1.
PHARMACEUTICAL HEALTHCARE VS DOH
SEC DUQUE
FACTS:
- On October 28, 1986, Executive Order No. 51 (Milk
Code) was issued by President Corazon Aquino by
virtue of the legislative powers granted to the
president under the Freedom Constitution.
- The Milk Code states that the law seeks to give
effect to Article 112 of the International Code of
Marketing of Breastmilk Substitutes (ICMBS), a
code adopted by the World Health Assembly (WHA)
in 1981.
- From 1982 to 2006, the WHA adopted several
Resolutions to the effect that breastfeeding should
be supported, promoted and protected, hence, it
should be ensured that nutrition and health claims
are not permitted for breastmilk substitutes.
- The Philippines ratified the International
Convention on the Rights of the Child. Article 24 of
said instrument provides that State Parties should
take appropriate measures to diminish infant and
child mortality, and ensure that all segments of
society, specially parents and children, are informed
of the advantages of breastfeeding.
- The DOH issued RIRR which was to take effect on
July 7, 2006.
- a petition for certiorari under Rule 65 of the Rules
of Court was filed, seeking to nullify Revised
Implementing Rules and Regulations of The “Milk
Code,” assailing that the RIRR was going beyond the
provisions of the Milk Code, thereby amending and
expanding the coverage of said law.
ISSUE: Whether or not respondents officers of the
DOH acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or
excess of jurisdiction, and in violation of the
provisions of the Constitution in promulgating the
RIRR
RULING:
The Supreme Court PARTIALLY GRANTED the
petition. Sections 4(f), 11 and 46 of Administrative
Order No. 2006-0012 dated May 12, 2006 are
declared NULL and VOID for being ultra vires.
The Department of Health and respondents are
PROHIBITED from implementing said provisions.
The international instruments pointed out by the
respondents, UNRC, ICESR, CEDAW, are deemed
part of the law of the land and therefore the DOH
may implement them through the RIRR.
Customary international law is deemed incorporated
into our domestic system. Custom or customary
international law means “a general and consistent
practice of states followed by them from a sense of
legal obligation (opinio juris).
Under the 1987 Constitution, international law can
become part of the sphere of domestic law either by
transformation or incorporation.
The transformation method requires that an
international law be transformed into a domestic law
through a constitutional mechanism such as local
legislation.
“Generally accepted principles of international law”
refers to norms of general or customary
international law which are binding on all states.
The Milk Code is a verbatim reproduction of the
(ICMBS), but it did not prohibit advertising or other
forms of promotion to the general public of products.
Instead, the Milk Code expressly provides that
advertising, promotion, or other marketing
materials may be allowed if such materials are duly
authorized and approved by the Inter-Agency
Committee (IAC).
In this regard, the WHA Resolutions adopting the
ICMBS are merely recommendatory and legally
non-binding. This may constitute “soft law” or
non-binding norms, principles and practices that
influence state behavior.
Respondents have not presented any evidence to
prove that the WHA Resolutions, although signed by
most of the member states, were in fact enforced or
practiced by at least a majority of the member
states and obligatory in nature.
The provisions of the WHA Resolutions cannot be
considered as part of the law of the land that can be
implemented by executive agencies without the
need of a law enacted by the legislature.
On the other hand, the petitioners also failed to
explain and prove by competent evidence just
exactly how such protective regulation would result
in the restraint of trade.
Since all the regulatory provisions under the Milk
Code apply equally to both manufacturers and
distributors, the Court sees no harm in the RIRR.
Except Sections 4(f), 11 and 46, the rest of the
provisions of the RIRR are in consonance with the
objective, purpose and intent of the Milk Code.
FACTS:
Petitioner assails the RIRR for allegedly going
beyond the provisions of the Milk Code, thereby
amending and expanding the coverage of said law.
The defense of the DOH is that the RIRR implements
not only the Milk Code but also various international
instruments regarding infant and young child
nutrition. It is respondents' position that said
international instruments are deemed part of the
law of the land and therefore the DOH may
implement them through the RIRR.
The Court however held that the international
instruments invoked by respondents, namely, (1)
The United Nations Convention on the Rights of the
Child; (2) The International Covenant on Economic,
Social and Cultural Rights; and (3) the Convention
on the Elimination of All Forms of Discrimination
Against Women, only provide in general terms that
steps must be taken by State Parties to diminish
infant and child mortality and inform society of the
advantages of breastfeeding, ensure the health and
well-being of families, and ensure that women are
provided with services and nutrition in connection
with pregnancy and lactation; however, they do not
contain specific provisions regarding the use or
marketing of breastmilk substitutes. The
international instruments that have specific
provisions regarding breastmilk substitutes are the
ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can
become part of the sphere of domestic law either by
transformation or incorporation. The transformation
method requires that an international law be
transformed into a domestic law through a
constitutional mechanism such as local legislation.
The incorporation method applies when, by mere
constitutional declaration, international law is
deemed to have the force of domestic law.
Treaties become part of the law of the land through
transformation pursuant to Article VII, Section 21 of
the Constitution which provides that “[n]o treaty or
international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the
members of the Senate.” Thus, treaties or
conventional international law must go through a
process prescribed by the Constitution for it to be
transformed into municipal law that can be applied
to domestic conflicts.
The Court held that the ICMBS and WHA Resolutions
are not treaties as they have not been concurred in
by at least two-thirds of all members of the Senate
as required under Section 21, Article VII of the 1987
Constitution.
However, according to the Court, the ICMBS which
was adopted by the WHA in 1981 had been
transformed into domestic law through local
legislation, the Milk Code. Consequently, it is the
Milk Code that has the force and effect of law in this
jurisdiction and not the ICMBS per se. The Milk Code
is almost a verbatim reproduction of the ICMBS, but
the Court noted that the Milk Code did not adopt the
provision in the ICMBS absolutely prohibiting
advertising or other forms of promotion to the
general public of products within the scope of the
ICMBS. Instead, the Milk Code expressly provides
that advertising, promotion, or other marketing
materials may be allowed if such materials are duly
authorized and approved by the Inter-Agency
Committee (IAC).
Section 2, Article II of the 1987 Constitution
provides that the Philippines renounces war as an
instrument of national policy, 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. The provisions embodies the
incorporation method.
Generally accepted principles of international law,
by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if
they do not derive from treaty obligations. The
classical formulation in international law sees those
customary rules accepted as binding result from the
combination of two elements: the established,
widespread, and consistent practice on the part of
States; and a psychological element known as the
opinion juris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief
that the practice in question is rendered obligatory
by the existence of a rule of law requiring it.
“Generally accepted principles of international law”
refers to norms of general or customary
international law which are binding on all states, i.e.,
renunciation of war as an instrument of national
policy, the principle of sovereign immunity, a
person's right to life, liberty and due process, and
pacta sunt servanda, among others. The concept of
“generally accepted principles of law” has also been
depicted in this wise:
obligatory in nature. Respondents failed to establish
that the provisions of pertinent WHA Resolutions are
customary international law that may be deemed
part of the law of the land. Consequently, legislation
is necessary to transform the provisions of the WHA
Resolutions into domestic law. The provisions of the
WHA Resolutions cannot be considered as part of
the law of the land that can be implemented by
executive agencies without the need of a law
enacted by the legislature.

Customary international means “a general and

consistent practice of states followed by them from
a sense of legal obligation [opinio juris].” This
statement contains the two basic elements of
custom: the material factor, that is, how states
behave, and the psychological or subjective factor,
that is, why they behave the way they do. The initial May the DOH may implement the provisions of the
factor for determining the existence of custom is the WHA Resolutions by virtue of its powers and
actual behavior of states. This includes several functions under the Revised Administrative Code
elements: duration, consistency, and generality of even in the absence of a domestic law?
the practice of states. Once the existence of state
practice has been established, it becomes necessary
to determine why states behave the way they do. Do
states behave the way they do because they
consider it obligatory to behave thus or do they do it
only as a matter of courtesy? Opinio juris, or the
belief that a certain form of behavior is obligatory, is
what makes practice an international rule. Without it, Section 3, Chapter 1, Title IX of the Revised
practice is not law. Administrative Code of 1987 provides that the DOH
shall define the national health policy and
implement a national health plan within the
framework of the government's general policies and
plans, and issue orders and regulations concerning
It is propounded that WHA Resolutions may the implementation of established health policies.
constitute “soft law” or non-binding norms,
principles and practices that influence state
behavior. “Soft law” does not fall into any of the
categories of international law set forth in Article 38,
Chapter III of the 1946 Statute of the International
Court of Justice. It is, however, an expression of
non-binding norms, principles, and practices that
influence state behavior. Certain declarations and
The crucial issue was whether the absolute
resolutions of the UN General Assembly fall under
prohibition on advertising and other forms of
this category. The most notable is the UN
promotion of breastmilk substitutes provided in
Declaration of Human Rights, which this Court has
some WHA Resolutions has been adopted as part of
enforced in various cases, specifically, Government
the national health policy.
of Hongkong Special Administrative Region v. Olalia,
Mejoff v. Director of Prisons, Mijares v. Rañada and
Shangri-la International Hotel Management, Ltd. v.
Developers Group of Companies, Inc.

Respondents submit that the national policy on

infant and young child feeding is embodied in A.O.
No. 2005-0014, dated May 23, 2005. Basically, the
Administrative Order declared the following policy
The Court stressed that for an international rule to
guidelines: (1) ideal breastfeeding practices, such
be considered as customary law, it must be
as early initiation of breastfeeding, exclusive
established that such rule is being followed by states
breastfeeding for the first six months, extended
because they consider it obligatory to comply with
breastfeeding up to two years and beyond; (2)
such rules (opinio juris). However, according to the
appropriate complementary feeding, which is to
Court, the respondents have not presented any
start at age six months; (3) micronutrient
evidence to prove that the WHA Resolutions,
supplementation; (4) universal salt iodization; (5)
although signed by most of the member states,
the exercise of other feeding options; and (6)
were in fact enforced or practiced by at least a
feeding in exceptionally difficult circumstances.
majority of the member states; neither have
Indeed, the primacy of breastfeeding for children is
respondents proven that any compliance by
emphasized as a national health policy. However,
member states with said WHA Resolutions was
nowhere in A.O. No. 2005-0014 is it declared that as
part of such health policy, the advertisement or
promotion of breastmilk substitutes should be
absolutely prohibited. Hence, the Court held that the
national policy of protection, promotion and support
of breastfeeding cannot automatically be equated
with a total ban on advertising for breastmilk
substitutes. The Milk Code does not contain a total
ban on the advertising and promotion of breastmilk
substitutes but instead specifically creates an IAC
which will regulate said advertising and promotion.
A total ban policy could be implemented only
pursuant to a law amending the Milk Code passed by
the constitutionally authorized branch of
government, the legislature. The Court emphasized
that only the provisions of the Milk Code, but not
those of subsequent WHA Resolutions, can be
validly implemented by the DOH through the subject
RIRR.
The Court held that the Sec. 3 of the Milk Code's
coverage is not limited only to children 0-12 months
old. Section 3 of the Milk Code. The coverage of the
Milk Code is not dependent on the age of the child
but on the kind of product being marketed to the
public. The law treats infant formula, bottle-fed
complementary food, and breastmilk substitute as
separate and distinct product categories.
Section 4(h) of the Milk Code defines infant formula
as “a breastmilk substitute x x x to satisfy the
normal nutritional requirements of infants up to
between four to six months of age, and adapted to
their physiological characteristics”; while under
Section 4(b), bottle-fed complementary food refers
to “any food, whether manufactured or locally
prepared, suitable as a complement to breastmilk or
infant formula, when either becomes insufficient to
satisfy the nutritional requirements of the infant.”
An infant under Section 4(e) is a person falling
within the age bracket 0-12 months. It is the
nourishment of this group of infants or children aged
0-12 months that is sought to be promoted and
protected by the Milk Code.
But there is another target group. Breastmilk
substitute is defined under Section 4(a) as “any food
being marketed or otherwise presented as a partial
or total replacement for breastmilk, whether or not
suitable for that purpose.” This section
conspicuously lacks reference to any particular
age-group of children. Hence, the provision of the
Milk Code cannot be considered exclusive for
children aged 0-12 months. In other words,
breastmilk substitutes may also be intended for
young children more than 12 months of age.
Therefore, by regulating breastmilk substitutes, the
Milk Code also intends to protect and promote the
nourishment of children more than 12 months old.
Evidently, as long as what is being marketed falls
within the scope of the Milk Code as provided in
Section 3, then it can be subject to regulation
pursuant to said law, even if the product is to be
used by children aged over 12 months.
To resolve the question of whether the labeling
requirements and advertising regulations under the
RIRR are valid, the Court had to discuss the nature,
purpose, and depth of the regulatory powers of the
DOH, as defined in general under the 1987
Administrative Code, and as delegated in particular
under the Milk Code. Health is a legitimate subject
matter for regulation by the DOH (and certain other
administrative agencies) in exercise of police
powers delegated to it. The sheer span of
jurisprudence on that matter precludes the need to
further discuss it.. However, health information,
particularly advertising materials on apparently
non-toxic products like breastmilk substitutes and
supplements, is a relatively new area for regulation
by the DOH. The 1987 Administrative Code tasked
respondent DOH to carry out the state policy
pronounced under Section 15, Article II of the 1987
Constitution, which is “to protect and promote the
right to health of the people and instill health
consciousness among them.” To that end, it was
granted under Section 3 of the Administrative Code
the power to “(6) propagate health information and
educate the population on important health, medical
and environmental matters which have health
implications.” When it comes to information
regarding nutrition of infants and young children,
however, the Milk Code specifically delegated to the
Ministry of Health (hereinafter referred to as DOH)
the power to ensure that there is adequate,
consistent and objective information on
breastfeeding and use of breastmilk substitutes,
supplements and related products; and the power to
control such information. Further, DOH is authorized
by the Milk Code to control the content of any
information on breastmilk vis-à-vis breastmilk
substitutes, supplement and related products. The
DOH is also authorized to control the purpose of the
information and to whom such information may be
disseminated under Sections 6 through 9 of the Milk
Code to ensure that the information that would
reach pregnant women, mothers of infants, and
health professionals and workers in the health care
system is restricted to scientific and factual matters
and shall not imply or create a belief that
bottlefeeding is equivalent or superior to
breastfeeding. It bears emphasis, however, that the
DOH's power under the Milk Code to control
information regarding breastmilk vis-a-vis
breastmilk substitutes is not absolute as the power
to control does not encompass the power to
absolutely prohibit the advertising, marketing, and
promotion of breastmilk substitutes.

Nonetheless, the Court held that the framers of the
constitution were well aware that trade must be
subjected to some form of regulation for the public
good. Despite the fact that “our present Constitution
enshrines free enterprise as a policy, it nonetheless
reserves to the government the power to intervene
whenever necessary to promote the general welfare.
Free enterprise does not call for removal of
‘protective regulations’. It must be clearly explained
and proven by competent evidence just exactly how
such protective regulation would result in the
restraint of trade. In this case, petitioner failed to
show that the proscription of milk manufacturers’
participation in any policymaking body (Section
4(i)), classes and seminars for women and children
(Section 22); the giving of assistance, support and
logistics or training (Section 32); and the giving of
donations (Section 52) would unreasonably hamper
the trade of breastmilk substitutes. Petitioner has
not established that the proscribed activities are
indispensable to the trade of breastmilk substitutes.
Petitioner failed to demonstrate that the
aforementioned provisions of the RIRR are
unreasonable and oppressive for being in restraint
of trade.
In fine, the Court held that except Sections 4(f), 11
and 46, the rest of the provisions of the RIRR are in
consonance with the objective, purpose and intent
of the Milk Code, constituting reasonable regulation
of an industry which affects public health and
welfare and, as such, the rest of the RIRR do not
constitute illegal restraint of trade nor are they
violative of the due process clause of the
Constitution.
2. BAYAN MUNA VS ROMULO DIGEST
FACTS: In 2000, the RP, through Charge d’Affaires
Enrique A. Manalo, signed the Rome Statute which,
by its terms, is “subject to ratification, acceptance or
approval” by the signatory states.
In 2003, via Exchange of Notes with the US
government, the RP, represented by then DFA
Secretary Ople, finalized a non-surrender
agreement which aimed to protect certain persons
of the RP and US from frivolous and harassment
suits that might be brought against them in
international tribunals.
Petitioner imputes grave abuse of discretion to
respondents in concluding and ratifying the
Agreement and prays that it be struck down as
unconstitutional, or at least declared as without
force and effect.
ISSUE: [1] Did respondents abuse
their discretion amounting to lack or excess of
jurisdiction in concluding the RP-US Non
Surrender Agreement in contravention of the
Rome Statute?
[2] Is the agreement valid, binding and
effective without the concurrence by at least
2/3 of all the members of the Senate?
HELD: The Agreement does not contravene or
undermine, nor does it differ from, the Rome
Statute. Far from going against each other, one
complements the other. As a matter of fact, the
principle of complementarity underpins the creation
of the ICC. According to Art. 1 of the Statute, the
jurisdiction of the ICC is to “be complementary to
national criminal jurisdictions [of the signatory
states].” the Rome Statute expressly recognizes the
primary jurisdiction of states, like the RP, over
serious crimes committed within their respective
borders, the complementary jurisdiction of the ICC
coming into play only when the signatory states are
unwilling or unable to prosecute.
Also, under international law, there is a considerable
difference between a State-Party and a signatory to
a treaty. Under the Vienna Convention on the Law of
Treaties, a signatory state is only obliged to refrain
from acts which would defeat the object and
purpose of a treaty. The Philippines is only a
signatory to the Rome Statute and not a State-Party
for lack of ratification by the Senate. Thus, it is only
obliged to refrain from acts which would defeat the
object and purpose of the Rome Statute. Any
argument obliging the Philippines to follow any
provision in the treaty would be premature. And
even assuming that the Philippines is a State-Party,
the Rome Statute still recognizes the primacy of
international agreements entered into between
States, even when one of the States is not a
State-Party to the Rome Statute.
The right of the Executive to enter into binding
agreements without the necessity of subsequent
Congressional approval has been confirmed by long
usage. From the earliest days of our history, we
have entered executive agreements covering such
subjects as commercial and consular relations, most
favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation
arrangements and the settlement of claims. The
validity of these has never been seriously
questioned by our courts.
Executive agreements may be validly entered into
without such concurrence. As the President wields
vast powers and influence, her conduct in the
external affairs of the nation is, as Bayan would put
it, “executive altogether.” The right of the
President to enter into or ratify binding executive
agreements has been confirmed by long
practice. DISMISSED.
Bayan Muna v. Romulo and Ople
Facts
Then US Ambassador Francis Ricciardone sent US
Embassy Note 0470 to the DFA proposing the terms
of the Non-surrender Bilateral Agreement between
the Philippines and the US. Via Exchange of Notes
BFO-028-03, the Philippines, through Sec. Ople,
agreed and accepted the US proposals embodied
under the US Embassy Note and put in effect the
Non-surrender Agreement with the US government.
The Non-surrender Agreement aims to protect what
it refers to and defines as persons of the Philippines
and the US from frivolous and harassment suits that
might be brought against them in international
tribunals. It provides that the persons of one party
present in the territory of the other shall not, absent
the express consent of the first party be surrendered
or transferred by any means to any international
tribunal for any purpose or by any means to any
other entity or third country or expelled to a third
country for the purpose of surrender to or transfer to
any international tribunal, unless such tribunal has
been established by the UN Security Council. When
the US/Philippines extradites, surrenders, or
otherwise transfers a person of the Philippines/US to
a third country, the US/Philippines will not agree to
the surrender or transfer of that person by the third
country to any international tribunal, unless such
tribunal has been established by the UN Security
Council, absent the express consent of the
Government of the US/Philippines.
Petitioners argue that the Exchange of Notes
BFO-028-03 cannot be a valid medium for
concluding an agreement, that it cannot partake the
nature of a treaty without being ratified by the
Senate, that the Non-surrender Agreement does not
fall under any subject-categories enumerated in a
previous case, and that the Non-surrender
Agreement infringes the effectivity of the Rome
Statute insofar as it unduly restricts the ICC’s
jurisdiction.
Issues
1) Can the Non-surrender Agreement be validly
concluded through exchanges of notes? Is the
Non-surrender Agreement a violation of the
obligation of the Philippines under the Rome
Statute?
Held
The Petition is denied for lack of merit.
Ratio
1) An exchange of notes falls into the category of
inter-governmental agreements which is an
internationally accepted form of international
agreement. It as a record of routine agreement
that has many similarities with the private law
contract. The agreement consists of 2
documents, each of the parties being in the
possession of the one signed by the
representative of the other. Under the usual
procedure, the accepting State repeats the text
of the offering State to record its assent. The
signatories of the letters may be government
ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently
resorted to, either because of its speedy
procedure, or sometimes to avoid the process of
legislative approval. The terms exchanges of
notes and executive agreements have been used
interchangeably, the former being a form of
executive agreement that becomes binding
through executive action.
The categorization of subject matters that may
be covered by international agreements
mentioned in Eastern Sea Trading case is not
cast in stone. There are no hard and fast rules on
the propriety of entering, on a given subject,
into a treaty or executive agreement as an
instrument of international relations. The
primary consideration in the choice of the form
of agreement is the parties’ intent and desire to
craft an international agreement in the form
they so wish to further their respective interests.
There is no difference between treaties and
executive agreements in terms of their binding
effects on the contracting parties, as long as the
negotiating functionaries have remained within
their powers. The right of the Executive to enter
into binding agreements without the necessity of
subsequent Congressional approval has been
confirmed by long usage, the validity of which
has never been seriously questioned by the
Court. The President as head of state and
government is the sole organ and authority in
the external affairs of the country. The
Constitution vests in the President the power to
enter into international agreements, subject to
the required concurrence votes of the Senate.
But agreements may be validly entered into
without such concurrence as the President
wields vast powers and influence; her conduct in
the external affairs of the nation is executive
altogether. The President by ratifying through
her deputies the Non-surrender agreement, did
nothing more than discharge a constitutional
duty and exercise a prerogative that pertains to
the Office.
2) The Non-surrender agreement does not
undermine the Rome Statute. The jurisdiction of
the ICC is to be complementary to national
criminal jurisdiction of signatory states. It is the
duty of every State to exercise its criminal
jurisdiction over those responsible for
international crimes. The primary jurisdiction
over the so-called international crimes rests, at
the first instance, with the State where the crime
was committed; secondarily with the ICC in
appropriate situations. The Non-surrender
agreement does not violate the Philippines’ duty
required by the imperatives of good faith to
refrain from performing any act tending to
impair the Rome Statute.
The Philippines has not abdicated its sovereignty
by bargaining away the jurisdiction of the ICC to
prosecute US national who commit serious
crimes of international concerns in the
Philippines. The Non-surrender agreement is an
affirmance of the Philippines’ national criminal
jurisdiction. The Philippines may decide to try
persons of the US under our national criminal
jurisdiction. Or the country may opt not to
exercise its criminal jurisdiction and defer to the
ICC. As to persons of the US whom the
Philippines refuses to prosecute, the country
would in effect accord discretion to the US to
exercise wither its national criminal jurisdiction
or consent to the referral of the matter to the
ICC for trial. By their nature, international
agreements actually have a limiting effect on the
otherwise encompassing nature of sovereignty.
By their voluntary act, nations may decide to
surrender or waive some aspects of their state
power. In this partial surrender, greater benefits
are derived from a pact or reciprocal
undertaking. Evidently, there is as yet, no
overwhelming consensus, let alone prevalent
practice, among the different countries in the
world that the prosecution of internationally
recognized crimes should be handled by a
particular international criminal court.
Rome Statute – This establishes the
International Criminal Court with the power to
exercise jurisdiction over persons for the most
serious crimes of international concern and shall
be complementary to the national criminal
jurisdiction. Under the Vienna Convention on the
Law of Treaties:
1) State Party – is legally obliged to follow all
the provisions of a treaty in good faith
2) Signatory State – is only obliged to refrain
from acts which would defeat the object and
purpose of a treaty.
As of writing the ponencia, the Philippines is only
a signatory state to the Rome Statute and not a
State Party for lack of ratification by the Senate.
Any argument obliging the Philippines to follow
any provision in the treaty would be premature.
Treaty – international agreement concluded
between States in written form and governed by
international law, whether embodied in a single
instrument or in two or more related instruments
and whatever its particular designation.
International agreements may be in the form of
1) treaties that require legislative concurrence
after executive ratification or 2) executive
agreements that are similar to treaties, except
that they do not require legislative concurrence
and are usually less formal and deal with a
narrower range of subject matters that treaties.
Sources of International Law
1) International conventions, whether general
or particular, establishing rules expressly
recognized by the contesting states
2) International custome, as evidence of a
general practice accepted as law
3) General principles of law recognized by
civilized nations
4) Judicial decisions and teachings of the most
highly qualified publicists of the various
nations
Doctrine of incorporation – international law is
part of our law, and must be ascertained and
administered by the courts of justice of
appropriate jurisdiction, as often as questions of
right depending upon it are duly presented for
their determination. Where there is no treaty
and no controlling executive or legislative act or
judicial decision, resort must be had to the
customs and usages of civilized nations and as
evidence of these, to the works of jurists and
commentators who by years of labor, research
and experience have made themselves
peculiarly well acquainted with the subjects of
which they treat. Such works are resorted to by
judicial tribunals, not for the speculations of
their authors concerning what the law ought to
be, but for the trustworthy evidence of what the
law really is.
Customary international law – or international
custom is a source of international law as stated
in the Statute of the International Court of
Justice, defined as the general and consistent
practice of states recognized and followed by
them from a sense of legal obligation.
1) State practice – the objective element,
generality, uniformity and consistency.
2) Opinio juris – the subjective element,
requires that the state practice or norm
be carried out in such a way, as to be
evidence of a belief that this practice is
rendered obligatory by the existence of a
rule of law requiring it.
Once the existence of state practice has been
extablished, it becomes necessary to
determine why states behave the way they
do. Do states behave the way they do
because they consider it obligatory to
behave thus or do they do it only as a matter
or courtesy? Opinio juris or the belief that a
certain form of behavior is obligatory, is what
makes practice international rule. Without it,
practice is not law.
Jus cogens – means the compelling law. It holds
the highest hierarchical position among all other
customary norms and principles. Jus cogens
norms are deemed peremptory and
non-derogable. When applied to international
crimes, jus cogens crimes have been deemed so
fundamental to the existence of a just
international legal order that state cannot
derogate from them, even by agreement.
Facts:
Petitioner Bayan Muna is a duly registered party-list
group established to represent the marginalized
sectors of society. Respondent Blas F. Ople, now
deceased, was the Secretary of Foreign Affairs
during the period material to this case. Respondent
Alberto Romulo was impleaded in his capacity as
then Executive Secretary.
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is
the Rome Statute establishing the International
Criminal Court (ICC) with “the power to exercise its
jurisdiction over persons for the most serious crimes
of international concern x x x and shall be
complementary to the national criminal
jurisdictions.” The serious crimes adverted to cover
those considered grave under international law,
such as genocide, crimes against humanity, war
crimes, and crimes of aggression.
On December 28, 2000, the RP, through Charge
d’Affaires Enrique A. Manalo, signed the Rome
Statute which, by its terms, is “subject to ratification,
acceptance or approval” by the signatory states. As
of the filing of the instant petition, only 92 out of the
139 signatory countries appear to have completed
the ratification, approval and concurrence process.
The Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J.
Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the
terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the
RP.
Via Exchange of Notes No. BFO-028-037 dated May
13, 2003 (E/N BFO-028-03, hereinafter), the RP,
represented by then DFA Secretary Ople, agreed
with and accepted the US proposals embodied under
the US Embassy Note adverted to and put in effect
the Agreement with the US government. In esse,
the Agreement aims to protect what it refers to and
defines as “persons” of the RP and US from frivolous
and harassment suits that might be brought against
them in international tribunals.8 It is reflective of
the increasing pace of the strategic security and
defense partnership between the two countries. As
of May 2, 2003, similar bilateral agreements have
been effected by and between the US and 33 other
countries.
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, “persons” are
current or former Government officials, employees
(including contractors), or military personnel or
nationals of one Party.
2. Persons of one Party present in the territory of the
other shall not, absent the express consent of the
first Party,
(a) be surrendered or transferred by any means to
any international tribunal for any purpose, unless
such tribunal has been established by the UN
Security Council, or
(b) be surrendered or transferred by any means to
any other entity or third country, or expelled to a
third country, for the purpose of surrender to or
transfer to any international tribunal, unless such
tribunal has been established by the UN Security
Council.
3. When the [US] extradites, surrenders, or
otherwise transfers a person of the Philippines to a
third country, the [US] will not agree to the
surrender or transfer of that person by the third
country to any international tribunal, unless such
tribunal has been established by the UN Security
Council, absent the express consent of the
Government of the Republic of the Philippines
[GRP].
4. When the [GRP] extradites, surrenders, or
otherwise transfers a person of the [USA] to a third
country, the [GRP] will not agree to the surrender or
transfer of that person by the third country to any
international tribunal, unless such tribunal has been
established by the UN Security Council, absent the
express consent of the Government of the [US].
5. This Agreement shall remain in force until one
year after the date on which one party notifies the
other of its intent to terminate the Agreement. The
provisions of this Agreement shall continue to apply
with respect to any act occurring, or any allegation
arising, before the effective date of termination.
In response to a query of then Solicitor General
Alfredo L. Benipayo on the status of the
non-surrender agreement, Ambassador Ricciardone
replied in his letter of October 28, 2003 that the
exchange of diplomatic notes constituted a legally
binding agreement under international law; and that,
under US law, the said agreement did not require
the advice and consent of the US Senate.
In this proceeding, petitioner imputes grave abuse
of discretion to respondents in concluding and
ratifying the Agreement and prays that it be struck
down as unconstitutional, or at least declared as
without force and effect.
Issue: Whether or not the RP-US NON SURRENDER
AGREEMENT is void ab initio for contracting
obligations that are either immoral or otherwise at
variance with universally recognized principles of
international law.
Ruling: The petition is bereft of merit.
Validity of the RP-US Non-Surrender Agreement
Petitioner’s initial challenge against the Agreement
relates to form, its threshold posture being that E/N
BFO-028-03 cannot be a valid medium for
concluding the Agreement.
Petitioners’ contention––perhaps taken unaware of
certain well-recognized international doctrines,
practices, and jargons––is untenable. One of these
is the doctrine of incorporation, as expressed in
Section 2, Article II of the Constitution, wherein the
Philippines adopts the generally accepted principles
of international law and international jurisprudence
as part of the law of the land and adheres to the
policy of peace, cooperation, and amity with all
nations. An exchange of notes falls “into the
category of inter-governmental agreements,” which
is an internationally accepted form of international
agreement. The United Nations Treaty Collections
(Treaty Reference Guide) defines the term as
follows:
An “exchange of notes” is a record of a routine
agreement, that has many similarities with the
private law contract. The agreement consists of the
exchange of two documents, each of the parties
being in the possession of the one signed by the
representative of the other. Under the usual
procedure, the accepting State repeats the text of
the offering State to record its assent. The
signatories of the letters may be government
Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently
resorted to, either because of its speedy procedure,
or, sometimes, to avoid the process of legislative
approval.
In another perspective, the terms “exchange of
notes” and “executive agreements” have been used
interchangeably, exchange of notes being
considered a form of executive agreement that
becomes binding through executive action. On the
other hand, executive agreements concluded by the
President “sometimes take the form of exchange of
notes and at other times that of more formal
documents denominated ‘agreements’ or
‘protocols.’” As former US High Commissioner to the
Philippines Francis B. Sayre observed in his work,
The Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between
this and other governments ends and agreements –
whether denominated executive agreements or
exchange of notes or otherwise – begin, may
sometimes be difficult of ready ascertainment. x x x
It is fairly clear from the foregoing disquisition that
E/N BFO-028-03––be it viewed as the
Non-Surrender Agreement itself, or as an integral
instrument of acceptance thereof or as consent to
be bound––is a recognized mode of concluding a
legally binding international written contract among
nations.
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down
as void ab initio for imposing immoral obligations
and/or being at variance with allegedly universally
recognized principles of international law. The
immoral aspect proceeds from the fact that the
Agreement, as petitioner would put it, “leaves
criminals immune from responsibility for
unimaginable atrocities that deeply shock the
conscience of humanity; x x x it precludes our
country from delivering an American criminal to the
[ICC] x x x.”63
The above argument is a kind of recycling of
petitioner’s earlier position, which, as already
discussed, contends that the RP, by entering into
the Agreement, virtually abdicated its sovereignty
and in the process undermined its treaty obligations
under the Rome Statute, contrary to international
law principles.
The Court is not persuaded. Suffice it to state in this
regard that the non-surrender agreement, as aptly
described by the Solicitor General, “is an assertion
by the Philippines of its desire to try and punish
crimes under its national law. x x x The agreement is
a recognition of the primacy and competence of the
country’s judiciary to try offenses under its national
criminal laws and dispense justice fairly and
judiciously.”
Petitioner, we believe, labors under the erroneous
impression that the Agreement would allow Filipinos
and Americans committing high crimes of
international concern to escape criminal trial and
punishment. This is manifestly incorrect. Persons
who may have committed acts penalized under the
Rome Statute can be prosecuted and punished in
the Philippines or in the US; or with the consent of
the RP or the US, before the ICC, assuming, for the
nonce, that all the formalities necessary to bind both
countries to the Rome Statute have been met. For
perspective, what the Agreement contextually
prohibits is the surrender by either party of
individuals to international tribunals, like the ICC,
without the consent of the other party, which may
desire to prosecute the crime under its existing laws.
With the view we take of things, there is nothing
immoral or violative of international law concepts in
the act of the Philippines of assuming criminal
jurisdiction pursuant to the non-surrender
agreement over an offense considered criminal by
both Philippine laws and the Rome Statute.
3. KURODA VS JALANDONI
SHIGENORI KURODA, petitioner, vs. Major
General RAFAEL JALANDONI, Brigadier
General CALIXTO DUQUE, Colonel MARGARITO
TORALBA, Colonel IRENEO BUENCONSEJO,
Colonel PEDRO TABUENA, Major FEDERICO
ARANAS, MELVILLE S. HUSSEY and ROBERT
PORT, respondents.\ MORAN, C.J.:
(1949)\Nature: En Banc Decision
Doctrine: Rules and regulations of the Hague and
Geneva conventions form part of and are wholly
based on the generally accepted principals of
international law. They form part of the law of our
nation even if the Philippines was not a signatory to
the conventions embodying them, for our
Constitution has been deliberately general and
extensive in its scope and is not confined to the
recognition of rules and principles of international
law as contained in treaties to which our
government may have been or shall be a signatory.
Facts:
- A Military commission was empaneled under the
authority of Executive Order 68 of the President of
the Philippines, which was issued on July 29, 1947.
This is an act establishing a national war crimes
office and prescribing rules and regulation
governing the trial of accused war criminals.
- Shigenori Kuroda, formerly a Lieutenant-General
of the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in The
Philippines from 1943-1944, is charged before a
military commission convened by the Chief of Staff
of the Armed forces of the Philippines with having
unlawfully disregarded and failed "to discharge his
duties as such command, permitting them to
commit brutal atrocities and other high crimes
against noncombatant civilians and prisoners of the
Imperial Japanese Forces in violation of the laws and
customs of war".
- Melville Hussey and Robert Port, American lawyers,
were appointed prosecutors in behalf of USA.
- Kuroda challenges the legality of the EO No. 68
and the personality as prosecutors of Hussey and
Port.
- Kuroda’s arguments were: (1)EO No. is illegal on
the gound that ut wiolates not only the provisions of
our constitutional law but also our local laws; (2)
Military Commission has no Jurisdiction to try him
for acts committed in violation of the Hague
Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed
the second only in 1947 and, therefore, he is
charged with “crime” not based on law, national or
international; and (3) Hussey and Port have no
personality as prosecutors in this case because they
are not qualified to practice law in Philippines in
accordance with our Rules of court and the
appointment of said attorneys as prosecutors is
violative of our national sovereignty.
Issues/Held: (1) WON EO No. 68 is valid and
constitutional? [Yes it is a valid because it is based
on the generally accepted principles of international
law which form part of our laws.]
(2) WON rules and regulations of the Hague and
Geneva Conventions form part of the law of the
nation even if Philippines was not a signatory to the
conventions embodying them? [Yes, they form part
of our laws.]
(3) WON the American lawyers could participate in
the prosecution of this case? [Yes, they can.]
Ratio: (1) The order is valid and constitutional.
Article 2 of our Constitution provides in its section 3,
that- The Philippines renounces war as an
instrument of national policy and adopts the
generally accepted principles of international law as
part of the nation.
In accordance with the generally accepted
principle of international law of the present day
including the Hague Convention the Geneva
Convention and significant precedents of
international jurisprudence established by the
United Nation, all those person military or
civilian who have been guilty of planning
preparing or waging a war of aggression and
of the commission of crimes and offenses
consequential and incidental thereto in
violation of the laws and customs of war, of
humanity and civilization are held accountable
therefor. Consequently, in the promulgation and
enforcement of Execution Order No. 68, the
President of the Philippines has acted in conformity
with the generally accepted and policies of
international law which are part of our Constitution.
The promulgation of said executive order is an
exercise by the President of his power as
Commander in chief of all our armed forces as
upheld by this Court in the case of Yamashita vs.
Styer. Consequently, the President as Commander
in Chief is fully empowered to consummate this
unfinished aspect of war namely the trial and
punishment of war criminal through the issuance
and enforcement of Executive Order No. 68.
(2) Rules and regulations of the Hague and Geneva
conventions form part of and are wholly based on
the generally accepted principals of international
law. In fact, these rules and principles were
accepted by the two belligerent nations, the United
States and Japan, who were signatories to the two
Conventions. Such rule and principles therefore
form part of the law of our nation even if the
Philippines was not a signatory to the
conventions embodying them, for our
Constitution has been deliberately general and
extensive in its scope and is not confined to
the recognition of rules and principles of
international law as contained in treaties to
which our government may have been or shall
be a signatory.
Furthermore when the crimes charged against
petitioner were allegedly committed the Philippines
was under the sovereignty of United States and thus
we were equally bound together with the United
States and with Japan to the right and obligation
contained in the treaties between the belligerent
countries.
(3) There is nothing in said executive order which
requires that counsel appearing before said
commission must be attorneys qualified to practice
law in the Philippines in accordance with the Rules of
Court. Respondent Military Commission is a special
military tribunal governed by a special law and not
by the Rules of court which govern ordinary civil
court. Secondly, the appointment of the two
American attorneys is not violative of our nation
sovereignty. It is only fair and proper that United
States, which has submitted the vindication of
crimes against her government and her people to a
tribunal of our nation, should be allowed
representation in the trial of those very crimes. If
there has been any relinquishment of sovereignty it
has not been by our government but by the United
States Government which has yielded to us the trial
and punishment of her enemies.
---
DISSENTING OPINION of Justice Perfecto
(1) Executive Order No. 68., is null and void because,
through it, the President of the Philippines usurped
power expressly vested by the Constitution in
Congress and in the Supreme Court.
EO No. 68 confers upon military commissions
jurisdiction to try all persons charged with war
crimes. It is clearly legislative in nature. The power
to define and allocate jurisdiction for the prosecution
of person accused of any crime is exclusively vested
by the Constitution in Congress. It also appropriates
the sum of P700,000 for the expenses of the
National War Crimes office established by the said
EO No. 68. This constitutes another usurpation of
legislative power as the power to vote
appropriations belongs to Congress.
It provides rules of procedure for the conduct of trial.
This provision on procedural subject constitutes a
usurpation of the rule-making power vested by
Constitution in the Supreme Court.
(2) Respondents suggest that the President issued
EO No. 68 under the emergency powers granted to
him by Commonwealth Act No. 600, as amended by
Commonwealth Act No. 620, and Commonwelath
Act No. 671.
The above Acts cannot validly be invoked, because
they ceased to have effect much before Executive
Order No. 68 was issued on July 29, 1947. Said Acts
had elapsed upon the liberation of the Philippines
from the Japanese forces or, at the latest, when the
surrender of Japan was signed in Tokyo on
September 2, 1945. It has never been the purpose
of the National Assembly to extend the delegation of
legislative powers to the President beyond the
emergency created by the war, as to extend it
farther would be violative of the express provisions
of the Constitution. EO No. 68 is equally offensive to
the Constitution because it violates the fundamental
guarantees of the due process and equal protection
of the law because it permits the admission of many
kinds evidence by which no innocent person can
afford to get acquittal and by which it is impossible
to determine whether an accused is guilty or not
beyond all reasonable doubt.
Facts:
Kuroda, Lieutenant General of the Japanese
Imperial Army, was prosecuted for war crimes
before the Military Commission set up by Executive
Order No. 68 of the President of the Philippines.
Kuroda challenged the legality and constitutionality
of the Military Commission and contended that it
lacked jurisdiction to try him for violation of the
Hague and Geneva Conventions on the Laws of War,
since the Philippines was not a signatory to these
conventions.
Issue: Whether or not the established Military
Commission is legal and constitutional.
Held:
The court ruled that the Military Commission was
legal and constitutional base on the citation of
Article II, Section 3 of the Philippine Constitution
declaring that “the Philippine adopts the generally
accepted principles of international law as part of
the law of the nation”.
The court ruled that in accordance with the generally
accepted principles of international law of the
present day, including the Hague Convention, the
Geneva Convention, and significant precedents of
international jurisprudence established by the
United Nations, all those persons, military or civilian,
who had been guilty of planning, preparing or
waging a war of aggression and of the commission
of crimes and offenses consequential and incidental
thereto, in violation of the laws and customs of war,
of humanity and civilization, were held accountable
therefore. Although the Philippines was not a
signatory to the conventions embodying them, our
Constitution has been deliberately general and
extensive in its scope and is not confined to the
recognition of rules and principles of international
law as contained in treaties to which our
government may have been or shall be a signatory.
Consequently, in the promulgation and enforcement
of Executive Order No. 68, the President of the
Philippines had acted in conformity with the
generally accepted principles and policies of
international law which are part of our Constitution.
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 EO 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 EO 68 is constitutional
thus the military tribunal jurisdiction is valid
HELD:
1. EO 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 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 this special law.
Shigenori Kuroda, formerly a Lieutenant-General
of the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in The
Philippines during a period covering 19433 and
19444 who is now charged before a military
Commission convened by the Chief of Staff of the
Armed forces of the Philippines with having
unlawfully disregarded and failed "to discharge his
duties as such command, permitting them to
commit brutal atrocities and other high crimes
against noncombatant civilians and prisoners of
the Imperial Japanese Forces in violation of the
laws and customs of war" — comes before this
Court seeking to establish the illegality of
Executive Order No. 68 of the President of the
Philippines: to enjoin and prohibit respondents
Melville S. Hussey and Robert Port from
participating in the prosecution of petitioner's case
before the Military Commission and to
permanently prohibit respondents from
proceeding with the case of petitioners.
ISSUES:
1) Whether or not E.O. 68 is Constitutional
2) Whether or not the Military Commission has no
Jurisdiction to try petitioner for acts committed in
violation of the Hague Convention and the
Geneva Convention because the Philippines is not
a signatory to the first and signed the second only
in 1947
3) Whether or not Attorneys Hussey and Port have
no personality as prosecution United State not
being a party in interest in the case.
Held:
1) The promulgation of said executive order is an
exercise by the President of his power as
Commander in chief of all our armed forces. An
importance incident to a conduct of war is the
adoption of measure by the military command not
only to repel and defeat the enemies but to seize
and subject to disciplinary measure those enemies
who in their attempt to thwart or impede our
military effort have violated the law of war. The
President as Commander in Chief is fully
empowered to consummate this unfinished aspect
of war namely the trial and punishment of war
criminal through the issuance and enforcement of
Executive Order No. 68
2) It cannot be denied that the rules and regulation
of the Hague and Geneva conventions form, part of
and are wholly based on the generally accepted
principals of international law. Even if the
Philippines was not a signatory to the conventions
embodying them for our Constitution has been
deliberately general and extensive in its scope and
is not confined to the recognition of rule and
principle of international law as continued inn
treaties to which our government may have been
or shall be a signatory
3) Military Commission is a special military tribunal
governed by a special law and not by the Rules of
court which govern ordinary civil court. The
appointment of the two American attorneys is not
violative of our nation sovereignty. It is only fair
and proper that United States, which has
submitted the vindication of crimes against her
government and her people to a tribunal of our
nation should be allowed representation in the trial
of those very crimes. It is of common knowledge
that the United State and its people have been
equally if not more greatly aggrieved by the crimes
with which petitioner stands charged before the
Military Commission. It can be considered a
privilege for our Republic that a leader nation
should submit the vindication of the honor of its
citizens and its government to a military tribunal of
our country.
Facts:
Shigenori Kuroda, formerly a Lieutenant-General of
the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in The
Philippines during Second World War. He was
charged before a military commission convened by
the Chief of Staff of the Armed forces of the
Philippines with having unlawfully disregarded and
failed to discharge his duties as such command,
permitting them to commit brutal atrocities and
other high crimes against noncombatant civilians
and prisoners of the Imperial Japanese Forces in
violation of the laws and customs of war”. The said
military commission was empaneled under the
authority of Executive Order 68 of the President of
the Philippines.
Kuroda challenged the validity of Executive Order 68.
His arguments, were as follows:
(1) Executive Order 68 is illegal on the ground that it
violates not only the provisions of our constitutional
law but also our local laws.
(2) Military Commission has no Jurisdiction to try
him for acts committed in violation of the Hague
Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed
the second only in 1947 and, therefore, he is
charged with “crime” not based on law, national or
international
(3) Hussey and Port have no personality as
prosecutors in this case because they are not
qualified to practice law in Philippines in accordance
with our Rules of court and the appointment of said
attorneys as prosecutors is violative of our national
sovereignty.
Issue/s:
Whether or not Executive Order 68 had violated the
provisions of our constitutional law
Discussions:
The provision of Article 2 Sec 3 states that “The
Philippines renounces war as an instrument of
national policy, adopts 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”.
Every State is, by reason of its membership in the
family of nations, bound by the generally accepted
principles of international law, which are considered
to be automatically part of its own laws.
Ruling/s:
No. Executive Order 68 has not violated the
provision of our constitutional law. The tribunal has
jurisdiction to try Kuroda. This executive order is in
accordance with Article 2 Sec 3, of Constitution. 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)
Furthermore, 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 this special law
THE FACTS
Petitioner Shigenori Kuroda,
the Commanding General of the Japanese Imperial
Forces in the Philippines during the Japanese
occupation, was charged before the Philippine
Military Commission of war crimes. He questioned
the constitutionality of E.O. No. 68 that created the
National War Crimes Office and prescribed rules on
the trial of accused war criminals. He contended the
Philippines is not a signatory to the Hague
Convention on Rules and Regulations covering Land
Warfare and therefore he is charged of crimes not
based on law, national and international.
II. THE ISSUES
Was E.O. No. 68 valid and constitutional?
III. THE RULING
[The Court DENIED the petition and upheld
the validity and constitutionality of E.O. No. 68.]
YES, E.O. No. 68 valid and
constitutional.
Article 2 of our Constitution provides in its
section 3, that –
The Philippines renounces war
as an instrument of national policy
and adopts the generally accepted
principles of international law as part
of the law of the nation.
In accordance with the generally accepted
principle of international law of the present day
including the Hague Convention the Geneva
Convention and significant precedents of
international jurisprudence established by the
United Nation all those person military or civilian
who have been guilty of planning preparing or
waging a war of aggression and of the commission
of crimes and offenses consequential and incidental
thereto in violation of the laws and customs of war,
of humanity and civilization are held accountable
therefor. Consequently in the promulgation and
enforcement of Execution Order No. 68 the
President of the Philippines has acted in conformity
with the generally accepted and policies of
international law which are part of the our
Constitution.
xxx xxx xxx
Petitioner argues that respondent Military
Commission has no jurisdiction to try petitioner for
acts committed in violation of the Hague Convention
and the Geneva Convention because the Philippines
is not a signatory to the first and signed the second
only in 1947. It cannot be denied that the rules and
regulation of the Hague and Geneva conventions
form, part of and are wholly based on the generally
accepted principals of international law. In facts
these rules and principles were accepted by the two
belligerent nations the United State and Japan who
were signatories to the two Convention. Such rule
and principles therefore form part of the law of our
nation even if the Philippines was not a signatory to
the conventions embodying them for our
Constitution has been deliberately general and
extensive in its scope and is not confined to the
recognition of rule and principle of international law
as contained in treaties to which our government
may have been or shall be a signatory.
4. USA VS GUINTO
Facts:
The case involves the doctrine of state immunity.
The United States of America was not impleaded in
the case at bar but has moved to dismiss on the
ground that they are in effect suits against it to
which it has not consented.
The private respondents are suing several officers of
the US Air Force in Clark Air Base in connection with
the bidding conducted by them for contracts for
barber services in the said base. Among those who
submitted their bids were private respondents
Roberto T. Valencia, Emerenciana C. Tanglao, and
Pablo C. del Pilar.
The Bidding was won by Ramon Dizon over the
objection of the private respondents who claimed
that he had made a bid for 4 facilities, including the
Civil Engineering Area which was not included in the
invitation to bid.
The private respondents filed a complaint in the
court below to compel Philippine Area Exchange
(PHAX) and the individual petitioners to cancel the
award to Dizon, to conduct a rebidding for the
barbershop concessions and to allow the private
respondents by a writ of preliminary injunction to
continue operating the concessions pending
litigation.
The petitioners filed a motion to dismiss and
opposition to the petition for preliminary injunction
on the ground that the action was in effect a suit
against USA which had not waived its non-suability,
but trial court denied the application for a writ of
preliminary injunction.
Issues:
1. Whether or not the action was in effect a suit
against United States of America.
2. Whether or not the petitioners were immune
from suit under the RP-US Bases Treaty for acts
done by them in the performance of their official
duties.
Discussions:
The rule that a state may not be sued without its
consent, is one of the generally accepted principles
of international law that we have adopted as part of
the law of our land.
Even without such affirmation, we would still be
bound by the generally accepted principles of
international law under the doctrine of incorporation.
Under this doctrine, as accepted by the majority of
states, such principles are deemed incorporated in
the law of every civilized state as a condition and
consequence of its membership in the society of
nations. Upon its admission to such society, the
state is automatically obligated to comply with these
principles in its relations with other states.
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
states 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, the suit must be regarded as against the state
although it has not been formally impleaded. When
the government enters into a contract, it is deemed
to have descended to the level of the other
contracting party and divested of its sovereign
immunity from suit with its implied consent.
Rulings:
1. The court finds the barbershops subject to
the concessions granted by the US government
to be commercial enterprises operated by
private persons. They are not agencies of the
United States Armed Forces nor are their
facilities demandable as a matter of right by the
American servicemen. These establishments
provide for the grooming needs of their
customers. This being the case, the petitioners
cannot plead any immunity from the complaint
filed by the private respondents in the court
below.
2. Petitioners states they have acted in the
discharge of their official functions as officers or
agents of the United States. They are sought to
be held answerable for personal torts in which
the United States itself is not involved. If found
liable, they and they alone must satisfy the
judgment.
The Court would have directly resolved the claims
against the defendants, except for the paucity of the
record in the case at hand. The evidence of the
alleged irregularity in the grant of the barbershop
concessions is not before the Court. The respondent
court will have to receive that evidence first, so it
can later determine on the basis thereof if the
plaintiffs are entitled to the relief they seek.
Accordingly, this case must also be remanded to the
court below for further proceedings.
FACTS: The cases brought before the Supreme
Court are consolidated for they are issues on
immunity of the state from being sued.
In G.R. No. 76607 (U.S.A et. al vs. Guinto et. al. Feb.
26, 1990), the private respondents sued several
officers of the US Air Force regarding a bidding for
barbering services contract. A bid from Okinawa
Area Exchange was solicited through James Shaw, a
contracting officer. Private respondents and
concessionaires inside the Clark Air Base, Roberto T.
Valencia, Emerenciana C. Tanglao and Pablo C. del
Pilar, were among the bidders, however, Ramon
Dizon won the bidding. The private respondents
complained with the contention that Dizon also bid
for the Civil Engineering (CE) area which was not
included in the bidding invitation. PHAX or the
Philippine Area Exchange, to whom the respondents
complained to, represented by petitioners Yvonne
Reeves and Frederick Smouse clarified that the CE
area is yet to be awarded to Dizon because of a
previous solicitation. Dizon was already operating
the NCO club concession, however, and the contract
expiry of the CE barbershop was extended only until
the end of June 1986. Hence, the respondents filed a
petition, with a prayer to compel PHAX and the
individual petitioners to revoke the award to Dizon,
and conduct a rebidding to allow the private
respondents to continue operating their concessions
by a writ of preliminary injunction pending litigation.
To maintain status quo, Respondent court issued an
ex parte order to the petitioners. Petitioners filed a
motion for dismissal and petition to oppose the
preliminary injunction. They contended that the
action was in effect a suit against the US Force. Both
were denied by the trial court. A petition for
certiorari and prohibition for preliminary injunction
were filed before the Supreme Court and a TRO was
issued.
In G.R. No. 79470, Fabian Genove filed a complaint
for damages against petitioners Anthony Lamachia,
Wilfredo Belsa, Rose Crtalla and Peter Orascion for
his dismissal as a cook in the US Air Force
Recreation Center. Belsa, Cartalla and Orascion
testified that Genova poured urine into the soup
stock that was served to customers. Lamachia
suspended him and referred the case to a board of
arbitrators who found Genove guilty and
recommended his dismissal. Genove then filed an
MS complaint in the RTC of Baguio against the
individual petitioners, who moved to dismiss the
case in the basis that Lamachia was immune from
suit as per acts done in his official capacity as an
officer of the US Air Force. The motion was denied by
the RTC, so the petitioners filed a petition for
Certiorari and prohibition with preliminary
injunction before the Supreme Court.
In G.R. No. 80018, the respondent, Louis Bautista,
was arrested pursuant to RA 6425 (Dangerous
Drugs Act) in a buy-bust operation conducted by the
petitioners, Tomi J. King, Darrel D. Dye and Stephen
F. Bostick, who were officers and special agents of
the US Air Force and Air Force Office of Special
Investigators. He was charged before the RTC which
caused his dismissal as a barracks boy in Camp
O’Donnell, an extension of Clark Air base. Bautista
then filed a complaint against the petitioners. The
petitioners, in defense, filed a motion to dismiss the
case with the contention that they were acting in
official capacity when the acts were committed,
hence the suit against them is, in effect, a suit
against the US. The motion was denied by the judge,
with the contention that the immunity covers only
civil cases that are not criminal under the Military
Bases Agreement. Ergo, the petitioners filed a
petition for certiorari and prohibition for preliminary
injunction. A TRO was issued.
In G.R. No. 80258, the private respondents, Ricky
Sanchez, et. al., filed a complaint for damages
against the respondents, Major General Michael
Carns, et. al., for the extensive injuries allegedly
sustained by the petitioners, who beat them up,
handcuffed and unleashed dogs on them who bit
them. The petitioners denied the accusation and
instead said that the respondents were bitten by
dogs because they resisted arrest when they
committed theft, and they were brought to the
medical center for treatment thereafter. The
petitioners, USA together with Carns et. al.,
contended that they are immune against this suit,
invoking their right under the RP-US Bases Treaty,
as they acted in the performance of their official
functions. The matter was brought before the
Supreme Court after their motion was denied,
wherein they filed a petition for certiorari and
prohibition with preliminary injunction. A TRO was
issued.
ISSUE: Whether or not the petitioners can use State
Immunity (Art. XVI, Sec. 3, 1987 Constitution) as
defense.
RULING: The Supreme Court rendered judgment as
follows:
1. In , the petition is DISMISSED and the respondent
judge is directed to proceed with the hearing and
decision of Civil Case No. 4772. The temporary
restraining order was LIFTED.
2. In G.R. No.79470, the petition is GRANTED and
the Civil Case No.0829-R(298) is DISMISSED.
3. In G.R. No80018, the petition is GRANTED and
the Civil Case No. 115-C-87 is DISMISSED. The
temporary restraining order is made permanent.
4. In G.R. No. 80258, the petition is DISMISSED and
the respondent judge is directed to proceed with the
hearing and decision of Civil Case No. 4996. The
temporary restraining order was LIFTED.
Reason: Under Art. XVI, Sec. 3, 1987 Constitution,
“The State may not be sued without its consent.”
However, this does not mean that at all times, the
State may not be sued. There needs to be a
consideration on if they were indeed acting within
the capacity of their duties, or if they enter into a
contract with a private party.
In G.R. No. 76607, the barbershops, subject of the
bidding awarded were commercial enterprises,
operated by private persons, therefore they are not
agencies of the US Armed Forces nor part of their
facilities. Although the barbershops provide service
to the military, they were for a fee. State Immunity
cannot be invoked by the petitioners for the fact that
they entered into a contract with a private party,
commercial in nature. In G.R. No. 79470, it is in the
same principle as in the first case. The petitioner,
Lamachia, is a manager of a privately operated
service which generate an income. The court
assumed that they are an individual entity, and the
service they offer partake the nature of a business
entered by US in its proprietary capacity. Despite
this, the court ruled in favor of the petitioners as the
claim for damages cannot be allowed on the
strength of evidence before the court. It ruled that
the dismissal of the private respondent was
justifiable under the circumstance. Further, the
Supreme Court declared that the petitioners in the
other cases above, stating that they acted in
performance of their duties, need evidence. The SC
was able to make certain that the petitioners in G.R.
No. 80018 were indeed acting in their official
capacity, as the state they represent, USA, has not
given its consent to be sued. As such, they cannot
be sued for acts imputable to their state. However
in G.R. No. 80258, more evidence is needed as the
factual allegations were contradictory. There needs
to be clear, and sufficient evidence that they were in
the vestige of their duty, and did not exceed it. In
the foregoing, the Supreme Court had decided to
make the case be investigated further by the lower
court before proceeding and the final judgment can
be rendered.
FACTS:
USA vs. Guinto. On February 24, 1986, the U.S. Air
Force stationed in Clark Air Base solicited bids for
barbershop concessions. Ramon Dizon won the
bidding. Respondents objected, claiming that Dizon
had made a bid for four facilities which includes an
area not included in the bidding. The petitioners
explained that Dizon was already operating the
concession, and informed the respondents that
solicitation for the barber service contracts would be
available by the end of June before which the
respondents would be notified. On June 30, 1986,
the private respondents filed a complaint in court to
compel the Philippine Area Exchange (PHAX) and
the petitioners to cancel the award to Dizon, to
conduct a rebidding for the barbershop concessions,
and to allow the respondents through a writ of
preliminary injunction to continue operating the
concessions pending litigation. The court issued an
ex parte order directing the individual petitioners to
maintain the status quo. Petitioners then filed a
motion to dismiss and opposed the petition for
preliminary injunction, stating that the action was in
effect a suit against the United States of America
which had not waived its non-suability. The
defendants who are official employees of the U.S.
Air Force were also immune from suit. The trial court
denied the application for a writ of preliminary
injunction.
USA v. Rodrigo. Fabian Genove who worked as a
cook in the U.S. Air Force Recreation Center at the
John Hay Air Station in Baguio City, filed a complaint
for damages against petitioners Anthony Lamachia,
Wilfredo Belsa, Rose Cartalla and Peter Orascion for
his dismissal from work. Belsa, Cartalla, and
Orascion had testified during an investigation that
Genove had poured urine into the soup stock used in
cooking the vegetables served to the club customers.
As club manager, Lamachia suspended Genove and
referred the case to a board of arbitrators. The
board unanimously found Genove guilty and
recommended his dismissal. Lamachia, et. al.,
joined by the United States of America moved to
dismiss the complaint, alleging that Lamachia was
an officer of the U.S. Air Force and was thus immune
from suit. They argued that the suit was in effect
against the United States which had not given its
consent to be sued. The trial court denied the
motion, saying that the defendants went beyond
their functions that brought them out of the
protective mantle of whatever immunities they may
have initially had such that the plaintiff’s allegation
that the acts complained of were illegal, done with
extreme bad faith and with preconceived sinister
plan to harass and finally dismiss the plaintiff gains
significance.
USA v. Ceballos. Luis Bautista, who was employed
as a barracks boy in Camp O’ Donnell, was arrested
following a buy-bust operation conducted by the
petitioners who were special agents of the Air Force
Office of Special Investigators (AFOSI). A charge
was filed against Bautista in violation of R.A. 6425 or
the Dangerous Drugs Act which caused his dismissal
from employment. Bautista thus filed a complaint
for damages against the petitioners who filed an
answer without the assistance of counsel or
authority from the U.S. Department of Justice. The
petitioners alleged that they had only done their
duty in enforcing the laws of the Philippines inside
the American bases pursuant to the RP-US Military
Bases Agreement. The law firm representing the
defendants filed a motion to withdraw the answer
and dismiss the complaint on the ground that the
defendants were just acting in their official capacity
and that the complaint against them was in effect a
suit against the United States which did not give its
consent to be sued. The motion was denied by the
trial court which stated that the claimed immunity
under the Military Bases Agreement covered only
criminal and not civil cases and that the defendants
had come under the jurisdiction of the court when
they submitted their answer.
USA v. Vergara. Plaintiffs alleged that they were
beaten up by the defendants, handcuffed, and
allowed to be bitten by dogs which caused extensive
injuries to the plaintiffs. The defendants denied the
claim and asserted that the plaintiffs were arrested
for theft and were bitten by the dogs because they
struggled and resisted arrest. The defendants
claimed that the dogs were called off and the
plaintiffs were immediately taken to the medical
center where they were treated for their wounds.
The defendants filed a motion to dismiss the
complaint, and argued that the suit was in effect a
suit against the United States which had not given
its consent to be sued. The defendants stated that
there were immune from suit under the RP-US
Military Bases Agreement for acts they did in
performing their official functions. The motion to
dismiss was denied by the trial court.
ISSUE:
Are the defendants right in invoking the State’s
immunity from suit for acts done by them in the
performance of their official duties?
HELD:
USA v. Guinto. The Supreme Court ruled that
the barbershop concessions granted by the United
States government are commercial enterprises
operated by private persons and are not agencies of
the United States Armed Forces. All the barbershop
concessionaires were under the terms of their
contracts and were required to remit fixed
commissions to the United States government.
Thus, the petitioners cannot plead any immunity
from the complaint filed by the private
respondents. The Court though could not directly
resolve the claims against the defendants because
the evidence of the alleged irregularity in the grant
of the barbershop concessions is lacking. This
means that the Court must receive the evidence first
so it can later determine if the plaintiffs are entitled
to the relief they seek.
USA v. Rodrigo. The restaurant services offered at
the John Hay Air Station is of the nature of a
business enterprise undertaken by the United States
government in its proprietary capacity. Thus, the
petitioners cannot invoke the doctrine of state
immunity to justify the dismissal of the damage suit
against them by Genove even if it is established that
they were acting as agents of the United States
when they investigated and later dismissed Genove.
Not even the United States government itself can
claim such immunity because by entering into an
employment contract with Genove, it impliedly
divested itself of its sovereign immunity from suit.
But still, the Court dismissed the complaint against
the petitioners since, while suable, the petitioners
were found to be not liable. A thorough investigation
established beyond doubt that Genove had in fact
polluted the soup stock with urine.
USA v. Ceballos. The court found that
the petitioners were only exercising their official
functions when they conducted the buy-bust
operation. The petitioners were connected with the
Air Force Office of Special Investigators and were
assigned to prevent the distribution, possession and
use of prohibited drugs and to prosecute those guilty
of such acts. As such, the petitioners were not acting
in their private or unofficial capacity when they
apprehended and later testified against the
complainant. For discharging their duties as agents
of the United States, they cannot be directly
prosecuted for acts imputable to their principal
which has not given its consent to be sued.
USA v. Vergara. The Supreme Court found the
factual allegations in this case contradictory and
recommended a closer study of what actually
happened to the plaintiffs. The Court found the
record scant of information to indicate if the
defendants were really discharging their official
duties or had actually exceeded their authority when
the incident in question occurred. The Court then
could not directly decide this case and ruled that the
required inquiry must first be made by the lower
court to assess and resolve the conflicting claims of
the parties based on the evidence yet to be
presented at the trial. The Court will determine, if it
is still necessary, if the doctrine of state immunity is
applicable only after the determination of what
capacity the petitioners were acting at the time of
the incident in question.
Facts:
 In the 4 consolidated suits, the USA moves
to dismiss the cases on the ground that they are in
effect suits against it which it has not consented
On the first suit:
 On February 24, 1986, the Western Pacific
Contracting Office, Okinawa Area Exchange, US Air
Force, solicited bids for barber services contracts
through its contracting officer James F. Shaw
 Among those who submitted their bids were
private respondents Roberto T. Valencia,
Emerenciana C. Tanglao, and Pablo C. del Pilar
 Bidding was won by Ramon Dizon over the
objection of the private respondents who claimed
that he had made a bid for 4 facilities, including the
Civil Engineering Area which was not included in the
invitation to bid
 The Philippine Area Exchange (PHAX),
through its representatives petitioners Yvonne
Reeves and Frederic M. Smouse, upon the private
respondents' complaint, explained that the Civil
Engineering concession had not been awarded to
Dizon
 But Dizon was alreayd operating this
concession, then known as the NCO club concession
 On June 30, 1986, the private respondents
filed a complaint in the court below to compel PHAX
and the individual petitioners to cancel the award to
Dizon, to conduct a rebidding for the barbershop
concessions and to allow the private respondents by
a writ of preliminary injunction to continue operating
the concessions pending litigation
 Respondent court directed the individual
petitioners to maintain the status quo
 On July 22, 1986, the petitioners filed a
motion to dismiss and opposition to the petition for
preliminary injunction on the ground that the action
was in effect a suit against USA which had not
waived its non-suability
 On July 22, 1986, trial court denied the
application for a writ of preliminary injunction
 On Oct. 10, 1988, trial court denied the
petitioners' motion to dismiss
On the second suit:
 Fabian Genove filed a complaint for
damages against petitioners Anthony Lamachia,
Wilfredo Belsa, Rose Cartalla and Peter Orascion for
his dismissal as cook in the US Air Force Recreation
Center at the John Hay Air Station in Baguio City
 It had been ascertained that Genove had
poured urine into the soup stock used in cooking the
vegetables served to the club customers
 His dismissal was effected on March 5, 1986
by Col. David C. Kimball, Commander of the 3rd
Combat Support Group, PACAF Clark Air Force Base
 Genove filed a complaint in the RTC of
Baguio
 The defendants, joined by the United States
of America, moved to dismiss the complaint,
alleging that Lamachia (the manager) as an officer
of the US Air Force was immune from suit for the
acts done by him in his official capacity; they argued
that the suit was in effect against USA, which had
not given its consent to be sued
 Motion was denied by respondent judge:
although acting intially in their official capacities, the
defendants went beyond what their functions called
for; this brought them out of the protective mantle
of whatever immunities they may have had in the
beginning
On the third suit:
 Luis Bautisa, who was employed as a
barracks boy in Camp O'Donnell, an extension of
Clark Air Base, was arrested following a buy-bust
operation conducted by the individual petitioners
Tomi J. King, Darrel D. Dye and Stephen F. Bostick,
officers of the US Air Force and special agents of the
Air Force of Special Investigators (AFOSI)
 Bautista was dismissed from his employment
as a result of the filing of the charge
 He then filed a complaint for damages
against the individual petitioners, claiming that it
was because of their acts that he was removed
 Defendants alleged that they had only done
their duty in the enforcement of laws of the
Philippines inside the American bases, pursuant to
the RP-US Military Bases Agreement
 The counsel for the defense invoked that the
defendants were acting in their official capacity; that
the complaint was in effect a suit against the US
without its consent
 Motion was denied by respondent judge:
immunity under the Military Bases Agreement
covered only criminal and not civil cases; moreover,
the defendants had come under the jurisdiction of
the court when they submitted their answer
On the fourth suit:
 Complaint for damages was filed by private
respondents against the petitioners (except USA)
 According to the plaintiffs, the defendants
beat them up, handcuffed the, and unleashed dogs
on them
 Defendants deny this and claim that the
plaintiffs were arrested for theft and were bitten by
dogs because they were struggling and resisting
arrest
 USA and the defendants argued that the suit
was in effect a suit against the United States which
had not given its consent to be sued; that they were
also immune from suit under the RP-US Bases
Treaty for acts done by them in the performance of
their official functions
 Motion to dismiss was denied by the trial
court: the acts cannot be considered Acts of State, if
they were ever admitted by the defendants
Issue:
 Whether or not the suits above are in effect
suits against United States of America without its
consent
 In relation, whether or not the defendants
are also immune from suit for acting within their
official functions.
Holding and Ratio:
 1st suit: No. The barbershops concessions
are commercial enterprises operated by private
persons. They are not agencies of the US Armed
forces. Petitioners cannot plead immunity. Case
should be remanded to the lower court.
 2nd suit: No. The petitioners cannot invoke
the doctrine of state immunity. The restaurants are
commercial enterprises. By entering into the
employment contract with Genove, it impliedly
divested itself of its sovereign immunity from suit.
(However, the petitioners are only suable, not
liable.)
 3rd suit: Yes. It is clear that the petitioners
were acting in the exercise of their official functions.
For discharging their duties as agents of the US,
they cannot be directly impleaded for acts
attributable to their principal, which has not given
its consent to be sued.
 4th suit: The contradictory factual
allegations deserve a closer study. Inquiry must first
be made by the lower court. Only after can it be
known in what capacity the petitioners were acting
at the time of the incident.
5. AGUSTIN VS EDU
G.R. No. L-49112 – 88 SCRA 195 – Political Law –
Constitutional Law – Generally Accepted Principles
of International Law – Police Power
Agustin is the owner of a Volkswagen Beetle Car. He
is assailing the validity of Letter of Instruction No
229 which requires all motor vehicles to have early
warning devices particularly to equip them with a
pair of reflectorized triangular early warning
devices•. Agustin is arguing that this order is
unconstitutional, harsh, cruel and unconscionable to
the motoring public. Cars are already equipped with
blinking lights which is already enough to provide
warning to other motorists. And that the mandate to
compel motorists to buy a set of reflectorized early
warning devices is redundant and would only make
manufacturers and dealers instant millionaires.
ISSUE: Whether or not the said is EO is valid.
HELD: Such early warning device requirement is
not an expensive redundancy, nor oppressive, for
car owners whose cars are already equipped with 1)
‘blinking-lights in the fore and aft of said motor
vehicles,’ 2) ‘battery-powered blinking lights inside
motor vehicles,’ 3) ‘built-in reflectorized tapes on
front and rear bumpers of motor vehicles,’ or 4)
‘well-lighted two (2) petroleum lamps (the Kinke) . . .
because: Being universal among the signatory
countries to the said 1968 Vienna Conventions, and
visible even under adverse conditions at a distance
of at least 400 meters, any motorist from this
country or from any part of the world, who sees a
reflectorized rectangular early warning device
installed on the roads, highways or expressways,
will conclude, without thinking, that somewhere
along the travelled portion of that road, highway, or
expressway, there is a motor vehicle which is
stationary, stalled or disabled which obstructs or
endangers passing traffic. On the other hand, a
motorist who sees any of the aforementioned other
built-in warning devices or the petroleum lamps will
not immediately get adequate advance warning
because he will still think what that blinking light is
all about. Is it an emergency vehicle? Is it a law
enforcement car? Is it an ambulance? Such
confusion or uncertainty in the mind of the motorist
will thus increase, rather than decrease, the danger
of collision.
On Police Power
The Letter of Instruction in question was issued in
the exercise of the police power. That is conceded by
petitioner and is the main reliance of respondents. It
is the submission of the former, however, that while
embraced in such a category, it has offended
against the due process and equal protection
safeguards of the Constitution, although the latter
point was mentioned only in passing. The broad and
expansive scope of the police power which was
originally identified by Chief Justice Taney of the
American Supreme Court in an 1847 decision, as
“nothing more or less than the powers of
government inherent in every sovereignty” was
stressed in the aforementioned case of Edu v. Ericta
thus: “Justice Laurel, in the first leading decision
after the Constitution came into force, Calalang v.
Williams, identified police power with state authority
to enact legislation that may interfere with personal
liberty or property in order to promote the general
welfare. Persons and property could thus ‘be
subjected to all kinds of restraints and burdens in
order to secure the general comfort, health and
prosperity of the state. Shortly after independence
in 1948, Primicias v. Fugoso reiterated the doctrine,
such a competence being referred to as ‘the power
to prescribe regulations to promote the health,
morals, peace, education, good order or safety, and
general welfare of the people.’ The concept was set
forth in negative terms by Justice Malcolm in a
pre-Commonwealth decision as ‘that inherent and
plenary power in the State which enables it to
prohibit all things hurtful to the comfort, safety and
welfare of society.’ In that sense it could be hardly
distinguishable as noted by this Court in Morfe v.
Mutuc with the totality of legislative power. It is in
the above sense the greatest and most powerful
attribute of government. It is, to quote Justice
Malcolm anew, ‘the most essential, insistent, and at
least illimitable powers,’ extending as Justice
Holmes aptly pointed out ‘to all the great public
needs.’ Its scope, ever expanding to meet the
exigencies of the times, even to anticipate the future
where it could be done, provides enough room for an
efficient and flexible response to conditions and
circumstances thus assuring the greatest benefits.
In the language of Justice Cardozo: ‘Needs that
were narrow or parochial in the past may be
interwoven in the present with the well-being of the
nation. What is critical or urgent changes with the
time.’ The police power is thus a dynamic agency,
suitably vague and far from precisely defined,
rooted in the conception that men in organizing the
state and imposing upon its government limitations
to safeguard constitutional rights did not intend
thereby to enable an individual citizen or a group of
citizens to obstruct unreasonably the enactment of
such salutary measures calculated to insure
communal peace, safety, good order, and welfare.”
It was thus a heavy burden to be shouldered by
Agustin, compounded by the fact that the particular
police power measure challenged was clearly
intended to promote public safety. It would be a rare
occurrence indeed for this Court to invalidate a
legislative or executive act of that character. None
has been called to our attention, an indication of its
being non-existent. The latest decision in point, Edu
v. Ericta, sustained the validity of the Reflector
Law, an enactment conceived with the same end in
view. Calalang v. Williams found nothing
objectionable in a statute, the purpose of which was:
“To promote safe transit upon, and avoid
obstruction on roads and streets designated as
national roads . . .” As a matter of fact, the first law
sought to be nullified after the effectivity of the 1935
Constitution, the National Defense Act, with
petitioner failing in his quest, was likewise prompted
by the imperative demands of public safety.
FACTS:
Petitioner, Agustin assails the validity of the Letter
of Instruction No. 229 which requires an early
warning device to be carried by users of motor
vehicles as being violative of the constitutional
guarantee of due process and transgresses the
fundamental principle of non-delegation of
legislative power.
Herein respondent Romeo Edu in his capacity as
Land Transportation Commisioner set forth the
implementing rules and regulations of the said
instruction.
Petitioner make known that he "is the owner of a
Volkswagen Beetle Car, Model 13035, already
properly equipped when it came out from the
assembly lines with blinking lights fore and aft,
which could very well serve as an early warning
device in case of the emergencies mentioned in
Letter of Instructions No. 229, as amended, as well
as the implementing rules and regulations in
Administrative Order No. 1 issued by the land
transportation Commission,"
Furthermore, he contends that the law is "one-sided,
onerous and patently illegal and immoral because
[they] will make manufacturers and dealers instant
millionaires at the expense of car owners who are
compelled to buy a set of the so-called early warning
device at the rate of P 56.00 to P72.00 per set." are
unlawful and unconstitutional and contrary to the
precepts of a compassionate New Society [as being]
compulsory and confiscatory on the part of the
motorists who could very well provide a practical
alternative road safety device, or a better substitute
to the specified set of Early Warning Device (EWD)."
This instruction, signed by President Marcos, aims to
prevent accidents on streets and highways,
including expressways or limited access roads
caused by the presence of disabled, stalled or
parked motor vehicles without appropriate early
warning devices. The hazards posed by these
disabled vehicles are recognized by international
bodies concerned with traffic safety. The Philippines
is a signatory of the 1968 Vienna Convention on
Road Signs and Signals and the United Nations
Organizations and the said Vienna Convention was
ratified by the Philippine Government under PD 207.
ISSUE:
WON the LOI 229 is invalid and violated
constitutional guarantees of due process.
HELD:
NO. The assailed Letter of Instruction was a valid
exercise of police power and there was no unlawful
delegation of legislative power on the part of the
respondent. As identified, police power is a state
authority to enact legislation that may interfere
personal liberty or property in order to promote the
general welfare. In this case, the particular exercise
of police power was clearly intended to promote
public safety.
It cannot be disputed that the Declaration of
Principle found in the Constitution possesses
relevance: “The Philippines adopts the generally
accepted principles of international law as part of
the law of the nation.”
Thus, as impressed in the 1968 Vienna Convention it
is not for this country to repudiate a commitment to
which it had pledged its word. Our country’s word
was resembled in our own act of legislative
ratification of the said Hague and Vienna
Conventions thru P.D. No. 207 .
The concept of Pacta sunt servanda stands in the
way of such an attitude which is, moreoever, at war
with the principle of international morality.
Facts
This case is a petition assailing the validity or the
constitutionality of a Letter of Instruction No. 229,
issued by President Ferdinand E. Marcos, requiring
all vehicle owners, users or drivers to procure early
warning devices to be installed a distance away from
such vehicle when it stalls or is disabled. In
compliance with such letter of instruction, the
Commissioner of the Land Transportation Office
issued Administrative Order No. 1 directing the
compliance thereof.
This petition alleges that such letter of instruction
and subsequent administrative order are unlawful
and unconstitutional as it violates the provisions on
due process, equal protection of the law and undue
delegation of police power.
Issue
Whether or not the Letter of Instruction No. 229 and
the subsequent Administrative Order issued is
unconstitutional
Ruling
The Supreme Court ruled for the dismissal of the
petition. The statutes in question are deemed not
unconstitutional. These were definitely in the
exercise of police po
wer as such was established to promote public
welfare and public safety. In fact, the letter of
instruction is based on the constitutional provision
of adopting to the generally accepted principles of
international law as part of the law of the land. The
letter of instruction mentions, as its premise and
basis, the resolutions of the 1968 Vienna
Convention on Road Signs and Signals and the
discussions on traffic safety by the United Nations -
that such letter was issued in consideration of a
growing number of road accidents due to stalled or
parked vehicles on the streets and highways.
AGUSTIN vs EDU
Facts:
The letter of instruction providing for an early
warning device for motor vehicles is being assailed
in the case at bar as being violative of the
constitutional guarantee of due process. Petitioner
contends that they are "infected with arbitrariness
because it is harsh, cruel and unconscionable to the
motoring public;" 13 are "one‐ sided, onerous and
patently illegal and immoral because [they] will
make manufacturers and dealers instant
millionaires at the expense of car owners who are
compelled to buy a set of the so‐ called early
warning device at the rate of P 56.00 to P72.00 per
set." 14 are unlawful and unconstitutional and
contrary to the precepts of a compassionate New
Society [as being] compulsory and confiscatory on
the part of the motorists who could very well provide
a practical alternative road safety device, or a better
substitute to the specified set of EWD's."
Held:
Petitioner’s contention is erroneous because the
Letter of Instruction was issued in the exercise of
the police power which is “nothing more or less than
the powers of government inherent in every
sovereignty.” In the leading case of Calalang v.
Williams, Justice Laurel identified police power
with state authority to enact legislation that
may interfere with personal liberty or property
in order to promote the general
welfare. Persons and property could thus ‘be
subjected to all kinds of restraints and burdens in
order for the general comfort, health and prosperity
of the state.’ This doctrine was later reiterated again
in Primicias v. Fugoso which referred police power
as ‘the power to prescribe regulations to
promote the health, morals, peace, education,
good order or safety, and general welfare of
the people.’ The concept was set forth in negative
terms by Justice Malcolm in a pre-Commonwealth
decision as ‘that inherent and plenary power in
the State which enables it to prohibit all things
hurtful to the comfort, safety and welfare of
society.’ Its scope, ever-expanding to meet the
exigencies of the times, even to anticipate the future
where it could be done, provides enough room for an
efficient and flexible response to conditions and
circumstances thus assuring the greatest benefits.
In the language of Justice Cardozo: ‘Needs that
were narrow or parochial in the past may be
interwoven in the present with the well-being of the
nation. What are critical or urgent changes with the
time.’ The police power is thus a dynamic agency,
suitably vague and far from precisely defined,
rooted in the conception that men in organizing the
state and imposing upon its government limitations
to safeguard constitutional rights did not intend
thereby to enable an individual citizen or a group of
citizens to obstruct unreasonably the enactment of
such salutary measures calculated to communal
peace, safety, good order, and welfare.”
6. MARCOS VS MANGLAPUS
Facts:
Former President Ferdinand E. Marcos was deposed
from the presidency via the non-violent “people
power” revolution and was forced into exile. Marcos,
in his deathbed, has signified his wish to return to
the Philippines to die. But President Corazon Aquino,
considering the dire consequences to the nation of
his return at a time when the stability of government
is threatened from various directions and the
economy is just beginning to rise and move forward,
has stood firmly on the decision to bar the return of
Marcos and his family.
Aquino barred Marcos from returning due to possible
threats & following supervening events:
1. failed Manila Hotel coup in 1986 led by
Marcos leaders
2. channel 7 taken over by rebels & loyalists
3. plan of Marcoses to return w/ mercenaries
aboard a chartered plane of a Lebanese arms
dealer. This is to prove that they can stir trouble
from afar
4. Honasan’s failed coup
5. Communist insurgency movements
6. secessionist movements in Mindanao
7. devastated economy because of
1. accumulated foreign debt
2. plunder of nation by Marcos & cronies
Marcos filed for a petition of mandamus and
prohibition to order the respondents to issue them
their travel documents and prevent the
implementation of President Aquino’s decision to bar
Marcos from returning in the Philippines. Petitioner
questions Aquino’s power to bar his return in the
country. He also questioned the claim of the
President that the decision was made in the interest
of national security, public safety and health.
Petitioner also claimed that the President acted
outside her jurisdiction.
According to the Marcoses, such act deprives them
of their right to life, liberty, property without due
process and equal protection of the laws. They also
said that it deprives them of their right to travel
which according to Section 6, Article 3 of the
constitution, may only be impaired by a court order.
Issue:
1. Whether or not, in the exercise of the powers
granted by the Constitution, the President may
 prohibit the Marcoses from returning to the
Philippines.
2. Whether or not the President acted
arbitrarily or with grave abuse of discretion
amounting to lack or excess of jurisdiction when
she determined that the return of the Marcoses
to the Philippines poses a serious threat to
national interest and welfare and decided to bar
their return.
Decision:
No to both issues. Petition dismissed.
Ratio:
Separation of power dictates that each department
has exclusive powers. According to Section 1, Article
VII of the 1987 Philippine Constitution, “the
executive power shall be vested in the President of
the Philippines.” However, it does not define what is
meant by “executive power” although in the same
article it touches on exercise of certain powers by
the President, i.e., the power of control over all
executive departments, bureaus and offices, the
power to execute the laws, the appointing power to
grant reprieves, commutations and pardons… (art
VII secfs. 14-23). Although the constitution outlines
tasks of the president, this list is not defined &
exclusive. She has residual & discretionary powers
not stated in the Constitution which include the
power to protect the general welfare of the people.
She is obliged to protect the people, promote their
welfare & advance national interest. (Art. II, Sec.
4-5 of the Constitution). Residual powers, according
to Theodore Roosevelt, dictate that the President
can do anything which is not forbidden in the
Constitution (Corwin, supra at 153), inevitable to
vest discretionary powers on the President (Hyman,
American President) and that the president has to
maintain peace during times of emergency but also
on the day-to-day operation of the State.
The rights Marcoses are invoking are not absolute.
They’re flexible depending on the circumstances.
The request of the Marcoses to be allowed to return
to the Philippines cannot be considered in the light
solely of the constitutional provisions guaranteeing
liberty of abode and the right to travel, subject to
certain exceptions, or of case law which clearly
never contemplated situations even remotely
similar to the present one. It must be treated as a
matter that is appropriately addressed to those
residual unstated powers of the President which are
implicit in and correlative to the paramount duty
residing in that office to safeguard and protect
general welfare. In that context, such request or
demand should submit to the exercise of a broader
discretion on the part of the President to determine
whether it must be granted or denied.
For issue number 2, the question for the court to
determine is whether or not there exist factual basis
for the President to conclude that it was in the
national interest to bar the return of the Marcoses in
the Philippines. It is proven that there are factual
bases in her decision. The supervening events that
happened before her decision are factual. The
President must take preemptive measures for the
self-preservation of the country & protection of the
people. She has to uphold the Constitution.
Facts:
After Ferdinand Marcos was deposed from the
presidency, he and his family fled to Hawaii. Now in
his deathbed, petitioners are asking the court to
order the respondents to issue their travel
documents and enjoin the implementation of the
President’s decision to bar their return to the
Philippines. Petitioners contend under the provision
of the Bill of Rights that the President is without
power to impair their liberty of abode because only a
court may do so “within the limits prescribed by
law.” Nor, according to the petitioners, may the
President impair their right to travel because no law
has authorized her to do so.
Issue:
Does the president have the power to bar the
Marcoses from returning to the Philippines?
Ruling:
The President has the obligation, under the
Constitution to protect the people, promote their
welfare and advance national interest.
This case calls for the exercise of the President’s
power as protector of the peace. The president is not
only clothed with extraordinary powers in times of
emergency, but is also tasked with day-to-day
problems of maintaining peace and order and
ensuring domestic tranquility in times when no
foreign foe appears on the horizon.
The documented history of the efforts of the
Marcoses and their followers to destabilize the
country bolsters the conclusion that their return at
this time would only exacerbate and intensify the
violence directed against the state and instigate
more chaos.
The State, acting through the Government, is not
precluded from taking preemptive actions against
threats to its existence if, though still nascent they
are perceived as apt to become serious and direct
protection of the people is the essence of the duty of
the government.
The Supreme Court held that the President did not
act arbitrarily or with grave abuse of discretion in
determining the return of the petitioners at the
present time and under present circumstances
poses a serious threat to national interest and
welfare prohibiting their return to the Philippines.
The petition is DISMISSED.
FACTS:
February 1986, Ferdinand E. Marcos was deposed
from the presidency via the non-violent “people
power” revolution and forced into exile. In his stead,
Corazon C. Aquino was declared President of the
Republic under a revolutionary government.
Now, Mr. Marcos, in his deathbed, has signified his
wish to return to the Philipppines to die. But Mrs.
Aquino, considering the dire consequences to the
nation of his return at a time when the stability of
government is threatened from various directions
and the economy is just beginning to rise and move
forward, has stood firmly on the decision to bar the
return of Mr. Marcos and his family.
Petitioners assert that the right of the Marcoses to
return to the Philippines is guaranteed under the
following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty,
or property without due process of law, nor shall any
person be denied the equal protection of the laws.
Section 6. The liberty of abode and of changing the
same within the limits prescribed by law shall not be
impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except
in the interest of national security, public safety, or
public health, as may be provided by law.
Furthermore, they contend that the President is
without power to impair the liberty of abode of the
Marcoses because only a court may do so “within the
limits prescribed by law.” Nor may the President
impair their right to travel because no law has
authorized her to do so. They advance the view that
before the right to travel may be impaired by any
authority or agency of the government, there must
be legislation to that effect.
The petitioners further assert that under
international law, the right of Mr. Marcos and his
family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights
provides:
Article 13. (1) Everyone has the right to freedom of
movement and residence within the borders of each
state.
(2) Everyone has the right to leave any country,
including his own, and to return to his country.
Likewise, the International Covenant on Civil and
Political Rights, which had been ratified by the
Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State
shall, within that territory, have the right to liberty
of movement and freedom to choose his residence.
2) Everyone shall be free to leave any country,
including his own.
3) The above-mentioned rights shall not be subject
to any restrictions except those which are provided
by law, are necessary to protect national security,
public order (order public), public health or morals
or the rights and freedoms of others, and are
consistent with the other rights recognized in the
present Covenant.
4) No one shall be arbitrarily deprived of the right to
enter his own country.
ISSUES:
• Whether or not the President has the power under
the Constitution, to bar the Marcoses from returning
to the Philippines.
• Whether or not the President acted arbitrarily or
with grave abuse of discretion amounting to lack or
excess of jurisdiction when she determined that the
return of the Marcose’s to the Philippines poses a
serious threat to national interest and welfare and
decided to bar their return.
HELD:
SC well-considered opinion that the President has a
residual power which justifies her act of banning the
return of the Marcoses and she did not act arbitrarily
or with grave abuse of discretion in determining that
the return of former President Marcos and his family
at the present time and under present
circumstances poses a serious threat to national
interest and welfare and in prohibiting their return
to the Philippines.
It must be emphasized that the individual right
involved is not the right to travel from the
Philippines to other countries or within the
Philippines. These are what the right to travel would general welfare are essential for the enjoyment by
normally connote. Essentially, the right involved is all the people of the blessings of democracy.” [Art.
the right to return to one’s country, a totally distinct II, Secs. 4 and 5.]
right under international law, independent from
although related to the right to travel. Thus, the
More particularly, this case calls for the exercise of
Universal Declaration of Humans Rights and the
the President’s powers as protector of the peace.
International Covenant on Civil and Political Rights
The power of the President to keep the peace is not
treat the right to freedom of movement and abode
limited merely to exercising the
within the territory of a state, the right to leave a
commander-in-chief powers in times of emergency
country, and the right to enter one’s country as
or to leading the State against external and internal
separate and distinct rights. The Declaration speaks
threats to its existence. The President is not only
of the “right to freedom of movement and residence
clothed with extraordinary powers in times of
within the borders of each state” [Art. 13(l)]
emergency, but is also tasked with attending to the
separately from the “right to leave any country,
day-to-day problems of maintaining peace and
including his own, and to return to his country.” [Art.
order and ensuring domestic tranquility in times
13(2).] On the other hand, the Covenant
when no foreign foe appears on the horizon. Wide
guarantees the “right to liberty of movement and
discretion, within the bounds of law, in fulfilling
freedom to choose his residence” [Art. 12(l)] and
presidential duties in times of peace is not in any
the right to “be free to leave any country, including
way diminished by the relative want of an
his own.” [Art. 12(2)] which rights may be restricted
emergency specified in the commander-in-chief
by such laws as “are necessary to protect national
provision. For in making the President
security, public order, public health or morals or
commander-in-chief the enumeration of powers
enter qqqs own country” of which one cannot be
that follow cannot be said to exclude the President’s
“arbitrarily deprived.” [Art. 12(4).] It would
exercising as Commander-in- Chief powers short of
therefore be inappropriate to construe the
the calling of the armed forces, or suspending the
limitations to the right to return to one’s country in
privilege of the writ of habeas corpus or declaring
the same context as those pertaining to the liberty
martial law, in order to keep the peace, and
of abode and the right to travel.
maintain public order and security.

The right to return to one’s country is not among the

rights specifically guaranteed in the Bill of Rights,
which treats only of the liberty of abode and the
right to travel, but it is our well-considered view that
the right to return may be considered, as a generally
accepted principle of international law and, under
our Constitution, is part of the law of the land [Art. II,
Sec. 2 of the Constitution.] However, it is distinct
and separate from the right to travel and enjoys a
different protection under the International
Covenant of Civil and Political Rights, i.e., against
being “arbitrarily deprived” thereof [Art. 12 (4).]
Although the 1987 Constitution imposes limitations
on the exercise of specific powers of the President, it
maintains intact what is traditionally considered as
within the scope of “executive power.” Corollarily,
the powers of the President cannot be said to be
limited only to the specific powers enumerated in
the Constitution. In other words, executive power is
more than the sum of specific powers so
enumerated.
To the President, the problem is one of balancing the
general welfare and the common good against the
exercise of rights of certain individuals. The power
involved is the President’s residual power to protect
the general welfare of the people. It is founded on
the duty of the President, as steward of the people.
The Constitution declares among the guiding
principles that “[t]he prime duty of the Government
is to serve and protect the people” and that “[t]he
maintenance of peace and order, the protection of
life, liberty, and property, and the promotion of the
The Court cannot close its eyes to present realities
and pretend that the country is not besieged from
within by a well-organized communist insurgency, a
separatist movement in Mindanao, rightist
conspiracies to grab power, urban terrorism, the
murder with impunity of military men, police officers
and civilian officials, to mention only a few. The
documented history of the efforts of the Marcose’s
and their followers to destabilize the country, as
earlier narrated in this ponencia bolsters the
conclusion that the return of the Marcoses at this
time would only exacerbate and intensify the
violence directed against the State and instigate
more chaos.
The State, acting through the Government, is not
precluded from taking pre- emptive action against
threats to its existence if, though still nascent they
are perceived as apt to become serious and direct.
Protection of the people is the essence of the duty of
government. The preservation of the State the
fruition of the people’s sovereignty is an obligation
in the highest order. The President, sworn to
preserve and defend the Constitution and to see the
faithful execution the laws, cannot shirk from that
responsibility.
We cannot also lose sight of the fact that the country
is only now beginning to recover from the hardships
brought about by the plunder of the economy
attributed to the Marcoses and their close associates
and relatives, many of whom are still here in the
Philippines in a position to destabilize the country,
while the Government has barely scratched the
surface, so to speak, in its efforts to recover the
enormous wealth stashed away by the Marcoses in
foreign jurisdictions. Then, We cannot ignore the
continually increasing burden imposed on the
economy by the excessive foreign borrowing during
the Marcos regime, which stifles and stagnates
development and is one of the root causes of
widespread poverty and all its attendant ills. The
resulting precarious state of our economy is of
common knowledge and is easily within the ambit of
judicial notice
7. WHO VS AQUINO
Facts:
Dr. Leonce Verstuyft was assigned by WHO to its
regional office in Manila as Acting Assistant
Director of Health Services. His personal effects,
contained in twelve (12) crates, were allowed
free entry from duties and taxes. Constabulary
Offshore Action Center (COSAC) suspected that
the crates “contain large quantities of highly
dutiable goods” beyond the official needs
of Verstuyft. Upon application of the COSAC
officers, Judge Aquino issued a search warrant for
the search and seizure of the personal effects
of Verstuyft.
Secretary of Foreign Affairs Carlos P. Romulo
advised Judge Aquino that Dr. Verstuyft is
entitled to immunity from search in respect for his
personal baggage as accorded to members of
diplomatic missions pursuant to the Host
Agreement and requested that the search
warrant be suspended. The Solicitor General
accordingly joined Verstuyft for the quashal of
the search warrant but respondent judge
nevertheless summarily denied the
quashal. Verstuyft, thus, filed a petition for
certiorari and prohibition with the SC. WHO
joined Verstuyft in asserting diplomatic
immunity.
Issue:
Whether or not personal effect of Verstuyft can be
exempted from search and seizure under the
diplomatic immunity.
Held:
Yes. The executive branch of the Phils has
expressly recognized that Verstuyft is entitled to
diplomatic immunity, pursuant to the provisions
of the Host Agreement. The DFA formally advised
respondent judge of the Philippine Government's
official position. The Solicitor General, as principal
law officer of the gorvernment, likewise expressly
affirmed said petitioner's right to diplomatic
immunity and asked for the quashal of the search
warrant.
It is a recognized principle of international law
and under our system of separation of powers
that diplomatic immunity is essentially a political
question and courts should refuse to look beyond
a determination by the executive branch of the
government, and where the plea of diplomatic
immunity is recognized and affirmed by the
executive branch of the government as in the
case at bar, it is then the duty of the courts to
accept the claim of immunity upon appropriate
suggestion by the principal law officer of the
government, the Solicitor General in this case, or
other officer acting under his discretion. Courts
may not so exercise their jurisdiction by seizure
and detention of property, as to embarass the
executive arm of the government in conducting
foreign relations.
The Court, therefore, holds the respondent judge
acted without jurisdiction and with grave abuse of
discretion in not ordering the quashal of the
search warrant issued by him in disregard of the
diplomatic immunity of petitioner
Verstuyft. (World Health Organization vs.
Aquino, G.R. No. L-35131, November 29,
1972, 48 SCRA 243)
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) 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.
Issue: WON diplomatic immunity is applicable.
Held:
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 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. 9 Hence, in
adherence to the settled principle that courts may not so exercise
their jurisdiction by seizure and detention of property, as to
embarrass the executive arm of the government in conducting
foreign relations, it is accepted doctrine that "in such cases the
judicial department of (this) government follows the action of the
political branch and will not embarrass the latter by assuming an
antagonistic jurisdiction."
Facts:
Herein petitioner, in behalf of Dr. Verstuyft, was
allegedly suspected by the Constabulary Offshore
Action Center (COSAC) officers of carrying dutiable
goods under the Customs and Tariff Code of the
Philippines. Respondent Judge then issued a search
warrant at the instance of the COSAC officers for the
search and seizure of the personla effects of Dr.
Verstuyft notwithstanding his being entitled to
diplomatic immunity, as duly recognized by the
Executive branch of the government.
The Secretary of Foreign Affairs Carlos P. Romulo
advised the respondent judge that Dr. Verstuyft is
entitled to immunity from search in respect for his
personal baggage as accorded to members of
diplomatic missions pursuant to the Host Agreement
and further requested for the suspension of the
search warrant. The Solicitor General accordingly
joined the petitioner for the quashal of the search
warrant but respondent judge nevertheless
summarily denied the quashal.
Issue:
Whether or not personal effect of WHO Officer Dr.
Verstuyft can be exempted from search and seizure
under the diplomatic immunity.
Ruling:
The executive branch of the Phils has expressly
recognized that Verstuyft is entitled to diplomatic
immunity, pursuant to the provisions of the Host
Agreement. The DFA formally advised respondent
judge of the Philippine Government's official position.
The Solicitor General, as principal law officer of the
gorvernment, likewise expressly affirmed said
petitioner's right to diplomatic immunity and asked
for the quashal of the search warrant.
It 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
government, and where the plea of diplomatic
immunity is recognized by the executive branch of
the government as in the case at bar, it is then the
duty of the courts to accept the claim of immunity
upon appropriate suggestion by the principal law
officer of the government, the Solicitor General in
this case, or other officer acting under his discretion.
Courts may not so exercise their jurisdiction by
seizure and detention of property, as to embarass
the executive arm of the government in conducting
foreign relations.
The Court, therefore, holds the respondent judge
acted without jurisdiction and with grave abuse of
discretion in not ordering the quashal of the search
warrant issued by him in disregard of the diplomatic
immunity of petitioner Verstuyft.
WHO v. AQUINO
November 29, 1972
Teehankee, J.
Rañeses, Roberto Miguel O.
(Apologies for the length. The Court had made an efficient disposition
of the case.)
SUMMARY: Dr. Verstuyft was assigned to Manila by the
WHO. He enjoyed diplomatic immunity, which carried with
it exemption from taxation and local duties. When his
personal effects contained in crates arrived in the
Philippines, they were allowed free access. COSAC
subsequently applied for a search warrant on Dr. Verstuft’s
personal effects for alleged violation of R.A. 4712, which
Judge Aquino granted. Foreign Affairs Sec. Romulo informed
Judge Aquino of Dr. Verstufyt’s diplomatic immunity.
Nevertheless, Judge Aquino refused to quash the search
warrant. The SC nullified the search warrant, stating that Dr.
Verstufyt did enjoy diplomatic immunity, and was thus free
from all customs duties and taxes.
DOCTRINE:
1. It is a recognized principle of international law and
under our system of separation of powers that
diplomatic immunity is essentially a political question
and courts should refuse to look beyond a
determination by the executive branch of the
government, and where the plea of diplomatic
immunity is recognized and affirmed by the executive
branch of the government as in the case at bar, it is
then the duty of the courts to accept the claim of
immunity upon appropriate suggestion by the
principal law officer of the government, [the Solicitor
General in this case], or other officer acting under
his direction. Hence, in adherence to the settled
principle that courts may not so exercise their
jurisdiction by seizure and detention of property, as
to embarrass the executive arm of the government
in conducting foreign relations, it is accepted
doctrine that "in such cases the judicial department
of (this) government follows the action of the
political branch and will not embarrass the latter by
assuming an antagonistic jurisdiction.
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.
FACTS: Dr. Leonce Verstuyft, assigned on Dec. 6, 1971 by the
WHO from his last station in Taipei to the Regional Office in
Manila as Acting Assistant Director of Health Services. He is
entitled to diplomatic immunity, pursuant to the Host
Agreement executed on July 22, 1951 between the Phil.
Government and the World Health Organization.
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.

Dr. Verstuyft's personal effects entered the Philippines on
Jan. 10, 1972. They were allowed free entry from duties and
taxes.
Judge Aquino issued on March 3, 1972 upon application of
COSAC [Constabulary Offshore Action Center] officers of a
search warrant for alleged violation of Republic Act 4712
amending section 3601 of the Tariff and Customs Code
directing the search and seizure of the dutiable items in said
crates.
Upon the protest of Dr. Francisco Dy, WHO Regional Director
for the Western Pacific with station in Manila, Sec. of Foreign
Affairs Carlos P. Romulo personally wired the judge,
informing him that Dr. Vertuyft is entitled to immunity from
search on the basis of the Host Agreement.
Judge Aquino set the Foreign Affairs Secretary’s request for
hearing and heard the same, but still issued an order
maintaining the effectivity of the search warrant despite an
official plea for diplomatic immunity and the a list of the
articles brought in by Dr. Verstuyft. Dr. Versuyft special
appearance for the purpose of pleading his diplomatic
immunity and a motion to quash did not move Judge Aquino.
At the hearing thereof held on May 8, 1972, the OSG
appeared and filed an extended comment stating the official
position of the executive branch of the Philippine
Government that (a) Verstuyft is entitled to diplomatic
immunity, (b) he did not abuse his diplomatic immunity, and
(c) that court proceedings in the receiving or host State are
not the proper remedy in the case of abuse of diplomatic
immunity.
The Solicitor General accordingly joined petitioner
Verstuyft's prayer for the quashal of the search warrant. The
judge still denied the quashal of the search warrant. .
An original action for certiorari and prohibition to set
aside Judge Aquino’s refusal to quash the search warrant
was thereafter filed before the SC. The SC then issued a
restraining order.
ISSUES: WON Dr. Verstuyft the search warrant should be
quashed in view of his diplomatic immunity.
RULING: YES, the search warrant should be quashed
because Dr. Verstuft’s diplomatic immunity
RATIO:
1. The executive branch of the Philippine Government
has expressly recognized that Dr. Verstuyft is
entitled to diplomatic immunity, pursuant to the
provisions of the Host Agreement. The DFA formally
advised respondent judge of the Philippine
Government's official position that accordingly "Dr.
Verstuyft cannot be the subject of a Philippine court
summons without violating an obligation in
international law of the Philippine Government" and
asked for the quashal of the search warrant, since
his personal effects and baggages after having been
allowed free entry from all customs duties and taxes,
may not be baselessly claimed to have been
"unlawfully imported" in violation of the tariff and
customs code as claimed by respondents COSAC
officers. The Solicitor-General, as principal law
officer of the Government, likewise expressly
affirmed said petitioner's right to diplomatic
immunity.
(See Doctrine no. 1)
2. Judge Aquino should not have relied on the
suspicions of the COSAC officers regarding the
unopened crates which contained Dr. Verstuyft’s
persona effects rather than on the assurance of the
OSG that Dr. Verstufyt did not abuse his diplomatic
immunity, which is based on the official positions of
the highest exec. Officials with the competence and
authority on the matter, namely the Secretaries of
Foreign Affairs and Finance.
(See Doctrine no. 2)
Hence, even assuming arguendo that Judge Aquino
had some ground on which he can base his decision,
he should have acceded to the quashal of the search
warrant and forwarded his findings to the DFA.
3. There was a clear lack of coordination between the
various departments involved in the subject matter.
Such lack of coordination allowed the COSAC to go
against the determination of the Secretaries of
Foreign Affairs and Finance.
This fact is highlighted by Republic Act 75 enacted
since October 21, 1946 to safeguard the
jurisdictional immunity of diplomatic officials in the
Philippines are taken into account. Said Act 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.
Judge Aquino, therefore, acted without jurisdiction
and with grave abuse of discretion when he did not
quash the search warrant.
DISPOSITIVE: 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.
8. ABBAS VS COMELEC
Facts: The arguments against R.A. 6734 raised by petitioners
may generally be categorized into either of the following:
(a) that R.A. 6734, or parts thereof, violates the Constitution, and
(b) that certain provisions of R.A. No. 6734 conflict with the Tripoli
Agreement.
Petitioner Abbas argues that R.A. No. 6734 unconditionally
creates an autonomous region in Mindanao, contrary to the
aforequoted provisions of the Constitution on the autonomous
region which make the creation of such region dependent upon
the outcome of the plebiscite.
In support of his argument, petitioner cites Article II, section 1(1) of
R.A. No. 6734 which declares that “[t]here is hereby created the
Autonomous Region in Muslim Mindanao, to be composed of
provinces and cities voting favorably in the plebiscite called for the
purpose, in accordance with Section 18, Article X of the
Constitution.” Petitioner contends that the tenor of the above
provision makes the creation of an autonomous region absolute,
such that even if only two provinces vote in favor of autonomy, an
autonomous region would still be created composed of the two
provinces where the favorable votes were obtained.

The matter of the creation of the autonomous region and its

composition needs to be clarified.

Held: Thus, under the Constitution and R.A. No 6734, the creation
of the autonomous region shall take effect only when approved by
a majority of the votes cast by the constituent units in a plebiscite,
and only those provinces and cities where a majority vote in favor
of the Organic Act shall be included in the autonomous region.
The provinces and cities wherein such a majority is not attained
shall not be included in the autonomous region. It may be that
even if an autonomous region is created, not all of the thirteen (13)
provinces and nine (9) cities mentioned in Article II, section 1 (2)
of R.A. No. 6734 shall be included therein. The single plebiscite
contemplated by the Constitution and R.A. No. 6734 will therefore
be determinative of (1) whether there shall be an autonomous
region in Muslim Mindanao and (2) which provinces and cities,
among those enumerated in R.A. No. 6734, shall compromise it.

It will readily be seen that the creation of the autonomous

region is made to depend, not on the total majority vote in
the plebiscite, but on the will of the majority in each of the
constituent units and the proviso underscores this. for if the
intention of the framers of the Constitution was to get the
majority of the totality of the votes cast, they could have
simply adopted the same phraseology as that used for the
ratification of the Constitution, i.e. “the creation of the
autonomous region shall be effective when approved by a
majority of the votes cast in a plebiscite called for the
purpose.”
It is thus clear that what is required by the Constitution is a
simple majority of votes approving the organic Act in
individual constituent units and not a double majority of the
votes in all constituent units put together, as well as in the
individual constituent units.
More importantly, because of its categorical language, this is also
the sense in which the vote requirement in the plebiscite provided
under Article X, section 18 must have been understood by the
people when they ratified the Constitution.

9. ICHONG VS HERNANDEZ