the ground of state
responsibility for Mexico?
DECESION-
The administration decided that there had been
no lack of due diligence to justify state
responsibility and therefore rejected the
American claim.
REASONING
The local authorities were handicapped by the
fact that the only eye witness of the murder
Mrs. Neer failed to supply sufficient
information. For that reason the Mexican
authority failed to arrest the murderer. The
activities of the Mexican authority did not
properly prove the lack of due diligence on their
part.
Starrett Housing Corp. v. Iran (Interlocutory
Award) (US v. Iran), 1983
Citation. No. 32-A/18-FT, 5 Iran-U.S. Cl. Trib.
Rep. 251 (1984-1)
Brief Fact Summary. A suit was filed against
Iran (D) in an arbitral tribunal in the Hague by
people with dual Iranian-U.S. citizenship (P)
under a claim Settlement Declaration, which
was part of the Algiers Accords reached in the
aftermath of the 1979 Iranian seizure of U.S.
diplomatic and consular personnel in Iran (D)
as hostages. The jurisdiction of the tribunal
was however challenged by Iran.
Synopsis of Rule of Law. If the dominant and
effective nationality of the claimant is that of the
United States, then, the Claims Settlement
Declaration arbitral tribunal has jurisdiction
over claims against Iran by dual Iran-United
States nationals.
Facts. After the 1975 Iranian revolution, Iranian
militants seized U.S. diplomatic and consular
personnel in Iran (D) as hostages. In
retaliation, the United States seized Iranian
assets in the United States, and people and
companies with claims against Iran (D) filed
suit in U.S. courts, levying attachments against
blocked Iranian assets. A solution was
mediated by Algiers in January 1981
culminating in the Algiers Accord, which was
adopted by both states. Included in the
provision of the Algiers’s Accords was a Claims
Settlement Declaration, and created an arbitral
tribunal in The Hague to hear claims by the
nationals of either state against the
government of the other state. Certain people
with dual Iranian-U.S. citizenship (P) brought
Iran (D) before the tribunal and the jurisdiction
of the tribunal was challenged by Iran (D).
Issue. If the dominant and effective nationality
of the claimant is that of the United States,
then, can the Claims Settlement Declaration
arbitral tribunal have jurisdiction over claims
against Iran by dual Iran-United States
nationals?
Held. If the dominant and effective nationality
of the claimant is that of the United States,
then, can the Claims Settlement Declaration
arbitral tribunal have jurisdiction over claims
against Iran by dual Iran-United States
nationals?
Discussion. The tribunal closed to new claims
by private individuals in 1982. It received
approximately 4,700 private U.S. claims,
ordered payment by Iran (D) to U.S. nationals
amounting to over $2.5 billion.
5. Vienna Convention on the Law of Treaties
Cases:
Definition of "treaty"
 Abaya v. Sec. Ebdane, G.R. No.
167919, 14 February 2007
 DBM v. Kolonwel Trading
(consolidated cases), G.R. No.
175608, 8 June 2007
 Suplico v. NEDA, G.R. No. 178830,
14 July 2008
 CNMEG v. Hon. Santa Maria, G.R.
No. 185572, 7 February 2012
Definition of "ratification"
 Commissioner of Customs v.
Eastern Sea Trading, G.R. No. L-
14279, October 31, 1961
 Bayan v. Zamora, G.R. No. 138570,
October 10, 2000
G.R. No. 151445 April 11, 2002
ARTHUR D. LIM and PAULINO R.
ERSANDO, petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY as
alter ego of HER EXCELLENCEY GLORIA
MACAPAGAL-ARROYO, and HONORABLE
ANGELO REYES in his capacity as
Secretary of National Defense, respondents.
----------------------------------------
SANLAKAS and PARTIDO NG
MANGGAGAWA, petitioners-intervenors,
vs.
GLORIA MACAPAGA-ARROYO, ALBERTO
ROMULO, ANGELO REYES, respondents.
Constitutional Law; Treatise; The Terms of
Reference rightly fall within the context of the
Visiting Forces Agreement (VFA).—The Terms
of Reference rightly fall within the context of the
VFA. After studied reflection, it appeared
farfetched that the ambiguity surrounding the
meaning of the word “activities” arose from
accident. In our view, it was deliberately made
that way to give both parties a certain leeway in
negotiation. In this manner, visiting US forces
may sojourn in Philippine territory for purposes
other than military. As conceived, the joint
exercises may include training on new
techniques of patrol and surveillance to protect
the nation’s marine resources, sea search-and-
rescue operations to assist vessels in distress,
disaster relief operations, civic action projects
such as the building of school houses, medical
and humanitarian missions, and the like.
Same; Same; Same; The VFA gives legitimacy
to the current Balikatan exercises.—Under
these auspices, the VFA gives legitimacy to the
current Balikatan exercises. It is only logical to
assume that “Balikatan 02-1,” a “mutual anti-
terrorism advising, assisting and training
exercise,” falls under the umbrella of
sanctioned or allowable activities in the context
of the agreement. Both the history and intent of
the Mutual Defense Treaty and the VFA
support the conclusion that combat-related
activities—as opposed to combat itself—such
as the one subject of the instant petition, are
indeed authorized.
Same; Same; Same; A party to a treaty is not
allowed to “invoke the provisions of its internal
law as justification for its failure to perform a
treaty.”—From the perspective of public
international law, a treaty is favored over
municipal law pursuant to the principle of pacta
sunt servanda. Hence, “[e]very treaty in force is
binding upon the parties to it and must be
performed by them in good faith.” Further, a
party to a treaty is not allowed to “invoke the
provisions of its internal law as justification for
its failure to perform a treaty.”
Remedial Law; Certiorari; The present subject
matter is not a fit topic for a special civil action
for certiorari.—It is all too apparent that the
determination thereof involves basically a
question of fact. On this point, we must concur
with the Solicitor General that the present
subject matter is not a fit topic for a special civil
action for certiorari. We have held in too many
instances that questions of fact are not
entertained in such a remedy. The sole object
of the writ is to correct errors of jurisdiction or
grave abuse of discretion. The phrase “grave
abuse of discretion” has a precise meaning in
law, denoting abuse of discretion “too patent
and gross as to amount to an evasion of a
positive duty, or a virtual refusal to perform the
duty enjoined or act in contemplation of law, or
where the power is exercised in an arbitrary
and despotic manner by reason of passion and
personal hostility.”
Constitutional Law; Treatise; There is no treaty
allowing foreign military troops to engage in
combat with internal elements.—The
Constitution prohibits foreign military bases,
troops or facilities unless a treaty permits the
same. There is no treaty allowing foreign
military troops to engage in combat with
internal elements.
Same; Same; The Mutual Defense Treaty
(MDT) contemplates only an “external armed
attack.”—The Mutual Defense Treaty (MDT)
between the Republic of the Philippines and
the United States of America does not
authorize US military troops to engage the
ASG in combat. The MDT contemplates only
an “external armed attack.”
Same; Same; The “activities” referred to in the
VFA cannot thus be interpreted to include
armed confrontation with or suppression of the
Abu Sayyaf Group (ASG) members who
appear to be mere local bandits.—The VFA’s
ambiguous reference to “activities” is not a
loophole that legitimizes the presence of US
troops in Basilan. In the treaty’s preamble, the
parties “reaffirm their obligations under the
Mutual Defense Treaty of August 30, 1951.” As
the preamble comprises part of a treaty’s
context for the purpose of interpretation, the
VFA must be read in light of the provisions of
the MDT. As stated earlier, the MDT
contemplates only an external armed attack;
consequently, the “activities” referred to in the
VFA cannot thus be interpreted to include
armed confrontation with or suppression of the
ASG members who appear to be mere local
bandits, mainly engaged in kidnapping for
ransom and murder—even arson, extortion and
illegal possession of firearms, all of which are
common offenses under our criminal laws.
These activities involve purely police matters
and domestic law and order problems; they are
hardly “external” attacks within the
contemplation of the MDT and the VFA.
PANGANIBAN, J., Separate Opinion:
Remedial Law; Actions; As a rule, courts may
not consider or judge facts or matters unless
they are alleged in the pleadings and proven by
the parties.—I stress that cases cannot be
decided by this Court on the basis of
speculative or hypothetical assumptions like “If
the facts were these, then our decision would
be this; on the other hand, if the facts change,
then our ruling would be modified as follows.”
Decisions of this Court especially in certiorari
and prohibition cases are issued only if the
facts are clear and definite. As a rule, courts
may not consider or judge facts or matters
unless they are alleged in the pleadings and
proven by the parties. Our duty is to apply the
law to facts that are not in dispute. Lim vs.
Executive Secretary, 380 SCRA 739, G.R. No.
151445 April 11, 2002
Facts:
Beginning January 2002, personnel from the
armed forces of the United States of America
started arriving in Mindanao to take part, in
conjunction with the Philippine military, in
"Balikatan 02-1." • These so-called "Balikatan"
exercises are the largest combined training
operations involving Filipino and American
troops. In theory, they are a simulation of joint
military maneuvers pursuant to the Mutual
Defense Treaty, a bilateral defense agreement
entered into by the Philippines and the United
States in 1951. • February 1, 2002, petitioners
Arthur D. Lim and Paulino P. Ersando filed this
petition for certiorari and prohibition, attacking
the constitutionality of the joint exercise • The
lack of consensus(agreement) was eventually
cured when the two nations concluded the
Visiting Forces Agreement (VFA) in 1999.
Issue:
W/N "Balikatan 02-1" is covered by the Visiting
Forces Agreement. • W/N American troops
may actually engage in combat in Philippine
territory
Held:
Yes. • After studied reflection, it appeared
farfetched that the ambiguity surrounding the
meaning of the word .'activities" arose from
accident. In our view, it was deliberately made
that way to give both parties a certain leeway in
negotiation. In this manner, visiting US forces
may sojourn in Philippine territory for purposes
other than military. As conceived, the joint
exercises may include training on new
techniques of patrol and surveillance to protect
the nation's marine resources, sea search-and-
rescue operations to assist vessels in distress,
disaster relief operations, civic action projects
such as the building of school houses, medical
and humanitarian missions, and the like. • The
Terms of Reference are explicit enough.
Paragraph 8 of section I stipulates that US
exercise participants may not engage in
combat "except in self-defense." We wryly note
that this sentiment is admirable in the abstract
but difficult in implementation. The target of
"Balikatan 02-1 I" the Abu Sayyaf, cannot
reasonably be expected to sit idly while the
battle is brought to their very doorstep. They
cannot be expected to pick and choose their
targets for they will not have the luxury of doing
so. We state this point if only to signify our
awareness that the parties straddle a fine line,
observing the honored legal maxim "Nemo
potest facere per alium quod non potest facere
per directum."11 The indirect violation is
actually petitioners' worry, that in reality,
"Balikatan 02-1 " is actually a war principally
conducted by the United States government,
and that the provision on self-defense serves
only as camouflage to conceal the true nature
of the exercise. A clear pronouncement on this
matter thereby becomes crucial.
Notes:
• The entry of American troops into Philippine
soil is proximately rooted in the international
anti-terrorism campaign declared by President
George W. Bush in reaction to the tragic events
that occurred on September 11, 2001
• Mutual Defense Treaty—as the "core" of the
defense relationship between the Philippines
and its traditional ally, the United States. Its
aim is to enhance the strategic and
technological capabilities of our armed forces
through joint training with its American
counterparts; in re: VFA.
• Visiting Forces Agreement—provides the
"regulatory mechanism" by which "United
States military and civilian personnel [may visit]
temporarily in the Philippines in connection with
activities approved by the Philippine
Government." It contains provisions relative to
entry and departure of American personnel,
driving and vehicle registration, criminal
jurisdiction, claims, importation and
exportation, movement of vessels and aircraft,
as well as the duration of the agreement and its
termination. Its primary goal is to facilitate the
promotion of optimal cooperation between
American and Philippine military forces in the
event of an attack by a common foe.
G.R. No. 158088 July 6, 2005
SENATOR AQUILINO PIMENTEL, JR., REP.
ETTA ROSALES, PHILIPPINE COALITION
FOR THE ESTABLISHMENT OF THE
INTERNATIONAL CRIMINAL COURT, TASK
FORCE DETAINEES OF THE PHILIPPINES,
FAMILIES OF VICTIMS OF INVOLUNTARY
DISAPPEARANCES, BIANCA HACINTHA R.
ROQUE, HARRISON JACOB R. ROQUE,
AHMED PAGLINAWAN, RON P.
SALO,* LEAVIDES G. DOMINGO, EDGARDO
CARLO VISTAN, NOEL VILLAROMAN,
CELESTE CEMBRANO, LIZA ABIERA,
JAIME ARROYO, MARWIL LLASOS,
CRISTINA ATENDIDO, ISRAFEL FAGELA,
and ROMEL BAGARES, Petitioners,
vs.
OFFICE OF THE EXECUTIVE SECRETARY,
HON. ALBERTO ROMULO, and the
DEPARTMENT OF FOREIGN AFFAIRS,
represented by HON. BLAS OPLE,
Respondents.
Actions; Judicial Review; Parties; Locus Standi;
Mandamus; To be given due course, a petition
for mandamus must have been instituted by a
party aggrieved by the alleged inaction of any
tribunal, corporation, board or person which
unlawfully excludes said party from the
enjoyment of a legal right; The Court will
exercise its power of judicial review only if the
case is brought before it by a party who has the
legal standing to raise the constitutional or
legal questions; “Legal standing” means a
personal and substantial interest in the case
such that the party has sustained or will sustain
direct injury as a result of the government act
that is being challenged.—A petition for
mandamus may be filed when any tribunal,
corporation, board, officer or person unlawfully
neglects the performance of an act which the
law specifically enjoins as a duty resulting from
an office, trust, or station. We have held that to
be given due course, a petition for mandamus
must have been instituted by a party aggrieved
by the alleged inaction of any tribunal,
corporation, board or person which unlawfully
excludes said party from the enjoyment of a
legal right. The petitioner in every case must
therefore be an aggrieved party in the sense
that he possesses a clear legal right to be
enforced and a direct interest in the duty or act
to be performed. The Court will exercise its
power of judicial review only if the case is
brought before it by a party who has the legal
standing to raise the constitutional or legal
question. “Legal standing” means a personal
and substantial interest in the case such that
the party has sustained or will sustain direct
injury as a result of the government act that is
being challenged. The term “interest” is
material interest, an interest in issue and to be
affected by the decree, as distinguished from
mere interest in the question involved, or a
mere incidental interest.
Same; Same; Same; Same; Same;
International Law; Rome Statute of the
International Criminal Court; Only Senator
Pimentel has the legal standing to file the
instant suit since the other petitioners, even as
they maintain their standing as advocates and
defenders of human rights, and as citizens of
the country, have not shown that they have
sustained or will sustain a direct injury from the
non-transmittal of the signed text of the Rome
Statute to the Senate—the Rome Statute is
intended to complement national criminal laws
and courts and sufficient remedies are
available under our national laws to protect our
citizens against human rights violations and
petitioners can always seek redress for any
abuse in our domestic courts.—The question in
standing is whether a party has alleged such a
personal stake in the outcome of the
controversy as to assure that concrete
adverseness which sharpens the presentation
of issues upon which the court so largely
depends for illumination of difficult
constitutional questions. We find that among
the petitioners, only Senator Pimentel has the
legal standing to file the instant suit. The other
petitioners maintain their standing as
advocates and defenders of human rights, and
as citizens of the country. They have not
shown, however, that they have sustained or
will sustain a direct injury from the non-
transmittal of the signed text of the Rome
Statute to the Senate. Their contention that
they will be deprived of their remedies for the
protection and enforcement of their rights does
not persuade. The Rome Statute is intended to
complement national criminal laws and courts.
Sufficient remedies are available under our
national laws to protect our citizens against
human rights violations and petitioners can
always seek redress for any abuse in our
domestic courts.
Same; Same; Same; Same; Same; Same;
Legislators have the standing to maintain
inviolate the prerogatives, powers and
privileges vested by the Constitution in their
office and are allowed to sue to question the
validity of any official action which they claim
infringes their prerogatives as legislators.—As
regards Senator Pimentel, it has been held that
“to the extent the powers of Congress are
impaired, so is the power of each member
thereof, since his office confers a right to
participate in the exercise of the powers of that
institution.” Thus, legislators have the standing
to maintain inviolate the prerogatives, powers
and privileges vested by the Constitution in
their office and are allowed to sue to question
the validity of any official action which they
claim infringes their prerogatives as legislators.
The petition at bar invokes the power of the
Senate to grant or withhold its concurrence to a
treaty entered into by the executive branch, in
this case, the Rome Statute. The petition seeks
to order the executive branch to transmit the
copy of the treaty to the Senate to allow it to
exercise such authority. Senator Pimentel, as
member of the institution, certainly has the
legal standing to assert such authority of the
Senate.
International Law; Treaties; Presidency; In our
system of government, the President, being the
head of state, is regarded as the sole organ
and authority in external relations and is the
country’s sole representative with foreign
nations.—In our system of government, the
President, being the head of state, is regarded
as the sole organ and authority in external
relations and is the country’s sole
representative with foreign nations. As the chief
architect of foreign policy, the President acts as
the country’s mouthpiece with respect to
international affairs. Hence, the President is
vested with the authority to deal with foreign
states and governments, extend or withhold
recognition, maintain diplomatic relations, enter
into treaties, and otherwise transact the
business of foreign relations. In the realm of
treaty-making, the President has the sole
authority to negotiate with other states.
Nonetheless, while the President has the sole
authority to negotiate and enter into treaties,
the Constitution provides a limitation to his
power by requiring the concurrence of 2/3 of all
the members of the Senate for the validity of
the treaty entered into by him. Section 21,
Article VII of the 1987 Constitution provides
that “no treaty or international agreement shall
be valid and effective unless concurred in by at
least two-thirds of all the Members of the
Senate.”
Same; Same; Same; The participation of the
legislative branch in the treaty-making process
was deemed essential to provide a check on
the executive in the field of foreign relations.—
The participation of the legislative branch in the
treaty-making process was deemed essential
to provide a check on the executive in the field
of foreign relations. By requiring the
concurrence of the legislature in the treaties
entered into by the President, the Constitution
ensures a healthy system of checks and
balance necessary in the nation’s pursuit of
political maturity and growth.
Same; Same; Same; The signing of the treaty
and the ratification are two separate and
distinct steps in the treaty-making process—the
signature is primarily intended as a means of
authenticating the instrument and as a symbol
of the good faith of the parties, usually
performed by the state’s authorized
representative, while ratification is the formal
act by which a state confirms and accepts the
provisions of a treaty concluded by its
representative, and is generally held to be an
executive act, undertaken by the head of the
state or of the government.—Petitioners’
arguments equate the signing of the treaty by
the Philippine representative with ratification. It
should be underscored that the signing of the
treaty and the ratification are two separate and
distinct steps in the treaty-making process. As
earlier discussed, the signature is primarily
intended as a means of authenticating the
instrument and as a symbol of the good faith of
the parties. It is usually performed by the
state’s authorized representative in the
diplomatic mission. Ratification, on the other
hand, is the formal act by which a state
confirms and accepts the provisions of a treaty
concluded by its representative. It is generally
held to be an executive act, undertaken by the
head of the state or of the government. Thus,
Executive Order No. 459 issued by President
Fidel V. Ramos on November 25, 1997
provides the guidelines in the negotiation of
international agreements and its ratification. It
mandates that after the treaty has been signed
by the Philippine representative, the same shall
be transmitted to the Department of Foreign
Affairs. The Department of Foreign Affairs shall
then prepare the ratification papers and
forward the signed copy of the treaty to the
President for ratification. After the President
has ratified the treaty, the Department of
Foreign Affairs shall submit the same to the
Senate for concurrence. Upon receipt of the
concurrence of the Senate, the Department of
Foreign Affairs shall comply with the provisions
of the treaty to render it effective.
Same; Same; Same; Petitioners’ submission
that the Philippines is bound under treaty law
and international law to ratify the treaty which it
has signed is without basis—it is the ratification
that binds the state to the provisions thereof;
There is no legal obligation to ratify a treaty,
but it goes without saying that the refusal must
be based on substantial grounds and not on
superficial or whimsical reasons; The President
has the discretion even after the signing of the
treaty by the Philippine representative whether
or not to ratify the same.—Petitioners’
submission that the Philippines is bound under
treaty law and international law to ratify the
treaty which it has signed is without basis. The
signature does not signify the final consent of
the state to the treaty. It is the ratification that
binds the state to the provisions thereof. In fact,
the Rome Statute itself requires that the
signature of the representatives of the states
be subject to ratification, acceptance or
approval of the signatory states. Ratification is
the act by which the provisions of a treaty are
formally confirmed and approved by a State.
By ratifying a treaty signed in its behalf, a state
expresses its willingness to be bound by the
provisions of such treaty. After the treaty is
signed by the state’s representative, the
President, being accountable to the people, is
burdened with the responsibility and the duty to
carefully study the contents of the treaty and
ensure that they are not inimical to the interest
of the state and its people. Thus, the President
has the discretion even after the signing of the
treaty by the Philippine representative whether
or not to ratify the same. The Vienna
Convention on the Law of Treaties does not
contemplate to defeat or even restrain this
power of the head of states. If that were so, the
requirement of ratification of treaties would be
pointless and futile. It has been held that a
state has no legal or even moral duty to ratify a
treaty which has been signed by its
plenipotentiaries. There is no legal obligation to
ratify a treaty, but it goes without saying that
the refusal must be based on substantial
grounds and not on superficial or whimsical
reasons. Otherwise, the other state would be
justified in taking offense.
Same; Same; Same; It is within the authority of
the President to refuse to submit a treaty to the
Senate or, having secured its consent for its
ratification, refuse to ratify it.—It should be
emphasized that under our Constitution, the
power to ratify is vested in the President,
subject to the concurrence of the Senate. The
role of the Senate, however, is limited only to
giving or withholding its consent, or
concurrence, to the ratification. Hence, it is
within the authority of the President to refuse to
submit a treaty to the Senate or, having
secured its consent for its ratification, refuse to
ratify it. Although the refusal of a state to ratify
a treaty which has been signed in its behalf is a
serious step that should not be taken lightly,
such decision is within the competence of the
President alone, which cannot be encroached
by this Court via a writ of mandamus. This
Court has no jurisdiction over actions seeking
to enjoin the President in the performance of
his official duties. The Court, therefore, cannot
issue the writ of mandamus prayed for by the
petitioners as it is beyond its jurisdiction to
compel the executive branch of the
government to transmit the signed text of
Rome Statute to the Senate. Pimentel, Jr. vs.
Office of the Executive Secretary, 462 SCRA
622, G.R. No. 158088 July 6, 2005
 Akbayan v. Aquino, G.R. No.
170516, July 16, 2008
 Salonga et. al. v. Smith et. al., G.R.
No. 176051, February 11, 2009
 Vinuya v. Executive Secretary,
G.R. No. 162230, April 28, 2010
 Bayan Muna v. Executive
Secretary, G.R. No. 159618,
February 1, 2011
Reservations to the Convention on the
Prevention and Punishment of the Crime of
Genocide
Brief Fact Summary. Reservations to various
provisions to the U.N. Conventions on
Genocide were effected by several signatories’
states to it.
Synopsis of Rule of Law. A reservation to the
U.N. Convention on Genocide may be effected
by a state and still be considered a signatory
thereto.
Facts. The convention on Genocide was
unanimously adopted by the United Nations in
1951. Several states made reservations to one
or more of its provisions. An opinion as to
whether a party could express reservations and
still be considered a signatory was laid before
the International Court of Justice.
Issue. May a reservation to the U.N.
Convention on Genocide be made by a state
and still be considered a signatory thereto?
Held. Yes. A reservation to the U.N.
Convention on Genocide may be effected by a
state and still be considered a signatory
thereto. In a multilateral treaty, as long as the
reservation does not defeat the purpose of the
treaty, a reservation is permitted. By virtue of
its sovereignty, it has been argued that a state
may effect any reservation. In this case, the
validity of each reservation must be examined
on a case-by-case basis since numerous
reservations were made by different states.
(The court held that the state objecting to a
reservation could if it desired, consider the
reserving state not to be a party to the
Convention.
Discussion. Politics was at play in this case as
it has also been in other cases. Going by
precedence, international law usually held that
reservations to a multilateral treaty had to be
accepted by all other parties. Unanimous
acceptance of the Convention would not have
made the Convention possible if the rule was
followed. The Court was undoubtedly
determined to facilitate such unanimity
Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. US), supra
CASE NAME- Nicaragua Case
PARTIES- Nicaragua vs. USA YEAR-1986, ICJ
PRINCIPLE
There is no customary rule in International Law
permitting a State to exercise the right of
collective self-defense in another country on
the basis of its own assessment of the
sanitation.
FACT OF THE CASE
In 1979, U.S. Supported samoza Government
in Nicaragua which was overthrown by
Sandanista revolutionaries. In 1981 U.S.A.
terminated its economic aid to Nicaragua on
the ground that it had aided guerrillas fighting
against the U.S. supported EI Salvador
Government. On April 9, 1984 Nicaragua filed
a case against the U.S.A in the international
Court of Justice charging U.S.A for illegal
intervention in the internal affairs. Nicaragua
claimed that the U.S.A had, which was contrary
to the customary International law, used direct
armed forces against it by laying mines in
Nicaraguan internal and territorial water
causing damage to Nicaraguan ports, oil
installations and naval base. Moreover, and
given assistance to the contra rebels.
Nicaragua further claimed that the U.S.A acted
in breach of the 1956 U.S.A. Nicaraguan
Treaty of Friend hip, commerce and
Navigation.
ISSUE
The main issues of the case were as follows:
 Whether the International Court of Justice
had the jurisdiction to entertain such dispute.
 Whether there is any rule in customary
International Law permitting another State to
exercise the right to collective self-defense on
the basis of its own assessment of the
situation;
 Where U.S.A had infringed the customary
International Law regarding the use of force
and intervention
 Whether Nicaragua is entitled to any
compensation.
DECESION
In this case the U.S.A did not appear and on
May 10,1984 in its interim measure th court
held that U.S.A should immediately cease and
refrain from any action restricting, blocking, or
endangering access to or from Nicaragua ports
and in Particular the laying of mines. The court
further held that it had jurisdiction to entertain
the application filed by Nicaragua. He court
further said that there is no justification on the
part of U.S.A to apply collective self defense in
connection with the military and Para- military
activities in and against neither Nicaragua nor
her is any such international customary rule to
do that. Therefore, Nicaragua is entitled o get
compensation. But the court did not fix the
amount of compensation.
REASONING
In the decision the court considered the
following reasons:
 According to the Art. 387 of the Statue of the
International Court of Justice, the court is
entitled to apply custom,‖ where there is an
evidence of general practice of practice of that
custom.‖ The general practice of the custom is
accepted by law. Form the fact of the case it
appears that there is a custom regarding the
non use of force and non intervention. As it is a
generally practiced custom it is accepted by
law. So the court has full power and jurisdiction
to entertain the issues.
 There is no rule in customary International
law permitting another state to use the right of
collective self defense until it is invoked. It is
expected that the state for whose benefit this
right is used will have declared itself to be
victim of a armed attack and as it was there
won internal factor, the U.S.A had no
jurisdiction to exercise their power in the
internal matter of Nicaragua.  By laying mines
in the internal or territorial waters or Nicaragua,
U.S.A was in breach of its obligations under
customary international law not to use force
against another state, not to interrupt in
maritime commerce.
6. Vienna Convention on Diplomatic Relations;
Vienna Convention on Consular Relations and
Optional Protocols
 Cases:
US Diplomatic & Consular Staff (US v. Iran),
ICJ Reports, 1980
CASE NAME - Iran Case
PARTIES- U.S.A Vs Iran
YEAR- 1980
PRINCIPLE
To entire into mission area without permission
or protect to destroy in mission area and not to
violation in peace of mission or take necessary
steps because of not to reduce the dignity of
mission which is a special duty of a state.
FACT OF THE CASE
The United States Embassy at teharan in Iran
overruled a military group and hundreds of
several students. They are not permitted by the
president of Iran Al Khowameni. They
controlled over the documents and arcades to
entire into the diplomatic mission area and
captured by the officials. By Iran authority was
not protest them.
ISSUE
 Whether the Iranian Government was bound
to provide force to secure U.S.A Embassy and
its personals?  Whether Iran Government was
bound to provide compensation or not? 
Whether Iran Government breached any
International Law or not?
DECESION
International courts of Justice held that though
Iran government was bound to protect the
diplomatic mission. So that Iran Government
was not do this they are bound to pay
compensative.
REASONING
 Violation of official correspondents. 
Violation of achieves and documents. 
Violation of Vienna Convention 1961 22(1) and
22(2)
o Case Concerning Avena and
other Mexican Nationals (Mexico
v. USA), 31 March 2004.
B. International Organizations
1. The UN Charter & The Use of Force
 Arts. 2(3), 2(4), 24(1), 25, 23(1), 27(3),
UN Charter
 Higgins, Chapters 10, 14 & 15
 Cases:
Military & Paramilitary Activities in and
against Nicaragua (Nicaragua v. US), supra
Facts:
Nicaragua is assailing certain acts of the US as
being contrary to customary international law,
to wit: o Placing of mines in the ports of
Nicaragua; o Supporting a military group called
the contra forces which has committed
violations of human rights of some
Nicaraguans; and o Attacking certain places in
Nicaragua; - The US argues that it was merely
doing so in self-defense. It pointed out that
such use of force in self- defense is allowed by
international law. The US was saying that
Nicaragua was attacking El Salvador, Costa
Rica and Honduras and that the US was
merely acting to defend the said countries.
Issue:
W/n the acts of the US are contrary to
customary international law.
Held:
The Court said that the acts were contrary to
customary international law. o First, the attacks
on Nicaragua were against the principle of the
non-use of force in international relations.
Obviously, by attacking Nicaragua and placing
mines in its ports, the US employed force
against Nicaragua. The US argues that all
these acts were in self-defense. The Court
does not agree with the US. It held that there
was no actual armed attack on the countries
allegedly being protected by the US to warrant
the attack on Nicaragua. What Nicaragua was
guilty of was the sending of arms to the
opposition in El Salvador, Costa Rica and
Honduras. The court held that based on
customary international law, these acts are not
considered as armed attacks to justify the
attacks made by the US as being in self-
defense. o The court found that the acts of the
US also violated the principle of non-
interference which respects the sovereignty of
a state over its territory. By supporting the
contra forces in Nicaragua, the US was
impliedly coercing the government of
Nicaragua to do acts in the manner preferable
to the US. In short, the US was implicitly
interfering in the governance of Nicaragua
through the use of force. o The Court also finds
that the placing of mines by the US in the ports
of Nicaragua was a violation of the freedom of
navigation and commerce guaranteed by
Article XIX of the Treaty of Friendship,
Commerce and Navigation of 1956. The Court
therefore finds that the United States is prima
facie in breach of an obligation not to deprive
the 1956 Treaty of its object and purpose
(pacta sunt servanda), and has committed acts
in contradiction with the terms of the Treaty. o
In the end, the Court held that the US is under
an obligation to make reparation to the
Republic of Nicaragua for all injury caused to
Nicaragua by the breaches of obligations under
customary international law enumerated above
and by the breaches of the Treaty of
Friendship, Commerce and Navigation.
Legality of the Use by a State of Nuclear
Weapons in Armed Conflict (Advisory
Opinion), ICJ Reports, 8 July 1996
Facts:
The World Health Organization(WHO), sent to
the Registrar of the International Court of
Justice(ICJ) a decision of the World Health
Assembly (WHA) to submit a question to the
Court for an advisory opinion. -The request for
advisory opinion states, in summary, that: -In
view of the report of the Director-General and
the resolutions of the WHA on the health and
environmental effects of nuclear weapons; and
-Recalling that primary prevention is the only
appropriate means to deal with the health and
environmental effects of the use of nuclear
weapons; -The WHA decides to request the
International Court of Justice to give an
advisory opinion on the following question: In
view of the health and environmental effects,
would the use of nuclear weapons by a State in
war or other armed conflict be a breach of its
obligation under international law including the
WHO Constitution? -While the ICJ has the
power to give advisory opinions, three
conditions must be satisfied in order to found
the jurisdiction of the Court when a request for
an advisory opinion is submitted to it by a
specialized agency: 1. the agency requesting
the opinion must be duly authorized, under the
Charter, to request opinions from the Court; 2.
The opinion requested must be on a legal
question; 3. This question must be one arising
within the scope of the activities of the
requesting agency.
Issue:
W/N the Court has the jurisdiction to give the
advisory opinion requested by WHO.
Held:
NO, because the third requisite was not met -
There is no question of compliance with regard
to the first two requisites since, as regards the
first one, WHO’s Constitution and the
Agreement between WHO’s agreement with
the United Nations states that the General
Assembly of the United Nations authorizes the
WHO to request advisory opinions of the ICJ
on legal questions arising within the scope of
its competence. -As to the second requisite,
the issue posed is indeed a legal question,
since its resolution would require the ICJ to
interpret the rules of law invoked regarding the
obligations of the States, and assess whether
the behavior in question conforms to those
obligations. The political nature of the motives
which may have inspired the request and the
political implications that the opinion given
might have are irrelevant in the establishment
of jurisdiction. -With regard to the third
requisite, the Rules and the Constitution of the
organization must be referred to in order to
determine its field of activity or area of
competence. -The ICJ finds that the activities
of WHO relate only to the ‘effects of the use of
nuclear weapons on health,’ but not to the
‘legality of the use of such weapons in view of
their health and environmental effects.’ -None
of the function of WHO has a sufficient
connection with the question of legality of the
use of nuclear weapons. Whether nuclear
weapons are used legally or illegally, their
effects on health would be the same. -It must
be noted that WHO is a “specialized agency”
under the UN . Being a specialized agency, it is
empowered only to take such action for the
accomplishment of its specific objectives,
which necessarily deal with public health. It
cannot encroach on the responsibilities of other
parts of the United Nations System. -There is
no doubt that questions concerning the use of
force, the regulation or armaments and
disarmament are within the competence of the
United Nations and lie outside that of the
specialized agencies. -The request for an
advisory opinion submitted by the WHO does
not related to a question which arises “within
the scope of the activities” of WHO.
Side issues:
Issue:
W/N the resolution of WHA requesting for an
advisory opinion, having been adopted by the
requisite majority, must be presumed to have
been validly adopted.
Held:
The mere fact that a majority of States, in
voting a resolution, have complied with the
rules of form, cannot suffice to remedy the
fundamental defect of such resolution, it being
ultra vires.
Issue: W/N the opinion of the General
Assembly of UN welcoming the resolution of
WHO to request an advisory opinion grants
WHO the competence to do so.
Held: NO. The General Assembly only meant
to lend its political support to the action taken
by WHO, not to pass upon WHO’s competence
to request an opinion on the question raised
o Legality of the Use of Force
(Yugoslavia v. US), US 38 ILM
1199
o The Relationship between the UN
Charter and General International
Law Regarding Non-use of Force:
The Case of NATO's air
campaign in the Kosovo crisis of
1999, Shinya Murase
o The Caroline Case
o M.W. Reisman, "Assessing
Claims to Revise the loss of
War," 97 AJIL 82 at 87, 2003
o Case Concerning Oil Platforms
(Islamic Republic of Iran v. United
States of America), December
12,1996
o Armed Activities on the Territory
of Congo (Democratic Republic of
the Congo v. Uganda), ICJ (2005)
o Re: Certain Expenses of the UN,
supra
2. International Court of Justice
 Arts. 92, 93, 94, 96, UN Charter
 Arts. 1, 34(1), 35(1), ICJ Statute
a. Applicable Law
 Arts. 38 & 59, ICJ Statute
b. Jurisdiction
 Art. 36(1), (2) & (3), ICJ Statute
c. Advisory Opinions
Cases on Jurisdiction:
Military & Paramilitary Activities in and
against Nicaragua (Nicaragua v. US), supra
Facts:
Nicaragua is assailing certain acts of the US as
being contrary to customary international law,
to wit: o Placing of mines in the ports of
Nicaragua; o Supporting a military group called
the contra forces which has committed
violations of human rights of some
Nicaraguans; and o Attacking certain places in
Nicaragua; - The US argues that it was merely
doing so in self-defense. It pointed out that
such use of force in self- defense is allowed by
international law. The US was saying that
Nicaragua was attacking El Salvador, Costa
Rica and Honduras and that the US was
merely acting to defend the said countries.
Issue:
W/n the acts of the US are contrary to
customary international law.
Held:
The Court said that the acts were contrary to
customary international law. o First, the attacks
on Nicaragua were against the principle of the
non-use of force in international relations.
Obviously, by attacking Nicaragua and placing
mines in its ports, the US employed force
against Nicaragua. The US argues that all
these acts were in self-defense. The Court
does not agree with the US. It held that there
was no actual armed attack on the countries
allegedly being protected by the US to warrant
the attack on Nicaragua. What Nicaragua was
guilty of was the sending of arms to the
opposition in El Salvador, Costa Rica and
Honduras. The court held that based on
customary international law, these acts are not
considered as armed attacks to justify the
attacks made by the US as being in self-
defense. o The court found that the acts of the
US also violated the principle of non-
interference which respects the sovereignty of
a state over its territory. By supporting the
contra forces in Nicaragua, the US was
impliedly coercing the government of
Nicaragua to do acts in the manner preferable
to the US. In short, the US was implicitly
interfering in the governance of Nicaragua
through the use of force. o The Court also finds
that the placing of mines by the US in the ports
of Nicaragua was a violation of the freedom of
navigation and commerce guaranteed by
Article XIX of the Treaty of Friendship,
Commerce and Navigation of 1956. The Court
therefore finds that the United States is prima
facie in breach of an obligation not to deprive
the 1956 Treaty of its object and purpose
(pacta sunt servanda), and has committed acts
in contradiction with the terms of the Treaty. o
In the end, the Court held that the US is under
an obligation to make reparation to the
Republic of Nicaragua for all injury caused to
Nicaragua by the breaches of obligations under
customary international law enumerated above
and by the breaches of the Treaty of
Friendship, Commerce and Navigation.
 Lockerbie Case (Libyan Arab
Jamahiriya v. USA) ICJ Reports,
1988
 ELSI Case, ICJ Reports, 1989
 South West Africa Cases, ICJ
Reports, 1966
 Nauru v. Australia, ICJ Reports,
1992
Case Concerning East Timor (Portugal v.
Australia) ICJ Reports, 1995
The main ruling of the Court (the majority
opinion) is that it cannot exercise jurisdiction
over the case notwithstanding the fact that it
has been conferred jurisdiction through the
declarations made by the parties (i.e., Portugal
and Australia) under Article 36, paragraph 2, of
its Statute.
Reasons for the ruling:
a) the Court cannot exercise jurisdiction over
the case because Indonesia is not a party
thereto. The court held that in order to rule on
the proceedings instituted by Portugal against
Australia concerning "certain activities of
Australia with respect to East Timor", it would
be necessary for the court to determine the
rights and obligations of Indonesia. Specifically,
the court held that the very subject-matter of its
decision would necessarily be a determination
whether, having regard to the circumstances in
which Indonesia entered and remained in East
Timor, it could or could not have acquired the
power to enter into treaties on behalf of East
Timor relating to the resources of its
continental shelf. The Court could not make
such a determination in the absence of the
consent of Indonesia;
b) regarding the contention that Portugal and
Australia have accepted the compulsory
jurisdiction of the Court under Article 36,
paragraph 2, of its Statute, the court noted that
Indonesia did not do so. This, in effect,
precludes the court from exercising jurisdiction
since were it to rule on the case, its decision
would affect, but would not be binding on,
Indonesia because of its lack of consent to the
court’s jurisdiction;
c) while it is true that the right of peoples to
self-determination, as it evolved from the
Charter and from United Nations practice, has
an erga omnes character, the Court
nonetheless considers that the erga omnes
character of a norm and the rule of consent to
jurisdiction are two different things. Whatever
the nature of the obligations invoked, the Court
could not rule on the lawfulness of the conduct
of a State when its judgment would imply an
evaluation of the lawfulness of the conduct of
another State which is not a party to the case;
d) if the court were to exercise jurisdiction over
the case and render judgment thereon
notwithstanding the lack of Indonesia’s
consent, such a judgment would run directly
counter to the "well-established principle of
international law embodied in the Court's
Statute, namely, that the Court can only
exercise jurisdiction over a State with its
consent" (Monetary Gold Removed from Rome
in 1943, I.C.J. Reports 1954, p. 32).
Re the separate opinion of Judge Oda:
Judge Oda, while agreeing that Portugal's
Application should be dismissed as the Court
lacks jurisdiction to entertain it, considers that
its dismissal should not have been based upon
the absence of Indonesia's consent, as in the
Court's Judgment, but upon the sole
consideration that Portugal lacked locus standi.
His reasoning appears to be based on his view
that the central issue in the case is whether
Portugal or Indonesia, as a State lying opposite
to Australia, was entitled to the continental
shelf in the "Timor Gap"(maybe, this is what is
referred to in the Treaty of 11 December 1989
between Australia and Indonesia as an area
between the Indonesian Province of East Timor
and Northern Australia). . He notes that on the
matter of the delimitation of the continental
shelf in the relevant areas, it appears that since
the seventies, Indonesia claimed the status of
a coastal State for East Timor and, as such,
negotiated with Australia while, on the other
hand, Portugal did not. Had Portugal also
claimed that status, it could and should have
initiated a dispute over the corresponding title
to the continental shelf with Indonesia, but not
with Australia. Not unless and until such time
as Portugal had been established as having
the status of the coastal State entitled to the
corresponding continental shelf could any issue
concerning the seabed area of the "Timor Gap"
have been the subject matter of a dispute
between Portugal and Australia Since Portugal
does not have such status as yet, it has no
locus standi and hence, its complaint should be
dismissed on such ground.
Re the dissenting opinion of Judge
Weeramantry: Judge Weeramantry disagrees
with the majority view on the question as to
whether or not the Court lacks jurisdiction on
the ground that a decision against Australia
would involve a decision concerning the rights
of Indonesia, a third State, not before the
Court. Judge Weeramantry, after analyzing the
Monetary Gold decision and the prior and
subsequent jurisprudence on the matter,
concludes that, having regard to the facts of
this case, the Monetary Gold decision is not
relevant inasmuch as the Court could
determine the matter before it entirely on the
basis of the obligations and actions of Australia
alone, without any need to make an
adjudication on the conduct of Indonesia. He
bases this on the view that a central principle of
State responsibility in international law is the
individual responsibility of a State for its
actions, quite apart from the complicity of
another State in those actions. Accordingly, he
believes that Australia’s actions, in negotiating,
concluding and initiating performance of the
Timor Gap Treaty, and taking internal
legislative measures for its application, are thus
justiciable on the basis of its unilateral conduct.
Re the dissenting opinion of Judge
Skubiszewski:
In his view, the court has jurisdiction because
even it finds itself without jurisdiction to
adjudicate on any issue relating to the Timor
Gap Treaty, it can still rule on Portugal’s first
submission, i.e., with the status of East Timor,
the applicability to that territory of the principle
of self-determination and some other basic
principles of international law, and the position
of Portugal as administering Power. This is so
because the first submission can be separated
from the other submissions which concern
exclusively the specific issues of the treaty.
Judge Skubiszewski believes that the Court
can decide on the lawfulness of some unilateral
acts of Australia leading to the conclusion of
the Treaty. A decision thereon does not imply
any adjudication on Indonesia, nor does it
involve any finding on the validity of the Treaty.
The conduct of Australia can be assessed in
the light of United Nations law and resolutions.
Such assessment is not linked to any passing
upon Indonesia's activities. Further, it is his
view that Portugal has the capacity to act
before the Court in this case on behalf of East
Timor and to vindicate the respect for its
position as administering Power. The position
of Portugal as administering Power was
questioned by Australia; the Court should have
clarified this issue. It is within its jurisdiction.
Cases on Provisional Measures:
Bosnia Case (Application of the Convention
on the Prevention and Punishment of the
Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro),
supra
Brief Fact Summary. Following the genocide
of Bosnia Muslims, a suit was brought against
Serbia and Montenegro (D) by Bosnia and
Herzegovina (P).
Synopsis of Rule of Law. The obligation
under the Genocide Convention binds the
contracting parties to the Convention not to
commit, through their organs or persons or
groups whose conduct is attributable to them,
genocide and the other acts enumerated in
Article II.
Facts. A suit was brought against the Federal
Republic of Yugoslavia (Serbia and
Montenegro) (D) under the Genocide
Convention by Bosnia and Herzegovina (P).
The plaintiffs alleged that Serbia (D)
contravened the Convention by committing
genocide against Bosnia’s (P) Muslim
population. The International Court of Justice in
this first part of the case threw more light on
the provisions of the Genocide Convention,
including the undertaking to “prevent and
punish” genocide in Article I, the definition of
genocide in Article II, and the phase
“responsibility of a State for genocide” in Article
IX. (See Chapter 8, pages 54-55 for additional
facts in this case).
Issue. Are the obligation under the Genocide
Convention binding on the contracting parties
and do they prevent the parties from
committing, through their organs or persons or
groups whose conducts are attributable to
them, genocide and other acts enumerated in
Article II?
Held. Yes. The obligation under the Genocide
Convention binds the contracting parties to the
Convention not to commit, through their organs
or persons or group whose conduct is
attributable to them, genocide and other acts
enumerated in Article II.
The obligation imposed on the parties is
dependent on the ordinary meaning of the
terms of the Convention, read in context and in
light of the Convention’s object and purpose.
Resorting to supplementary means of
interpretation, including the Convention’s
preparatory work and the circumstances of its
conclusion are the means of resolving the
confusions associated to terms, context and
purpose.
The parties under the Convention are under an
obligation not to commit genocide
themselves. This obligation is not imposed
expressly by the Convention but the effect of
Article II is to prohibit states from committing
genocide themselves. The logic behind the
Convention is that the prohibition follows from
the fact that the Article categorizes genocide as
an international law crime and by agreeing to
such a categorization, the parties must logically
undertake not to commit the act described. It
also follows from the expressly stated
obligation to prevent the commission of acts of
genocide.
Serbia (D) further postulated that the drafting
history of the Convention shows that the states
are not directly responsible under the
Convention for acts of genocide, but heat
states have civil responsibility to prevent and
punish genocide committed by individuals. The
drafting history also throws more light on the
fact the Chairman of the Sixth Committee
believed that Article IX as modified provided for
state responsibility for genocide.
Discussion. Serbia’s (D) violations of its
obligation stems not only from the Genocide
Convention, but also from two protective
measures issued by the I.C.J. in April and
September 1993, under which the former
Federal Republic of Yugoslavia was ordered
explicitly to prevent the crimes of genocide and
to make sure that such crimes were not
committed by military or paramilitary formations
operating under its control or with its support.
Serbia (D) did not make any effort to prevent
the July 1995 Srebrenica massacre despite the
order, although according to the I.C.J, it should
have “been aware of the serious danger that
acts of genocide would be committed”.
 Lockerbie Case (Libyan Arab
Jamahiriya v. USA), supra
Cases on Dispute:
 Admissions Case (Conditions
of Admission of a state to
membership in the United
Nations), ICJ Reports, May
28,1948
 Free Zones Case (Case of the
Free Zones of Upper Savoy and
the District of Gex), PCIJ Ser.
A/B. No. 45, June 7, 1932
 Mavrommatis Case, supra
 UN Headquarters Advisory
Opinion (Applicability of the
Obligation to Arbitrate under
Sec. 21 of the UN Headquarters
Agreement of June 26, 1947), ICJ
Reports, April 26, 1988
Cases on Advisory Opinions:
Legality of the Use by a State of Nuclear
Weapons in Armed Conflict (Advisory
Opinion), ICJ Reports, 8 July 1996
Facts:
The World Health Organization(WHO), sent to
the Registrar of the International Court of
Justice(ICJ) a decision of the World Health
Assembly (WHA) to submit a question to the
Court for an advisory opinion. -The request for
advisory opinion states, in summary, that: -In
view of the report of the Director-General and
the resolutions of the WHA on the health and
environmental effects of nuclear weapons; and
-Recalling that primary prevention is the only
appropriate means to deal with the health and
environmental effects of the use of nuclear
weapons; -The WHA decides to request the
International Court of Justice to give an
advisory opinion on the following question: In
view of the health and environmental effects,
would the use of nuclear weapons by a State in
war or other armed conflict be a breach of its
obligation under international law including the
WHO Constitution? -While the ICJ has the
power to give advisory opinions, three
conditions must be satisfied in order to found
the jurisdiction of the Court when a request for
an advisory opinion is submitted to it by a
specialized agency: 1. the agency requesting
the opinion must be duly authorized, under the
Charter, to request opinions from the Court; 2.
The opinion requested must be on a legal
question; 3. This question must be one arising
within the scope of the activities of the
requesting agency.
Issue:
W/N the Court has the jurisdiction to give the
advisory opinion requested by WHO.
Held:
NO, because the third requisite was not met -
There is no question of compliance with regard
to the first two requisites since, as regards the
first one, WHO’s Constitution and the
Agreement between WHO’s agreement with
the United Nations states that the General
Assembly of the United Nations authorizes the
WHO to request advisory opinions of the ICJ
on legal questions arising within the scope of
its competence. -As to the second requisite,
the issue posed is indeed a legal question,
since its resolution would require the ICJ to
interpret the rules of law invoked regarding the
obligations of the States, and assess whether
the behavior in question conforms to those
obligations. The political nature of the motives
which may have inspired the request and the
political implications that the opinion given
might have are irrelevant in the establishment
of jurisdiction. -With regard to the third
requisite, the Rules and the Constitution of the
organization must be referred to in order to
determine its field of activity or area of
competence. -The ICJ finds that the activities
of WHO relate only to the ‘effects of the use of
nuclear weapons on health,’ but not to the
‘legality of the use of such weapons in view of
their health and environmental effects.’ -None
of the function of WHO has a sufficient
connection with the question of legality of the
use of nuclear weapons. Whether nuclear
weapons are used legally or illegally, their
effects on health would be the same. -It must
be noted that WHO is a “specialized agency”
under the UN . Being a specialized agency, it is
empowered only to take such action for the
accomplishment of its specific objectives,
which necessarily deal with public health. It
cannot encroach on the responsibilities of other
parts of the United Nations System. -There is
no doubt that questions concerning the use of
force, the regulation or armaments and
disarmament are within the competence of the
United Nations and lie outside that of the
specialized agencies. -The request for an
advisory opinion submitted by the WHO does
not related to a question which arises “within
the scope of the activities” of WHO.
Side issues:
Issue:
W/N the resolution of WHA requesting for an
advisory opinion, having been adopted by the
requisite majority, must be presumed to have
been validly adopted.
Held:
The mere fact that a majority of States, in
voting a resolution, have complied with the
rules of form, cannot suffice to remedy the
fundamental defect of such resolution, it being
ultra vires.
Issue: W/N the opinion of the General
Assembly of UN welcoming the resolution of
WHO to request an advisory opinion grants
WHO the competence to do so.
Held: NO. The General Assembly only meant
to lend its political support to the action taken
by WHO, not to pass upon WHO’s competence
to request an opinion on the question raised
 Monetary Gold Case (Monetary
Gold Removed from Rome in
1943 (Italy v. France, UK of Great
Britain & Northern Ireland, & the
USA)), ICJ Reports, June 15,
1954
 Certain Expenses of the UN,
supra
Western Sahara Case, ICJ Reports, 1975
FACTS:
Western Sahara is inhabited by organized but
nomadic tribes. Spain, Mauritania and Algeria
asserts sovereign rights over it
ISSUE:
W/N Western Sahara is terra nullius (territory
which prior to occupation belonged to no state
or which has been abandoned by a prior
occupant)
HELD:
It is not terra nullius Territories inhabited by
tribes or people having a social and political
organization were not regarded as terra nullius
The court concludes that the material and
information presented to it do not establish any
tie of territorial sovereignty over the Western
Sahara. Discovery of terra nullius is not enough
to establish sovereignty. It must be
accompanied by effective control.
 Botswana v. Namibia (Case
Concerning Kasikili/Sedudu
Island), ICJ Reports, 1999
 Status of Eastern Carelia (Finland
v. Russia;, PCIJ Ser. B, No. 5,
July 23,1923
Advisory Opinion on the Legal
Consequences of the Construction of a Wall
in the Occupied Palestinian Territories
Facts:
(Facts are really short.) Israel constructed a
wall in the Occupied Palestinian Territory
including in and around east Jerusalem. The
question on which the advisory opinion of the
Court has been requested is set forth in
resolution ES-10/14 adopted by the General
Assembly of the United Nations on 8
December 2003 at its Tenth Emergency
Special Session.
Issue:
W/N the court has jurisdiction to issue an
advisory position.
Held:
The Court has Jurisdiction. The Court has
already indicated that the subject of the present
request for an advisory opinion falls within the
competence of the General Assembly under
the Charter.
Even if Article 12, paragraph 1, of the Charter
provides that: “While the Security Council is
exercising in respect of any dispute or situation
the functions assigned to it in the present
Charter, the General Assembly shall not make
any recommendation with regard to that
dispute or situation unless the Security Council
so requests.” a request for an advisory opinion
is not in itself a “recommendation” by the
General Assembly “with regard to [a] dispute or
situation”.
As regards the practice of the United Nations,
both the General Assembly and the Security
Council initially interpreted and applied Article
12 to the effect that the Assembly could not
make a recommendation on a question
concerning the maintenance of international
peace and security while the matter remained
on the Security Council’s agenda. However,
this interpretation of Article 12 has evolved
subsequently. Thus the General Assembly
deemed itself entitled in 1961 to adopt
recommendations in the matter of the Congo
(resolutions 1955 (XV) and 1600 (XVI)) and in
1963 in respect of the Portuguese colonies
(resolution 1913 (XVIII)) while those cases still
appeared on the Council’s agenda, without the
Council having adopted any recent resolution
concerning them.
Issue:
W/N the Court cannot exercise jurisdiction to
issue an opinion because of contentious
matters between Israel and Palestine.
Held:
The Court can exercise its jurisdiction. One of
the arguments is to the effect that the Court
should not exercise its jurisdiction in the
present case because the request concerns a
contentious matter between Israel and
Palestine, in respect of which Israel has not
consented to the exercise of that jurisdiction.
According to this view, the subject-matter of the
question posed by the General Assembly “is an
integral part of the wider Israeli-Palestinian
dispute concerning questions of terrorism,
security, borders, settlements, Jerusalem and
other related matters”. Israel has emphasized
that it has never consented to the settlement of
this wider dispute by the Court or by any other
means of compulsory adjudication; on the
contrary, it contends that the parties repeatedly
agreed that these issues are to be settled by
negotiation, with the possibility of an
agreement that recourse could be had to
arbitration. The Court observes that the lack of
consent to the Court’s contentious jurisdiction
by interested States has no bearing on the
Court’s jurisdiction to give an advisory opinion.
In an Advisory Opinion of 1950, the Court
explained that:
“The consent of States, parties to a dispute, is
the basis of the Court’s jurisdiction in
contentious cases. The situation is different in
regard to advisory proceedings. The Court’s
reply is only of an advisory character: as such,
it has no binding force. It follows that no State,
whether a Member of the United Nations or
not, can prevent the giving of an Advisory
Opinion which the United Nations considers to
be desirable in order to obtain enlightenment
as to the course of action it should take.
Issue:
W/N building of the wall violates the right of the
Palestinian people to self-determination.
Held:
he building of the wall violates the self-
determination doctrine.
As regards the principle of the right of peoples
to self-determination, the Court observes that
the existence of a “Palestinian people” is no
longer in issue. Such existence has moreover
been recognized by Israel in the exchange of
letters of 9 September 1993 between Mr.
Yasser Arafat, President of the Palestine
Liberation Organization (PLO) and Mr. Yitzhak
Rabin, Israeli Prime Minister. In that
correspondence, the President of the PLO
recognized “the right of the State of Israel to
exist in peace and security” and made various
other commitments. In reply, the Israeli Prime
Minister informed him that, in the light of those
commitments, “the Government of Israel has
decided to recognize the PLO as the
representative of the Palestinian people”.
C. The Individual
1. Human Rights (Report)
2. International Criminal Law
a. Nuremberg Tribunal
b. Tokyo War Crimes Tribunal (Report)
c. 1949 Geneva Conventions
d. 1978 Additional Protocol to the Geneva
Convention
e. Security Council Resolution No. 827
(Yugoslavia War Crimes Tribunal)
f. Security Council Resolution No. 955
(Rwanda War Crimes Tribunal)
g. 1998 Rome Convention on the International
Criminal Court
Cases:
Legality of the Use by a State of Nuclear
Weapons in Armed Conflict (Advisory
Opinion), ICJ Reports, 8 July 1996
Facts:
The World Health Organization(WHO), sent to
the Registrar of the International Court of
Justice(ICJ) a decision of the World Health
Assembly (WHA) to submit a question to the
Court for an advisory opinion. -The request for
advisory opinion states, in summary, that: -In
view of the report of the Director-General and
the resolutions of the WHA on the health and
environmental effects of nuclear weapons; and
-Recalling that primary prevention is the only
appropriate means to deal with the health and
environmental effects of the use of nuclear
weapons; -The WHA decides to request the
International Court of Justice to give an
advisory opinion on the following question: In
view of the health and environmental effects,
would the use of nuclear weapons by a State in
war or other armed conflict be a breach of its
obligation under international law including the
WHO Constitution? -While the ICJ has the
power to give advisory opinions, three
conditions must be satisfied in order to found
the jurisdiction of the Court when a request for
an advisory opinion is submitted to it by a
specialized agency: 1. the agency requesting
the opinion must be duly authorized, under the
Charter, to request opinions from the Court; 2.
The opinion requested must be on a legal
question; 3. This question must be one arising
within the scope of the activities of the
requesting agency.
Issue:
W/N the Court has the jurisdiction to give the
advisory opinion requested by WHO.
Held:
NO, because the third requisite was not met -
There is no question of compliance with regard
to the first two requisites since, as regards the
first one, WHO’s Constitution and the
Agreement between WHO’s agreement with
the United Nations states that the General
Assembly of the United Nations authorizes the
WHO to request advisory opinions of the ICJ
on legal questions arising within the scope of
its competence. -As to the second requisite,
the issue posed is indeed a legal question,
since its resolution would require the ICJ to
interpret the rules of law invoked regarding the
obligations of the States, and assess whether
the behavior in question conforms to those
obligations. The political nature of the motives
which may have inspired the request and the
political implications that the opinion given
might have are irrelevant in the establishment
of jurisdiction. -With regard to the third
requisite, the Rules and the Constitution of the
organization must be referred to in order to
determine its field of activity or area of
competence. -The ICJ finds that the activities
of WHO relate only to the ‘effects of the use of
nuclear weapons on health,’ but not to the
‘legality of the use of such weapons in view of
their health and environmental effects.’ -None
of the function of WHO has a sufficient
connection with the question of legality of the
use of nuclear weapons. Whether nuclear
weapons are used legally or illegally, their
effects on health would be the same. -It must
be noted that WHO is a “specialized agency”
under the UN . Being a specialized agency, it is
empowered only to take such action for the
accomplishment of its specific objectives,
which necessarily deal with public health. It
cannot encroach on the responsibilities of other
parts of the United Nations System. -There is
no doubt that questions concerning the use of
force, the regulation or armaments and
disarmament are within the competence of the
United Nations and lie outside that of the
specialized agencies. -The request for an
advisory opinion submitted by the WHO does
not related to a question which arises “within
the scope of the activities” of WHO.
Side issues:
Issue:
W/N the resolution of WHA requesting for an
advisory opinion, having been adopted by the
requisite majority, must be presumed to have
been validly adopted.
Held:
The mere fact that a majority of States, in
voting a resolution, have complied with the
rules of form, cannot suffice to remedy the
fundamental defect of such resolution, it being
ultra vires.
Issue: W/N the opinion of the General
Assembly of UN welcoming the resolution of
WHO to request an advisory opinion grants
WHO the competence to do so.
Held: NO. The General Assembly only meant
to lend its political support to the action taken
by WHO, not to pass upon WHO’s competence
to request an opinion on the question raised
Yugoslavia War Crimes Tribunal Decision
on Tadic, 15 July 1999
Citation. App. Chamber, Int’l Crim. Trib. For
former Yugoslavia, 1992 Case No. IT-94-1-
AR72, 35 I.L.M. 32 (1996)
Brief Fact Summary. The claim Tadic (D)
brought before the Court was that the Security
Council did not have the authority to establish
an international criminal tribunal.
Synopsis of Rule of Law. The Security
Council enjoys a wide margin of discretion in
choosing the course of action once it
determines that a particular situation poses a
threat to peace.
Facts. According to the Charter of the United
Nations, the Security Council shall determine
the existence of any threat to the peace and
decide what measures shall be taken to restore
international peace and security. Tadic (D)
claimed the Security Council did not have the
power to establish an International Criminal
Tribunal to deal with armed conflict in the
former Yugoslavia.
Issue. Does the Security Council enjoy a wide
margin of discretion in choosing the course of
action once it determines that a particular
situation poses a threat to the peace?
Held. Yes. The Security Council enjoys a wide
margin of discretion in choosing the course of
action once it determines that a particular
situation poses a threat to peace. The Security
Council may exercise its exceptional powers
under Chapter VI or Chapter VII of the U.N.
Charter where internal armed conflicts are
determined to pose a threat to peace. These
powers are mandatory and coercive. Although
the establishment of an international tribunal is
not explicitly mandated, the measures
described in the Charter are merely illustrative
and not exhaustive.
Discussion. Originally, Tadic (D) contested the
Security Council’s power to determine whether
the situation in the former Yugoslavia
constituted a threat to the peace, but he no
longer held this view at this stage. Here, he
was challenging the legality and
appropriateness of the measures taken by the
Security Council.
  Dizon v. Commanding General
 Rasul v. Bush
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)
Brief Fact Summary. After Hamdan (P) was
captured in Afghanistan, a U.S. military
commission began proceedings against him.
The authority of the commission was
challenged by Hamdan (P).
Synopsis of Rule of Law. The congress or the
inherent powers of the President did not
authorize the military commission established
to try those deemed “enemy combatants” for
alleged war crimes in the War on Terror.
(2) The rights protected by the Geneva
Convention may be enforced in federal court
through habeas corpus petitions.
Facts. Afghan forces captured Salim Ahmed
Hamdan (P) and the U.S. military imprisoned
him at Guantanamo Bay. He challenged his
imprisonment by filing a petition for a writ of
habeas corpus in the federal district court but
before the court could rule on the petition, a
U.S. military commission began proceeding
and named Hamdan (P) an enemy combatant.
Hamdan (P) challenged the authority of the
commission on the ground that the commission
trial would violate his rights under Article 102 of
the Geneva Convention, which provides that a
“prisoner of war can be validly sentenced only
if the sentence has been pronounced by the
same courts according to the same procedure
as in the case of members of the armed forces
of the Detaining Power”.
Hamdan’s habeas petition was granted by the
district court’s, ruling that a hearing to
determine whether he was a prisoner of war
under the Geneva convention must be taken
place before he could be tried by a military
commission. This decision was reversed by the
D.C. Circuit Courts of Appeal on the premise
that the Geneva Convention could not be
enforced in federal court and that the
establishment of military tribunals had been
authorized by Congress and was therefore not
unconstitutional.
Issue. Did the congress or the inherent powers
of the President authorize the military
commission established to try enemy
combatants for alleged war crimes in the War
on Terror?
(2). May the rights protected by the Geneva
Convention be enforced in federal court
through habeas corpus petitions?
Held. No. The congress or the inherent powers
of the President did not authorize the military
commission established to try those deemed
“enemy combatants” for alleged war crimes in
the War on Terror. Absent that express
authorization, the commission had to comply
with the ordinary laws of the United States (D)
and the laws of war.
(2). Yes. The rights protected by the Geneva
Convention may be enforced in federal court
through habeas corpus petitions. As part of the
ordinary laws of war, the Geneva Convention
could be enforced by the U.S. Supreme Court
along with the statutory Uniform Code of
Military Justice (UCM) since the military
commission was not authorized. The exclusion
of Hamdan (P) from certain parts of his trials
deemed classified by the military commission
violated both of these and the trial was
therefore illegal. Common Article 3 which
provides minimal protection to individuals
associated with neither a signatory nor a non-
signatory “Power” who are involved in a conflict
in the territory of a signatory is applicable here
and requires that Hamdan (P) be tried by a
“regularly constituted court affording all the
judicial guarantees which are recognized as
indispensable by civilized peoples.
Discussion. Many U.S. and international
human rights organizations have determined
that violations might occur through the non-
application of the Geneva Convention to
detainees in the U.S. war on terrorism.
Boumedienne v. Bush, 12 June 2008
3. Foreign Investments & Natural Resources
Cases:
Texaco v. Libya, 17 ILM or 53 ILR 389, 1978
Citation. Int’l Arbitral Award, 104 J. Droit Int’l
350 (1977), translated in 17 I.L.M. 1 (1978)
Brief Fact Summary. A decree which
attempted to nationalize all of Texaco’s (P)
rights, interest and property in Libya was
promulgated by Libya (D).
Synopsis of Rule of Law. Whenever
reference is been made to general principles of
law in the international arbitration context, it is
always held to be a sufficient criterion for the
internationalization of a contract.

Facts. A decree to nationalize all Texaco’s (P)
rights, interest and property in Libya was
promulgated by Libya (D). This action of the
Libyan Government led Texaco (P) to request
for arbitration, but it was refused by Libya (D).
A sole arbitrator was however appointed by the
International Court of Justice on Texaco’s
request, and Libya (D) was found to have
breached its obligations under the Deeds of
Concessions and was also legally bound to
perform in accordance with their terms.
Issue. Whenever reference is being made to
general principles of law in the International
arbitration context, can this be held to be a
sufficient criterion for the internationalization of
a contract?
Held. Yes. Whenever reference is been made
to general principles of law in the international
arbitration context, it is always held to be a
sufficient criterion for the internationalization of
a contract. The lack of adequate law in the
state considered and the need to protect the
private contracting party against unilateral and
abrupt modifications of law in the contracting
state is a justification to the recourse to general
principles. Though international law involves
subjects of a diversified nature, legal
international capacity is not solely attributable
to a state. A private contracting party, unlike a
state, has only a limited capacity and is limited
to invoke only those rights that he derives from
his contract.
Discussion. Applying Libyan law or
international law in the arbitration proceedings
was a conflict encountered by in this case.
Though the contract itself deferred to Libyan
law, the court noted that Libyan law does not
preclude the application of international law,
but that the two must be combined in order to
verify that Libyan law complies with
international law. Even though the right of a
state to nationalize is recognized by
international law, this right in itself is not a
sufficient justification not to regard its
contractual obligations
 BP v. Libya, 53 ILR 2
 Saudi Arabia v. Arabian
American Oil Company, 27 ILR
117
Chorzow Factory Case, supra
PRINCIPLE
It is a general principle of international law that
any breach of an engagement involves an
obligation to make reparation.
FACT OF THE CASE
There was an agreement between Germany
and Poland and that bilateral treaty was known
as the Geneva Upper Silesia convention 1922.
it had been provided in that treaty that on
transfer of sovereignty of certain territories from
Germany to Poland after the 1st world war,
existing proprietary right were to be maintained
except that the Polish Government was
granted a right of expropriation under certain
condition with respects of all property
belonging to German nationals in Upper
Silesia. The present dispute arose when
Poland seized to companies there in breach of
its international obligation under the Upper
Silesia convention of 1922. The Germany
demanded compensation from the Poland.
ISSUE
The issues of the case were as follows: 
Whether the convention of 1922 creates any
obligation on the part of the Poland.  Where
seizure of the 2 companies by the Polish
Government is contrary to its international
obligation, whether Poland is bound to make
reparation to Germany.  If there appears any
breach of international obligation, whether
Poland is bounty to make reparation to
Germany.
DECISION
The reparation of wrong may consist in an
indemnity corresponding to the damage which
is contrary of International Law. Right or
interests of an individual the violation of which
rights cause damages are always in a different
plain to rights belonging to a state, which rights
may also be infringed by the same act.
REASONING
In deciding the case the court considered the
following the reasons to be applied:  The
action of Poland was not expropriation in its
real sense, it was rather a seizure of property,
right and interest which could not be
expropriated even against compensation, save
under the special conditions fixed by Art. 7 of
the Upper Silesia convention of 1922. in doing
so, therefore, Poland acted contrary to its
obligations.  It is general principle of
international law and even a general concept of
law that a breach of an agreement involves a
duty to make reparation.  Reparation is the
expendable complement of a failure to apply a
convention and there is no necessity for this to
be stated in the convention itself. This case is
one of an unlawful expropriation and in such
cases expropriating sates must in addition to
paying the compensation due in respect of
lawful expropriation, pay also damages for any
loss continued by the injured party.
 Chorzow Factory Case, supra
 LIAMCO v. Libyan Arab
Republic, 62 ILR 140
 Starrett Housing Case, 4 Iran-
US Claims Tribunal Reports
 Kuwait v. Aminoil, 66 ILR 518
 Sapphire Case, 3B ILR 136
a. When Lawful
 Starrett Housing Case, 4 Iran-
US Claims Tribunal Reports
 Amoco Case (US v. Iran), 27
ILM 1314
 Phillips Petroleum Company
Iran, v. The Islamic Republic of
Iran, and The National Iranian
Oil Co., 21 Iran-US Claims
Tribunal Reports
b. WTO
Cases:
G.R. No. 118295 May 2, 1997
WIGBERTO E. TAÑADA and ANNA
DOMINIQUE COSETENG, as members of
the Philippine Senate and as taxpayers;
GREGORIO ANDOLANA and JOKER
ARROYO as members of the House of
Representatives and as taxpayers;
NICANOR P. PERLAS and HORACIO R.
MORALES, both as taxpayers; CIVIL
LIBERTIES UNION, NATIONAL ECONOMIC
PROTECTIONISM ASSOCIATION, CENTER
FOR ALTERNATIVE DEVELOPMENT
INITIATIVES, LIKAS-KAYANG KAUNLARAN
FOUNDATION, INC., PHILIPPINE RURAL
RECONSTRUCTION MOVEMENT,
DEMOKRATIKONG KILUSAN NG
MAGBUBUKID NG PILIPINAS, INC., and
PHILIPPINE PEASANT INSTITUTE, in
representation of various taxpayers and as
non-governmental
organizations, petitioners,
vs.
EDGARDO ANGARA, ALBERTO ROMULO,
LETICIA RAMOS-SHAHANI, HEHERSON
ALVAREZ, AGAPITO AQUINO, RODOLFO
BIAZON, NEPTALI GONZALES, ERNESTO
HERRERA, JOSE LINA, GLORIA.
MACAPAGAL-ARROYO, ORLANDO
MERCADO, BLAS OPLE, JOHN OSMEÑA,
SANTANINA RASUL, RAMON REVILLA,
RAUL ROCO, FRANCISCO TATAD and
FREDDIE WEBB, in their respective
capacities as members of the Philippine
Senate who concurred in the ratification by
the President of the Philippines of the
Agreement Establishing the World Trade
Organization; SALVADOR ENRIQUEZ, in his
capacity as Secretary of Budget and
Management; CARIDAD VALDEHUESA, in
her capacity as National Treasurer;
RIZALINO NAVARRO, in his capacity as
Secretary of Trade and Industry; ROBERTO
SEBASTIAN, in his capacity as Secretary of
Agriculture; ROBERTO DE OCAMPO, in his
capacity as Secretary of Finance;
ROBERTO ROMULO, in his capacity as
Secretary of Foreign Affairs; and TEOFISTO
T. GUINGONA, in his capacity as Executive
Secretary, respondents.
Constitutional Law; Judicial Review; Separation
of Powers; Where an action of the legislative
branch is seriously alleged to have infringed
the Constitution, it becomes not only the right
but in fact the duty of the judiciary to settle the
dispute.—In seeking to nullify an act of the
Philippine Senate on the ground that it
contravenes the Constitution, the petition no
doubt raises a justiciable controversy. Where
an action of the legislative branch is seriously
alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty
of the judiciary to settle the dispute. “The
question thus posed is judicial rather than
political. The duty (to adjudicate) remains to
assure that the supremacy of the Constitution
is upheld.” Once a “controversy as to the
application or interpretation of a constitutional
provision is raised before this Court (as in the
instant case), it becomes a legal issue which
the Court is bound by constitutional mandate to
decide.”
Same; Same; Actions; Special Civil Actions;
Certiorari, prohibition and mandamus are
appropriate remedies to raise constitutional
issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive
officials.—As the petition alleges grave abuse
of discretion and as there is no other pl ain,
speedy or adequate remedy in the ordinary
course of law, we have no hesitation at all in
holding that this petition should be given due
course and the vital questions raised therein
ruled upon under Rule 65 of the Rules of Court.
Indeed, certiorari, prohibition and mandamus
are appropriate remedies to raise constitutional
issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive
officials. On this, we have no equivocation.
Same; Same; Same; Same; In deciding to take
jurisdiction over this petition, the Supreme
Court does not review the wisdom of the
decision of the President and the Senate in
enlisting the country in the WTO, or pass upon
the merits of trade liberalization as a policy
espoused by said international body, rather, it
only exercises its constitutional duty “to
determine whether or not there had been a
grave abuse of discretion amounting to lack or
excess of jurisdiction” on the part of the Senate
in ratifying the WTO Agreement and its three
annexes.—We should stress that, in deciding
to take jurisdiction over this petition, this Court
will not review the wisdom of the decision of
the President and the Senate in enlisting the
country into the WTO, or pass upon the merits
of trade liberalization as a policy espoused by
said international body. Neither will it rule on
the propriety of the government’s economic
policy of reducing/removing tariffs, taxes,
subsidies, quantitative restrictions, and other
import/trade barriers. Rather, it will only
exercise its constitutional duty “to determine
whether or not there had been a grave abuse
of discretion amounting to lack or excess of
jurisdiction” on the part of the Senate in
ratifying the WTO Agreement and its three
annexes.
Same; Constitutional Principles and State
Policies; The principles and state policies
enumerated in Article II and some sections of
Article XII are not self-executing provisions, the
disregard of which can give rise to a cause of
action in the courts.—By its very title, Article II
of the Constitution is a “declaration of principles
and state policies.” The counterpart of this
article in the 1935 Constitution is called the
“basic political creed of the nation” by Dean
Vicente Sinco. These principles in Article II are
not intended to be self-executing principles
ready for enforcement through the courts. They
are used by the judiciary as aids or as guides
in the exercise of its power of judicial review,
and by the legislature in its enactment of laws.
As held in the leading case of Kilosbayan,
Incorporated vs. Morato, the principles and
state policies enumerated in Article II and some
sections of Article XII are not “self-executing
provisions, the disregard of which can give rise
to a cause of action in the courts. They do not
embody judicially enforceable constitutional
rights but guidelines for legislation.”
Same; Same; Separation of Powers; Due
Process.—The reasons for denying a cause of
action to an alleged infringement of broad
constitutional principles are sourced from basic
considerations of due process and the lack of
judicial authority to wade “into the uncharted
ocean of social and economic policy making.”
Same; Same; Trade Liberalization; “Filipino
First” Policy; While the Constitution indeed
mandates a bias in favor of Filipino goods,
services, labor and enterprises, at the same
time, it recognizes the need for business
exchange with the rest of the world on the
bases of equality and reciprocity and limits
protection of Filipino enterprises only against
foreign competition and trade practices that are
unfair—the Constitution did not intend to
pursue an isolationist policy.—All told, while the
Constitution indeed mandates a bias in favor of
Filipino goods, services, labor and enterprises,
at the same time, it recognizes the need for
business exchange with the rest of the world
on the bases of equality and reciprocity and
limits protection of Filipino enterprises only
against foreign competition and trade practices
that are unfair. In other words, the Constitution
did not intend to pursue an isolationist policy. It
did not shut out foreign investments, goods and
services in the development of the Philippine
economy. While the Constitution does not
encourage the unlimited entry of foreign goods,
services and investments into the country, it
does not prohibit them either. In fact, it allows
an exchange on the basis of equality and
reciprocity, frowning only on foreign
competition that is unfair.
Same; Same; Same; Same; World Trade
Organization (WTO); General Agreement on
Tariffs and Trade (GATT); There is hardly any
basis for the statement that under the WTO,
local industries and enterprises will all be wiped
out and that Filipinos will be deprived of control
of the economy, for, quite to the contrary, the
weaker situations of developing nations like the
Philippines have been taken into account.—
Moreover, GATT itself has provided built-in
protection from unfair foreign competition and
trade practices including anti-dumping
measures, countervailing measures and
safeguards against import surges. Where local
business are jeopardized by unfair foreign
competition, the Philippines can avail of these
measures. There is hardly therefore any basis
for the statement that under the WTO, local
industries and enterprises will all be wiped out
and that Filipinos will be deprived of control of
the economy. Quite the contrary, the weaker
situations of developing nations like the
Philippines have been taken into account; thus,
there would be no basis to say that in joining
the WTO, the respondents have gravely
abused their discretion. True, they have made
a bold decision to steer the ship of state into
the yet uncharted sea of economic
liberalization. But such decision cannot be set
aside on the ground of grave abuse of
discretion, simply because we disagree with it
or simply because we believe only in other
economic policies. As earlier stated, the Court
in taking jurisdiction of this case will not pass
upon the advantages and disadvantages of
trade liberalization as an economic policy. It will
only perform its constitutional duty of
determining whether the Senate committed
grave abuse of discretion.
Same; Same; Same; Same; Same; Same; The
fundamental law encourages industries that are
“competitive in both domestic and foreign
markets,” thereby demonstrating a clear policy
against a sheltered domestic trade
environment, but one in favor of the gradual
development of robust industries that can
compete with the best in the foreign markets.—
The WTO reliance on “most favored nation,”
“national treatment,” and “trade without
discrimination” cannot be struck down as
unconstitutional as in fact they are rules of
equality and reciprocity that apply to all WTO
members. Aside from envisioning a trade policy
based on “equality and reciprocity,” the
fundamental law encourages industries that are
“competitive in both domestic and foreign
markets,” thereby demonstrating a clear policy
against a sheltered domestic trade
environment, but one in favor of the gradual
development of robust industries that can
compete with the best in the foreign markets.
Indeed, Filipino managers and Filipino
enterprises have shown capability and tenacity
to compete internationally. And given a free
trade environment, Filipino entrepreneurs and
managers in Hongkong have demonstrated the
Filipino capacity to grow and to prosper against
the best offered under a policy of laissez faire.
Same; Same; Same; Same; Same; Same;
Political Questions; The responses to
questions on whether WTO/GATT will favor the
general welfare of the public at large involve
“judgment calls” by our policy makers, for
which they are answerable to our people during
appropriate electoral exercises—such
questions and the answers thereto are not
subject to judicial pronouncements based on
grave abuse of discretion.—Consequently, the
question boils down to whether WTO/GATT will
favor the general welfare of the public at large.
Will adherence to the W TO treaty bring this
ideal (of favoring the general welfare) to
reality? Will WTO/GATT succeed in promoting
the Filipinos’ general welfare because it will—
as promised by its promoters—expand the
country’s exports and generate more
employment? Will it bring more prosperity,
employment, purchasing power and quality
products at the most reasonable rates to the
Filipino public? The responses to these
questions involve “judgment calls” by our policy
makers, for which they are answerable to our
people during appropriate electoral exercises.
Such questions and the answers thereto are
not subject to judicial pronouncements based
on grave abuse of discretion.
Same; It is to the credit of its drafters that the
Constitution can withstand the assaults of
bigots and infidels but at the same time bend
with the refreshing winds of change
necessitated by unfolding events.—It is not
difficult to answer this question. Constitutions
are designed to meet not only the vagaries of
contemporary events. They should be
interpreted to cover even future and unknown
circumstances. It is to the credit of its drafters
that a Constitution can withstand the assaults
of bigots and infidels but at the same time bend
with the refreshing winds of change
necessitated by unfolding events. As one
eminent political law writer and respected jurist
explains: “The Constitution must be
quintessential rather than superficial, the root
and not the blossom, the base and framework
only of the edifice that is yet to rise. It is but the
core of the dream that must take shape, not in
a twinkling by mandate of our delegates, but
slowly ‘in the crucible of Filipino minds and
hearts,’ where it will in time develop its sinews
and gradually gather its strength and finally
achieve its substance. In fine, the Constitution
cannot, like the goddess Athena, rise full-grown
from the brow of the Constitutional Convention,
nor can it conjure by mere fiat an instant
Utopia. It must grow with the society it seeks to
re-structure and march apace with the progress
of the race, drawing from the vicissitudes of
history the dynamism and vitality that will keep
it, far from becoming a petrified rule, a pulsing,
living law attuned to the heartbeat of the
nation.”
Same; International Law; While sovereignty
has traditionally been deemed absolute and
all—encompassing on the domestic level, it is
however subject to restrictions and limitations
voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the
family of nations.—This Court notes and
appreciates the ferocity and passion by which
petitioners stressed their arguments on this
issue. However, while sovereignty has
traditionally been deemed absolute and all-
encompassing on the domestic level, it is
however subject to restrictions and limitations
voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the
family of nations. Unquestionably, the
Constitution did not envision a hermit-type
isolation of the country from the rest of the
world.
Same; Same; Doctrine of I corporation; Words
and Phrases; By the doctrine of incorporation,
the country is bound by generally accepted
principles of international law, which are
considered automatically part of our own
laws.—In its Declaration of Principles and State
Policies, the Constitution “adopts the generally
accepted principles of international law as part
of the law of the land, and adheres to the policy
of peace, equality, justice, freedom,
cooperation and amity, with all nations.” By the
doctrine of incorporation, the country is bound
by generally accepted principles of
international law, which are considered to be
automatically part of our own laws. One of the
oldest and most fundamental rules in
international law is pacta sunt servanda—
international agreements must be performed in
good faith. “A treaty engagement is not a mere
moral obligation but creates a legally binding
obligation on the parties x x x. A state which
has contracted valid international obligations is
bound to make in its legislations such
modifications as may be necessary to ensure
the fulfillment of the obligations undertaken.”
Same; Same; Treaties; By their voluntary act,
nations may surrender some aspects of their
state power in exchange for greater benefits
granted by or derived from a convention or
pact.—By their inherent nature, treaties really
limit or restrict the absoluteness of sovereignty.
By their voluntary act, nations may surrender
some aspects of their state power in exchange
for greater benefits granted by or derived from
a convention or pact. After all, states, like
individuals, live with coequals, and in pursuit of
mutually covenanted objectives and benefits,
they also commonly agree to limit the exercise
of their otherwise absolute rights.
Same; Same; Same; World Trade
Organization; Pleadings and Practice; Article
34 of the General Provisions and Basic
Principles of the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS)
does not contain an unreasonable burden,
consistent as it is with due process and the
concept of adversarial dispute settlement
inherent in Philippine judicial system.—
Petitioners aver that paragraph 1, Article 34 of
the General Provisions and Basic Principles of
the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) intrudes
on the power of the Supreme Court to prom
ulgate rules concerning pleading, practice and
procedures. x x x By and large, the arguments
adduced in connection with our dis position of
the third issue—derogation of legislative
power—will apply to this fourth issue also.
Suffice it to say that the reciprocity clause more
than justifies such intrusion, if any actually
exists. Besides, Article 34 does not contain an
unreasonable burden, consistent as it is with
due process and the concept of adversarial
dispute settlement inherent in our judicial
system. So too, since the Philippines is a
signatory to most international conventions on
patents, trademarks and copyrights, the
adjustment in legislation and rules of procedure
will not be substantial.
Same; Same; Same; Same; Same; Patents;
Evidence; Words and Phrases; Burden of
Proof; Burden of Evidence; The “burden of
proof” contemplated by Article 34 should
actually and properly be understood as
referring to the “burden of evidence” (burden of
going forward) placed on the producer of
identical (or fake) product to show that his
product was produced without the use of the
patented process—the patent owner still has
the “burden of proof” since he still has to
introduce evidence of the existence of the
alleged identical product, the fact that it is
“identical” to the genuine one produced by the
patented process and the fact of “newness” of
the genuine product or the fact of “substantial
likelihood” that the identical product was made
by the patented process.—From the above, a
WTO Member is required to provide a rule of
disputable (note the words “in the absence of
proof to the contrary”) presumption that a
product shown to be identical to one produced
with the use of a patented process shall be
deemed to have been obtained by the (illegal)
use of the said patented process, (1) where
such product obtained by the patented product
is new, or (2) where there is “substantial
likelihood” that the identical product was made
with the use of the said patented process but
the owner of the patent could not determine the
exact process used in obtaining such identical
product. Hence, the “burden of proof”
contemplated by Article 34 should actually be
understood as the duty of the alleged patent
infringer to overthrow such presumption. Such
burden, properly understood, actually refers to
the “burden of evidence” (burden of going
forward) placed on the producer of the identical
(or fake) product to show that his product was
produced without the use of the patented
process. The foregoing notwithstanding, the
patent owner still has the “burden of proof”
since, regardless of the presumption provided
under paragraph 1 of Article 34, such owner
still has to introduce evidence of the existence
of the alleged identical product, the fact that it
is “identical” to the genuine one produced by
the patented process and the fact of “newness
” of the genuine product or the fact of
“substantial likelihood” that the identical
product was made by the patented process.
Same; Same; Same; Same; Words and
Phrases; “Final Act,” Explained.—“A final act,
sometimes called protocol de clÔture, is an
instrument which records the winding up of the
proceedings of a diplomatic conference and
usually includes a reproduction of the texts of
treaties, conventions, recommendations and
other acts agreed upon and signed by the
plenipotentiaries attending the conference.” It is
not the treaty itself. It is rather a summary of
the proceedings of a protracted conference
which may have taken place over several
years.
Same; Judicial Review; Words and Phrases;
Certiorari; By grave abuse of discretion is
meant such capricious and whimsical exercise
of judgment as is equivalent to lack of
jurisdiction, and mere abuse of discretion is not
enough—it must be grave.—By grave abuse of
discretion is meant such capricious and
whimsical exercise of judgment as is equivalent
to lack of jurisdiction. Mere abuse of discretion
is not enough. It must be grave abuse of
discretion as when the power is exercised in an
arbitrary or despotic manner by reason of
passion or personal hostility, and must be so
patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in
contemplation of law. Failure on the part of the
petitioner to show grave abuse of discretion will
result in the dismissal of the petition.
Same; Same; Separation of Powers; In
rendering this Decision, the Supreme Court
never forgets that the Senate, whose act is
under review, is one of two sovereign houses
of Congress and is thus entitled to great
respect in its actions.—In rendering this
Decision, this Court never forgets that the
Senate, whose act is under review, is one of
two sovereign houses of Congress and is thus
entitled to great respect in its actions. It is itself
a constitutional body independent and
coordinate, and thus its actions are presumed
regular and done in good faith. Unless
convincing proof and persuasive arguments
are presented to overthrow such presumptions,
this Court will resolve every doubt in its favor.
Using the foregoing well-accepted definition of
grave abuse of discretion and the presumption
of regularity in the Senate’s processes, this
Court cannot find any cogent reason to impute
grave abuse of discretion to the Senate’s
exercise of its power of concurrence in the
WTO Agreement granted it by Sec. 21 of
Article VII of the Constitution.
Same; Same; Same; Treaties; World Trade
Organization; The Senate Act, after
deliberation and voting, of voluntarily and
overwhelmingly giving its consent to the WTO
Agreement thereby making it “a part of the law
of the land,” is a legitimate exercise of its
sovereign duty and power.—That the Senate,
after deliberation and voting, voluntarily and
overwhelmingly gave its consent to the WTO
Agreement thereby making it “a part of the law
of the land” is a legitimate exercise of its
sovereign duty and power. We find no “patent
and gross” arbitrariness or despotism “by
reason of passion or personal hostility” in such
exercise. It is not impossible to surmise that
this Court, or at least some of its members,
may even agree with petitioners that it is more
advantageous to the national interest to strike
down Senate Resolution No. 97. But that is not
a legal reason to attribute grave abuse of
discretion to the Senate and to nullify its
decision. To do so would constitute grave
abuse in the exercise of our own judicial power
and duty. Ineludibly, what the Senate did was a
valid exercise of its authority. As to whether
such exercise was wise, beneficial or viable is
outside the realm of judicial inquiry and review.
That is a matter between the elected policy
makers and the people. As to whether the
nation should join the worldwide march toward
trade liberalization and economic globalization
is a matter that our people should determine in
electing their policy makers. After all, the WTO
Agreement allows withdrawal of membership,
should this be the political desire of a member.
World Trade Organization; Trade
Liberalization; International Law;
Notwithstanding objections against possible
limitations on national sovereignty, the WTO
remains as the only viable structure for
multilateral trading and the veritable forum for
the development of international trade law.—
The eminent futurist John Naisbitt, author of
the best seller Megatrends, predicts an Asian
Renaissance where “the East will become the
dominant region of the world economically,
politically and culturally in the next century.” He
refers to the “free market” espoused by WTO
as the “catalyst” in this coming Asian
ascendancy. There are at present about 31
countries including China, Russia and Saudi
Arabia negotiating for membership in the WTO.
Notwithstanding objections against possible
limitations on national sovereignty, the WTO
remains as the only viable structure for
multilateral trading and the veritable forum for
the development of international trade law. The
alternative to WTO is isolation, stagnation, if
not economic self-destruction. Duly enriched
with original membership, keenly aware of the
advantages and disadvantages of globalization
with its on-line experience, and endowed with a
vision of the future, the Philippines now
straddles the crossroads of an international
strategy for economic prosperity and stability in
the new millennium. Let the people, through
their duly authorized elected officers , make
their free choice. Tañada vs. Angara, 272
SCRA 18, G.R. No. 118295 May 2, 1997
 Amicus Curiae
Memorandum of
Ambassador Lilia
Bautista in Tañada v.
Angara, supra
Facts:
The Republic of the Philippines, through DTI
Secretary Navarro signed in the Final Act
Embodying the Results of the Uruguay Round
of Multilateral Negotiations. • The Philippine
Senate, then, received a letter from the
President of the Philippines stating that the
Uruguay Round Final Act (the Agreement
establishing the World Trade Organization) is
submitted to them for their concurrence.
Another letter on the same subject was given
to the Senate. • Senate adopted a resolution
expressing its concurrence in the ratification of
the international agreement. Thereafter, the
President signed the Instrument of Ratification.
However, the WTO Agreement ratified by the
President did not contain certain documents
contained in the Final Act signed by the DTI
Secretary. • This action was filed by Tanada et
al questioning the validity/constitutionality of
the WTO Agreement.
Issues:
Is the WTO Agreement consistent with the
Constitution? Does the WTO Agreement
unduly limit and restrict Philippine sovereignty?
Does the concurrence made by the Senate and
the President, in essence, defective since it did
not include other documents contained in the
Final Act signed by the DTI Secretary?
Held:
An initial question was posed regarding
jurisdiction. The SC ruled that it has jurisdiction
over the matter since it has the power to
determine whether there was GADLEJ on the
part of the Senate and President. However, the
SC will not review the wisdom of their
decisions.
The WTO Agreement is not violative of the
Constitution. The reliance on the priniciple of
economic nationalism espoused in Articles
2(sec 19) and 12(secs 10 and 12) of the
Constitution is misplaced as these are not self-
executing provisions. They do not embody
judicially enforceable constitutional rights but
are guidelines for legislation. These are broad
constitutional principles that need legislative
enactments to implement them. Moreover,
while the Constitution indeed mandates a bias
in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the
need for business exchange with the rest of the
world on the bases of equality and reciprocity
and limits protection of Filipino enterprises only
against foreign competition and trade practices
that are unfair. The Constitution did not intend
to promote an isolationist policy. In addition,
the GATT itself has provided built-in protection
from such unfair foreign competition and trade Appellate Body Reports:
practices.  Japan—Taxes on
alcoholic beverages,
(the important part) Participating in the WTO October 4, 1996
Agreement did limit or restrict, to some extent,
the absoluteness of our sovereignty, but is not  Korea—Taxes on
necessarily reprehensible. While sovereignty alcoholic beverages,
has traditionally been deemed absolute and all- January 3,1999
encompassing on the domestic level, it is
however subject to restrictions and limitations  United States—
voluntarily agreed to by the Philippines, Standards for
expressly or impliedly, as a member of the Reformulated and
family of nations. Through the incorporation Conventional Gasoline,
clause in the Constitution, the Philippines is April 29,1996
bound by generally accepted principles of law
as they automatically form part of the laws of  European
the land. Of great importance is the principle of Communities—Measures
pacta sunt servanda, which means that Affecting Asbestos and
international agreements must be performed in Asbestos-Containing
good faith. A state which has contracted valid Products, March 12, 2001
international obligations is bound to make in its
 European
legislation such modifications as may be
Communities—Anti-
necessary to ensure the fulfillment of the
Dumping Duties on
obligations undertaken. So by their voluntary
Imports of Cotton-type
act, nations may surrender some aspects of
Bed Linen from India,
their state power in exchange for greater
April 8, 2003
benefits granted by or derived from a
convention or pact. For instance, when the
Philippines joined the UN and other bilateral
relations with other States, it effectively limits
its sovereign powers of taxation, eminent
domain and police power. It can then be
inferred that a portion of sovereignty may be
waived without violating the Constitution by .
virtue of the Philippines being bound by
generally accepted principles of law.

A Final Act is not the treaty itself. It is just a

summary of the proceedings that took place
during the negotiation stage. In fact, the Senate
did what the Final Act required—the
concurrence tot the WTO Agreement. By the
ratification of the Agreement, the other
documents in question (Ministerial Declarations
etc) were deemed adopted. Plus, the WTO
Agreement itself stipulated what multilateral
agreements are deemed included. In sum,
there was no GADLEJ on the part of the
Senate and the President. When the WTO
Agreement was ratified and made part of the
law of the land, the Senate and the President
was exercising, legitimately, its sovereign duty
and power. Notwithstanding objections against
possible limitations on national sovereignty, the
WTO remains as the only viable structure for
multilateral trading and development of
international trade law.