Bayan vs Zamora

Facts:

The United States panel met with the Philippine panel to discussed, among others, the possible elements
of the Visiting Forces Agreement (VFA). This resulted to a series of conferences and negotiations which
culminated on January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which
was respectively signed by Secretary Siazon and United States Ambassador Thomas Hubbard.

Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27, 1999, the senate approved it
by (2/3) votes.

Cause of Action:

Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution is applicable and not
Section 21, Article VII.

Following the argument of the petitioner, under they provision cited, the “foreign military bases, troops, or
facilities” may be allowed in the Philippines unless the following conditions are sufficiently met:
a) it must be a treaty,
b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by congress, and
c) recognized as such by the other contracting state.

Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires
for such treaty to be valid and effective is the concurrence in by at least two-thirds of all the members of
the senate.

ISSUE:

Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of the
Constitution?

HELD:

Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops or
facilities should apply in the instant case. To a certain extent and in a limited sense, however, the
provisions of section 21, Article VII will find applicability with regard to the issue and for the sole purpose
of determining the number of votes required to obtain the valid concurrence of the senate.

The Constitution, makes no distinction between “transient” and “permanent.” We find nothing in section
25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the
Philippines.

It is inconsequential whether the United States treats the VFA only as an executive agreement because,
under international law, an executive agreement is as binding as a treaty.
_____________________________________________

PIMENTEL VS EXECUTIVE SECRETARY

Facts:
This is a petition of Senator Aquilino Pimentel and the other parties to ask the Supreme Court to require
the Executive Department to transmit the Rome Statute which established the International Criminal
Court for the Senate’s concurrence in accordance with Sec 21, Art VII of the 1987 Constitution.
It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law,
is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy
of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of
treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute
under treaty law and customary international law. Petitioners invoke the Vienna Convention on the Law of
Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty
when they have signed the treaty prior to ratification unless they have made their intention clear not to
become parties to the treaty.

The Office of the Solicitor General, commenting for the respondents, questioned the standing of the
petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy of
courts. On the substantive issue raised by petitioners, respondents argue that the executive department
has no duty to transmit the Rome Statute to the Senate for concurrence.

Issue:
Whether or not the executive department has a ministerial duty to transmit the Rome Statute (or any
treaty) to the Senate for concurrence.

Ruling:
The petition was dismissed. The Supreme Court ruled that the the President, being the head of state, is
regarded as the sole organ and authority in external relations and is the country’s sole representative with
foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece
with respect to international affairs. Hence, the President is vested with the authority to deal with foreign
states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties,
and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has
the sole authority to negotiate with other states.

Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of
the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution
provides that “no treaty or international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate.”

Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the
instruments of ratification. The treaty may then be submitted for registration and publication under the
U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.

Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his
authorized representatives. These representatives are provided with credentials known as full powers,
which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for
one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals,
becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted,
depending on the issues involved, and may even “collapse” in case the parties are unable to come to an
agreement on the points under consideration.
If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature.
This step is primarily intended as a means of authenticating the instrument and for the purpose of
symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the
state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance
with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will
bring home to his own state.
Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions
of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states
to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they
find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and
consent of a department of the government other than that which negotiated them.

The last step in the treaty-making process is the exchange of the instruments of ratification, which usually
also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties.
Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is
deemed effective upon its signature.
Petitioners’ arguments equate the signing of the treaty by the Philippine representative with ratification. It
should be underscored that the signing of the treaty and the ratification are two separate and distinct
steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means of
authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by
the state’s authorized representative in the diplomatic mission. Ratification, on the other hand, is the
formal act by which a state confirms and accepts the provisions of a treaty concluded by its
representative.

It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject
to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding
its consent, or concurrence, to the ratification. Hence, it is within the authority of the President to refuse to
submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. Although
the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not
be taken lightly, such decision is within the competence of the President alone, which cannot be
encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to
enjoin the President in the performance of his official duties.
---------------------------------------------------------------

TANADA v. ANGARA

Facts :
This is a petition seeking to nullify the Philippine ratification of the World Trade Organization (WTO)
Agreement. Petitioners question the concurrence of herein respondents acting in their capacities as
Senators via signing the said agreement.
The WTO opens access to foreign markets, especially its major trading partners, through the reduction of
tariffs on its exports, particularly agricultural and industrial products. Thus, provides new opportunities for
the service sector cost and uncertainty associated with exporting and more investment in the country.
These are the predicted benefits as reflected in the agreement and as viewed by the signatory Senators,
a “free market” espoused by WTO.
Petitioners on the other hand viewed the WTO agreement as one that limits, restricts and impair
Philippine economic sovereignty and legislative power. That the Filipino First policy of the Constitution
was taken for granted as it gives foreign trading intervention.

Issue : Whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Senate in giving its concurrence of the said WTO agreement.

Held:

In its Declaration of Principles and state policies, the Constitution “adopts the generally accepted
principles of international law as part of the law of the land, and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity , with all nations. By the doctrine of incorporation, the country is
bound by generally accepted principles of international law, which are considered automatically part of
our own laws. Pacta sunt servanda – international agreements must be performed in good faith. A treaty
is not a mere moral obligation but creates a legally binding obligation on the parties.
Through WTO the sovereignty of the state cannot in fact and reality be considered as absolute because it
is a regulation of commercial relations among nations. Such as when Philippines joined the United
Nations (UN) it consented to restrict its sovereignty right under the “concept of sovereignty as
autolimitation.” What Senate did was a valid exercise of authority. As to determine whether such exercise
is wise, beneficial or viable is outside the realm of judicial inquiry and review. The act of signing the said
agreement is not a legislative restriction as WTO allows withdrawal of membership should this be the
political desire of a member. Also, it should not be viewed as a limitation of economic sovereignty. WTO
remains as the only viable structure for multilateral trading and the veritable forum for the development of
international trade law. Its alternative is isolation, stagnation if not economic self-destruction. Thus, the
people be allowed, through their duly elected officers, make their free choice.
Petition is DISMISSED for lack of merit.

_________________________________

Lim v. Executive Secretary

FACTS:

Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the armed forces of
the United States of America started arriving in Mindanao to take partin "Balikatan 02-1” on January
2002. The Balikatan 02-1 exercises involves the simulation of joint military maneuvers pursuant to the
Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines and the United
States in 1951. The exercise is rooted from the international anti-terrorism campaign declared by
President George W. Bush in reaction to the 3 commercial aircrafts hijacking that smashed into twin
towers of the World Trade Center in New York City and the Pentagon building in Washington, D.C.
allegedly by the al-Qaeda headed by the Osama bin Laden that occurred on September 11, 2001. Arthur
D. Lim and Paulino P. Ersando as citizens, lawyers and taxpayers filed a petition for certiorari and
prohibition attacking the constitutionality of the joint exercise. Partylists Sanlakas and Partido Ng
Manggagawa as residents of Zamboanga and Sulu directly affected by the operations filed a petition-in-
intervention.

The Solicitor General commented the prematurity of the action as it is based only on a fear of future
violation of the Terms of Reference and impropriety of availing of certiorari to ascertain a question of fact
specifically interpretation of the VFA whether it is covers "Balikatan 02-1” and no question of
constitutionality is involved. Moreover, there is lack of locus standi since it does not involve tax spending
and there is no proof of direct personal injury.

ISSUE: W/N the petition and the petition-in-intervention should prosper.

HELD: NO. Petition and the petition-in-intervention are hereby DISMISSED without prejudice to the filing
of a new petition sufficient in form and substance in the proper Regional Trial Court - Supreme Court is
not a trier of facts

Doctrine of Importance to the Public

Considering however the importance to the public of the case at bar, and in keeping with the Court's duty,
under the 1987 Constitution, to determine whether or not the other branches of the government have kept
themselves within the limits of the Constitution and the laws that they have not abused the discretion
given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this
petition.

Although courts generally avoid having to decide a constitutional question based on the doctrine of
separation of powers, which enjoins upon the department of the government a becoming respect for each
other's act, this Court nevertheless resolves to take cognizance of the instant petition.
Interpretation of Treaty
The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact
meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of
undertakings subject only to the approval of the Philippine government. The sole encumbrance placed on
its definition is couched in the negative, in that United States personnel must "abstain from any activity
inconsistent with the spirit of this agreement, and in particular, from any political activity." All other
activities, in other words, are fair game.
To aid in this, the Vienna Convention on the Law of Treaties Article 31 SECTION 3 and Article 32
contains provisos governing interpretations of international agreements. It is clear from the foregoing that
the cardinal rule of interpretation must involve an examination of the text, which is presumed to verbalize
the parties' intentions. The Convention likewise dictates what may be used as aids to deduce the
meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken
into account alongside the aforesaid context. According to Professor Briggs, writer on the Convention,
the distinction between the general rule of interpretation and the supplementary means of interpretation is
intended rather to ensure that the supplementary means do not constitute an alternative, autonomous
method of interpretation divorced from the general rule.
The meaning of the word “activities" was deliberately made that way to give both parties a certain leeway
in negotiation. Thus, the VFA gives legitimacy to the current Balikatan exercises. Both the history and
intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities -as
opposed to combat itself -such as the one subject of the instant petition, are indeed authorized.
The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise
participants may not engage in combat "except in self-defense." ." The indirect violation is actually
petitioners' worry, that in reality, "Balikatan 02-1" is actually a war principally conducted by the United
States government, and that the provision on self-defense serves only as camouflage to conceal the true
nature of the exercise. A clear pronouncement on this matter thereby becomes crucial. In our considered
opinion, neither the MDT nor the VFA allow foreign troops to engage in an offensive war on Philippine
territory. Under the salutary proscription stated in Article 2 of the Charter of the United Nations.
Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and
international agreements to which the Philippines is a party, must be read in the context of the 1987
Constitution especially Sec. 2, 7 and 8 of Article 2: Declaration of Principles and State Policies in this
case. The Constitution also regulates the foreign relations powers of the Chief Executive when it
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." Even more pointedly Sec. 25 on Transitory Provisions
which shows antipathy towards foreign military presence in the country, or of foreign influence in
general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception.
International Law vs. Fundamental Law and Municipal Laws
Conflict arises then between the fundamental law and our obligations arising from international
agreements.

Philip Morris, Inc. v. Court of Appeals: “Withal, the fact that international law has been made part of the
law of the land does not by any means imply the primacy of international law over national law in the
municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international
law are given a standing equal, not superior, to national legislation.”
From the perspective of public international law, a treaty is favored over municipal law pursuant to the
principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must
be performed by them in good faith." Further, a party to a treaty is not allowed to "invoke the provisions of
its internal law as justification for its failure to perform a treaty."
Our Constitution espouses the opposing view as stated in section 5 of Article VIII: “The Supreme Court
shall have the following powers: xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may
provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.”
Ichong v. Hernandez: “provisions of a treaty are always subject to qualification or amendment by a
subsequent law, or that it is subject to the police power of the State”
Gonzales v. Hechanova: “our Constitution authorizes the nullification of a treaty, not only when it conflicts
with the fundamental law, but, also, when it runs counter to an act of Congress.”
The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an offensive
war on Philippine territory.

____________________________________________________

SPOUSES RENATO CONSTANTINO, vs. HON. JOSE B. CUISIA

Parties and Facts

The petition was filed on 17 July 1992 by petitioners spouses Renato Constantino, Jr. and Lourdes
Constantino and their minor children, Renato Redentor, Anna Marika Lissa, Nina Elissa, and Anna Karmina,
Filomeno Sta. Ana III, and the Freedom from Debt Coalition, a non-stock, non-profit, non-government
organization that advocates a “pro-people and just Philippine debt policy.”2 Named respondents were the
then Governor of the Bangko Sentral ng Pilipinas, the Secretary of Finance, the National Treasurer, and
the Philippine Debt Negotiation Chairman Emmanuel V. Pelaez. 3 All respondents were members of the
Philippine panel tasked to negotiate with the country’s foreign creditors pursuant to the Financing Program.
The operative facts are sparse and there is little need to elaborate on them.
The Financing Program was the culmination of efforts that began during the term of former President
Corazon Aquino to manage the country’s external debt problem through a negotiation-oriented debt
strategy involving cooperation and negotiation with foreign creditors. 4 Pursuant to this strategy, the Aquino
government entered into three restructuring agreements with representatives of foreign creditor
governments during the period of 1986 to 1991.5 During the same period, three similarly-oriented
restructuring agreements were executed with commercial bank creditors. 6
On 28 February 1992, the Philippine Debt Negotiating Team, chaired by respondent Pelaez, negotiated an
agreement with the country’s Bank Advisory Committee, representing all foreign commercial bank creditors,
on the Financing Program which respondents characterized as “a multi-option financing package.”7 The
Program was scheduled to be executed on 24 July 1992 by respondents in behalf of the Republic.
Nonetheless, petitioners alleged that even prior to the execution of the Program respondents had already
implemented its “buyback component” when on 15 May 1992, the Philippines bought back P1.26 billion of
external debts pursuant to the Program.8
The petition sought to enjoin the ratification of the Program, but the Court did not issue any injunctive relief.
Hence, it came to pass that the Program was signed in London as scheduled. The petition still has to be
resolved though as petitioners seek the annulment “of any and all acts done by respondents, their
subordinates and any other public officer pursuant to the agreement and program in question.” 9 Even after
the signing of the Program, respondents themselves acknowledged that the remaining principal objective
of the petition is to set aside respondents’ actions.10
Petitioners characterize the Financing Program as a package offered to the country’s foreign creditors
consisting of two debt-relief options.11 The first option was a cash buyback of portions of the Philippine
foreign debt at a discount.12 The second option allowed creditors to convert existing Philippine debt
instruments into any of three kinds of bonds/securities: (1) new money bonds with a five-year grace period
and 17 years final maturity, the purchase of which would allow the creditors to convert their eligible debt
papers into bearer bonds with the same terms; (2) interest-reduction bonds with a maturity of 25 years; and
(3) principal-collateralized interest-reduction bonds with a maturity of 25 years.13
On the other hand, according to respondents the Financing Program would cover about U.S. $5.3 billion of
foreign commercial debts and it was expected to deal comprehensively with the commercial bank debt
problem of the country and pave the way for the country’s access to capital markets. 14 They add that the
Program carried three basic options from which foreign bank lenders could choose, namely: to lend money,
to exchange existing restructured Philippine debts with an interest reduction bond; or to exchange the same
Philippine debts with a principal collateralized interest reduction bond. 15

First Issue: The Scope of Section 20, Article VII

For their first constitutional argument, petitioners submit that the buyback and bond-conversion schemes
do not constitute the loan “contract” or “guarantee” contemplated in the Constitution and are consequently
prohibited. Sec. 20, Art. VII of the Constitution provides, viz:
The President may contract or guarantee foreign loans in behalf of the Republic of the Philippines with the
prior concurrence of the Monetary Board and subject to such limitations as may be provided under law. The
Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to the
Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the
government or government-owned and controlled corporations which would have the effect of increasing
the foreign debt, and containing other matters as may be provided by law.
On Bond-conversion
Loans are transactions wherein the owner of a property allows another party to use the property and where
customarily, the latter promises to return the property after a specified period with payment for its use, called
interest.34 On the other hand, bonds are interest-bearing or discounted government or corporate securities
that obligate the issuer to pay the bondholder a specified sum of money, usually at specific intervals, and
to repay the principal amount of the loan at maturity. 35 The word “bond” means contract, agreement, or
guarantee. All of these terms are applicable to the securities known as bonds. An investor who purchases
a bond is lending money to the issuer, and the bond represents the issuer’s contractual promise to pay
interest and repay principal according to specific terms. A short-term bond is often called a note.36
The language of the Constitution is simple and clear as it is broad. It allows the President to contract and
guarantee foreign loans. It makes no prohibition on the issuance of certain kinds of loans or distinctions as
to which kinds of debt instruments are more onerous than others. This Court may not ascribe to the
Constitution meanings and restrictions that would unduly burden the powers of the President. The plain,
clear and unambiguous language of the Constitution should be construed in a sense that will allow the full
exercise of the power provided therein. It would be the worst kind of judicial legislation if the courts were to
misconstrue and change the meaning of the organic act.
The only restriction that the Constitution provides, aside from the prior concurrence of the Monetary Board,
is that the loans must be subject to limitations provided by law. In this regard, we note that Republic Act
(R.A.) No. 245 as amended by Pres. Decree (P.D.) No. 142, s. 1973, entitled An Act Authorizing the
Secretary of Finance to Borrow to Meet Public Expenditures Authorized by Law, and for Other
Purposes, allows foreign loans to be contracted in the form of, inter alia, bonds. Thus:
Sec. 1. In order to meet public expenditures authorized by law or to provide for the purchase, redemption,
or refunding of any obligations, either direct or guaranteed of the Philippine Government, the Secretary of
Finance, with the approval of the President of the Philippines, after consultation with the Monetary
Board, is authorized to borrow from time to time on the credit of the Republic of the Philippines
such sum or sums as in his judgment may be necessary, and to issue therefor evidences of
indebtedness of the Philippine Government.”
Such evidences of indebtedness may be of the following types:
....
c. Treasury bonds, notes, securities or other evidences of indebtedness having maturities of one
year or more but not exceeding twenty-five years from the date of issue. (Emphasis supplied.)
Under the foregoing provisions, sovereign bonds may be issued not only to supplement government
expenditures but also to provide for the purchase,37 redemption,38 or refunding39 of any obligation, either
direct or guaranteed, of the Philippine Government.
Petitioners, however, point out that a supposed difference between contracting a loan and issuing bonds is
that the former creates a definite creditor-debtor relationship between the parties while the latter does
not.40 They explain that a contract of loan enables the debtor to restructure or novate the loan, which benefit
is lost upon the conversion of the debts to bearer bonds such that “the Philippines surrenders the novatable
character of a loan contract for the irrevocable and unpostponable demandability of a bearer
bond.”41 Allegedly, the Constitution prohibits the President from issuing bonds which are “far more onerous”
than loans.42
This line of thinking is flawed to say the least. The negotiable character of the subject bonds is not mutually
exclusive with the Republic’s freedom to negotiate with bondholders for the revision of the terms of the
debt. Moreover, the securities market provides some flexibility–if the Philippines wants to pay in advance,
it can buy out its bonds in the market; if interest rates go down but the Philippines does not have money to
retire the bonds, it can replace the old bonds with new ones; if it defaults on the bonds, the bondholders
shall organize and bring about a re-negotiation or settlement.43 In fact, several countries have restructured
their sovereign bonds in view either of inability and/or unwillingness to pay the indebtedness. 44 Petitioners
have not presented a plausible reason that would preclude the Philippines from acting in a similar fashion,
should it so opt.
This theory may even be dismissed in a perfunctory manner since petitioners are merely expecting that the
Philippines would opt to restructure the bonds but with the negotiable character of the bonds, would be
prevented from so doing. This is a contingency which petitioners do not assert as having come to pass or
even imminent. Consummated acts of the executive cannot be struck down by this Court merely on the
basis of petitioners’ anticipatory cavils.
On the Buyback Scheme
In their Comment, petitioners assert that the power to pay public debts lies with Congress and was
deliberately withheld by the Constitution from the President.45 It is true that in the balance of power between
the three branches of government, it is Congress that manages the country’s coffers by virtue of its taxing
and spending powers. However, the law-making authority has promulgated a law ordaining an automatic
appropriations provision for debt servicing 46 by virtue of which the President is empowered to execute debt
payments without the need for further appropriations. Regarding these legislative enactments, this Court
has held, viz:
Congress … deliberates or acts on the budget proposals of the President, and Congress in the exercise of
its own judgment and wisdom formulates an appropriation act precisely following the process established
by the Constitution, which specifies that no money may be paid from the Treasury except in accordance
with an appropriation made by law.
Debt service is not included in the General Appropriation Act, since authorization therefor already exists
under RA Nos. 4860 and 245, as amended, and PD 1967. Precisely in the light of this subsisting
authorization as embodied in said Republic Acts and PD for debt service, Congress does not concern itself
with details for implementation by the Executive, but largely with annual levels and approval thereof upon
due deliberations as part of the whole obligation program for the year. Upon such approval, Congress has
spoken and cannot be said to have delegated its wisdom to the Executive, on whose part lies the
implementation or execution of the legislative wisdom.47
Specific legal authority for the buyback of loans is established under Section 2 of Republic Act (R.A.) No.
240, viz:
Sec. 2. The Secretary of Finance shall cause to be paid out of any moneys in the National Treasury
not otherwise appropriated, or from any sinking funds provided for the purpose by law, any interest
falling due, or accruing, on any portion of the public debt authorized by law. He shall also cause to
be paid out of any such money, or from any such sinking funds the principal amount of any
obligations which have matured, or which have been called for redemption or for which redemption has
been demanded in accordance with terms prescribed by him prior to date of issue: Provided, however, That
he may, if he so chooses and if the holder is willing, exchange any such obligation with any other direct or
guaranteed obligation or obligations of the Philippine Government of equivalent value. In the case of
interest-bearing obligations, he shall pay not less than their face value; in the case of obligations issued at
a discount he shall pay the face value at maturity; or, if redeemed prior to maturity, such portion of the
face value as is prescribed by the terms and conditions under which such obligations were
originally issued. (Emphasis supplied.)
The afore-quoted provisions of law specifically allow the President to pre-terminate debts without further
action from Congress.
Petitioners claim that the buyback scheme is neither a guarantee nor a loan since its underlying intent is to
extinguish debts that are not yet due and demandable.48 Thus, they suggest that contracts entered pursuant
to the buyback scheme are unconstitutional for not being among those contemplated in Sec. 20, Art. VII of
the Constitution.
Buyback is a necessary power which springs from the grant of the foreign borrowing power. Every statute
is understood, by implication, to contain all such provisions as may be necessary to effectuate its object
and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such
collateral and subsidiary consequences as may be fairly and logically inferred from its terms. 49 The
President is not empowered to borrow money from foreign banks and governments on the credit of the
Republic only to be left bereft of authority to implement the payment despite appropriations therefor.
Even petitioners concede that “[t]he Constitution, as a rule, does not enumerate–let alone enumerate all–
the acts which the President (or any other public officer) may not do,” 50 and “[t]he fact that the Constitution
does not explicitly bar the President from exercising a power does not mean that he or she does not have
that power.”51 It is inescapable from the standpoint of reason and necessity that the authority to contract
foreign loans and guarantees without restrictions on payment or manner thereof coupled with the availability
of the corresponding appropriations, must include the power to effect payments or to make payments
unavailing by either restructuring the loans or even refusing to make any payment altogether.
More fundamentally, when taken in the context of sovereign debts, a buyback is simply the purchase by
the sovereign issuer of its own debts at a discount. Clearly then, the objection to the validity of the buyback
scheme is without basis.
Second Issue: Delegation of Power
Petitioners stress that unlike other powers which may be validly delegated by the President, the power to
incur foreign debts is expressly reserved by the Constitution in the person of the President. They argue that
the gravity by which the exercise of the power will affect the Filipino nation requires that the President alone
must exercise this power. They submit that the requirement of prior concurrence of an entity specifically
named by the Constitution–the Monetary Board–reinforces the submission that not respondents but the
President “alone and personally” can validly bind the country.
Petitioners’ position is negated both by explicit constitutional 52 and legal53 imprimaturs, as well as the
doctrine of qualified political agency.
The evident exigency of having the Secretary of Finance implement the decision of the President to execute
the debt-relief contracts is made manifest by the fact that the process of establishing and executing a
strategy for managing the government’s debt is deep within the realm of the expertise of the Department of
Finance, primed as it is to raise the required amount of funding, achieve its risk and cost objectives, and
meet any other sovereign debt management goals.54
If, as petitioners would have it, the President were to personally exercise every aspect of the foreign
borrowing power, he/she would have to pause from running the country long enough to focus on a welter
of time-consuming detailed activities–the propriety of incurring/guaranteeing loans, studying and choosing
among the many methods that may be taken toward this end, meeting countless times with creditor
representatives to negotiate, obtaining the concurrence of the Monetary Board, explaining and defending
the negotiated deal to the public, and more often than not, flying to the agreed place of execution to sign
the documents. This sort of constitutional interpretation would negate the very existence of cabinet positions
and the respective expertise which the holders thereof are accorded and would unduly hamper the
President’s effectivity in running the government.
Necessity thus gave birth to the doctrine of qualified political agency, later adopted in Villena v. Secretary
of the Interior 55 from American jurisprudence, viz:
With reference to the Executive Department of the government, there is one purpose which is crystal-clear
and is readily visible without the projection of judicial searchlight, and that is the establishment of a single,
not plural, Executive. The first section of Article VII of the Constitution, dealing with the Executive
Department, begins with the enunciation of the principle that “The executive power shall be vested in a
President of the Philippines.” This means that the President of the Philippines is the Executive of the
Government of the Philippines, and no other. The heads of the executive departments occupy political
positions and hold office in an advisory capacity, and, in the language of Thomas Jefferson, “should be of
the President’s bosom confidence” (7 Writings, Ford ed., 498), and, in the language of Attorney-General
Cushing (7 Op., Attorney-General, 453), “are subject to the direction of the President.” Without minimizing
the importance of the heads of the various departments, their personality is in reality but the projection of
that of the President. Stated otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme
Court of the United States, “each head of a department is, and must be, the President’s alter ego in the
matters of that department where the President is required by law to exercise authority” (Myers vs. United
States, 47 Sup. Ct. Rep., 21 at 30; 272 U. S., 52 at 133; 71 Law. ed., 160).56
As it was, the backdrop consisted of a major policy determination made by then President Aquino that
sovereign debts have to be respected and the concomitant reality that the Philippines did not have enough
funds to pay the debts. Inevitably, it fell upon the Secretary of Finance, as the alter ego of the President
regarding “the sound and efficient management of the financial resources of the Government,” 57 to
formulate a scheme for the implementation of the policy publicly expressed by the President herself.
Nevertheless, there are powers vested in the President by the Constitution which may not be delegated to
or exercised by an agent or alter ego of the President. Justice Laurel, in his ponencia in Villena, makes this
clear:
Withal, at first blush, the argument of ratification may seem plausible under the circumstances, it should be
observed that there are certain acts which, by their very nature, cannot be validated by subsequent approval
or ratification by the President. There are certain constitutional powers and prerogatives of the Chief
Executive of the Nation which must be exercised by him in person and no amount of approval or ratification
will validate the exercise of any of those powers by any other person. Such, for instance, in his power to
suspend the writ of habeas corpus and proclaim martial law (PAR. 3, SEC. 11, Art. VII) and the exercise by
him of the benign prerogative of mercy (par. 6, sec. 11, idem). 58
These distinctions hold true to this day. There are certain presidential powers which arise out of exceptional
circumstances, and if exercised, would involve the suspension of fundamental freedoms, or at least call for
the supersedence of executive prerogatives over those exercised by co-equal branches of government.
The declaration of martial law, the suspension of the writ of habeas corpus, and the exercise of the
pardoning power notwithstanding the judicial determination of guilt of the accused, all fall within this special
class that demands the exclusive exercise by the President of the constitutionally vested power. The list is
by no means exclusive, but there must be a showing that the executive power in question is of
similar gravitas and exceptional import.
We cannot conclude that the power of the President to contract or guarantee foreign debts falls within the
same exceptional class. Indubitably, the decision to contract or guarantee foreign debts is of vital public
interest, but only akin to any contractual obligation undertaken by the sovereign, which arises not from any
extraordinary incident, but from the established functions of governance.
Another important qualification must be made. The Secretary of Finance or any designated alter ego of the
President is bound to secure the latter’s prior consent to or subsequent ratification of his acts. In the matter
of contracting or guaranteeing foreign loans, the repudiation by the President of the very acts performed in
this regard by the alter ego will definitely have binding effect. Had petitioners herein succeeded in
demonstrating that the President actually withheld approval and/or repudiated the Financing Program, there
could be a cause of action to nullify the acts of respondents. Notably though, petitioners do not assert that
respondents pursued the Program without prior authorization of the President or that the terms of the
contract were agreed upon without the President’s authorization. Congruent with the avowed preference of
then President Aquino to honor and restructure existing foreign debts, the lack of showing that she
countermanded the acts of respondents leads us to conclude that said acts carried presidential approval.
With constitutional parameters already established, we may also note, as a source of suppletory guidance,
the provisions of R.A. No. 245. The afore-quoted Section 1 thereof empowers the Secretary of Finance with
the approval of the President and after consultation59 of the Monetary Board, “to borrow from time to time
on the credit of the Republic of the Philippines such sum or sums as in his judgment may be necessary,
and to issue therefor evidences of indebtedness of the Philippine Government.” Ineluctably then, while the
President wields the borrowing power it is the Secretary of Finance who normally carries out its thrusts.
In our recent rulings in Southern Cross Cement Corporation v. The Philippine Cement Manufacturers
Corp.,60 this Court had occasion to examine the authority granted by Congress to the Department of Trade
and Industry (DTI) Secretary to impose safeguard measures pursuant to the Safeguard Measures Act. In
doing so, the Court was impelled to construe Section 28(2), Article VI of the Constitution, which allowed
Congress, by law, to authorize the President to “fix within specified limits, and subject to such limitations
and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and
other duties or imposts within the framework of the national development program of the Government.” 61
While the Court refused to uphold the broad construction of the grant of power as preferred by the DTI
Secretary, it nonetheless tacitly acknowledged that Congress could designate the DTI Secretary, in his
capacity as alter ego of the President, to exercise the authority vested on the chief executive under Section
28(2), Article VI.62 At the same time, the Court emphasized that since Section 28(2), Article VI authorized
Congress to impose limitations and restrictions on the authority of the President to impose tariffs and
imposts, the DTI Secretary was necessarily subjected to the same restrictions that Congress could impose
on the President in the exercise of this taxing power.
Similarly, in the instant case, the Constitution allocates to the President the exercise of the foreign borrowing
power “subject to such limitations as may be provided under law.” Following Southern Cross, but in line
with the limitations as defined in Villena, the presidential prerogative may be exercised by the
President’s alter ego, who in this case is the Secretary of Finance.
It bears emphasis that apart from the Constitution, there is also a relevant statute, R.A. No. 245, that
establishes the parameters by which the alter ego may act in behalf of the President with respect to the
borrowing power. This law expressly provides that the Secretary of Finance may enter into foreign
borrowing contracts. This law neither amends nor goes contrary to the Constitution but merely implements
the subject provision in a manner consistent with the structure of the Executive Department and the alter
ego doctrine. In this regard, respondents have declared that they have followed the restrictions provided
under R.A. No. 245,63 which include the requisite presidential authorization and which, in the absence of
proof and even allegation to the contrary, should be regarded in a fashion congruent with the presumption
of regularity bestowed on acts done by public officials.
Moreover, in praying that the acts of the respondents, especially that of the Secretary of Finance, be nullified
as being in violation of a restrictive constitutional interpretation, petitioners in effect would have this Court
declare R.A. No. 245 unconstitutional. We will not strike down a law or provisions thereof without so much
as a direct attack thereon when simple and logical statutory construction would suffice.
Petitioners also submit that the unrestricted character of the Financing Program violates the framers’ intent
behind Section 20, Article VII to restrict the power of the President. This intent, petitioners note, is embodied
in the proviso in Sec. 20, Art. VII, which states that said power is “subject to such limitations as may be
provided under law.” However, as previously discussed, the debt-relief contracts are governed by the terms
of R.A. No. 245, as amended by P.D. No. 142 s. 1973, and therefore were not developed in an unrestricted
setting.

-------------------------------------------------------
Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr.

FACTS:
On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public Works and Highways
(DPWH) issued a Resolution No. PJHL-A-04-012. It was approved by DPWH Acting Secretary Florante
Soriquez. This resolution recommended the award to China Road & Bridge Corporation of the contract for
the implementation of civil works for Contract Package No. I (CP I), which consists of the
improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga road, with the lengt of 79.818
kilometers, in the island province of Catanduanes.
This Loan Agreement No. PH-204 was executed by and between the JBIC and the Philippine
Government pursuant to the exchange of Notes executed by and between Mr. Yoshihisa Ara,
Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and then Foreign Affairs
Secretary Siazon, in behalf of their respective governments.

ISSUE:
Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine Government is a
kind of a treaty.

HELD:

The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes dated December 27,
1999 between the Japanese Government and the Philippine Government is an executive agreement.
An “exchange of notes” is a record of a routine agreement that has many similarities with the private law
contract. The agreement consists of the exchange of two documents, each of the parties being in the
possession of the one signed by the representative of the other.
…treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding,
modus vivendi and exchange of notes all are refer to international instruments binding at international
law.
Although these instruments differ from each other by title, they all have common features and
international law has applied basically the same rules to all these instruments. These rules are the result
of long practice among the States, which have accepted them as binding norms in their mutual relations.
Therefore, they are regarded as international customary law.
That case was dismissed by the SCORP last Feb. 14 2007.
What the petitioners wanted was that Foreign funded projects also undergo the procurement process.
The dismissal of the case somehow gave justification for the delay of the implementing rules for foreign
funded projects (IRR-B) of the procurement law
If we recall the decision of the Abaya vs Ebdane was used by the DOJ when the
DOTC Secretary was asking for an opinion from the former, during the ZTE controversy.
as ruled by the Supreme Court in Abaya v. Ebdane, an
exchange of notes is considered a form of an executive agreement, which
becomes binding through executive action without need of a vote by the
Senate and that (like treaties and conventions, it is an international
instrument binding at international law,
The second issue involves an examination of the coverage of
Republic Act No. 9184, otherwise known as the “Government
Procurement Reform Act”. Section 4 of the said Act provides that it shall
apply to:
… the Procurement of infrastructure Projects, Goods and
Consulting Services, regardless of source of funds, whether local
or foreign, by all branches and instrumentalities of government, its
departments, offices and agencies, including government-owned
and/or -controlled corporations and local government units,
subject to the provisions of Commonwealth Act No. 138. Any
treaty or international or executive agreement affecting the
subject matter of this Act to which the Philippine government is a
signatory shall be observed.

------------------------------------------

Pharmaceutical and Health Care Association of the Philippines vs. Duque III
Pharmaceutical and Healthcare Association of the Philippines vs DOH

Facts:

- Executive Order No. 51 (The Milk Code - TMC) was issued by Pres. Aquino on Oct. 28, 1986 by virtue
of the legislative powers granted to her under the Freedom Constitution.
(1) One of the preambular clauses of TMC – the law seeks to give effect to Article 11 of the
International Code of Marketing of Breastmilk Substituttes (ICMBS), a code adopted by the WHA
(World Health Assembly) in 1981.
- In 1990, the Philippine ratified the International Convention on the Rights of the Child. Art. 24 of the
instrument mandates that States should take measure to diminish infant mortality and should ensure
that all segments of society are informed of the advantages of breastfeeding.
- From 1982 – 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.
- May 15, 2006 – DOH issues the assailed RIRR (Revised Implementing Rules and Regulations of E.O.
51 or A.O. No. 2006-0012) which was to take effect on July 7, 2006. – The RIRR imposes a ban on
all advertisements of breastmilk substitutes
- June 28, 2006 – Petitioner filed the present Petition for Certiorari and Prohibition with Prayer for the
Issuance of a TRO or Writ of Preliminary injunction.
- August 15, 2006 – the Court issued a Resolution granting the TRO, enjoining the respondents from
implementing the assailed RIRR.
- Petitioner assails the RIRR for going beyond the provisions of TMC thereby amending and expanding
the coverage of the said law.
- DOH meanwhile contends that the RIRR implements not only TMC but also various international
instruments regarding infant and young child nutrition. They posit that the said international
instruments are deemed part of the law of the land and therefore may be implemented by the DOH in
the RIRR.

Issue: W/n the RIRR is unconstitutional?

Sub-issue(s): W/n the RIRR is in accord with TMC? W/n pertinent international agreements entered into
by the Philippines are part of the law of the land and may thus be implemented through an RIRR, if so, is
the RIRR in accord with such international agreements?

Held: No. However what may be implemented is the RIRR based on the Milk Code which in turn is based
on the ICMBS as this is deemed part of the law of the land. The other WHA Resolutions however cannot
be imposed as they are not deemed part of the law of the land.

Ratio:

1. Are the international instruments referred to by the respondents part of the law of the land?
- The various international instruments invoked by respondents are:
(1) The UN Conventions on the Rights of the Child
(2) The International Convenant on Economic, Social, and Cultural Rights
(3) Convention on the Elimination of All Forms of Discrimination Against Women
- These instruments only provide general terms of the steps that States must take to prevent child
mortality. Hence, they do not have anything about the use and marketing of breastmilk substitutes

- The ICMBS and other WHA Resolutions however, are the international instruments which have
specific provisions on breastmilk substitutes
- Under the 1987 Constitution, international law can become part of domestic law in 2 ways:
 (1) Transformation – an international law is transformed into a domestic law through a constitutional
mechanism such as local legislation
 Treaties become part of law of the land through this method, pursuant to Art 7, Sec 21 –
wherein “no treaty or international agreement shall be valid.. unless concurred by at least 2/3
of Senate”
 The ICMBS and WHA Resolutions are NOT treaties as they haven’t been concurred in by the
required 2/3 vote.
 HOWEVER, the ICMBS has been transformed into domestic law through local legislation that
is TMC.
 Therefore, it is not the ICMBS per se that has the force of law but it’s TMC.
o While TMC is almost a verbatim reproduction of the ICMBS, it did not adopt the latter’s
provision on the absolute prohibition on advertising of products within the scope of
the ICMBS. Instead the MC provides that advertising promotion or other marketing
materials may be allowed if such materials are approved by a committee.
(2) Incorporation – by mere constitutional declaration, international law is deemed to have the force
of domestic law
 This is found under Art 2, Sec 2 – The Philippines… adopts generally accepted principles of
international law as part of the law of the land
 In Mihares v. Ranada: International law becomes customary rules accepted as binding as a
result of two elements:
1.) Established, widespread, and consistent practice on part of the state
2.) Opinion juris sive necessitates (opinion as to law or necessity.
 Generally accepted principles of international law refer to norms of general or customary
international law which are binding on all states, valid through all kinds of human societies,
and basic to legal systems generally
 Fr. Bernas has a definition similar to the one above. Customary international law has two
factors:
1.) Material factor – how states behave
 The consistency and the generality of the practice
2.) Psychological or subjective factor – why they behave the way they do
 Once state practice has been established, now determine why they behave they do. Is
it ouor of courtesy or opinio juris (the belief that a certain type of behavior is obligatory)
 When a law satisfies the two factors it becomes part of customary international law which is
then incorporated into our domestic system

2. Since the WHA Resolutions have not been embodied in any local legislation, have they attained the
status of customary law and hence part of our law of the land?
- The World Health Organization (WHO) is one of the international specialized agencies of the UN.
- According to the WHO Constitution, it’s the WHA which determines the policies of the WHO, the
former also has the power to “adopt regulations concerning advertising and labeling of pharmaceutical
and similar products” and “to make recommendations to members on any matter within the
Organization’s competence”
- Note that the legal effect of a regulation as opposed to recommendation is quite different
(1) Regulations which are duly adopted by the WHA are binding on member states
(2) On the other hand, recommendations of the WHA do not come into force for its members unlike
regulations. Rather, they carry moral and political weight as they constitute the judgment on a
health issue of the collective membership of the highest body in the field of health.
- The WHA resolution adopting the ICMBS and the subsequent WHA resolutions urging states to
implement the ICMBS are merely recommendatory and legally non-binding.
- Hence, unlike the ICMBS which has become TMC through legislative enactment, the subsequent
WHA Resolutions, which provide for exclusive breastfeeding and prohibition on advertisements and
promotions of breastmilk have not been adopted as domestic law.
 - WHA Resolutions have been viewed to constitute “soft law” or non-binding norms, which influence
state behavior. Soft law has been noted to be a rapid means of norm creation, in order to reflect and
respond to the changing needs and demands of constituents (of the UN.)
- As previously discussed, for an international rule to be considered customary law, it must be
established that such rule is followed by states because it is considered obligatory (opinio juris).
- In the case at bar, respondents have not presented any evidence to prove that the WHA Resolutions
are in fact enforced or practice by member states. Further, they failed to establish that provisions of
pertinent WHA Resolutions are customary international law that may be deemed part of law of the
land.
- Hence, legislation is necessary to transform the WHA resolutions into domestic law. They cannot thus
be implemented by executive agencies without the need of a law to be enacted by legislature.

W/n the DOH has the power to implement the WHA Resolutions under the Revised Administrative Code
even in the absence of a domestic law? Only the provisions of the Milk Code. (as per the discussion
above)

- Section 3, Chapter 1, Title IX of the RAC of 1987 provides that the DOH shall define the national
health policy and can issue orders and regulations concerning the implementation of established
health policies.
- A.O. No 2005 -0014 which provides the national policy on infant and young child feeding, does not
declare that as part of its policy, the advertisement or promotion of breastmilk substitutes should be
absolutely prohibited.
- Only the provisions of the Milk Code, but not those of the subsequent WHA Resolutions, can be validly
implemented by the DOH through the subject RIRR.

W/n the provisions of the RIRR being in accordance with the Milk Code? Not all of them

- Assailed provisions: [1] extending the coverage to young children; [2] imposing exclusive
breastfeeding for infants from 0-6 months; [3] imposes an absolute ban on advertising and promotion
for breastmilk substitutes; [4] requiring additional labeling requirements; [5] prohibits the dissemination
of information on infant formula; [6] forbids milk manufacturers and distributors to extend assistance
in research and continuing education Although the DOH has the power under the Milk Code to control
information regarding breastmilk vis-à-vis breastmilk substitutes, this power is not absolute because
it has no power to impose an absolute prohibition in the marketing, promotion and advertising of
breastmilk substitutes. Several provisions of the Milk Code attest to the fact that such power to control
information is not absolute.
- Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code because such provisions impose
an absolute prohibition on advertising, promotion and marketing of breastmilk substitutes, which is not
provided for in the Milk Code. Section 46 is violative of the Milk Code because the DOH has exceeded
its authority in imposing such fines or sanctions when the Milk Code does not do so. Other assailed
provisions are in accordance with the Milk Code.

W/n Section 13 of the RIRR providing a sufficient standard? Yes.

- Questioned provision, in addition to Section 26 of Rule VII provide labeling requirements for breastmilk
substitutes  found to be in consonance with the Milk Code
- The provisions in question provide reasonable means of enforcing related provisions in the Milk Code.

W/n Section 57 of the RIRR repeals existing laws?

 - Section in question only repeals orders, issuances and rules and regulations, not laws. The provision
is valid as it is within the DOH’s rule-making power.
- An administrative agency has quasi-legislative or rule-making power. However, such power is limited
to making rules and regulation subjected to the boundaries set by the granting statute and the
Constitution. The power is also subject to the doctrine of non-delegability and separability of powers.
The power, which includes amending, revising, altering or repealing, is granted to allow for flexibility
in the implementation of the laws.

W/n On Section 4, 5(w), 11, 22, 32, 47 and 52 violates the due process clause of the Constitution (Article
III Section 1)?

- Despite the fact that the 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 the 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.
- Section 4 – proscription of milk manufacturers’ participation in any policymaking body; Section 22 –
classes and seminars for women and children; Section 32 – giving of assistance, support and logistics
or training; Section 52 – giving of donations
- In the instant case, petitioner failed to show how the aforementioned sections hamper the trade of
breastmilk substitutes. They also failed to establish that these activities are essential and
indispensable to their trade.

Disposition: The Petition is Partially Granted. Only sections 4(f), 11 and 46 of A.O. 2006-0014 are
declared null and void for being ultra vires. The TRO is lifted insofar as the rest of the provisions of
A.O. 2006-0012 is concerned.

____________________________________

Province of North Cotabato vs Government of the Republic of the Philippines

FACTS:
On August 5, 2008, the Government of the Republic of the Philippines and the Moro Islamic Liberation
Front (MILF) were scheduled to sign a Memorandum of Agreement of the Ancestral Domain Aspect of the
GRP - MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
Invoking the right to information on matters of public concern, the petitioners seek to compel respondents
to disclose and furnish them the complete and official copies of the MA-AD and to prohibit the slated
signing of the MOA-AD and the holding of public consultation thereon. They also pray that the MOA-AD
be declared unconstitutional. The Court issued a TRO enjoining the GRP from signing the same.

Whether or not the signing of the MOA, the Government of the Republic of the Philippines would be
binding itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical,
territorial or political subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in
violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997),
particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical,
territorial or political subdivision not recognized by law;
Yes. The provisions of the MOA indicate, among other things, that the Parties aimed to vest in the
BJE the status of an associated state or, at any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution.

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an
“associative” relationship with the national government. Indeed, the concept implies powers that go
beyond anything ever granted by the Constitution to any local or regional government. It also implies the
recognition of the associated entity as a state. The Constitution, however, does not contemplate any
state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status
that aims to prepare any part of Philippine territory for independence.

The BJE is a far more powerful entity than the autonomous region recognized in the
Constitution. It is not merely an expanded version of the ARMM, the status of its relationship with the
national government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all
but name as it meets the criteria of a state laid down in the Montevideo Convention, namely, a
permanent population, a defined territory, a government, and a capacity to enter into relations
with other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory,
the spirit animating it – which has betrayed itself by its use of the concept of association – runs counter
to the national sovereignty and territorial integrity of the Republic.

The defining concept underlying the relationship between the national government and the BJE being
itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the
MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws. The
BJE is more of a state than an autonomous region. But even assuming that it is covered by the term
“autonomous region” in the constitutional provision just quoted, the MOA-AD would still be in conflict with
it.

b) to revise or amend the Constitution and existing laws to conform to the MOA:

The MOA-AD provides that “any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into force upon the signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework,” implying an amendment of the Constitution to
accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of
the Constitution .

It will be observed that the President has authority, as stated in her oath of office, only to preserve and
defend the Constitution. Such presidential power does not, however, extend to allowing her to change the
Constitution, but simply to recommend proposed amendments or revision. As long as she limits herself to
recommending these changes and submits to the proper procedure for constitutional amendments and
revision, her mere recommendation need not be construed as an unconstitutional act.

The “suspensive clause” in the MOA-AD viewed in light of the above-discussed standards.

Given the limited nature of the President’s authority to propose constitutional amendments, she
cannot guarantee to any third party that the required amendments will eventually be put in place,
nor even be submitted to a plebiscite. The most she could do is submit these proposals as
recommendations either to Congress or the people, in whom constituent powers are vested.

c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in
violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997),
particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)
This strand begins with the statement that it is “the birthright of all Moros and all Indigenous peoples of
Mindanao to identify themselves and be accepted as ‘Bangsamoros.’” It defines “Bangsamoro people” as
the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu
archipelago at the time of conquest or colonization, and their descendants whether mixed or of full blood,
including their spouses.

Thus, the concept of “Bangsamoro,” as defined in this strand of the MOA-AD, includes not only “Moros”
as traditionally understood even by Muslims, but all indigenous peoples of Mindanao and its adjacent
islands. The MOA-AD adds that the freedom of choice of indigenous peoples shall be respected. What
this freedom of choice consists in has not been specifically defined. The MOA-AD proceeds to refer to the
“Bangsamoro homeland,” the ownership of which is vested exclusively in the Bangsamoro people by
virtue of their prior rights of occupation. Both parties to the MOA-AD acknowledge that ancestral domain
does not form part of the public domain.

Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for
the recognition and delineation of ancestral domain, which entails, among other things, the observance of
the free and prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples. Notably,
the statute does not grant the Executive Department or any government agency the power to delineate
and recognize an ancestral domain claim by mere agreement or compromise.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to
conduct consultations beforeany project or program critical to the environment and human ecology
including those that may call for the eviction of a particular group of people residing in such locality, is
implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests
ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to
the diaspora or displacement of a great number of inhabitants from their total environment.

CONCLUSION:
In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he
failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160,
and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive,
arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal
to perform the duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions
but the very concept underlying them, namely, the associative relationship envisioned between the GRP
and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a state and
implies that the same is on its way to independence.

_____________________________________________________

BAYAN MUNA v. ALBERTO ROMULO

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:
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?

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
-----------------------------------------------------

CHINA MACHINERY VS STA. MARIA

1. WON the Contract Agreement is an executive agreement. NO!! (finally)

Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna Convention) defines a treaty
as follows:
An international agreement concluded between States in written form and governed by international
law, whether embodied in a single instrument or in two or more related instruments and whatever
its particular designation.

Bayan Muna v. Romulo: SC held that an executive agreement is similar to a treaty, except that the former
a) does not require legislative concurrence
b) is usually less formal
c) deals with a narrower range of subject matters
Despite these differences, to be considered an executive agreement, the following three requisites provided
under the Vienna Convention must nevertheless concur:
a) the agreement must be between states
b) it must be written
c) it must governed by international law

The 1st and 3rd requisites are absent in this case.

A. CNMEG is neither a government nor a government agency.

The Contract Agreement was not concluded between the Philippines and China, but between Northrail and
CNMEG.
 By the terms of the Contract Agreement, Northrail is a GOCC while CNMEG is a corporation duly
organized and created under the laws of PRC.
 Thus, both Northrail and CNMEG entered into the Contract Agreement as entities with personalities
distinct and separate from the Philippine and Chinese governments, respectively.

Neither can it be said that CNMEG acted as agent of the Chinese government.
- The fact that Amb. Wang, in his letter (Oct 2003) described CNMEG as a "state corporation" and
declared its designation as the Primary Contractor in the Northrail Project did not mean it was to
perform sovereign functions on behalf of China.
- That label was only descriptive of its nature as a state-owned corporation, and did not preclude it
from engaging in purely commercial or proprietary ventures.

B. The Contract Agreement is to be governed by Philippine law.

Article 2 of the Conditions of Contract, which under Article 1.1 of the Contract Agreement is an integral part
of the latter, states:
APPLICABLE LAW AND GOVERNING LANGUAGE
The contract shall in all respects be read and construed in accordance with the laws of the
Philippines.
The contract shall be written in English language. All correspondence and other documents
pertaining to the Contract which are exchanged by the parties shall be written in English language.

- Since the Contract Agreement explicitly provides that Philippine law shall be applicable, the parties
have effectively conceded that their rights and obligations thereunder are not governed by
international law.
- It is therefore clear from the foregoing reasons that the Contract Agreement does not partake of
the nature of an executive agreement. It is merely an ordinary commercial contract that can be
questioned before the local courts.

WHEREFORE, the instant Petition is DENIED. Petitioner China National Machinery & Equipment Corp.
(Group) is not entitled to immunity from suit, and the Contract Agreement is not an executive agreement.
CNMEG’s prayer for the issuance of a TRO and/or Writ of Preliminary Injunction is DENIED for being moot
and academic. This case is REMANDED to the Regional Trial Court of Makati, Branch 145, for further
proceedings as regards the validity of the contracts subject of Civil Case No. 06-203.

----------------------------------