G.

Nationality and statelessness (Article 15 of the 1948 Universal Declaration of

Human Rights; Hague Convention of 1930 on the Conflict of Nationality Laws; 1954
Covenant Relating to the Status of Stateless Persons adopted in 28 September
1954; United Nations Convention on the Reduction of Statelessness)
Yao vs. Commissioner of Immigration, L-21289, October 4 1971

MOY YA LIM YAO VS. COMMISSIONER OF

IMMIGRATION

G.R. No. L-21289, October 4 1971, 41 SCRA 292

FACTS:
Lau Yuen Yeung applied for a passport visa to enter the Philippines as a non-immigrant on 8
February 1961. In the interrogation made in connection with herapplication for a temporary
visitor's visa to enter the Philippines, she stated that she was a Chinese residing at Kowloon,
Hongkong, and that she desired to take a pleasure trip to the Philippines to visit her great
grand uncle, Lau Ching Ping. She was permitted to come into the Philippines on 13 March 1961
for a period of one month.
On the date of her arrival, Asher Y. Cheng filed a bond in the amount of P1,000.00 to
undertake, among others, that said Lau Yuen Yeung would actually depart from the Philippines
on or before the expiration of her authorized period of stay in this country or within the period
as in his discretion the Commissioner of Immigrationor his authorized representative might
properly allow.
After repeated extensions, Lau Yuen Yeung was allowed to stay in the Philippines up to 13
February 1962. On 25 January 1962, she contracted marriage with Moy Ya Lim Yao alias
Edilberto Aguinaldo Lim an alleged Filipino citizen. Because of the contemplated action of the
Commissioner of Immigration to confiscate her bond and order her arrest and immediate
deportation, after the expiration of her authorized stay, she brought an action for injunction.
At the hearing which took place one and a half years after her arrival, it was admitted that Lau
Yuen Yeung could not write and speak either English or Tagalog, except for a few words. She
could not name any Filipino neighbor, with a Filipino name except one, Rosa. She did not know
the names of her brothers-in-law, or sisters-in-law. As a result, the Court of First Instance of
Manila denied the prayer for preliminary injunction. MoyaLim Yao and Lau Yuen Yeung
appealed.
ISSUE:
Whether or not Lau Yuen Yeung ipso facto became a Filipino citizen upon her marriage to a
Filipino citizen.
HELD:
Under Section 15 of Commonwealth Act 473, an alien woman marrying a Filipino, native born or
naturalized, becomes ipso facto a Filipina provided she is notdisqualified to be a citizen of the
Philippines under Section 4 of the same law. Likewise, an alien woman married to an alien who
is subsequently naturalized here follows the Philippine citizenship of her husband the moment
he takes his oath as Filipino citizen, provided that she does not suffer from any of the
disqualifications under said Section 4. Whether the alien woman requires to undergo the
naturalization proceedings, Section 15 is a parallel provision to Section 16. Thus, if the widow

of an applicant for naturalization as Filipino, who dies during the proceedings, is not required
to go through a naturalization proceedings, in order to be considered as a Filipino citizen
hereof, it should follow that the wife of a living Filipino cannot be denied the same privilege.

This is plain common sense and there is absolutely no evidence that the Legislature intended to
treat them differently. As the laws of our country, both substantive and procedural, stand
today, there is no such procedure (a substitute for naturalization proceeding to enable the
alien wife of a Philippine citizen to have the matter of her own citizenship settled and
established so that she may not have to be called upon to prove it everytime she has to
perform an act or enter into a transaction or business or exercise a right reserved only to
Filipinos), but such is no proof that the citizenship is not vested as of the date of marriage or
the husband's acquisition of citizenship, as the case may be, for the truth is that the situation
obtains even as to native-born Filipinos. Everytime the citizenship of a person is material or
indispensible in a judicial or administrative case. Whatever the corresponding court or
administrative authority decides therein as to such citizenship is generally not considered as
res adjudicata, hence it has to be threshed out again and again as the occasion may demand.
Lau Yuen Yeung, was declared to have become a Filipino citizen from and by virtue of her
marriage to Moy Ya Lim Yao al as Edilberto Aguinaldo Lim, a Filipino citizen of 25 January 1962.

Tecson vs. COMELEC, GR No. 161434, March 3 2004

G.R. No. 161434

March 3, 2004

MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR. vs.COMELEC, FPJ and VICTORINO X.
FORNIER,

G.R. No. 161634

March 3, 2004

ZOILO ANTONIO VELEZ vs.FPJ

G. R. No. 161824

March 3, 2004

VICTORINO X. FORNIER, vs. HON. COMMISSION ON ELECTIONS and FPJ

Facts:
Petitioners sought for respondent Poes disqualification in the presidential elections for having
allegedly misrepresented material facts in his (Poes) certificate of candidacy by claiming that he is a
natural Filipino citizen despite his parents both being foreigners. Comelec dismissed the petition,
holding that Poe was a Filipino Citizen. Petitioners assail the jurisdiction of the Comelec, contending
that only the Supreme Court may resolve the basic issue on the case under Article VII, Section 4,

paragraph 7, of the 1987 Constitution.

Issue:
Whether or not it is the Supreme Court which had jurisdiction.
Whether or not Comelec committed grave abuse of discretion in holding that Poe was a Filipino citizen.
Ruling:

1.) The Supreme Court had no jurisdiction on questions regarding qualification of a candidate for the presidency
or vice-presidency before the elections are held.
"Rules of the Presidential Electoral Tribunal" in connection with Section 4, paragraph 7, of the 1987
Constitution, refers to contests relating to the election, returns and qualifications of the "President" or
"Vice-President", of the Philippines which the Supreme Court may take cognizance, and not of "candidates" for
President or Vice-President before the elections.
2.) Comelec committed no grave abuse of discretion in holding Poe as a Filipino Citizen.
The 1935 Constitution on Citizenship, the prevailing fundamental law on respondents birth, provided
that among the citizens of the Philippines are "those whose fathers are citizens of the Philippines."

Tracing respondents paternal lineage, his grandfather Lorenzo, as evidenced by the latters death certificate
was identified as a Filipino Citizen. His citizenship was also drawn from the presumption that having died in
1954 at the age of 84, Lorenzo would have been born in 1870. In the absence of any other evidence, Lorenzos
place of residence upon his death in 1954 was presumed to be the place of residence prior his death, such that
Lorenzo Pou would have benefited from the "en masse Filipinization" that the Philippine Bill had effected in
1902. Being so, Lorenzos citizenship would have extended to his son, Allan---respondents father.
Respondent, having been acknowledged as Allans son to Bessie, though an American citizen, was a Filipino
citizen by virtue of paternal filiation as evidenced by the respondents birth certificate. The 1935 Constitution on
citizenship did not make a distinction on the legitimacy or illegitimacy of the child, thus, the allegation of
bigamous marriage and the allegation that respondent was born only before the assailed marriage had no
bearing on respondents citizenship in view of the established paternal filiation evidenced by the public
documents presented.
But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born
citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he
cannot be held guilty of having made a material misrepresentation in his certificate of candidacy in violation of
Section 78, in relation to Section 74 of the Omnibus Election Code.

H. Treatment of Aliens (1951 Convention relating to the Status of Refugees; 1967

Protocol Relating to the Status of Refugees)
1. Extradition (PD 1069)
a) Fundamental principles
b) Procedure
c) Distinguished from deportation
Secretary of Justice vs. Hon. Lantion, GR No. 139465, October 17
2000
By virtue of an extradition treaty between the US and the Philippines, the US requested for the extradition of
Mark Jimenez for violations of US tax and election laws. Pending evaluation of the extradition documents by
the Philippine government, Jimenez requested for copies of the US extradition request. The Secetary of
Justice denied that request.

ISSUE: During the evaluation stage of the extradition proceedings, is private respondent entitled to the two
basic due process rights of notice and hearing?

HELD:

Private respondent is bereft of the right to notice and hearing during the evaluation stage of the extradition
process. Extradition is a proceeding sui generis. It is not a criminal proceeding which will call into operation
all the rights of an accused guaranteed by the Bill of Rights. The process of extradition does not involve the
determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of
the state where he will be extradited.

Dissent (original decision): Under the extradition treaty, the prospective extraditee may be provisionally
arrested pending the submission of the request. Because of this possible consequence, the evaluation
process is akin to an administrative agency conducting an investigative proceeding, and partakes of the
nature of a criminal investigation. Thus, the basic due process rights of notice and hearing are
indispensable.

Assuming that the extradition treaty does not allow for such rights, the Constitutional right to procedural due
process must override treaty obligations. When there is a conflict between international law obligations and
the Constitution, the Constitution must prevail.

Jimenez vs. Judge Puruganan, September 24 2002

FACTS:
Petition is a sequel to the case Sec. of Justice v. Hon. Lantion. The Secretary was
ordered to furnish Mr. Jimenez copies of the extradition request and its supporting papers
and to grant the latter a reasonable period within which to file a comment and supporting
evidence. But, on motion for reconsideration by the Sec. of Justice, it reversed its decision
but held that the Mr. Jimenez was bereft of the right to notice and hearing during the
evaluation stage of the extradition process. On May 18, 2001, the Government of the USA,
represented by the Philippine Department of Justice, filed with the RTC, the Petition for
Extradition praying for the issuance of an order for his immediate arrest pursuant to Sec. 6
of PD 1069 in order to prevent the flight of Jimenez. Before the RTC could act on the
petition, Mr. Jimenez filed before it an Urgent Manifestation/Ex-Parte Motion praying for his
application for an arrest warrant be set for hearing. After the hearing, as required by the
court, Mr. Jimenez submitted his Memorandum. Therein seeking an alternative prayer that in
case a warrant should issue, he be allowed to post bail in the amount of P100,000. The
court ordered the issuance of a warrant for his arrest and fixing bail for his temporary liberty
at P1M in cash. After he had surrendered his passport and posted the required cash bond,
Jimenez was granted provisional liberty.
Government of the USA filed a petition for Certiorari under Rule 65 of the Rules of Court to
set aside the order for the issuance of a warrant for his arrest and fixing bail for his
temporary liberty at P1M in cash which the court deems best to take cognizance as there is
still no local jurisprudence to guide lower court.

ISSUES:
i. Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction in adopting a procedure of first
hearing a potential extraditee before issuing an arrest warrant under Section 6 of PD No.
1069
ii. Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction in granting the prayer for bail
iii. Whether or NOT there is a violation of due process
HELD: Petition is GRANTED. Bail bond posted is CANCELLED. Regional Trial Court of
Manila is directed to conduct the extradition proceedings before it.
i.

YES.

By using the phrase if it appears, the law further conveys that accuracy is not as
important as speed at such early stage. From the knowledge and the material then available
to it, the court is expected merely to get a good first impression or a prima facie finding
sufficient to make a speedy initial determination as regards the arrest and detention of the
accused. The prima facie existence of probable cause for hearing the petition and, a priori,
for issuing an arrest warrant was already evident from the Petition itself and its supporting
documents. Hence, after having already determined therefrom that a prima facie finding did
exist, respondent judge gravely abused his discretion when he set the matter for hearing
upon motion of Jimenez. The silence of the Law and the Treaty leans to the more
reasonable interpretation that there is no intention to punctuate with a hearing every little
step in the entire proceedings. It also bears emphasizing at this point that extradition
proceedings are summary in nature. Sending to persons sought to be extradited a notice of
the request for their arrest and setting it for hearing at some future date would give them
ample opportunity to prepare and execute an escape which neither the Treaty nor the Law
could have intended.
Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not
require a notice or a hearing before the issuance of a warrant of arrest. To determine
probable cause for the issuance of arrest warrants, the Constitution itself requires only the
examination under oath or affirmation of complainants and the witnesses they may produce.
The Proper Procedure to Best Serve The Ends Of Justice In Extradition Cases
Upon receipt of a petition for extradition and its supporting documents, the judge must
study them and make, as soon as possible, a prima facie finding whether
a) they are sufficient in form and substance
b) they show compliance with the Extradition Treaty and Law
c) the person sought is extraditable
At his discretion, the judge may require the submission of further documentation or may
personally examine the affiants and witnesses of the petitioner. If, in spite of this study and
examination, no prima facie finding is possible, the petition may be dismissed at the
discretion of the judge. On the other hand, if the presence of a prima facie case is
determined, then the magistrate must immediately issue a warrant for the arrest of the
extraditee, who is at the same time summoned to answer the petition and to appear at
scheduled summary hearings. Prior to the issuance of the warrant, the judge must not
inform or notify the potential extraditee of the pendency of the petition, lest the latter be given
the opportunity to escape and frustrate the proceedings.

ii.

Yes.

The constitutional provision on bail on Article III, Section 13 of the Constitution, as well
as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been
arrested and detained for violation of Philippine criminal laws. It does not apply to extradition
proceedings, because extradition courts do not render judgments of conviction or acquittal.
Moreover, the constitutional right to bail flows from the presumption of innocence in favor of
every accused who should not be subjected to the loss of freedom as thereafter he would be
entitled to acquittal, unless his guilt be proved beyond reasonable doubt. In extradition, the
presumption of innocence is not at issue. The provision in the Constitution stating that the
right to bail shall not be impaired even when the privilege of the writ of habeas corpus is
suspended finds application only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion.
That the offenses for which Jimenez is sought to be extradited are bailable in the United
States is not an argument to grant him one in the present case. Extradition proceedings are
separate and distinct from the trial for the offenses for which he is charged. He should apply
for bail before the courts trying the criminal cases against him, not before the extradition
court.
Exceptions to the No Bail Rule
Bail is not a matter of right in extradition cases. It is subject to judicial discretion in the
context of the peculiar facts of each case. Bail may be applied for and granted as an
exception, only upon a clear and convincing showing
1) that, once granted bail, the applicant will not be a flight risk or a danger to the
community; and
2) that there exist special, humanitarian and compelling circumstances including, as a
matter of reciprocity, those cited by the highest court in the requesting state when it grants
provisional liberty in extradition cases therein
Since this exception has no express or specific statutory basis, and since it is derived
essentially from general principles of justice and fairness, the applicant bears the burden of
proving the above two-tiered requirement with clarity, precision and emphatic forcefulness.
It must be noted that even before private respondent ran for and won a congressional seat
in Manila, it was already of public knowledge that the United States was requesting his
extradition. Therefore, his constituents were or should have been prepared for the
consequences of the extradition case. Thus, the court ruled against his claim that his
election to public office is by itself a compelling reason to grant him bail.
Giving premium to delay by considering it as a special circumstance for the grant of bail
would be tantamount to giving him the power to grant bail to himself. It would also
encourage him to stretch out and unreasonably delay the extradition proceedings even
more. Extradition proceedings should be conducted with all deliberate speed to determine
compliance with the Extradition Treaty and Law; and, while safeguarding basic individual
rights, to avoid the legalistic contortions, delays and technicalities that may negate that
purpose.
That he has not yet fled from the Philippines cannot be taken to mean that he will stand
his ground and still be within reach of our government if and when it matters; that is, upon
the resolution of the Petition for Extradition.
iii.

NO.

Potential extraditees are entitled to the rights to due process and to fundamental fairness.
The doctrine of right to due process and fundamental fairness does not always call for a prior
opportunity to be heard. A subsequent opportunity to be heard is enough. He will be given
full opportunity to be heard subsequently, when the extradition court hears the Petition for
Extradition. Indeed, available during the hearings on the petition and the answer is the full
chance to be heard and to enjoy fundamental fairness that is compatible with the summary
nature of extradition.
It is also worth noting that before the US government requested the extradition of
respondent, proceedings had already been conducted in that country. He already had that
opportunity in the requesting state; yet, instead of taking it, he ran away.
Other Doctrines:
Five Postulates of Extradition
1) Extradition Is a Major Instrument for the Suppression of Crime
In this era of globalization, easier and faster international travel, and an expanding ring of
international crimes and criminals, we cannot afford to be an isolationist state. We need to
cooperate with other states in order to improve our chances of suppressing crime in our own
country.
2)

The Requesting State Will Accord Due Process to the Accused

By entering into an extradition treaty, the Philippines is deemed to have reposed its trust
in the reliability or soundness of the legal and judicial system of its treaty partner, as well as
in the ability and the willingness of the latter to grant basic rights to the accused in the
pending criminal case therein.
3)

The Proceedings Are Sui Generis

An extradition proceeding is sui generis:

a) It is not a criminal proceeding which will call into operation all the rights of an accused as
guaranteed by the Bill of Rights. It does not involve the determination of the guilt or
innocence of an accused. His guilt or innocence will be adjudged in the court of the state
where he will be extradited.
b) An extradition proceeding is summary in nature while criminal proceedings involve a fullblown trial.
c) In terms of the quantum of evidence to be satisfied, a criminal case requires proof
beyond reasonable doubt for conviction while a fugitive may be ordered extradited upon
showing of the existence of a prima facie case
d) Unlike in a criminal case where judgment becomes executory upon being rendered final,
in an extradition proceeding, our courts may adjudge an individual extraditable but the
President has the final discretion to extradite him.
Extradition is merely a measure of international judicial assistance through which a person
charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that
person. The ultimate purpose of extradition proceedings in court is only to determine
whether the extradition request complies with the Extradition Treaty, and whether the person
sought is extraditable.
4)

Compliance Shall Be in Good Faith.

We are bound by pacta sunt servanda to comply in good faith with our obligations
under the Treaty. Accordingly, the Philippines must be ready and in a position to deliver the
accused, should it be found proper
5)

There Is an Underlying Risk of Flight

Indeed, extradition hearings would not even begin, if only the accused were
willing to submit to trial in the requesting country. Prior acts of herein respondent:
a) leaving the requesting state right before the conclusion of his indictment proceedings
there; and
b) remaining in the requested state despite learning that the requesting state is seeking his
return and that the crimes he is charged with are bailable
Extradition is Essentially Executive
Extradition is essentially an executive, not a judicial, responsibility arising out of the
presidential power to conduct foreign relations and to implement treaties. Thus, the
Executive Department of government has broad discretion in its duty and power of
implementation.

Rodriguez vs. Judge, GR No. 157977, February 27 2006

FACTS:
After the arrest of petitioners Eduardo Tolentino Rodriguez and Imelda Gener Rodriguez,
they applied for bail which the trial court granted on September 25, 2001. They posted cash
bonds for the bail set for P1M for each. The US government moved for reconsideration of the
grant of bail which was denied. The US government filed a petition for certiorari entitled
Govt of the USA v. Hon. Ponferrada where the court directed the trial court to resolve the
matter of bail guided by this courts ruling on Government of the USA v. Hon. Purganan. The
lower court, without prior notice and hearing, cancelled the cash bond of the petitioners and
ordered the issuance of a warrant of arrest. Petitioners filed a very urgent motion for the
reconsideration of the cancellation of their bail which was denied. Hence, this special civil
action for certiorari and prohibition directed against the order for cancellation of cash bond
and issuance of a warrant of arrest.
ISSUE: Whether or NOT there should be notice and hearing before the cancellation of bail
HELD: YES. Petition is GRANTED IN PART. SET ASIDE for petitioner IMELDA GENER
RODRIGUEZ.
The grant of the bail, presupposes that the co-petitioner has already presented evidence to
prove her right to be on bail, that she is no flight risk, and the trial court had already
exercised its sound discretion and had already determined that under the Constitution and
laws in force, co-petitioner is entitled to provisional release.
Under these premises, co-petitioner Imelda Gener Rodriguez has offered to go on
voluntary extradition; that she and her husband had posted a cash bond of P1 million each;
that her husband had already gone on voluntary extradition and is presently in the USA
undergoing trial; that the passport of co-petitioner is already in the possession of the
authorities; that she never attempted to flee; that there is an existing hold-departure order
against her; and that she is now in her 60s, sickly and under medical treatment, we believe
that the benefits of continued temporary liberty on bail should not be revoked and their grant

of bail should not be cancelled, without the co-petitioner being given notice and without her
being heard why her temporary liberty should not be discontinued. Absent prior notice and
hearing, the bails cancellation was in violation of her right to due process.
We emphasize that bail may be granted to a possible extraditee only upon a clear and
convincing showing that:
1) he will not be a flight risk or a danger to the community; and
2) there exist special, humanitarian and compelling circumstances

Govt of Hongkong vs. Olalia, GR No. 153675, April 19 2007

This case discusses whether the right to bail guaranteed under the Bill of Rights
extends to a prospective extradite in an extradition1 proceeding.
On January 30, 1995, the Republic of the Philippines and the then British Crown
Colony of Hong Kong signed an "Agreement for the Surrender of Accused and
Convicted Persons." It took effect on June 20, 1997.
The Petitioner is the Government of Hong Kong Special Administrative
Region, represented by the Philippine Department of Justice
The Respondents are Judge Felix Olalia and Juan Antonio Muoz

Facts: Private respondent Muoz was charged before the Hong Kong Court

with three (3) counts of the offense of "accepting an advantage as agent," in

violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of
Hong Kong. He also faces seven (7) counts of the offense of conspiracy to
defraud, penalized by the common law of Hong Kong. Warrants of arrest were
issued against him. If convicted, he faces a jail term of seven (7) to fourteen (14)
years for each charge.

On September 13, 1999, the DOJ received from the Hong Kong Department of
Justice a request for the provisional arrest of private respondent. The RTC,
Branch 19, Manila issued an Order of Arrest against private respondent. That same
day, the NBI agents arrested and detained him.

Private respondent filed a petition for bail which was opposed by petitioner. After
hearing, Judge Bernardo, Jr. issued an Order denying the petition for bail,
holding that there is no Philippine law granting bail in extradition cases and that
private respondent is a high "flight risk." Judge Bernardo, Jr. inhibited himself from
further hearing the case, it was then raffled off to Branch 8 presided by respondent
judge. Private respondent filed a motion for reconsideration of the Order denying
his application for bail and this was granted by respondent judge.
Petitioner filed an urgent motion to vacate the above Order, but it was denied by
respondent judge. Hence, the instant petition.
Issue: Whether or not respondent judge acted with grave abuse of discretion
amounting to lack or excess of jurisdiction as there is no provision in the Constitution
granting bail to a potential extraditee.

Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition" as "the
removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to
enable the requesting state or government to hold him in connection with any criminal investigation directed
against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or
government."

Held: No. Bearing in mind the purpose of extradition proceedings, the premise
behind the issuance of the arrest warrant and the "temporary detention" is the
possibility of flight of the potential extraditee. This is based on the assumption that
such extraditee is a fugitive from justice. Given the foregoing, the prospective
extraditee thus bears the onus probandi of showing that he or she is not a flight risk
and should be granted bail.

Ratio:
The Philippines, along with the other members of the family of nations, committed
to uphold the fundamental human rights as well as value the worth and dignity
of every person. Clearly, the right of a prospective extraditee to apply for bail in this
jurisdiction must be viewed in the light of the various treaty obligations of
the Philippines concerning respect for the promotion and protection of
human rights. Under these treaties, the presumption lies in favor of human liberty.
Thus, the Philippines should see to it that the right to liberty of every individual is not
impaired.
Extradition is not a trial to determine the guilt or innocence of the potential
extraditee. Nor is it a full-blown civil action, but one that is merely
administrative in character. Its object is to prevent the escape of a person
accused or convicted of a crime and to secure his return to the state from which
he fled, for the purpose of trial or punishment. It does not necessarily mean that
in keeping with its treaty obligations, the Philippines should diminish a
potential extraditees rights to life, liberty, and due process. More so, where
these rights are guaranteed, not only by our Constitution, but also by international
conventions, to which the Philippines is a party. We should not, therefore, deprive an
extraditee of his right to apply for bail, provided that a certain standard for the grant
is satisfactorily met.
In his Separate Opinion in Purganan, then Associate Justice Puno, proposed that a
new standard which he termed "clear and convincing evidence" should be used
in granting bail in extradition cases. According to him, this standard should be
lower than proof beyond reasonable doubt but higher than preponderance of
evidence. The potential extraditee must prove by "clear and convincing evidence"
that he is not a flight risk and will abide with all the orders and processes of the
extradition court.
In this case, there is no showing that private respondent presented evidence
to show that he is not a flight risk. Consequently, this case should be remanded
to the trial court to determine whether private respondent may be granted bail on
the basis of "clear and convincing evidence."
WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court
to determine whether private respondent is entitled to bail on the basis of "clear and
convincing evidence." If not, the trial court should order the cancellation of his bail
bond and his immediate detention; and thereafter, conduct the extradition
proceedings with dispatch.

I. International Human Right Law (1998 Rome Statute; Universal Declaration of

Human Rights; International Covenant on Economic, Social and Cultural Rights)
Marcos vs. Manglapus, GR No. 88211, September 15, 1989
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. Honasans 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 Aquinos decision to bar Marcos from
returning in the Philippines. Petitioner questions Aquinos 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. Theyre 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.

Fernan, Concurring

1. The presidents power is not fixed. Limits would depend on the imperatives of events and not
on abstract theories of law. We are undergoing a critical time and the current problem can
only be answerable by the President.
2. Threat is real. Return of the Marcoses would pose a clear & present danger. Thus, its the
executives responsibility & obligation to prevent a grave & serious threat to its safety from
arising.
3. We cant sacrifice public peace, order, safety & our political & economic gains to give in to
Marcos wish to die in the country. Compassion must give way to the other state interests.

Cruz, Dissenting
1. As a citizen of this country, it is Marcos right to return, live & die in his own country. It is a
right guaranteed by the Consti to all individuals, whether patriot, homesick, prodigal, tyrant,
etc.
2. Military representatives failed to show that Marcos return would pose a threat to national
security. Fears were mere conjectures.
3. Residual powers but the executives powers were outlined to limit her powers & not expand.

Paras, Dissenting
1. AFP has failed to prove danger which would allow State to impair Marcos right to return to
the Philippines. .
2. Family can be put under house arrest & in the event that one dies, he/she should be buried
w/in 10 days.
3. Untenable that without a legislation, right to travel is absolute & state is powerless to restrict
it. Its w/in police power of the state to restrict this right if national security, public
safety/health demands that such be restricted. It cant be absolute & unlimited all the time. It
cant be arbitrary & irrational.
4. No proof that Marcos return would endanger national security or public safety. Fears are
speculative & military admits that its under control. Filipinos would know how to handle
Marcos return.

Padilla, Dissenting
Sarmiento, Dissenting
1. Presidents determination that Marcos return would threaten national security should be
agreed upon by the court. Such threat must be clear & present.

And Ladlad LGBT Party vs. COMELEC, GR No. 190582, April 8 2010

FACTS:
Petitioner is an organization composed of men and women who identify
themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs).
Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in
2006 as a party-list organization under Republic Act 7941, otherwise known as the
Party-List System Act. The application for accreditation was denied on the ground
that the organization had no substantial membership base. In 2009, Ang Ladlad
again filed a petition for registration with the COMELEC upon which it was dismissed
on moral grounds.
Ang Ladlad sought reconsideration but the COMELEC upheld its First
Resolution, stating that the party-list system is a tool for the realization of
aspirations of marginalized individuals whose interests are also the nations. Until
the time comes when Ladlad is able to justify that having mixed sexual orientations
and transgender identities is beneficial to the nation, its application for
accreditation under the party-list system will remain just that. That the
Philippines cannot ignore its more than 500 years of Muslim and Christian
upbringing, such that some moral precepts espoused by said religions have sipped
into society and these are not publicly accepted moral norms. COMELEC reiterated
that petitioner does not have a concrete and genuine national poltical agenda to
benefit the nation and that the petition was validly dismissed on moral grounds. It
also argued for the first time that the LGBT sector is not among the sectors
enumerated by the Constitution and RA 7941. Thus Ladlad filed this petition for
Certiorari under Rule 65.
ISSUE:
Whether or not Petitioner should be accredited as a party-list organization
under RA 7941.
HELD:

The Supreme Court granted the petition and set aside the resolutions of the
COMELEC. It also directed the COMELEC to grant petitioners application for partylist accreditation.
The enumeration of marginalized and under-represented sectors is not
exclusive. The crucial element is not whether a sector is specifically enumerated,
but whether a particular organization complies with the requirements of the
Constitution and RA 7941. Ang Ladlad has sufficiently demonstrated its compliance
with the legal requirements for accreditation. Nowhere in the records has the
respondent ever found/ruled that Ang Ladlad is not qualified to register as a partylist organization under any of the requisites under RA 7941.
Our Constitution provides in Article III, Section 5 that no law shall be made
respecting an establishment of religion, or prohibiting the free exercise thereof. At
bottom, what our non-establishment clause calls for is government neutrality in
religious matters. Clearly, governmental reliance on religious justification is
inconsistent with this policy of neutrality.
Laws of general application should apply with equal force to LGBTs and they
deserve to participate in the party-list system on the same basis as other
marginalized and under-represented sectors.
The principle of non-discrimination requires the laws of general application
relating to elections be applied to all persons, regardless of sexual orientation.
J. International Humanitarian Law and Neutrality (Art. 2(3), 2(4) of the UN Charter;
1949 Geneva Red Cross Convention of 1907, Advisory Opinion on the Legality of
Threat or use of Nuclear Weapons, ICJ Report, July 8 1996; Republic Act No. 9851,
Philippine Act on Crimes Against International Humanitarian Law, Genocide, and
Other Crimes Against Humanity)
1. Categories of armed conflicts
a) International armed conflicts
b) Internal or non-international armed conflicts
c) War of national liberation
2. Core international obligations of states in International Humanitarian Law
3. Principles of International Humanitarian Law
a) Treatment of civilians
b) Prisoners of war
4. Law on Neutrality
Yamashita vs. Styler, 75 Phil 563 (1945)

Summary
At the end of the Second World War, Tomoyuki Yamashita was a Commander in the Japanese Army
serving in the Philippines. His troops were allegedly responsible for killing, torturing and raping thousands
of civilians.
On 3 September 1945, Yamashita surrendered to the United States army. A US military commission tried
him for violations of the laws of war. Yamashita was charged with having failed to perform his duties as an
army commander to control the operations of his troops, thus permitting them to commit atrocities. He
was convicted and sentenced to death by hanging.

Yamashita appealed at the US Supreme Court, because the military commission had lacked many
procedural and evidential protections. The Supreme Court denied this appeal. The Supreme Court ruled
that even if Yamashita did not know about the crimes committed by his subordinates, because of his
position as a superior, he should have known. Yamashita was executed on 23 February 1946.
The outcome of this case has been much debated and criticised, because of the claimed lack of evidence
and the should have known criteria as described by the Supreme Court.
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Procedural history
On 3 September 1945, the accused surrendered to the United States Army and became a prisoner of war.
The accused was a former Commanding General of the Fourteenth Army Group of the Imperial Japanese
Army in the Philippines.
A military commission was appointed by General Styer in order to try the accused for a violation of the
laws of war.
On 8 October 1945, the accused was held for trial before a military commission of five Army officers
appointed by order of General Styer. The accused had allegedly failed in his duty as an army commander
to control the operations of his troops, permitting them to commit specified atrocities against the civilian
population and prisoners of war. Yamashita was found guilty and sentenced to death by hanging on 7
December 1945.
Yamashita addressed the Supreme Court of the Philippines for a writ of habeas corpus, but this was
denied on jurisdictional grounds.
He then lastly addressed the United States Supreme Court a petition for habeas corpus, which is the
current decision.
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Related developments
Yamashita was executed on 23 February 1946.
The Yamashita case set a precedent for command responsibility:
The modern legal standard governing the doctrine of command responsibility in the United States rests
upon the precedent established by the United States Supreme Court in the case of General Tomoyuki
Yamashita. The Court's holding has become known as the "Yamashita Standard" (A.E. Mahle, 'The
Yamashita Standard', PBS).
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Legally relevant facts

The petition for habeas corpus by the accused alleged that the detention of the petitioner for the purpose
of the trial was unlawful for several reasons:

The military commission was not lawfully created;

The charge against the petitioner fails to charge him with a violation of the laws of war;

The commission was without authority and jurisdiction to try and convict petitioner.

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Core legal questions

Was the military commission unlawfully established and without jurisdiction?

Could the commission lawfully try Yamashita after hostilities had ceased for his failure to stop his
subordinates from committing violations of the law of war?

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Specific legal rules and provisions

Articles 60 and 63 of the 1929 Geneva Convention relative to the Treatment of Prisoners of War.

Articles 8, 15, 25 and 38 of the Articles of War.

Articles 1, 8, 9 and 10 of the United States Constitution.

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Court's holding and analysis

The Supreme Court disagrees that the military commission unlawfully created and without jurisdiction and
denies the writ. The Court held that the commission was not only created by a commander competent to
appoint it, but his order conformed to the established policy of the government and was in complete
conformity with the Articles of War.
Moreover, there was authority to convene the commission, even after hostilities had ended, to try
violations of the law of war that were committed before the wars cessation, at least until peace was
officially recognized by treaty or proclamation.
Further, the accused was not entitled to any of the evidentiary and procedural protections afforded by the
Geneva Convention, part 3, chapter 3, V, title III, because that applied only to persons subjected to
judicial proceedings for offenses committed while prisoners of war.
The Court held that the Articles of War are not applicable to the trial of an enemy combatant by a military
commission; therefore the military commission did not violate any Acts of Congress.

Liban vs Gordon, GR No. 175352, January 18 2011

G. R. No.175352: January 18, 2011

DANTE V. LIBAN, REYNALDO M. BERNARDO and SALVADOR M. VIARI, Petitioners
vs. RICHARD J. GORDON,Respondent. PHILIPPINE NATIONAL RED CROSS,
Intervenor.
LEONARDO-DE CASTRO, J.:
FACTS: Respondent filed a motion for partial recommendation on a Supreme Court

decision which ruled that being chairman of the Philippine National Red Cross (PNRC) did
not disqualify him from being a Senator, and that the charter creating PNRC is
unconstitutional as the PNRC is a private corporation and the Congress is precluded by the
Constitution to create such.The Court then ordered the PNRC to incorporate itself with the
SEC as a private corporation. Respondent takes exception to the second part of the ruling,
which addressed the constitutionality of the statute creating the PNRC as a private
corporation. Respondent avers that the issue of constitutionality was only touched upon in
the issue of locus standi. It is a rule that the constitutionality will not be touched upon if it is
not the lis mota of the case.
ISSUE: Whether or not it was proper for the Court to have ruled on the constitutionality of
the PNRC statute.
HELD: Petition has merit.
Political Law: It has been consistently held in Jurisprudence that the Court should
exercise judicial restraint when it comes to issues of constitutionality where it is not
the lis mota of the case.
In the case at bar, the constitutionality of the PNRC statute was raised in the issue of
standing. As such, the Court should not have declared certain provisions of such as
unconstitutional. On the substantive issue, the PNRC is sui generis. It is unlike the private
corporations that the Constitution wants to prevent Congress from creating. First, the PNRC
is not organized for profit. It is an organization dedicated to assist victims of war and
administer relief to those who have been devastated by calamities, among others. It is
entirely devoted to public service. It is not covered by the prohibition since the Constitution
aims to eliminate abuse by the Congress, which tend to favor personal gain. Secondly, the
PNRC was created in order to participate in the mitigation of the effects of war, as embodied
in the Geneva Convention. The creation of the PNRC is compliance with international treaty
obligations. Lastly, the PNRC is a National Society, an auxiliary of the government. It is not
like government instrumentalities and GOCC. The PNRC is regulated directly by
international humanitarian law, as opposed to local law regulating the other mentioned
entities. As such, it was improper for the Court to have declared certain portions of the
PNRC statute as unconstitutional. However, it is the stand of Justice Carpio that there is no
mandate for the Government to create a National Society to this effect. He also raises the
fact that the PNRC is not sui generis in being a private corporation organized for public
needs. Justice Abad is of the opinion that the PNRC is neither private or governmental,
hence it was within the power of Congress to create.

Bayan Muna vs. Romulo, GR No. 159618, February 1, 2011

Case Digest: Bayan Muna v. Romulo

G.R. No. 159618 : February 1, 2011
BAYAN MUNA, as represented by REP. SATUR OCAMPO, ET AL., Petitioners, v.
ALBERTO ROMULO, in his capacity as Executive Secretary, et al., Respondents.
VELASCO, JR.,J.:
FACTS:
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 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.
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.
ViaExchange of Notes No. BFO-028-03 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.Inesse, theAgreementaims to protect what it refers to
and defines aspersons 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 theUSand 33 other
countries.
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.
For their part, respondents question petitioners standing to maintain a suit and counter that

the Agreement, being in the nature of an executive agreement, does not require Senate
concurrence for its efficacy. And for reasons detailed in their comment, respondents assert
the constitutionality of the Agreement.
ISSUES:
1) whether or not the Agreement was contracted validly, which resolves itself into the
question of whether or not respondents gravely abused their discretion in concluding it; and
2) whether or not the Agreement,which has not been submitted to the Senate for
concurrence, contravenes and undermines the Rome Statute and other treaties.But
because respondents expectedly raised it, we shall first tackle the issue of petitioners legal
standing.
HELD: This petition is bereft of merit.
REMEDIAL LAW:locus standi of petitioner
Locus standi is a right of appearance in a court of justice on a given question. Specifically, it
is a party's personal and substantial interest in a case where he has sustained or will
sustain direct injury as a result of the act being challenged, and calls for more than just a
generalized grievance. The term interest refers to material interest, as distinguished from
one that is merely incidental.The rationale for requiring a party who challenges the validity
of a law or international agreement to allege such a personal stake in the outcome of the
controversy is to assure the concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional
questions.
Locus standi, however, is merely a matter of procedure and it has been recognized that, in
some cases, suits are not brought by parties who have been personally injured by the
operation of a law or any other government act, but by concerned citizens, taxpayers, or
voters who actually sue in the public interest.Consequently, in a catena of cases, this Court
has invariably adopted a liberal stance on locus standi.
Going by the petition, petitioners representatives pursue the instant suit primarily as
concerned citizens raising issues of transcendental importance, both for the Republic and
the citizenry as a whole.
When suing as a citizen to question the validity of a law or other government action, a
petitioner needs to meet certain specific requirements before he can be clothed with
standing.Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc.expounded on this requirement, thus:
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.
When suing as acitizen, the interest of the petitioner assailing the constitutionality of a
statute must be direct and personal. He must be able to show, not only that the law or any
government act is invalid, but also that he sustained or is in imminent danger of sustaining

some direct injury as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way.It must appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute or act complained of.In
fine, when the proceeding involves the assertion of a public right, the mere fact that he is a
citizen satisfies the requirement of personal interest.
In the case at bar, petitioners representatives have complied with the qualifying conditions
or specific requirements exacted under thelocus standirule.As citizens, their interest in the
subject matter of the petition is direct and personal.At the very least, their assertions
questioning theAgreementare made of a public right,i.e., to ascertain that theAgreementdid
not go against established national policies, practices, and obligations bearing on the States
obligation to the community of nations.
POLITICAL LAW: Validity of the RP-US Non-Surrender Agreement
Petitioners 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 jargon 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. It is fairly clear from the foregoing
disquisition that E/NBFO-028-03be 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.
POLITICAL LAW: Senate Concurrence Not Required; treaties
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as an
international agreement concluded between states in written form and governed by
international law,whether embodied in a single instrument or in two or more related
instrumentsand 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
than treaties.
Under international law, there is no difference between treaties and executive agreements
in terms of their binding effects on the contracting states concerned,as long as the
negotiating functionaries have remained within their powers.Neither,on the domestic sphere,
can one be held valid if it violates the Constitution.Authorities are, however, agreed that one
is distinct from another for accepted reasons apart from the concurrence-requirement
aspect. As has been observed by US constitutional scholars, a treaty has greater dignity
than an executive agreement, because its constitutional efficacy is beyond doubt, a treaty
having behind it the authority of the President, the Senate, and the people;a ratified treaty,
unlike an executive agreement, takes precedence over any prior statutory enactment.
POLITICAL LAW: The Agreement Not in Contravention of the Rome Statute
Contrary to petitioners pretense, theAgreementdoes not contravene or undermine, nor does
it differ from, the Rome Statute.Far from going against each other, one complements the
other.As a matter of fact, the principle of complementarity underpins the creation of the
ICC.As aptly pointed out by respondents and admitted by petitioners, the jurisdiction of the
ICC is to be complementary to national criminal jurisdictions of the signatory states. Art. 1 of
the Rome Statute pertinently provides:
Article 1
The Court
AnInternational Crimininal Court(the Court) is hereby established.It x x xshall have the
power to exercise its jurisdictionover persons for the most serious crimes of international
concern, as referred to in this Statute, andshall be complementary to national criminal
jurisdictions.The jurisdiction and functioning of the Court shall be governed by the
provisions of this Statute.
Significantly, the sixth preambular paragraph of the Rome Statute declares that it is the duty
of every State to exercise its criminal jurisdiction over those responsible for international
crimes.This provision indicates that primary jurisdiction over the so-called international
crimes rests, at the first instance, with the state where the crime was committed;
secondarily, with the ICC in appropriate situations contemplated under Art. 17, par. 1of
theRomeStatute.

Of particular note is the application of the principle ofne bis in idemunder par. 3 of Art. 20,
Rome Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis
that of the ICC.As far as relevant, the provision states that no person who has been tried by
another court for conduct [constituting crimes within its jurisdiction] shall be tried by the
[International Criminal] Court with respect to the same conduct.
The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of
jurisdictional conflict between the Philippines, as party to the non-surrender agreement, and
the ICC; or the idea of theAgreementsubstantially impairing the value of the RPs
undertaking under the Rome Statute.Ignoring for a while the fact that the RP signed the
Rome Statute ahead of the Agreement, it is abundantly clear to us that the Rome Statute
expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes
committed within their respective borders, the complementary jurisdiction of the ICC coming
into play only when the signatory states are unwilling or unable to prosecute.
Given the above consideration, petitioners suggestionthat the RP, by entering into
theAgreement, violated its duty required by the imperatives of good faith and breached its
commitment under the Vienna Conventionto refrain from performing any act tending to
impair the value of a treaty, e.g., the Rome Statutehas to be rejected outright.For nothing in
the provisions of the Agreement,in relation to the Rome Statute, tends to diminish the
efficacy of the Statute, let alone defeats the purpose of the ICC.Lest it be overlooked, the
Rome Statute contains a proviso that enjoins the ICC from seeking the surrender of an
erring person, should the process require the requested state to perform an act that would
violate some international agreement it has entered into.We refer to Art. 98(2) of the Rome
Statute, which reads:
Article 98
Cooperation with respect to waiver of immunity and consent to surrender
2. The Court may not proceed with a request for surrender which would require the
requested State to act inconsistently with its obligations under international agreements
pursuant to which the consent of a sending State is required to surrender a person of that
State to the Court, unless the Court can first obtain the cooperation of the sending State for
the giving of consent for the surrender.
Moreover, under international law, there is a considerable difference between a State-Party
and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory
state is only obliged to refrain from acts which would defeat the object and purpose of a
treaty;whereas a State-Party, on the other hand, is legally obliged to follow all the provisions
of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a signatory to the Rome
Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to
refrain from acts which would defeat the object and purpose of the Rome Statute. Any
argument obliging the Philippines to follow any provision in the treaty would be premature.
As a result, petitioners argument that State-Parties with non-surrender agreements are

prevented from meeting their obligations under the Rome Statute, specifically Arts. 27, 86,
89 and 90, must fail. These articles are only legally binding upon State-Parties, not
signatories.
Furthermore, a careful reading of said Art. 90 would show that the Agreement is not
incompatible with the Rome Statute. Specifically, Art. 90(4) provides that if the requesting
State is a State not Party to this Statute the requested State, if it is not under an
international obligation to extradite the person to the requesting State, shall give priority to
the request for surrender from the Court In applying the provision, certain undisputed facts
should be pointed out:first, the US is neither a State-Party nor a signatory to the Rome
Statute; and second, there is an international agreement between the US and the
Philippines regarding extradition or surrender of persons, i.e., the Agreement. Clearly, even
assuming that the Philippines is a State-Party, the Rome Statute still recognizes the primacy
of international agreements entered into between States, even when one of the States is
not a State-Party to the Rome Statute.
POLITICAL LAW: Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by
bargaining away the jurisdiction of the ICC to prosecute US nationals, government
officials/employees or military personnel who commit serious crimes of international
concerns in the Philippines.Formulating petitioners argument a bit differently, the RP,by
entering into the Agreement, does thereby abdicate its sovereignty, abdication being done
by its waiving or abandoning its right to seek recourse through the Rome Statute of the ICC
for erring Americans committing international crimes in the country.
We are not persuaded.As it were, theAgreementis but a form of affirmance and confirmance
of thePhilippines national criminal jurisdiction.National criminal jurisdiction being primary, as
explained above, it is always the responsibility and within the prerogative of the RP either to
prosecute criminal offenses equally covered by the Rome Statute or to accede to the
jurisdiction of the ICC.Thus, thePhilippinesmay decide to try persons of theUS, as the term
is understood in theAgreement, under our national criminal justice system.Or it may opt not
to exercise its criminal jurisdiction over its erring citizens or overUSpersons committing high
crimes in the country and defer to the secondary criminal jurisdiction of the ICC over
them.As to persons of the US whom the Philippines refuses to prosecute, the country
would, in effect, accorddiscretion to the US to exercise either its national criminal jurisdiction
over the person concerned or to give its consent to the referral of the matter to the ICC for
trial.In the same breath, theUSmust extend the same privilege to thePhilippineswith respect
to persons of the RP committing high crimes withinUSterritorial jurisdiction.
To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the
postulate that some of its provisions constitute a virtual abdication of its sovereignty.Almost
every time a state enters into an international agreement, it voluntarily sheds off part of its
sovereignty.The Constitution, as drafted, did not envision a reclusivePhilippinesisolated
from the rest of the world.It even adheres, as earlier stated, to the policy of cooperation and
amity with all nations.
By their nature, treaties and international agreements actually have a limiting effect on the
otherwise encompassing and absolute nature of sovereignty.By their voluntary act, nations

may decide to surrender or waive some aspects of their state power or agree to limit the
exercise of their otherwise exclusive and absolute jurisdiction.The usual underlying
consideration in this partial surrender may be the greater benefits derived from a pact or a
reciprocal undertaking of one contracting party to grant the same privileges or immunities to
the other.On the rationale that the Philippines has adopted the generally accepted principles
of international law aspart of the law of the land, a portion of sovereignty may be waived
without violating the Constitution. Such waiver does not amount to an unconstitutional
diminution or deprivation of jurisdiction of Philippine courts.
POLITICAL LAW: 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; it precludes our country from
delivering an American criminal to the ICC.
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. 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.
REMEDIAL LAW: No Grave Abuse of Discretion
Petitioners final point revolves around the necessity of the Senates concurrence in the
Agreement.And without specifically saying so, petitioner would argue that the non-surrender
agreement was executed by the President, thru the DFA Secretary, in grave abuse of

discretion.
The Court need not delve on and belabor the first portion of the above posture of petitioner,
the same having been discussed at length earlier on.As to the second portion, We wish to
state thatpetitioner virtually faults the President for performing, through respondents, a task
conferred the President by the Constitutionthe power to enter into international agreements.
By constitutional fiat and by the nature of his or her office, the President, as head of state
and government, is the sole organ and authority in the external affairs of the country. The
Constitution vests in the President the power to enter into international agreements, subject,
in appropriate cases, to the required concurrence votes of the Senate.But as earlier
indicated, executive agreements may be validly entered into without such concurrence.As
the President wields vast powers and influence, her conduct in the external affairs of the
nation is, asBayanwould put it, executive altogether.The right of the President to enter into
or ratify binding executive agreements has been confirmed by long practice.
In thus agreeing to conclude theAgreementthru E/N BFO-028-03, then President Gloria
Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope
of the authority and discretion vested in her by the Constitution.At the end of the day, the
Presidentby ratifying, thru her deputies, the non-surrender agreementdid nothing more than
discharge a constitutional duty and exercise a prerogative that pertains to her office.
POLITICAL LAW: Agreement Need Not Be in the Form of a Treaty
A view is advanced that the Agreement amends existing municipal laws on the States
obligation in relation to grave crimes against the law of nations,i.e., genocide, crimes
against humanity and war crimes.Relying on the above-quoted statutory proviso, the view
posits that the Philippine is required to surrender to the proper international tribunal those
persons accused of the grave crimes defined under RA 9851, if it does not exercise its
primary jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not decide to prosecute a foreign
national for violations of RA 9851, the Philippines has only two options, to wit: (1) surrender
the accused to the proper international tribunal; or (2) surrender the accused to another
State if such surrender is pursuant to the applicable extradition laws and treaties.But the
Philippines may exercise these options only in cases where another court or international
tribunal is already conducting the investigation or undertaking the prosecution of such
crime; otherwise, the Philippines must prosecute the crime before its own courts pursuant to
RA 9851.
Posing the situation of a US national under prosecution by an international tribunal for any
crime under RA 9851, the Philippines has the option to surrender such US national to the
international tribunal if it decides not to prosecute such US national here.The view asserts
that this option of the Philippines under Sec. 17 of RA 9851 is not subject to the consent of
theUS, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the US
before the Philippines can exercise such option, requires an amendatory law.In line with this
scenario, the view strongly argues that theAgreementprevents thePhilippineswithout the
consent of theUSfrom surrendering to any international tribunal US nationals accused of
crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851.Consequently,

the view is strongly impressed that the Agreement cannot be embodied in a simple
executive agreement in the form of an exchange of notes but must be implemented through
an extradition law or a treaty with the corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where
thePhilippinesadopts, as a national policy, the generally accepted principles of international
law as part of the law of the land, the Court is further impressed to perceivethe Rome
Statute as declaratory of customary international law.In other words, the Statute embodies
principles of law which constitute customary international law or custom and for which
reason it assumes the status of an enforceable domestic law in the context of the aforecited
constitutional provision.As a corollary, it is argued that any derogation from the Rome
Statute principles cannot be undertaken via a mere executive agreement, which, as an
exclusive act of the executive branch, can only implement, but cannot amend or repeal, an
existing law.TheAgreement, so the argument goes, seeks to frustrate the objects of the
principles of law or alters customary rules embodied in the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced considers the Agreement
inefficacious, unless it is embodied in a treaty duly ratified with the concurrence of the
Senate, the theory being that a Senate- ratified treaty partakes of the nature of a municipal
law that can amend or supersede another law, in this instance Sec. 17 of RA 9851 and the
status of the Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II
of the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that the Agreement
does not amend or is repugnant to RA 9851.For another, the view does not clearly state
what precise principles of law, if any, the Agreement alters.And for a third, it does not
demonstrate in the concrete how the Agreement seeks to frustrate the objectives of the
principles of law subsumed in the Rome Statute.
Nonetheless, despite the lack of actual domestic legislation, theUSnotably follows the
doctrine of incorporation.As early as 1900, the esteemed Justice Gray inThe Paquete
Habana case already held international law as part of the law of theUS, to wit:
International law is part of our law, and must be ascertained and administered by the courts
of justice of appropriate jurisdiction as often as questions of right depending upon it are duly
presented for their determination. For this purpose, where there is no treaty and no
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.
Thus, a person can be tried in the US for an international crime despite the lack of domestic
legislation.The cited ruling in U.S. v. Coolidge,which in turn is based on the holding inU.S. v.
Hudson, only applies to common law and not to the law of nations or international
law.Indeed, the Court inU.S. v. Hudson only considered the question, whether the Circuit
Courts of the United States can exercise a common law jurisdiction in criminal cases.Stated
otherwise, there is no common law crime in the US but this is considerably different from

international law.
TheUSdoubtless recognizes international law as part of the law of the land, necessarily
including international crimes, even without any local statute.In fact, years later, US courts
would apply international law as a source of criminal liability despite the lack of a local
statute criminalizing it as such. So it was that in Ex Parte Quir in the US Supreme Court
noted that from the very beginning of its history this Court has recognized and applied the
law of war as including that part of the law of nations which prescribes, for the conduct of
war, the status, rights and duties of enemy nations as well as of enemy individuals. It went
on further to explain that Congress had not undertaken the task of codifying the specific
offenses covered in the law of war, thus:
It is no objection that Congress in providing for the trial of such offenses has not itself
undertaken to codify that branch of international law or to mark its precise boundaries, or to
enumerate or define by statute all the acts which that law condemns. An Act of Congress
punishing the crime of piracy as defined by the law of nations is an appropriate exercise of
its constitutional authority, Art. I, s 8, cl. 10, to define and punish the offense since it has
adopted by reference the sufficiently precise definition of international law. Similarly by the
reference in the 15th Article of War to offenders or offenses that by the law of war may be
triable by such military commissions. Congress has incorporated by reference, as within the
jurisdiction of military commissions, all offenses which are defined as such by the law of
war, and which may constitutionally be included within that jurisdiction.
This rule finds an even stronger hold in the case of crimes against humanity. It has been
held that genocide, war crimes and crimes against humanity have attained the status of
customary international law.Some even go so far as to state that these crimes have attained
the status of jus cogens.
Customary international law or international custom is a source of international law as
stated in the Statute of the ICJ. It is defined as the general and consistent practice of states
recognized and followed by them from a sense of legal obligation.In order to establish the
customary status of a particular norm, two elements must concur: State practice, the
objective element; andopinio juris sive necessitates, the subjective element.
State practice refers to the continuous repetition of the same or similar kind of acts or norms
by States.It is demonstrated upon the existence of the following elements: (1) generality; (2)
uniformity and consistency; and (3) duration. While,opinio juris, the psychological element,
requires that the state practice or norm be carried out in such a way, as to be evidence of a
belief that this practice is rendered obligatory by the existence of a rule of law requiring it.
The term jus cogens means the compelling law.Corollary, ajus cogensnorm holds the
highest hierarchical position among all other customary norms and principles.As a result,jus
cogensnorms 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 states cannot derogate from them, even by agreement.
These jus cogens crimes relate to the principle of universal jurisdiction, i.e., any state may
exercise jurisdiction over an individual who commits certain heinous and widely condemned
offenses, even when no other recognized basis for jurisdiction exists.The rationale behind

this principle is that the crime committed is so egregious that it is considered to be

committed against all members of the international community and thus granting every
State jurisdiction over the crime.
Therefore, even with the current lack of domestic legislation on the part of the US, it still has
both the doctrine of incorporation and universal jurisdiction to try these crimes.
WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby
DISMISSED for lack of merit.