1

BAYAN (BagongAlyansangMakabayan), a Junk VFA Movement, Bishop Tomas

Millamena (Iglesia Filipina Independiente), Bishop Elmer Bolocan (United Church
of Christ of the Phil.), Dr. Reynaldo Legasca, Md, KilusangMambubukid Ng
Pilipinas, Kilusang Mayo Uno, Gabriela, Prolabor, and The Public Interest Law
Center, petitioners, vs. Executive Secretary Ronaldo Zamora, Foreign Affairs
Secretary Domingo Siazon, Defense Secretary Orlando Mercado, Brig. Gen.
Alexander Aguirre, Senate President Marcelo Fernan, Senator Franklin Drilon,
Senator Blas Ople, Senator Rodolfo Biazon, And Senator Francisco Tatad,
respondents.

Facts: On March 14, 1947, the Philippines and the United States of America forged a
Military Bases Agreement which formalized, among others, the use of installations in the
Philippine territory by United States military personnel. In view of the impending
expiration of the RP-US Military Bases Agreement in 1991, the Philippines and the
United States negotiated for a possible extension of the military bases agreement. On
September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of
Friendship, Cooperation and Security which, in effect, would have extended the
presence of US military bases in the Philippines. On July 18, 1997, the United States
panel, headed by US Defense Deputy Assistant Secretary for Asia Pacific Kurt
Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary
Rodolfo Severino Jr., to exchange notes on the complementing strategic interests of
the United States and the Philippines in the Asia-Pacific region. Both sides discussed,
among other things, the possible elements of the Visiting Forces Agreement (VFA for
brevity). Thereafter, then President Fidel V. Ramos approved the VFA, which was
respectively signed by public respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard. On October 5, 1998, President Joseph E. Estrada,
through respondent Secretary of Foreign Affairs, ratified the VFA. On October 6, 1998,
the President, acting through respondent Executive Secretary Ronaldo Zamora,
officially transmitted to the Senate of the Philippines, the Instrument of Ratification, the
letter of the President and the VFA, for concurrence pursuant to Section 21, Article VII of
the 1987 Constitution

Issues (justiciable controversy): (1) Whether or not petitioners have legal standing as
concerned citizens, taxpayers, or legislators to question the constitutionality of the VFA;
(2) whether the VFA is governed by the provisions of Section 21, Article VII or of Section
25, Article XVIII of the Constitution; (3) and whether or not the Supreme Court has
jurisdiction.

Ruling: (1) No. Petitioners failed to show that they have sustained, or are in danger of
sustaining any direct injury as a result of the enforcement of the VFA. As taxpayers,
petitioners have not established that the VFA involves the exercise by Congress of its
taxing or spending powers. On this point, it bears stressing that a taxpayers suit refers
to a case where the act complained of directly involves the illegal disbursement of public
funds derived from taxation.
 2

(2) Yes.The fact that the President referred the VFA to the Senate under Section 21,
Article VII, and that the Senate extended its concurrence under the same provision, is
immaterial. For in either case, whether under Section 21, Article VII or Section 25,
Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is
mandatory to comply with the strict constitutional requirements.

(3) No. In fine, absent any clear showing of grave abuse of discretion on the part of
respondents, the Court as the final arbiter of legal controversies and staunch sentinel of
the rights of the people is then without power to conduct an incursion and meddle with
such affairs purely executive and legislative in character and nature. For the
Constitution no less, maps out the distinct boundaries and limits the metes and bounds
within which each of the three political branches of government may exercise the
powers exclusively and essentially conferred to it by law.

Lim vs. Executive Secretary G.R. No. 151445 April 11, 2002
FACTS :
Beginning 2002, personnel from the armed forces of the United States started arriving in
Mindanao, to take part, in conjunction with the Philippine military, in Balikatan 02-1. In
theory, they are a simulation of joint military maneuvers pursuant to the Mutual Defense
Treaty, a bilateral defense agreement entered into by the Philippines and the United
States in 1951.
On Feb. 2002, Lim filed this petition for certiorari and prohibition, praying that
respondents be restrained from proceeding with the so-called Balikatan 02-1, and that
after due notice and hearing, judgment be rendered issuing a permanent writ of injuction
and/or prohibition against the deployment of US troops in Basilan and Mindanao for
being illegal and in violation of the Constitution.
Petitioners contend that the RP and the US signed the Mutual Defense Treaty to
provide mutual military assistance in accordance with the constitutional processes of
each country only in the case of a armed attack by an external aggressor, meaning a
third country, against one of them. They further argued that it cannot be said that the
Abu Sayyaf in Basilan constitutes an external aggressor to warrant US military
assistance in accordance with MDT of 1951. Another contention was that the VFA of
1999 does not authorize American soldiers to engage in combat operations in Philippine
territory.
ISSUE :
Whether or not the Balikatan 02-1 activities are covered by the VFA.
RULING :
 3

Petition is dismissed. The VFA itself permits US personnel to engage on an

impermanent basis, in activities, the exact meaning of which is left undefined. The sole
encumbrance placed on its definition is couched in the negative, in that the US
personnel must abstain from any activity inconsistent with the spirit of this agreement,
and in particular, from any political activity.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is
only logical to assume that Balikatan 02-1 a mutual anti terrorism advising assisting
and training exercise falls under the umbrella of sanctioned or allowable activities in the
context of the agreement. Both the history and intent of the Mutual Defense Treaty and
the VFA support the conclusion that combat-related activities as opposed to combat
itself such as the one subject of the instant petition, are indeed authorized.

Pimentel vs. Executive Sec. Ermita

472 SCRA 587 Political Law Commission on Appointment Ad Interim
Appointments vs Appointments in an Acting Capacity
Law on Public Officers Modes and Kinds of Appointment
While Congress was in session, due to vacancies in the cabinet, then president Gloria
Macapagal-Arroyo (GMA) appointed Arthur Yap et al as secretaries of their respective
departments. They were appointed in an acting capacity only. Senator Aquilino Pimentel
together with 7 other senators filed a complaint against the appointment of Yap et al.
Pimentel averred that GMA cannot make such appointment without the consent of the
Commission on Appointment; that, in accordance with Section 10, Chapter 2, Book IV of
Executive Order No. 292, only the undersecretary of the respective departments should
be designated in an acting capacity and not anyone else.
On the contrary, then Executive Secretary Eduardo Ermita averred that the president is
empowered by Section 16, Article VII of the 1987 Constitution to issue appointments in
an acting capacity to department secretaries without the consent of the Commission on
Appointments even while Congress is in session. Further, EO 292 itself allows the
president to issue temporary designation to an officer in the civil service provided that
the temporary designation shall not exceed one year.
During the pendency of said case, Congress adjourned and GMA issued ad interim
appointments re-appointing those previously appointed in acting capacity.
ISSUE: Whether or not the appointments made by ex PGMA is valid.
HELD: Yes. The argument raised by Ermita is correct. Further, EO 292 itself provided
the safeguard so that such power will not be abused hence the provision that the
temporary designation shall not exceed one year. In this case, in less than a year after
the initial appointments made by GMA, and when the Congress was in recess, GMA
 4

issued the ad interim appointments this also proves that the president was in good
faith.
It must also be noted that cabinet secretaries are the alter egos of the president. The
choice is the presidents to make and the president normally appoints those whom
he/she can trust. She cannot be constrained to choose the undersecretary. She has the
option to choose. An alter ego, whether temporary or permanent, holds a position of
great trust and confidence. Congress, in the guise of prescribing qualifications to an
office, cannot impose on the President who her alter ego should be.
The office of a department secretary may become vacant while Congress is in session.
Since a department secretary is the alter ego of the President, the acting appointee to
the office must necessarily have the Presidents confidence. That person may or may
not be the permanent appointee, but practical reasons may make it expedient that the
acting appointee will also be the permanent appointee.
Anent the issue that GMA appointed outsiders, such is allowed. EO 292 also provides
that the president may temporarily designate an officer already in the government
service or any other competent person to perform the functions of an office in the
executive branch. Thus, the President may even appoint in an acting capacity a person
not yet in the government service, as long as the President deems that person
competent.

G.R. No. 173034 October 9, 2007 PHARMACEUTICAL AND HEALTH CARE

ASSOCIATION OF THE PHILIPPINES, petitioner, vs. HEALTH SECRETARY
FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR. ETHELYN P.
NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE
F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR.
DAVID J. LOZADA, AND DR. NEMESIO T. GAKO, respondents.

FACTS : Named as respondents are the Health Secretary, Undersecretaries, and

Assistant Secretaries of the Department of Health (DOH). For purposes of herein
petition, the DOH is deemed impleaded as a co-respondent since respondents issued
the questioned RIRR in their capacity as officials of said executive agency.1Executive
Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28,
1986 by virtue of the legislative powers granted to the president under the Freedom
Constitution. One of the preambular clauses of the Milk Code states that the law seeks
to give effect to Article 112 of the International Code of Marketing of Breastmilk
Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981.
From 1982 to 2006, the WHA adopted several Resolutions to the effect that
breastfeeding should be supported, promoted and protected, hence, it should be
ensured that nutrition and health claims are not permitted for breastmilk substitutes.In
1990, the Philippines ratified the International Convention on the Rights of the Child.
 5

Article 24 of said instrument provides that State Parties should take appropriate
measures to diminish infant and child mortality, and ensure that all segments of society,
specially parents and children, are informed of the advantages of breastfeeding. On
May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7,
2006.

Issue: Whether Administrative Order or the Revised Implementing Rules and

Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;

Held: YES

under Article 23, recommendations of the WHA do not come into force for members,in
the same way that conventions or agreements under Article 19 and regulations under
Article 21 come into force. Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to
Members with respect to any matter within the competence of the Organization
for an international rule to be considered as customary law, it must be established that
such rule is being followed by states because they consider it obligatory to comply with
such rules

Under the 1987 Constitution, international law can become part of the sphere of
domestic law either

By transformation or incorporation. The transformation method requires that an

international law be transformed into a domestic law through a constitutional
mechanism such as local legislation. The incorporation method applies when, by mere
constitutional declaration, international law is deemed to have the force of domestic law.

Consequently, legislation is necessary to transform the provisions of the WHA

Resolutions into domestic law. The provisions of the WHA Resolutions cannot be
considered as part of the law of the land that can be implemented by executive
agencies without the need of a law enacted by the legislature.

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

Peace Panel
The Government of the Republic of the Philippines (GRP) and the Moro Islamic
Liberation Front (MILF) were scheduled to sign a Memorandum of Agreement on the
Ancestral Domain (MOA-AD). This Memorandum of Agreement on the Ancestral
Domain Aspect of the GRP-MILF Tripoli Agreement of Peace of 2001 is a codification of
 6

consensus points reached between GRP and MILF Peace Panel and of the aspiration
of the MILF to have a Bangasmoro Homeland
According to the stipulations in the MOA-AD, Ownership of the Bangasmoro Homeland
is vested to the Bangasmoro people. MOA-AD describes the Bangasmoro people as the
first nation with defined territory and with a system of government having entered into
treaties of amity and commerce with foreign nations. The Bangasmoro Juridical Entity
(BJE) is granted by the MOA-AD the authority and jurisdiction over the Ancestral
Domain and Ancestral Lands of the Bangasmoro. It was also stipulated that BJE shall
have jurisdiction over all natural resources within its internal waters.
Issues:
1. Whether the petitions have become moot and academic
2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;
3. Whether respondent Government of the Republic of the Philippines Peace Panel
committed grave abuse of discretion amounting to lack or excess of jurisdiction.
4. Whether there is a violation of the peoples right to information on matters of public
concern.
5. Whether by signing the MOA, the Government of the Republic of the Philippines
would be BINDING itself.
6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of
Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte
in/from the areas covered by the projected Bangsamoro Homeland is a justiciable
question; and
7. Whether MOA-AD is constitutional
Held:
Issue 1:
The court believes that the petitions in the case at bar provide an exception to the moot
and academic principle in view of (a) the grave violation of the Constitution involved; (b)
the exceptional character of the situation and paramount public interest; (c) the need to
formulate controlling principles to guide the bench, the bar, and the public; and (d) the
fact that the case is capable of repetition yet evading review.
Issue 2:
Yes. Any alleged violation of the consti by any branch of the government is a proper
matter for judicial review. In the case at bar, the failure of the respondents to consult the
local government units or communities affected amounts to a departure from the
mandate under E.O. No. 3 and the fact that the respondents exceeded their authority by
 7

the mere act of guaranteeing amendments to the Constitution, rendered the petition ripe
for adjudication.
Issue 3:
The MOA-AD not being a document that can bind the Philippines under international
law notwithstanding, respondents almost consummated act of guaranteeing
amendments to the legal framework is, by itself, sufficient to constitute grave abuse of
discretion. The grave abuse lies not in the fact that they considered, as a solution to the
Moro Problem, the creation of a state within a state, but in their brazen willingness to
guarantee that Congress and the sovereign Filipino people would give their imprimatur
to their solution.
Issue 4:
Yes, there is a violation of the peoples right to information.An essential element of this
right is to keep a continuing dialogue or process of communication between the
government and the people.The contents of the MOA-AD is a matter of paramount
public concern involving public interest in the highest order.
The invocation of the doctrine of executive privilege as a defense to the general right to
information or the specific right to consultation is untenable. The various explicit legal
provisions fly in the face of executive secrecy. In any event, respondents effectively
waived such defense after it unconditionally disclosed the official copies of the final draft
of the MOA-AD, for judicial compliance and public scrutiny.
Issue 5:
No. The MOA-AD is not a document that can bind the Philippines under international
law. It would have been signed by representatives of States and international
organizations not parties to the Agreement, this would not have sufficed to vest in it a
binding character under international law.
Issue 6:
Yes. There is a reasonableexpectation that petitioners, particularly the Provinces of
North Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga,
Iligan and Isabela, and the Municipality of Linamon, will again be subjected to the same
problem in the future as respondents actions are capable of repetition, in another or any
form. These petitions afford a proper venue for the Court to again apply the doctrine
immediately referred to as what it had done in a number of landmark cases.
Issue 7:
Yes. The MOA-AD is unconstitutional because it cannot be reconciled with the present
constitution. Not only its specific provisions but the very concept underlying them. The
associative relationship between the GRP and the BJE is unconstitutional because the
 8

concept presupposes that the associated entity is a state and implies that the same is
on its way to independence.
The court denied the respondents motion to dismiss and granted the main and
intervening petitions.
Bayan Muna vs. Romulo - GR No. 159618 Case Digest
Facts:

Petitioner Bayan Muna is a duly registered party-list group established to represent the
marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the
Secretary of Foreign Affairs during the period material to this case. Respondent Alberto
Romulo was impleaded in his capacity as then Executive Secretary.

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute establishing the
International Criminal Court (ICC) with the power to exercise its jurisdiction over
persons for the most serious crimes of international concern x xx 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 dAffaires Enrique A. Manalo, signed
the Rome Statute which, by its terms, is subject to ratification, acceptance or approval
by the signatory states. As of the filing of the instant petition, only 92 out of the 139
signatory countries appear to have completed the ratification, approval and concurrence
process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No.
0470 to the Department of Foreign Affairs (DFA) proposing the terms of the non-
surrender bilateral agreement (Agreement, hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03,
hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and
accepted the US proposals embodied under the US Embassy Note adverted to and put
in effect the Agreement with the US government. In esse, the Agreement aims to protect
what it refers to and defines as persons of the RP and US from frivolous and
harassment suits that might be brought against them in international tribunals.8 It is
reflective of the increasing pace of the strategic security and defense partnership
between the two countries. As of May 2, 2003, similar bilateral agreements have been
effected by and between the US and 33 other countries.
 9

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, persons are current or former Government officials,
employees (including contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not, absent the express
consent of the first Party,

(a) be surrendered or transferred by any means to any international tribunal for any
purpose, unless such tribunal has been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other entity or third country, or
expelled to a third country, for the purpose of surrender to or transfer to any
international tribunal, unless such tribunal has been established by the UN Security
Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the

Philippines to a third country, the [US] will not agree to the surrender or transfer of that
person by the third country to any international tribunal, unless such tribunal has been
established by the UN Security Council, absent the express consent of the Government
of the Republic of the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA]
to a third country, the [GRP] will not agree to the surrender or transfer of that person by
the third country to any international tribunal, unless such tribunal has been established
by the UN Security Council, absent the express consent of the Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one party
notifies the other of its intent to terminate the Agreement. The provisions of this
Agreement shall continue to apply with respect to any act occurring, or any allegation
arising, before the effective date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the
non-surrender agreement, Ambassador Ricciardone replied in his letter of October 28,
2003 that the exchange of diplomatic notes constituted a legally binding agreement
under international law; and that, under US law, the said agreement did not require the
advice and consent of the US Senate.
In this proceeding, petitioner imputes grave abuse of discretion to respondents in
concluding and ratifying the Agreement and prays that it be struck down as
unconstitutional, or at least declared as without force and effect.

Issue: Whether or not the RP-US NON SURRENDER AGREEMENT is void ab initio for
contracting obligations that are either immoral or otherwise at variance with universally
 10

recognized principles of international law.

Ruling: The petition is bereft of merit.

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 contentionperhaps taken unaware of certain well-recognized international

doctrines, practices, and jargonsis untenable. One of these is the doctrine of
incorporation, as expressed in Section 2, Article II of the Constitution, wherein the
Philippines adopts the generally accepted principles of international law and
international jurisprudence as part of the law of the land and adheres to the policy of
peace, cooperation, and amity with all nations. An exchange of notes falls into the
category of inter-governmental agreements, which is an internationally accepted form
of international agreement. The United Nations Treaty Collections (Treaty Reference
Guide) defines the term as follows:

An exchange of notes is a record of a routine agreement, that has many similarities

with the private law contract. The agreement consists of the exchange of two
documents, each of the parties being in the possession of the one signed by the
representative of the other. Under the usual procedure, the accepting State repeats the
text of the offering State to record its assent. The signatories of the letters may be
government Ministers, diplomats or departmental heads. The technique of exchange of
notes is frequently resorted to, either because of its speedy procedure, or, sometimes,
to avoid the process of legislative approval.

In another perspective, the terms exchange of notes and executive agreements have
been used interchangeably, exchange of notes being considered a form of executive
agreement that becomes binding through executive action. On the other hand,
executive agreements concluded by the President sometimes take the form of
exchange of notes and at other times that of more formal documents denominated
agreements or protocols. As former US High Commissioner to the Philippines Francis
B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts:

The point where ordinary correspondence between this and other governments ends
and agreements whether denominated executive agreements or exchange of notes or
otherwise begin, may sometimes be difficult of ready ascertainment. x xx
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as
the Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof
or as consent to be boundis a recognized mode of concluding a legally binding
international written contract among nations.
 11

Agreement Not Immoral/Not at Variance

with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing
immoral obligations and/or being at variance with allegedly universally recognized
principles of international law. The immoral aspect proceeds from the fact that the
Agreement, as petitioner would put it, leaves criminals immune from responsibility for
unimaginable atrocities that deeply shock the conscience of humanity; x xx it precludes
our country from delivering an American criminal to the [ICC] x x x.63

The above argument is a kind of recycling of petitioners earlier position, which, as

already discussed, contends that the RP, by entering into the Agreement, virtually
abdicated its sovereignty and in the process undermined its treaty obligations under the
Rome Statute, contrary to international law principles.

The Court is not persuaded. Suffice it to state in this regard that the non-surrender
agreement, as aptly described by the Solicitor General, is an assertion by the
Philippines of its desire to try and punish crimes under its national law. x xx The
agreement is a recognition of the primacy and competence of the countrys 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.

China National Machinery v. Santamaria Facts

: On 14 September 2002, petitioner China National Machinery & Equipment Corp.
(Group) (CNMEG), represented by its chairperson, Ren Hongbin, entered into a
Memorandum of Understanding with the North Luzon Railways Corporation (Northrail),
represented by its president, Jose L. Cortes, Jr. for the conduct of a feasibility study on
 12

a possible railway line from Manila to San Fernando, La Union (the Northrail Project).
On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the Department
of Finance of the Philippines (DOF) entered into a Memorandum of Understanding (Aug
30 MOU), wherein China agreed to extend Preferential Buyers Credit to the Philippine
government to finance the Northrail Project.The Chinese government designated EXIM
Bank as the lender, while the Philippine government named the DOF as the borrower.
Under the Aug 30 MOU, EXIM Bank agreed to extend an amount not exceeding USD
400,000,000 in favor of the DOF, payable in 20 years, with a 5-year grace period, and at
the rate of 3% per annum. On 1 October 2003, the Chinese Ambassador to the
Philippines, Wang Chungui (Amb. Wang), wrote a letter to DOF Secretary Jose
Isidro Camacho (Sec. Camacho) informing him of CNMEGs
designation as the Prime Contractor for the Northrail Project. On 30 December 2003,
Northrail and CNMEG executed a Contract Agreement for the construction of Section I,
Phase I of the North Luzon Railway System from Caloocan to Malolos on a turnkey
basis (the Contract Agreement).7The contract price for the Northrail Project was pegged
at USD 421,050,000. On 26 February 2004, the Philippine government and EXIM Bank
entered into a counterpart financial agreement Buyer Credit Loan Agreement No. BLA
04055 (the Loan Agreement).In the Loan Agreement, EXIM Bank agreed to extend
Preferential Buyers Credit in the amount of USD 400,000,000 in favor of the Philippine
government in order to finance the construction of Phase I of the Northrail Project. On
13 February 2006, respondents filed a Complaint for Annulment of Contract and
Injunction with Urgent Motion for Summary Hearing to Determine the Existence of Facts
and Circumstances Justifying the Issuance of Writs of Preliminary Prohibitory and
Mandatory Injunction and/or TRO against CNMEG, the Office of the Executive
Secretary, the DOF, the Department of Budget and Management, the National
Economic Development Authority and Northrail.The case was filed before the Regional
Trial Court, National Capital Judicial Region, Makati City, Branch 145 (RTC Br. 145). In
the Complaint, respondents alleged that the Contract Agreement and the Loan
Agreement were void for being contrary to (a) the Constitution; (b) Republic Act No.
9184 (R.A. No. 9184), otherwise known as the Government Procurement Reform Act;
(c) Presidential Decree No. 1445, otherwise known as the Government Auditing Code;
and (d) Executive Order No. 292, otherwise known as the Administrative Code. On 15
May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEGs Motion to Dismiss
and setting the case for summary hearing to determine whether the injunctive reliefs
prayed for should be issued. CNMEG then filed a Motion for Reconsideration,which was
denied by the trial court in an Order dated 10 March 2008.Thus, CNMEG filed before
the CA a Petition for Certiorari with Prayer for the Issuance of TRO and/or Writ of
Preliminary Injunction dated 4 April 2008. the appellate court dismissed the Petition for
Certiorari.Subsequently, CNMEG filed a Motion for Reconsideration,which was denied
by the CA in a Resolution dated 5 December 2008.
Petitioners Argument:
 13

Petitioner claims that the EXIM Bank extended financial assistance to Northrail because
the bank was mandated by the Chinese government, and not because of any motivation
to do business in the Philippines, it is clear from the foregoing provisions that the
Northrail Project was a purely commercial transaction.
Respondents Argument:
respondents alleged that the Contract Agreement and the Loan Agreement were void
for being contrary to (a) the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184),
otherwise known as the Government Procurement Reform Act; (c) Presidential Decree
No. 1445, otherwise known as the Government Auditing Code; and (d) Executive Order
No. 292, otherwise known as the Administrative Code.
Issues
: Whether or not petitioner CNMEG is an agent of the
sovereign Peoples Republic of China.
Whether or not the Northrail contracts are products of an executive agreement between
two sovereign states.
Ruling
: 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.
CNMEGs prayer for the issuance of a TRO and/or Writ of Preliminary
Injunction is
DENIED
for being moot and academic. The Court explained the doctrine of sovereign immunity
in
Holy See v. Rosario,

to wit: There are two conflicting concepts of sovereign immunity, each widely held and
firmly established. According to the classical or absolute theory,
a sovereign cannot, without its consent, be made a respondent in the courts of another
sovereign.
According to the newer or restrictive theory,
 14

the immunity of the sovereign is recognized only with regard to public acts or acts
jure imperii
of a state, but not with regard to private acts or acts
jure gestionis
.

(Emphasis supplied; citations omitted.) As it stands now, the application of the doctrine
of immunity from suit has been restricted to sovereign or governmental activities (
jure imperii
).

The mantle of state immunity cannot be extended to commercial, private and proprietary
acts (
jure gestionis
).

Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal
nature of the act involved

whether the entity claiming immunity performs governmental, as opposed to
proprietary, functions. As held in United States of America v. Ruiz Admittedly, the Loan
Agreement was entered into between EXIM Bank and the Philippine government, while
the Contract Agreement was between Northrail and CNMEG. Although the Contract
Agreement is silent on the classification of the legal nature of the transaction, the
foregoing provisions of the Loan Agreement, which is an inextricable part of the entire
undertaking, nonetheless reveal the intention of the parties to the Northrail Project to
classify the whole venture as commercial or proprietary in character. Thus, piecing
together the content and tenor of the Contract Agreement, the Memorandum of
Understanding dated 14
September 2002, Amb. Wangs letter dated 1 October 2003, and the
Loan Agreement would reveal the desire of CNMEG to construct the Luzon Railways in
pursuit of a purely commercial activity performed in the ordinary course of its business.
 15

DANUBE DAM CASE (Hungary v Slovakia) 37 ILM 162 (1998)

In 1977, The Treaty between the Hungarian Peoples Republic and the Czechoslovak Socialist
Republic concerning the Construction and Operation of the Gabckovo-Nagymaros System of
Locks was concluded on 16 September 1977.The treaty was concluded to facilitate the
construction of dams on the Danube River. It addressed broad utilization of the natural resources
of the Danube between Bratislava and Budapest, representing two hundred of the Rivers two
thousand eight hundred and sixty kilometers. Intense criticism of the construction at Nagymaros
centered upon endangerment of the environment and uncertainty of continued economic
viability. This growing opposition engendered political pressures upon the Hungarian
Government. After initiating two Protocols, primarily concerned with timing of construction,
Hungary suspended works at Nagymaros on 21 July 1989 pending further environmental studies.
In response, Czechoslovakia carried out unilateral measures. Hungary then claimed the right to
terminate the treaty, at which point the dispute was submitted to the International Court of
Justice. Hungary also submitted that it was entitled to terminate the treaty on the ground that
Czechoslovakia had violated Articles of the Treaty by undertaking unilateral measures,
culminating in the diversion of the Danube. Slovakia became a party to the 1977 Treaty as
successor to Czechoslovakia.

On 19 May 1992 Hungary purported to terminate the 1977 Treaty as a consequence of

Czechoslovakias refusal to suspend work during the process of mediation. As the Treaty itself
did not feature a clause governing termination, Hungary proffered five arguments to validate its
actions: a state of necessity, supervening impossibility of performance, fundamental change of
circumstances, material breach and the emergence of new norms of international environmental
law. Slovakia contested each of these bases.

The Court easily dismissed Hungarys first claim, simply stating that a state of necessity is not a
ground for termination. Even if a state of necessity is established, as soon as it ceases to exist
treaty obligations automatically revive.

The doctrine of impossibility of performance is encapsulated in Article 61 of the Vienna

Convention on the Law of Treaties, which requires the permanent disappearance or destruction
of an object indispensable for the execution of the treaty. In this case, the legal regime
governing the Gabckovo-Nagymaros Project did not cease to exist. Articles 15, 19 and 20 of the
1977 Treaty provided the means through which works could be readjusted in accordance with
economic and ecological imperatives. Furthermore, Article 61(2) of the Vienna Convention on
the Law of Treaties precludes application of the doctrine where the impossibility complained of
is the result of a breach by the terminating Party. If the joint investment had been hampered to a
point where performance was impossible, it was a consequence of Hungarys abandonment of
works.

Article 62 of the Vienna Convention on the Law of Treaties codifies international law in respect
of fundamental change of circumstances and treaty relations. Hungary submitted that the 1977
Treaty was originally intended to be a vehicle for socialist integration. Fundamental changes
cited were the displacement of a single and indivisible operational system by a unilateral
scheme; the emergence of both States into a market economy; the mutation of a framework treaty
 16

into an immutable norm; and the transformation of a treaty consistent with environmental
protection into a prescription for environmental disaster. The Court held that although political
changes and diminished economic viability were relevant to the conclusion of a treaty, they were
not so closely linked with the object and purpose of the 1977 Treaty so as to constitute an
essential basis of the consent of the Parties. New developments in the efficacy of environmental
knowledge were not unforeseen by the Treaty and cannot be said to represent a fundamental
change. The Court did not consider whether the emergence of new environmental norms would
catalyze the application of Article 62 in a situation where the terms of a treaty stand abhorrent to
new norms.

Hungary claimed that Variant C materially breached Articles 15, 19 and 20 of the 1977 Treaty,
concerning the protection of water quality, the preservation of nature and guardianship of fishing
interests. Article 60(3) of the Vienna Convention on the Law of Treaties recognizes material
breach of a treaty as a ground for termination on the part of the injured State. Extending its
reasoning on the principle of approximate application, the Court held that a material breach only
occurred upon the diversion of the Danube. As Czechoslovakia dammed the Danube after 19
May 1992, Hungarys purported termination was premature and thus invalid.

As its final basis for the justification of termination, Hungary advocated that, pursuant to the
precautionary principle in environmental law, the obligation not to cause substantive damage to
the territory of another State had evolved into an obligation erga omnes (sic utere tuo ut alienum
non laedas). Slovakia countered this argument with the claim that there had been no intervening
developments in international environmental law that gave rise to jus cogens norms that would
override provisions of the 1977 Treaty. The Court avoided consideration of these propositions,
concluding instead that these new concerns have enhanced the relevance of Articles 15, 19 and
20. Given that international environmental law is in its formative stages, it is unfortunate that
the International Court of Justice did not grasp at this opportunity to discuss its role in the
governance of relations between States. To that end, the Court may have clarified the
controversial application of the sic utere principle to modify notions of unrestricted sovereignty
in the Trail Smelter arbitration.

EN BANC
 17

[G.R. No. 104768. July 21, 2003]

Republic of the Philippines, petitioner, vs. Sandiganbayan, Major General Josephus Q. Ramas
and Elizabeth Dimaano, respondents.

DECISION

CARPIO, J.:

The Case

Before this Court is a petition for review on certiorari seeking to set aside the Resolutions of the
Sandiganbayan (First Division)1[1] dated 18 November 1991 and 25 March 1992 in Civil Case
No. 0037. The first Resolution dismissed petitioners Amended Complaint and ordered the return
of the confiscated items to respondent Elizabeth Dimaano, while the second Resolution denied
petitioners Motion for Reconsideration. Petitioner prays for the grant of the reliefs sought in its
Amended Complaint, or in the alternative, for the remand of this case to the Sandiganbayan
(First Division) for further proceedings allowing petitioner to complete the presentation of its
evidence.

Antecedent Facts

Immediately upon her assumption to office following the successful EDSA Revolution, then
President Corazon C. Aquino issued Executive Order No. 1 (EO No. 1) creating the Presidential
Commission on Good Government (PCGG). EO No. 1 primarily tasked the PCGG to recover all
ill-gotten wealth of former President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates. EO No. 1 vested the PCGG with the power (a) to conduct
investigation as may be necessary in order to accomplish and carry out the purposes of this order
and the power (h) to promulgate such rules and regulations as may be necessary to carry out the
purpose of this order. Accordingly, the PCGG, through its then Chairman Jovito R. Salonga,
created an AFP Anti-Graft Board (AFP Board) tasked to investigate reports of unexplained
wealth and corrupt practices by AFP personnel, whether in the active service or retired.2[2]

Based on its mandate, the AFP Board investigated various reports of alleged unexplained wealth
of respondent Major General Josephus Q. Ramas (Ramas). On 27 July 1987, the AFP Board
issued a Resolution on its findings and recommendation on the reported unexplained wealth of
Ramas. The relevant part of the Resolution reads:

III. FINDINGS and EVALUATION:

1[1] Composed of Justices Regino Hermosisima, Jr., Francis Garchitorena and Cipriano del
Rosario.

2[2] Republic v. Migrino, G.R. No. 89483, 30 August 1990, 189 SCRA 289.
 18

Evidence in the record showed that respondent is the owner of a house and lot located at 15-
Yakan St., La Vista, Quezon City. He is also the owner of a house and lot located in Cebu City.
The lot has an area of 3,327 square meters.

The value of the property located in Quezon City may be estimated modestly at P700,000.00.

The equipment/items and communication facilities which were found in the premises of
Elizabeth Dimaano and were confiscated by elements of the PC Command of Batangas were all
covered by invoice receipt in the name of CAPT. EFREN SALIDO, RSO Command Coy, MSC,
PA. These items could not have been in the possession of Elizabeth Dimaano if not given for her
use by respondent Commanding General of the Philippine Army.

Aside from the military equipment/items and communications equipment, the raiding team was
also able to confiscate money in the amount of P2,870,000.00 and $50,000 US Dollars in the
house of Elizabeth Dimaano on 3 March 1986.

Affidavits of members of the Military Security Unit, Military Security Command, Philippine
Army, stationed at Camp Eldridge, Los Baos, Laguna, disclosed that Elizabeth Dimaano is the
mistress of respondent. That respondent usually goes and stays and sleeps in the alleged house of
Elizabeth Dimaano in Barangay Tengga, Itaas, Batangas City and when he arrives, Elizabeth
Dimaano embraces and kisses respondent. That on February 25, 1986, a person who rode in a car
went to the residence of Elizabeth Dimaano with four (4) attache cases filled with money and
owned by MGen Ramas.

Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible means of
income and is supported by respondent for she was formerly a mere secretary.

Taking in toto the evidence, Elizabeth Dimaano could not have used the military
equipment/items seized in her house on March 3, 1986 without the consent of respondent, he
being the Commanding General of the Philippine Army. It is also impossible for Elizabeth
Dimaano to claim that she owns the P2,870,000.00 and $50,000 US Dollars for she had no
visible source of income.

This money was never declared in the Statement of Assets and Liabilities of respondent. There
was an intention to cover the existence of these money because these are all ill-gotten and
unexplained wealth. Were it not for the affidavits of the members of the Military Security Unit
assigned at Camp Eldridge, Los Baos, Laguna, the existence and ownership of these money
would have never been known.

The Statement of Assets and Liabilities of respondent were also submitted for scrutiny and
analysis by the Boards consultant. Although the amount of P2,870,000.00 and $50,000 US
Dollars were not included, still it was disclosed that respondent has an unexplained wealth of
P104,134. 60.

IV. CONCLUSION:
 19

In view of the foregoing, the Board finds that a prima facie case exists against respondent for ill-
gotten and unexplained wealth in the amount of P2,974,134.00 and $50,000 US Dollars.

V. RECOMMENDATION:

Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried
for violation of RA 3019, as amended, otherwise known as Anti-Graft and Corrupt Practices Act
and RA 1379, as amended, otherwise known as The Act for the Forfeiture of Unlawfully
Acquired Property.3[3]

Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under Republic Act No. 1379
(RA No. 1379) 4[4] against Ramas.

Before Ramas could answer the petition, then Solicitor General Francisco I. Chavez filed an
Amended Complaint naming the Republic of the Philippines (petitioner), represented by the
PCGG, as plaintiff and Ramas as defendant. The Amended Complaint also impleaded Elizabeth
Dimaano (Dimaano) as co-defendant.

The Amended Complaint alleged that Ramas was the Commanding General of the Philippine
Army until 1986. On the other hand, Dimaano was a confidential agent of the Military Security
Unit, Philippine Army, assigned as a clerk-typist at the office of Ramas from 1 January 1978 to
February 1979. The Amended Complaint further alleged that Ramas acquired funds, assets and
properties manifestly out of proportion to his salary as an army officer and his other income from
legitimately acquired property by taking undue advantage of his public office and/or using his
power, authority and influence as such officer of the Armed Forces of the Philippines and as a
subordinate and close associate of the deposed President Ferdinand Marcos.5[5]

The Amended Complaint also alleged that the AFP Board, after a previous inquiry, found
reasonable ground to believe that respondents have violated RA No. 1379.6[6] The Amended
Complaint prayed for, among others, the forfeiture of respondents properties, funds and
equipment in favor of the State.

Ramas filed an Answer with Special and/or Affirmative Defenses and Compulsory Counterclaim
to the Amended Complaint. In his Answer, Ramas contended that his property consisted only of a
residential house at La Vista Subdivision, Quezon City, valued at P700,000, which was not out of
proportion to his salary and other legitimate income. He denied ownership of any mansion in

3[3] Records of the Sandiganbayan [hereinafter Records], pp. 53-55.

4[4] An Act Declaring Forfeiture in Favor of the State Any Property Found to Have Been
Unlawfully Acquired by Any Public Officer or Employee and Providing for the Proceedings
Therefor.

5[5] Records, p. 14.

6[6] Ibid., p.16.

 20

Cebu City and the cash, communications equipment and other items confiscated from the house
of Dimaano.

Dimaano filed her own Answer to the Amended Complaint. Admitting her employment as a
clerk-typist in the office of Ramas from January-November 1978 only, Dimaano claimed
ownership of the monies, communications equipment, jewelry and land titles taken from her
house by the Philippine Constabulary raiding team.

After termination of the pre-trial,7[7] the court set the case for trial on the merits on 9-11
November 1988.

On 9 November 1988, petitioner asked for a deferment of the hearing due to its lack of
preparation for trial and the absence of witnesses and vital documents to support its case. The
court reset the hearing to 17 and 18 April 1989.

On 13 April 1989, petitioner filed a motion for leave to amend the complaint in order to charge
the delinquent properties with being subject to forfeiture as having been unlawfully acquired by
defendant Dimaano alone x x x.8[8]

Nevertheless, in an order dated 17 April 1989, the Sandiganbayan proceeded with petitioners
presentation of evidence on the ground that the motion for leave to amend complaint did not state
when petitioner would file the amended complaint. The Sandiganbayan further stated that the
subject matter of the amended complaint was on its face vague and not related to the existing
complaint. The Sandiganbayan also held that due to the time that the case had been pending in
court, petitioner should proceed to present its evidence.

After presenting only three witnesses, petitioner asked for a postponement of the trial.

On 28 September 1989, during the continuation of the trial, petitioner manifested its inability to
proceed to trial because of the absence of other witnesses or lack of further evidence to present.
Instead, petitioner reiterated its motion to amend the complaint to conform to the evidence
already presented or to change the averments to show that Dimaano alone unlawfully acquired
the monies or properties subject of the forfeiture.

The Sandiganbayan noted that petitioner had already delayed the case for over a year mainly
because of its many postponements. Moreover, petitioner would want the case to revert to its
preliminary stage when in fact the case had long been ready for trial. The Sandiganbayan ordered
petitioner to prepare for presentation of its additional evidence, if any.

During the trial on 23 March 1990, petitioner again admitted its inability to present further
evidence. Giving petitioner one more chance to present further evidence or to amend the
complaint to conform to its evidence, the Sandiganbayan reset the trial to 18 May 1990. The

7[7] Ibid., p. 166.

8[8] Ibid., p. 286.

 21

Sandiganbayan, however, hinted that the re-setting was without prejudice to any action that
private respondents might take under the circumstances.

However, on 18 May 1990, petitioner again expressed its inability to proceed to trial because it
had no further evidence to present. Again, in the interest of justice, the Sandiganbayan granted
petitioner 60 days within which to file an appropriate pleading. The Sandiganbayan, however,
warned petitioner that failure to act would constrain the court to take drastic action.

Private respondents then filed their motions to dismiss based on Republic v. Migrino.9[9] The
Court held in Migrino that the PCGG does not have jurisdiction to investigate and prosecute
military officers by reason of mere position held without a showing that they are subordinates of
former President Marcos.

On 18 November 1991, the Sandiganbayan rendered a resolution, the dispositive portion of

which states:

WHEREFORE, judgment is hereby rendered dismissing the Amended Complaint, without

pronouncement as to costs. The counterclaims are likewise dismissed for lack of merit, but the
confiscated sum of money, communications equipment, jewelry and land titles are ordered
returned to Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the Hon. Ombudsman, who has
primary jurisdiction over the forfeiture cases under R.A. No. 1379, for such appropriate action as
the evidence warrants. This case is also referred to the Commissioner of the Bureau of Internal
Revenue for a determination of any tax liability of respondent Elizabeth Dimaano in connection
herewith.

SO ORDERED.

On 4 December 1991, petitioner filed its Motion for Reconsideration.

In answer to the Motion for Reconsideration, private respondents filed a Joint

Comment/Opposition to which petitioner filed its Reply on 10 January 1992.

On 25 March 1992, the Sandiganbayan rendered a Resolution denying the Motion for
Reconsideration.

Ruling of the Sandiganbayan

The Sandiganbayan dismissed the Amended Complaint on the following grounds:

9[9] Supra, note 2.

 22

(1.) The actions taken by the PCGG are not in accordance with the rulings of the
Supreme Court in Cruz, Jr. v. Sandiganbayan10[10] and Republic v. Migrino11[11]
which involve the same issues.

(2.) No previous inquiry similar to preliminary investigations in criminal cases was

conducted against Ramas and Dimaano.

(3.) The evidence adduced against Ramas does not constitute a prima facie case against
him.

(4.) There was an illegal search and seizure of the items confiscated.

The Issues

Petitioner raises the following issues:

A. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING

THAT PETITIONERS EVIDENCE CANNOT MAKE A CASE FOR
FORFEITURE AND THAT THERE WAS NO SHOWING OF
CONSPIRACY, COLLUSION OR RELATIONSHIP BY
CONSANGUINITY OR AFFINITY BY AND BETWEEN
RESPONDENT RAMAS AND RESPONDENT DIMAANO
NOTWITHSTANDING THE FACT THAT SUCH CONCLUSIONS
WERE CLEARLY UNFOUNDED AND PREMATURE, HAVING BEEN
RENDERED PRIOR TO THE COMPLETION OF THE
PRESENTATION OF THE EVIDENCE OF THE PETITIONER.

B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT

THE ACTIONS TAKEN BY THE PETITIONER, INCLUDING THE
FILING OF THE ORIGINAL COMPLAINT AND THE AMENDED
COMPLAINT, SHOULD BE STRUCK OUT IN LINE WITH THE
RULINGS OF THE SUPREME COURT IN CRUZ, JR. v.
SANDIGANBAYAN, 194 SCRA 474 AND REPUBLIC v. MIGRINO,
189 SCRA 289, NOTWITHSTANDING THE FACT THAT:

1. The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v.

Migrino, supra, are clearly not applicable to this case;

2. Any procedural defect in the institution of the complaint in Civil

Case No. 0037 was cured and/or waived by respondents with the
filing of their respective answers with counterclaim; and

10[10] G.R. No. 94595, 26 February 1991, 194 SCRA 474.

11[11] Supra, note 2.

 23

3. The separate motions to dismiss were evidently improper

considering that they were filed after commencement of the
presentation of the evidence of the petitioner and even before the
latter was allowed to formally offer its evidence and rest its case;

C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT

THE ARTICLES AND THINGS SUCH AS SUMS OF MONEY,
COMMUNICATIONS EQUIPMENT, JEWELRY AND LAND TITLES
CONFISCATED FROM THE HOUSE OF RESPONDENT DIMAANO
WERE ILLEGALLY SEIZED AND THEREFORE EXCLUDED AS
EVIDENCE.12[12]

The Courts Ruling

First Issue: PCGGs Jurisdiction to Investigate Private Respondents

This case involves a revisiting of an old issue already decided by this Court in Cruz, Jr. v.
Sandiganbayan13[13] and Republic v. Migrino.14[14]

The primary issue for resolution is whether the PCGG has the jurisdiction to investigate and
cause the filing of a forfeiture petition against Ramas and Dimaano for unexplained wealth under
RA No. 1379.

We hold that PCGG has no such jurisdiction.

The PCGG created the AFP Board to investigate the unexplained wealth and corrupt practices of
AFP personnel, whether in the active service or retired.15[15] The PCGG tasked the AFP Board to
make the necessary recommendations to appropriate government agencies on the action to be
taken based on its findings.16[16] The PCGG gave this task to the AFP Board pursuant to the
PCGGs power under Section 3 of EO No. 1 to conduct investigation as may be necessary in
order to accomplish and to carry out the purposes of this order. EO No. 1 gave the PCGG
specific responsibilities, to wit:

SEC. 2. The Commission shall be charged with the task of assisting the President in regard to the
following matters:

12[12] Rollo, p. 21.

13[13] Supra, note 10.

14[14] Supra, note 2.

15[15] Republic v. Migrino, supra, note 2.

16[16] Supra, note 2.

 24

(a) The recovery of all ill-gotten wealth accumulated by former President

Ferdinand E. Marcos, his immediate family, relatives, subordinates and close
associates, whether located in the Philippines or abroad, including the takeover
and sequestration of all business enterprises and entities owned or controlled by
them, during his administration, directly or through nominees, by taking undue
advantage of their public office and/ or using their powers, authority, influence,
connections or relationship.

(b) The investigation of such cases of graft and corruption as the President may
assign to the Commission from time to time.

x x x.

The PCGG, through the AFP Board, can only investigate the unexplained wealth and corrupt
practices of AFP personnel who fall under either of the two categories mentioned in Section 2 of
EO No. 1. These are: (1) AFP personnel who have accumulated ill-gotten wealth during the
administration of former President Marcos by being the latters immediate family, relative,
subordinate or close associate, taking undue advantage of their public office or using their
powers, influence x x x;17[17] or (2) AFP personnel involved in other cases of graft and corruption
provided the President assigns their cases to the PCGG.18[18]

Petitioner, however, does not claim that the President assigned Ramas case to the PCGG.
Therefore, Ramas case should fall under the first category of AFP personnel before the PCGG
could exercise its jurisdiction over him. Petitioner argues that Ramas was undoubtedly a
subordinate of former President Marcos because of his position as the Commanding General of
the Philippine Army. Petitioner claims that Ramas position enabled him to receive orders directly
from his commander-in-chief, undeniably making him a subordinate of former President Marcos.

We hold that Ramas was not a subordinate of former President Marcos in the sense contemplated
under EO No. 1 and its amendments.

Mere position held by a military officer does not automatically make him a subordinate as this
term is used in EO Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed close association
with former President Marcos. Migrino discussed this issue in this wise:

A close reading of EO No. 1 and related executive orders will readily show what is contemplated
within the term subordinate. The Whereas Clauses of EO No. 1 express the urgent need to
recover the ill-gotten wealth amassed by former President Ferdinand E. Marcos, his immediate
family, relatives, and close associates both here and abroad.

17[17] Republic v. Migrino, supra, note 2.

18[18] Republic v. Sandiganbayan, G.R. No. 115906, 29 September 1994, 237 SCRA 242.
 25

EO No. 2 freezes all assets and properties in the Philippines in which former President Marcos
and/or his wife, Mrs. Imelda Marcos, their close relatives, subordinates, business associates,
dummies, agents, or nominees have any interest or participation.

Applying the rule in statutory construction known as ejusdem generis that is-

[W]here general words follow an enumeration of persons or things by words of a particular and
specific meaning, such general words are not to be construed in their widest extent, but are to be
held as applying only to persons or things of the same kind or class as those specifically
mentioned [Smith, Bell & Co, Ltd. vs. Register of Deeds of Davao, 96 Phil. 53, 58, citing Black
on Interpretation of Laws, 2nd Ed., 203].

[T]he term subordinate as used in EO Nos. 1 & 2 refers to one who enjoys a close association
with former President Marcos and/or his wife, similar to the immediate family member, relative,
and close associate in EO No. 1 and the close relative, business associate, dummy, agent, or
nominee in EO No. 2.

xxx

It does not suffice, as in this case, that the respondent is or was a government official or
employee during the administration of former President Marcos. There must be a prima facie
showing that the respondent unlawfully accumulated wealth by virtue of his close association
or relation with former Pres. Marcos and/or his wife. (Emphasis supplied)

Ramas position alone as Commanding General of the Philippine Army with the rank of Major
General19[19] does not suffice to make him a subordinate of former President Marcos for purposes
of EO No. 1 and its amendments. The PCGG has to provide a prima facie showing that Ramas
was a close associate of former President Marcos, in the same manner that business associates,
dummies, agents or nominees of former President Marcos were close to him. Such close
association is manifested either by Ramas complicity with former President Marcos in the
accumulation of ill-gotten wealth by the deposed President or by former President Marcos
acquiescence in Ramas own accumulation of ill-gotten wealth if any.

This, the PCGG failed to do.

19[19] Presidential Decree No. 1769 Amending PD 360 dated December 30, 1973 adjusting the
authorized grades in the command and staff structure of the AFP dated 12 January 1981. The
ranking is as follows:

Chief of Staff, AFP General (0-10)

Vice Chief of Staff, AFP Lt. General (0-9)

Commander of Major Services, AFP Maj. General (0-8)

xxx.
 26

Petitioners attempt to differentiate the instant case from Migrino does not convince us. Petitioner
argues that unlike in Migrino, the AFP Board Resolution in the instant case states that the AFP
Board conducted the investigation pursuant to EO Nos. 1, 2, 14 and 14-A in relation to RA No.
1379. Petitioner asserts that there is a presumption that the PCGG was acting within its
jurisdiction of investigating crony-related cases of graft and corruption and that Ramas was truly
a subordinate of the former President. However, the same AFP Board Resolution belies this
contention. Although the Resolution begins with such statement, it ends with the following
recommendation:

V. RECOMMENDATION:

Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried
for violation of RA 3019, as amended, otherwise known as Anti-Graft and Corrupt Practices Act
and RA 1379, as amended, otherwise known as The Act for the Forfeiture of Unlawfully
Acquired Property.20[20]

Thus, although the PCGG sought to investigate and prosecute private respondents under EO Nos.
1, 2, 14 and 14-A, the result yielded a finding of violation of Republic Acts Nos. 3019 and 1379
without any relation to EO Nos. 1, 2, 14 and 14-A. This absence of relation to EO No. 1 and its
amendments proves fatal to petitioners case. EO No. 1 created the PCGG for a specific and
limited purpose, and necessarily its powers must be construed to address such specific and
limited purpose.

Moreover, the resolution of the AFP Board and even the Amended Complaint do not show that
the properties Ramas allegedly owned were accumulated by him in his capacity as a subordinate
of his commander-in-chief. Petitioner merely enumerated the properties Ramas allegedly owned
and suggested that these properties were disproportionate to his salary and other legitimate
income without showing that Ramas amassed them because of his close association with former
President Marcos. Petitioner, in fact, admits that the AFP Board resolution does not contain a
finding that Ramas accumulated his wealth because of his close association with former
President Marcos, thus:

10. While it is true that the resolution of the Anti-Graft Board of the New Armed Forces of
the Philippines did not categorically find a prima facie evidence showing that respondent
Ramas unlawfully accumulated wealth by virtue of his close association or relation with
former President Marcos and/or his wife, it is submitted that such omission was not fatal.
The resolution of the Anti-Graft Board should be read in the context of the law creating the same
and the objective of the investigation which was, as stated in the above, pursuant to Republic Act
Nos. 3019 and 1379 in relation to Executive Order Nos. 1, 2, 14 and 14-a;21[21] (Emphasis
supplied)

20[20] Records, pp. 54-55.

21[21] Rollo, p. 27.

 27

Such omission is fatal. Petitioner forgets that it is precisely a prima facie showing that the ill-
gotten wealth was accumulated by a subordinate of former President Marcos that vests
jurisdiction on PCGG. EO No. 122[22] clearly premises the creation of the PCGG on the urgent
need to recover all ill-gotten wealth amassed by former President Marcos, his immediate family,
relatives, subordinates and close associates. Therefore, to say that such omission was not fatal is
clearly contrary to the intent behind the creation of the PCGG.

In Cruz, Jr. v. Sandiganbayan,23[23] the Court outlined the cases that fall under the jurisdiction of
the PCGG pursuant to EO Nos. 1, 2,24[24] 14,25[25] 14-A:26[26]

A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation with Sections 1, 2
and 3 of Executive Order No. 14, shows what the authority of the respondent PCGG to
investigate and prosecute covers:

(a) the investigation and prosecution of the civil action for the recovery of ill-gotten
wealth under Republic Act No. 1379, accumulated by former President
Marcos, his immediate family, relatives, subordinates and close associates,
whether located in the Philippines or abroad, including the take-over or
sequestration of all business enterprises and entities owned or controlled by them,
during his administration, directly or through his nominees, by taking undue
advantage of their public office and/or using their powers, authority and
influence, connections or relationships; and

(b) the investigation and prosecution of such offenses committed in the acquisition of
said ill-gotten wealth as contemplated under Section 2(a) of Executive Order No.
1.

22[22] WHEREAS, vast resources of the government have been amassed by former President
Ferdinand E. Marcos, his immediate family, relatives and close associates both here and abroad;

WHEREAS, there is an urgent need to recover all ill-gotten wealth;

xxx

23[23] Supra, note 10.

24[24] Regarding the Funds, Moneys, Assets, and Properties Illegally Acquired or
Misappropriated by Former President Marcos, Mrs. Imelda Marcos, their Close Relatives,
Subordinates, Business Associates, Dummies, Agents or Nominees dated 12 March 1986.

25[25] Defining the Jurisdiction over Cases Involving the Ill-gotten Wealth of Former President
Ferdinand E. Marcos, Mrs. Imelda R. Marcos, Members of their Immediate Family, Close
Relatives, Subordinates, and/or Business Associates, Dummies, Agents and Nominees dated 7
May 1986.

26[26] Amending Executive Order No. 14 dated 18 August 1986.

 28

However, other violations of the Anti-Graft and Corrupt Practices Act not otherwise falling
under the foregoing categories, require a previous authority of the President for the
respondent PCGG to investigate and prosecute in accordance with Section 2 (b) of
Executive Order No. 1. Otherwise, jurisdiction over such cases is vested in the Ombudsman
and other duly authorized investigating agencies such as the provincial and city
prosecutors, their assistants, the Chief State Prosecutor and his assistants and the state
prosecutors. (Emphasis supplied)

The proper government agencies, and not the PCGG, should investigate and prosecute forfeiture
petitions not falling under EO No. 1 and its amendments. The preliminary investigation of
unexplained wealth amassed on or before 25 February 1986 falls under the jurisdiction of the
Ombudsman, while the authority to file the corresponding forfeiture petition rests with the
Solicitor General.27[27] The Ombudsman Act or Republic Act No. 6770 (RA No. 6770) vests in
the Ombudsman the power to conduct preliminary investigation and to file forfeiture proceedings
involving unexplained wealth amassed after 25 February 1986.28[28]

After the pronouncements of the Court in Cruz, the PCGG still pursued this case despite the
absence of a prima facie finding that Ramas was a subordinate of former President Marcos. The
petition for forfeiture filed with the Sandiganbayan should be dismissed for lack of authority by
the PCGG to investigate respondents since there is no prima facie showing that EO No. 1 and its
amendments apply to respondents. The AFP Board Resolution and even the Amended Complaint
state that there are violations of RA Nos. 3019 and 1379. Thus, the PCGG should have
recommended Ramas case to the Ombudsman who has jurisdiction to conduct the preliminary
investigation of ordinary unexplained wealth and graft cases. As stated in Migrino:

[But] in view of the patent lack of authority of the PCGG to investigate and cause the
prosecution of private respondent for violation of Rep. Acts Nos. 3019 and 1379, the PCGG must
also be enjoined from proceeding with the case, without prejudice to any action that may be
taken by the proper prosecutory agency. The rule of law mandates that an agency of government
be allowed to exercise only the powers granted to it.

Petitioners argument that private respondents have waived any defect in the filing of the
forfeiture petition by submitting their respective Answers with counterclaim deserves no merit as
well.

Petitioner has no jurisdiction over private respondents. Thus, there is no jurisdiction to waive in
the first place. The PCGG cannot exercise investigative or prosecutorial powers never granted to
it. PCGGs powers are specific and limited. Unless given additional assignment by the President,
PCGGs sole task is only to recover the ill-gotten wealth of the Marcoses, their relatives and
cronies.29[29] Without these elements, the PCGG cannot claim jurisdiction over a case.

27[27] Republic v. Sandiganbayan, G.R. No. 90529, 16 August 1991, 200 SCRA 667.

28[28] Section 15 (11), RA No. 6770.

29[29] Republic v. Migrino, supra, note 2.

 29

Private respondents questioned the authority and jurisdiction of the PCGG to investigate and
prosecute their cases by filing their Motion to Dismiss as soon as they learned of the
pronouncement of the Court in Migrino. This case was decided on 30 August 1990, which
explains why private respondents only filed their Motion to Dismiss on 8 October 1990.
Nevertheless, we have held that the parties may raise lack of jurisdiction at any stage of the
proceeding.30[30] Thus, we hold that there was no waiver of jurisdiction in this case. Jurisdiction is
vested by law and not by the parties to an action.31[31]

Consequently, the petition should be dismissed for lack of jurisdiction by the PCGG to conduct
the preliminary investigation. The Ombudsman may still conduct the proper preliminary
investigation for violation of RA No. 1379, and if warranted, the Solicitor General may file the
forfeiture petition with the Sandiganbayan.32[32] The right of the State to forfeit unexplained
wealth under RA No. 1379 is not subject to prescription, laches or estoppel.33[33]

Second Issue: Propriety of Dismissal of Case

Before Completion of Presentation of Evidence

Petitioner also contends that the Sandiganbayan erred in dismissing the case before completion
of the presentation of petitioners evidence.

We disagree.

Based on the findings of the Sandiganbayan and the records of this case, we find that petitioner
has only itself to blame for non-completion of the presentation of its evidence. First, this case has
been pending for four years before the Sandiganbayan dismissed it. Petitioner filed its Amended
Complaint on 11 August 1987, and only began to present its evidence on 17 April 1989.
Petitioner had almost two years to prepare its evidence. However, despite this sufficient time,
petitioner still delayed the presentation of the rest of its evidence by filing numerous motions for
postponements and extensions. Even before the date set for the presentation of its evidence,
petitioner filed, on 13 April 1989, a Motion for Leave to Amend the Complaint.34[34] The motion
sought to charge the delinquent properties (which comprise most of petitioners evidence) with
being subject to forfeiture as having been unlawfully acquired by defendant Dimaano alone x x
x.

30[30] Cudia v. CA, 348 Phil. 190 (1998).

31[31] Monsanto v. Zerna, G.R. No. 142501, 7 December 2001, 371 SCRA 664; Republic v.
Estipular, G.R. No. 136588, 20 July 2000, 336 SCRA 333.

32[32] Republic v. Migrino, supra, note 2.

33[33] Cojuangco, Jr. v. Presidential Commission on Good Govt., G.R. Nos. 92319-20, 2 October
1990, 190 SCRA 226.

34[34] Records, p. 285.

 30

The Sandiganbayan, however, refused to defer the presentation of petitioners evidence since
petitioner did not state when it would file the amended complaint. On 18 April 1989, the
Sandiganbayan set the continuation of the presentation of evidence on 28-29 September and 9-11
October 1989, giving petitioner ample time to prepare its evidence. Still, on 28 September 1989,
petitioner manifested its inability to proceed with the presentation of its evidence. The
Sandiganbayan issued an Order expressing its view on the matter, to wit:

The Court has gone through extended inquiry and a narration of the above events because this
case has been ready for trial for over a year and much of the delay hereon has been due to the
inability of the government to produce on scheduled dates for pre-trial and for trial documents
and witnesses, allegedly upon the failure of the military to supply them for the preparation of the
presentation of evidence thereon. Of equal interest is the fact that this Court has been held to task
in public about its alleged failure to move cases such as this one beyond the preliminary stage,
when, in view of the developments such as those of today, this Court is now faced with a
situation where a case already in progress will revert back to the preliminary stage, despite a
five-month pause where appropriate action could have been undertaken by the plaintiff
Republic.35[35]

On 9 October 1989, the PCGG manifested in court that it was conducting a preliminary
investigation on the unexplained wealth of private respondents as mandated by RA No. 1379.36
[36] The PCGG prayed for an additional four months to conduct the preliminary investigation.
The Sandiganbayan granted this request and scheduled the presentation of evidence on 26-29
March 1990. However, on the scheduled date, petitioner failed to inform the court of the result of
the preliminary investigation the PCGG supposedly conducted. Again, the Sandiganbayan gave
petitioner until 18 May 1990 to continue with the presentation of its evidence and to inform the
court of what lies ahead insofar as the status of the case is concerned x x x.37[37] Still on the date
set, petitioner failed to present its evidence. Finally, on 11 July 1990, petitioner filed its Re-
Amended Complaint.38[38] The Sandiganbayan correctly observed that a case already pending for
years would revert to its preliminary stage if the court were to accept the Re-Amended
Complaint.

Based on these circumstances, obviously petitioner has only itself to blame for failure to
complete the presentation of its evidence. The Sandiganbayan gave petitioner more than
sufficient time to finish the presentation of its evidence. The Sandiganbayan overlooked
petitioners delays and yet petitioner ended the long-string of delays with the filing of a Re-
Amended Complaint, which would only prolong even more the disposition of the case.

35[35] Records, p. 347.

36[36] Ibid., p. 346.

37[37] Ibid., p. 395.

38[38] Ibid., p. 422.

 31

Moreover, the pronouncements of the Court in Migrino and Cruz prompted the Sandiganbayan
to dismiss the case since the PCGG has no jurisdiction to investigate and prosecute the case
against private respondents. This alone would have been sufficient legal basis for the
Sandiganbayan to dismiss the forfeiture case against private respondents.

Thus, we hold that the Sandiganbayan did not err in dismissing the case before completion of the
presentation of petitioners evidence.

Third Issue: Legality of the Search and Seizure

Petitioner claims that the Sandiganbayan erred in declaring the properties confiscated from
Dimaanos house as illegally seized and therefore inadmissible in evidence. This issue bears a
significant effect on petitioners case since these properties comprise most of petitioners evidence
against private respondents. Petitioner will not have much evidence to support its case against
private respondents if these properties are inadmissible in evidence.

On 3 March 1986, the Constabulary raiding team served at Dimaanos residence a search warrant
captioned Illegal Possession of Firearms and Ammunition. Dimaano was not present during the
raid but Dimaanos cousins witnessed the raid. The raiding team seized the items detailed in the
seizure receipt together with other items not included in the search warrant. The raiding team
seized these items: one baby armalite rifle with two magazines; 40 rounds of 5.56 ammunition;
one pistol, caliber .45; communications equipment, cash consisting of P2,870,000 and
US$50,000, jewelry, and land titles.

Petitioner wants the Court to take judicial notice that the raiding team conducted the search and
seizure on March 3, 1986 or five days after the successful EDSA revolution.39[39] Petitioner
argues that a revolutionary government was operative at that time by virtue of Proclamation No.
1 announcing that President Aquino and Vice President Laurel were taking power in the name
and by the will of the Filipino people.40[40] Petitioner asserts that the revolutionary government
effectively withheld the operation of the 1973 Constitution which guaranteed private respondents
exclusionary right.

Moreover, petitioner argues that the exclusionary right arising from an illegal search applies only
beginning 2 February 1987, the date of ratification of the 1987 Constitution. Petitioner contends
that all rights under the Bill of Rights had already reverted to its embryonic stage at the time of
the search. Therefore, the government may confiscate the monies and items taken from Dimaano
and use the same in evidence against her since at the time of their seizure, private respondents
did not enjoy any constitutional right.

Petitioner is partly right in its arguments.

39[39] Rollo, p. 34.

40[40] Ibid.
 32

The EDSA Revolution took place on 23-25 February 1986. As succinctly stated in President
Aquinos Proclamation No. 3 dated 25 March 1986, the EDSA Revolution was done in defiance
of the provisions of the 1973 Constitution.41[41] The resulting government was indisputably a
revolutionary government bound by no constitution or legal limitations except treaty obligations
that the revolutionary government, as the de jure government in the Philippines, assumed under
international law.

The correct issues are: (1) whether the revolutionary government was bound by the Bill of Rights
of the 1973 Constitution during the interregnum, that is, after the actual and effective take-over
of power by the revolutionary government following the cessation of resistance by loyalist forces
up to 24 March 1986 (immediately before the adoption of the Provisional Constitution); and (2)
whether the protection accorded to individuals under the International Covenant on Civil and
Political Rights (Covenant) and the Universal Declaration of Human Rights (Declaration)
remained in effect during the interregnum.

We hold that the Bill of Rights under the 1973 Constitution was not operative during the
interregnum. However, we rule that the protection accorded to individuals under the Covenant
and the Declaration remained in effect during the interregnum.

During the interregnum, the directives and orders of the revolutionary government were the
supreme law because no constitution limited the extent and scope of such directives and orders.
With the abrogation of the 1973 Constitution by the successful revolution, there was no
municipal law higher than the directives and orders of the revolutionary government. Thus,
during the interregnum, a person could not invoke any exclusionary right under a Bill of Rights
because there was neither a constitution nor a Bill of Rights during the interregnum. As the Court
explained in Letter of Associate Justice Reynato S. Puno:42[42]

A revolution has been defined as the complete overthrow of the established government in any
country or state by those who were previously subject to it or as a sudden, radical and
fundamental change in the government or political system, usually effected with violence or at

41[41] Proclamation No. 3, Provisional Constitution of the Republic of the Philippines, provides:

WHEREAS, the new government under President Corazon C. Aquino was installed through a
direct exercise of the power of the Filipino people assisted by units of the New Armed Forces of
the Philippines;

WHEREAS, the heroic action of the people was done in defiance of the
provisions of the 1973 Constitution, as amended;

xxx. (Emphasis supplied)

See also Estrada v. Desierto, G.R. No. 146710-15 and G.R. No. 146738, 3 April 2001, 356 SCRA
108; Mun. of San Juan, Metro Manila v. Court of Appeals, 345 Phil. 220 (1997).

42[42] A.M. No. 90-11-2697-CA, 29 June 1992, 210 SCRA 589.

 33

least some acts of violence. In Kelsen's book, General Theory of Law and State, it is defined as
that which occurs whenever the legal order of a community is nullified and replaced by a new
order . . . a way not prescribed by the first order itself.

It was through the February 1986 revolution, a relatively peaceful one, and more popularly
known as the people power revolution that the Filipino people tore themselves away from an
existing regime. This revolution also saw the unprecedented rise to power of the Aquino
government.

From the natural law point of view, the right of revolution has been defined as an inherent right
of a people to cast out their rulers, change their policy or effect radical reforms in their system of
government or institutions by force or a general uprising when the legal and constitutional
methods of making such change have proved inadequate or are so obstructed as to be
unavailable. It has been said that the locus of positive law-making power lies with the people of
the state and from there is derived the right of the people to abolish, to reform and to alter any
existing form of government without regard to the existing constitution.

xxx

It is widely known that Mrs. Aquinos rise to the presidency was not due to constitutional
processes; in fact, it was achieved in violation of the provisions of the 1973 Constitution as a
Batasang Pambansa resolution had earlier declared Mr. Marcos as the winner in the 1986
presidential election. Thus it can be said that the organization of Mrs. Aquinos Government
which was met by little resistance and her control of the state evidenced by the appointment of
the Cabinet and other key officers of the administration, the departure of the Marcos Cabinet
officials, revamp of the Judiciary and the Military signaled the point where the legal system then
in effect, had ceased to be obeyed by the Filipino. (Emphasis supplied)

To hold that the Bill of Rights under the 1973 Constitution remained operative during the
interregnum would render void all sequestration orders issued by the Philippine Commission on
Good Government (PCGG) before the adoption of the Freedom Constitution. The sequestration
orders, which direct the freezing and even the take-over of private property by mere executive
issuance without judicial action, would violate the due process and search and seizure clauses of
the Bill of Rights.

During the interregnum, the government in power was concededly a revolutionary government
bound by no constitution. No one could validly question the sequestration orders as violative of
the Bill of Rights because there was no Bill of Rights during the interregnum. However, upon the
adoption of the Freedom Constitution, the sequestered companies assailed the sequestration
orders as contrary to the Bill of Rights of the Freedom Constitution.

In Bataan Shipyard & Engineering Co. Inc. vs. Presidential Commission on Good
Government,43[43] petitioner Baseco, while conceding there was no Bill of Rights during the
interregnum, questioned the continued validity of the sequestration orders upon adoption of the

43[43] No. L-75885, 27 May 1987, 150 SCRA 181.

 34

Freedom Constitution in view of the due process clause in its Bill of Rights. The Court ruled that
the Freedom Constitution, and later the 1987 Constitution, expressly recognized the validity of
sequestration orders, thus:

If any doubt should still persist in the face of the foregoing considerations as to the validity and
propriety of sequestration, freeze and takeover orders, it should be dispelled by the fact that these
particular remedies and the authority of the PCGG to issue them have received constitutional
approbation and sanction. As already mentioned, the Provisional or Freedom Constitution
recognizes the power and duty of the President to enact measures to achieve the mandate of the
people to . . . (r)ecover ill-gotten properties amassed by the leaders and supporters of the
previous regime and protect the interest of the people through orders of sequestration or freezing
of assets or accounts. And as also already adverted to, Section 26, Article XVIII of the 1987
Constitution treats of, and ratifies the authority to issue sequestration or freeze orders under
Proclamation No. 3 dated March 25, 1986.

The framers of both the Freedom Constitution and the 1987 Constitution were fully aware that
the sequestration orders would clash with the Bill of Rights. Thus, the framers of both
constitutions had to include specific language recognizing the validity of the sequestration
orders. The following discourse by Commissioner Joaquin G. Bernas during the deliberations of
the Constitutional Commission is instructive:

FR. BERNAS: Madam President, there is something schizophrenic about the arguments
in defense of the present amendment.
For instance, I have carefully studied Minister Salongas lecture in the Gregorio Araneta
University Foundation, of which all of us have been given a copy. On the one hand, he
argues that everything the Commission is doing is traditionally legal. This is repeated by
Commissioner Romulo also. Minister Salonga spends a major portion of his lecture
developing that argument. On the other hand, almost as an afterthought, he says that in
the end what matters are the results and not the legal niceties, thus suggesting that the
PCGG should be allowed to make some legal shortcuts, another word for niceties or
exceptions.
Now, if everything the PCGG is doing is legal, why is it asking the CONCOM for
special protection? The answer is clear. What they are doing will not stand the test of
ordinary due process, hence they are asking for protection, for exceptions. Grandes
malos, grandes remedios, fine, as the saying stands, but let us not say grandes malos,
grande y malos remedios. That is not an allowable extrapolation. Hence, we should not
give the exceptions asked for, and let me elaborate and give three reasons:
First, the whole point of the February Revolution and of the work of the CONCOM is to
hasten constitutional normalization. Very much at the heart of the constitutional
normalization is the full effectivity of the Bill of Rights. We cannot, in one breath, ask
for constitutional normalization and at the same time ask for a temporary halt to the full
functioning of what is at the heart of constitutionalism. That would be hypocritical; that
would be a repetition of Marcosian protestation of due process and rule of law. The
New Society word for that is backsliding. It is tragic when we begin to backslide even
before we get there.
 35

Second, this is really a corollary of the first. Habits tend to become ingrained. The
committee report asks for extraordinary exceptions from the Bill of Rights for six
months after the convening of Congress, and Congress may even extend this longer.
Good deeds repeated ripen into virtue; bad deeds repeated become vice. What the
committee report is asking for is that we should allow the new government to acquire
the vice of disregarding the Bill of Rights.
Vices, once they become ingrained, become difficult to shed. The practitioners of the
vice begin to think that they have a vested right to its practice, and they will fight tooth
and nail to keep the franchise. That would be an unhealthy way of consolidating the
gains of a democratic revolution.
Third, the argument that what matters are the results and not the legal niceties is an
argument that is very disturbing. When it comes from a staunch Christian like
Commissioner Salonga, a Minister, and repeated verbatim by another staunch Christian
like Commissioner Tingson, it becomes doubly disturbing and even discombobulating.
The argument makes the PCGG an auctioneer, placing the Bill of Rights on the auction
block. If the price is right, the search and seizure clause will be sold. Open your Swiss
bank account to us and we will award you the search and seizure clause. You can keep it
in your private safe.
Alternatively, the argument looks on the present government as hostage to the hoarders
of hidden wealth. The hoarders will release the hidden health if the ransom price is paid
and the ransom price is the Bill of Rights, specifically the due process in the search and
seizure clauses. So, there is something positively revolving about either argument. The
Bill of Rights is not for sale to the highest bidder nor can it be used to ransom captive
dollars. This nation will survive and grow strong, only if it would become convinced of
the values enshrined in the Constitution of a price that is beyond monetary estimation.
For these reasons, the honorable course for the Constitutional Commission is to delete
all of Section 8 of the committee report and allow the new Constitution to take effect in
full vigor. If Section 8 is deleted, the PCGG has two options. First, it can pursue the
Salonga and the Romulo argument that what the PCGG has been doing has been
completely within the pale of the law. If sustained, the PCGG can go on and should be
able to go on, even without the support of Section 8. If not sustained, however, the
PCGG has only one honorable option, it must bow to the majesty of the Bill of Rights.
The PCGG extrapolation of the law is defended by staunch Christians. Let me conclude
with what another Christian replied when asked to toy around with the law. From his
prison cell, Thomas More said, "I'll give the devil benefit of law for my nations safety
sake. I ask the Commission to give the devil benefit of law for our nations sake. And we
should delete Section 8.
Thank you, Madam President. (Emphasis supplied)

Despite the impassioned plea by Commissioner Bernas against the amendment excepting
sequestration orders from the Bill of Rights, the Constitutional Commission still adopted the
amendment as Section 26,44[44] Article XVIII of the 1987 Constitution. The framers of the

44[44] Section 26, Article XVIII of the 1987 Constitution provides:

 36

Constitution were fully aware that absent Section 26, sequestration orders would not stand the
test of due process under the Bill of Rights.

Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force during the
interregnum, absent a constitutional provision excepting sequestration orders from such Bill of
Rights, would clearly render all sequestration orders void during the interregnum. Nevertheless,
even during the interregnum the Filipino people continued to enjoy, under the Covenant and the
Declaration, almost the same rights found in the Bill of Rights of the 1973 Constitution.

The revolutionary government, after installing itself as the de jure government, assumed
responsibility for the States good faith compliance with the Covenant to which the Philippines is
a signatory. Article 2(1) of the Covenant requires each signatory State to respect and to ensure to
all individuals within its territory and subject to its jurisdiction the rights45[45] recognized in the

Sec. 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated
March 25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not
more than eighteen months after the ratification of this Constitution. However, in the national
interest, as certified by the President, the Congress may extend said period.

A sequestration or freeze order shall be issued only upon showing of a prima facie case. The
order and the list of the sequestered or frozen properties shall forthwith be registered with the
proper court. For orders issued before the ratification of this Constitution, the corresponding
judicial action or proceeding shall be filed within six months from its ratification. For those
issued after such ratification, the judicial action or proceeding shall be commenced within six
months from the issuance thereof.

The sequestration or freeze order is deemed automatically lifted if no judicial action or

proceeding is commenced as herein provided.

45[45] Among the rights of individuals recognized in the Covenant are: (1) No one shall be
arbitrarily deprived of his life [Article 6(1)]; (2) No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. [Article 7]; (3) Everyone has the right to liberty
and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance with such procedures as are
established by law. Anyone arrested or detained on a criminal charge shall be brought promptly
before a judge or other officer authorized by law to exercise judicial power and shall be entitled
to trial within a reasonable time or to release [Article 9(1 & 3)]; (4) Anyone who is arrested shall
be informed, at the time of the arrest, of the reasons for his arrest and shall be promptly informed
of the charges against him [Article 9(2)]; (5) Everyone lawfully within the territory of a State
shall, within that territory, have the right to liberty of movement and freedom to choose his
residence. Everyone shall be free to leave any country, including his own. No one shall be
arbitrarily deprived of the right to enter his own country [Article 12(1, 2 & 3)]; (6) Everyone
charged with a criminal offense shall have the right to be presumed innocent until proved guilty
according to law [Article 14(2)]; (7) Everyone shall have the right of freedom of thought,
conscience and religion [Article 18(1)]; (8) Everyone shall have the right to hold opinions
without interference. Everyone shall have the right to freedom of expression [Article 19(1 & 2)];
 37

present Covenant. Under Article 17(1) of the Covenant, the revolutionary government had the
duty to insure that [n]o one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence.

The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2) that
[n]o one shall be arbitrarily deprived of his property. Although the signatories to the Declaration
did not intend it as a legally binding document, being only a declaration, the Court has
interpreted the Declaration as part of the generally accepted principles of international law and
binding on the State.46[46] Thus, the revolutionary government was also obligated under
international law to observe the rights47[47] of individuals under the Declaration.

The revolutionary government did not repudiate the Covenant or the Declaration during the
interregnum. Whether the revolutionary government could have repudiated all its obligations
under the Covenant or the Declaration is another matter and is not the issue here. Suffice it to say
that the Court considers the Declaration as part of customary international law, and that Filipinos
as human beings are proper subjects of the rules of international law laid down in the Covenant.
The fact is the revolutionary government did not repudiate the Covenant or the Declaration in the
same way it repudiated the 1973 Constitution. As the de jure government, the revolutionary
government could not escape responsibility for the States good faith compliance with its treaty
obligations under international law.

It was only upon the adoption of the Provisional Constitution on 25 March 1986 that the
directives and orders of the revolutionary government became subject to a higher municipal law
that, if contravened, rendered such directives and orders void. The Provisional Constitution
adopted verbatim the Bill of Rights of the 1973 Constitution.48[48] The Provisional Constitution
served as a self-limitation by the revolutionary government to avoid abuses of the absolute
powers entrusted to it by the people.

(9) The right of peaceful assembly shall be recognized [Article 21]; (10) Everyone shall have the
right of freedom of association with others [Article 22(1)]; (11) All persons are equal before the
law and are entitled without any discrimination to the equal protection of the law [Article 26].

46[46] Andreu v. Commissioner of Immigration, 90 Phil. 347 (1951); Chirskoff v. Commissioner

of Immigration, 90 Phil. 256 (1951); Borovsky v. Commissioner of Immigration, 90 Phil. 107
(1951); Mejoff v. Director of Prisons, 90 Phil. 70 (1951).

47[47] Among the rights enshrined in the Declaration are: (1) Everyone has the right to own
property alone or in association with others [Article 17(1)]; (2) Everyone has the right to take
part in the government of his country, directly or through freely chosen representatives [Article
21(1)]; (3) Everyone has the right to work, to free choice of employment, to just and favorable
conditions of work and to protection against unemployment [Article 23(1)].

48[48] Section 1, Article I of the Provisional Constitution provides: The provisions of xxx
ARTICLE IV (Bill of Rights) xxx of the 1973 Constitution, as amended, remain in force and
effect and are hereby adopted in toto as part of this provisional Constitution. (Emphasis
supplied)
 38

During the interregnum when no constitution or Bill of Rights existed, directives and orders
issued by government officers were valid so long as these officers did not exceed the authority
granted them by the revolutionary government. The directives and orders should not have also
violated the Covenant or the Declaration. In this case, the revolutionary government
presumptively sanctioned the warrant since the revolutionary government did not repudiate it.
The warrant, issued by a judge upon proper application, specified the items to be searched and
seized. The warrant is thus valid with respect to the items specifically described in the warrant.

However, the Constabulary raiding team seized items not included in the warrant. As admitted by
petitioners witnesses, the raiding team confiscated items not included in the warrant, thus:

Direct Examination of Capt. Rodolfo Sebastian

AJ AMORES

Q. According to the search warrant, you are supposed to seize only for weapons.
What else, aside from the weapons, were seized from the house of Miss Elizabeth
Dimaano?

A. The communications equipment, money in Philippine currency and US dollars,

some jewelries, land titles, sir.

Q. Now, the search warrant speaks only of weapons to be seized from the house
of Elizabeth Dimaano. Do you know the reason why your team also seized
other properties not mentioned in said search warrant?
A. During the conversation right after the conduct of said raid, I was informed
that the reason why they also brought the other items not included in the
search warrant was because the money and other jewelries were contained in
attach cases and cartons with markings Sony Trinitron, and I think three (3)
vaults or steel safes. Believing that the attach cases and the steel safes were
containing firearms, they forced open these containers only to find out that
they contained money.

xxx

Q. You said you found money instead of weapons, do you know the reason why
your team seized this money instead of weapons?
A. I think the overall team leader and the other two officers assisting him
decided to bring along also the money because at that time it was already
dark and they felt most secured if they will bring that because they might be
suspected also of taking money out of those items, your Honor.49[49]
Cross-examination
Atty. Banaag

49[49] TSN, 18 April 1989, pp. 115-117.

 39

Q. Were you present when the search warrant in connection with this case was
applied before the Municipal Trial Court of Batangas, Branch 1?
A. Yes, sir.
Q. And the search warrant applied for by you was for the search and seizure of
five (5) baby armalite rifles M-16 and five (5) boxes of ammunition?
A. Yes, sir.

xxx

AJ AMORES

Q. Before you applied for a search warrant, did you conduct surveillance in the
house of Miss Elizabeth Dimaano?
A. The Intelligence Operatives conducted surveillance together with the MSU
elements, your Honor.
Q. And this party believed there were weapons deposited in the house of Miss
Elizabeth Dimaano?
A. Yes, your Honor.
Q. And they so swore before the Municipal Trial Judge?
A. Yes, your Honor.
Q. But they did not mention to you, the applicant for the search warrant, any
other properties or contraband which could be found in the residence of Miss
Elizabeth Dimaano?
A. They just gave us still unconfirmed report about some hidden items, for
instance, the communications equipment and money. However, I did not
include that in the application for search warrant considering that we have
not established concrete evidence about that. So when
Q. So that when you applied for search warrant, you had reason to believe that
only weapons were in the house of Miss Elizabeth Dimaano?
A. Yes, your Honor.50[50]

xxx

Q. You stated that a .45 caliber pistol was seized along with one armalite rifle
M-16 and how many ammunition?
A. Forty, sir.
Q. And this became the subject of your complaint with the issuing Court, with
the fiscals office who charged Elizabeth Dimaano for Illegal Possession of
Firearms and Ammunition?
A. Yes, sir.

50[50] Ibid., pp. 136-138.

 40

Q. Do you know what happened to that case?

A. I think it was dismissed, sir.
Q. In the fiscals office?
A. Yes, sir.
Q. Because the armalite rifle you seized, as well as the .45 caliber pistol had a
Memorandum Receipt in the name of Felino Melegrito, is that not correct?
A. I think that was the reason, sir.
Q. There were other articles seized which were not included in the search
warrant, like for instance, jewelries. Why did you seize the jewelries?
A. I think it was the decision of the overall team leader and his assistant to bring
along also the jewelries and other items, sir. I do not really know where it was
taken but they brought along also these articles. I do not really know their
reason for bringing the same, but I just learned that these were taken because
they might get lost if they will just leave this behind.

xxx

Q. How about the money seized by your raiding team, they were not also
included in the search warrant?
A. Yes sir, but I believe they were also taken considering that the money was
discovered to be contained in attach cases. These attach cases were suspected
to be containing pistols or other high powered firearms, but in the course of
the search the contents turned out to be money. So the team leader also
decided to take this considering that they believed that if they will just leave
the money behind, it might get lost also.
Q. That holds true also with respect to the other articles that were seized by your
raiding team, like Transfer Certificates of Title of lands?
A. Yes, sir. I think they were contained in one of the vaults that were opened.51
[51]

It is obvious from the testimony of Captain Sebastian that the warrant did not include the monies,
communications equipment, jewelry and land titles that the raiding team confiscated. The search
warrant did not particularly describe these items and the raiding team confiscated them on its
own authority. The raiding team had no legal basis to seize these items without showing that

51[51] Ibid., pp. 144-146.

 41

these items could be the subject of warrantless search and seizure.52[52] Clearly, the raiding team
exceeded its authority when it seized these items.

The seizure of these items was therefore void, and unless these items are contraband per se,53[53]
and they are not, they must be returned to the person from whom the raiding seized them.
However, we do not declare that such person is the lawful owner of these items, merely that the
search and seizure warrant could not be used as basis to seize and withhold these items from the
possessor. We thus hold that these items should be returned immediately to Dimaano.

WHEREFORE, the petition for certiorari is DISMISSED. The questioned Resolutions of the
Sandiganbayan dated 18 November 1991 and 25 March 1992 in Civil Case No. 0037, remanding
the records of this case to the Ombudsman for such appropriate action as the evidence may
warrant, and referring this case to the Commissioner of the Bureau of Internal Revenue for a
determination of any tax liability of respondent Elizabeth Dimaano, are AFFIRMED.

SO ORDERED.

Bellosillo, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr. and Azcuna, JJ., concur.

Davide, Jr., C.J., in the result. I concur with Mr. Justice Vitug in his concurring opinion.

Puno and Vitug, JJ., see separate opinion

Panganiban, J., in the result.

Quisumbing and Sandoval-Gutierrez, JJ., on official leave.

Ynares-Santiago, J., in the result. I concur in the separate opinion of J. Reynato Puno.

Tinga, J., separate opinion reserved.

52[52] Five generally accepted exceptions to the rule against warrantless search and seizure have
been judicially formulated as follows: (1) search incidental to a lawful arrest, (2) search of
moving vehicles, (3) seizure of evidence in plain view, (4) customs searches, and (5) waiver by
the accused themselves of their right against unreasonable search and seizure. (People v. Que
Ming Kha, G.R. No. 133265, 31 May 2002; Caballes v. Court of Appeals, G.R. No. 136292, 15
January 2002; People v. Lacerna, G.R. No. 109250, 5 September 1997, 278 SCRA 561).

53[53] People v. Lim, G.R. No. 141699, 7 August 2002; Del Rosario v. People, G.R. No. 142295,
31 May 2001, 358 SCRA 373.
 42

acts: The Republic seeks to nullify and set aside resolutions of the Sandiganbayan ordering
PCGG to pay private respondent Roberto Benedicto or his corporations the value of 277 shares
of stock of NOGCCI registered in his name. Petitioner invokes state immunity from suit
claiming that the order to pay the value of the delinquent shares would fix monetary liability on a
government agency thus necessitating the appropriation of public funds to satisfy the judgment
claim.

Issue: Whether or not petitioner has state of immunity?

Decision: Petition granted, resolution set aside. PCGG failed to take stock of one of the
exemptions to the state immunity when the government itself is the suitor. The state itself is no
less the plaintiff in the main case, ergo immunity from suit cannot be effectively invoked.

THE PAQUETE HABANA, 175 U.S. 677 (1900)

Facts:
These are two appeals from decrees of the district court of the United States for the southern
district of Florida condemning two fishing vessels and their cargoes as prize of war.

Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in fishing
on the coast of Cuba. It sailed under the Spanish flag and was owned by a Spanish subject of
Cuban birth, living in the city of Havana. It was commanded by a subject of Spain, also residing
in Havana. Her master and crew had no interest in the vessel, but were entitled to share her catch.

Her cargo consisted of fresh fish, caught by her crew from the sea, put on board as they were
caught, and kept and sold alive. Until stopped by the blockading squadron she had no knowledge
of the existence of the war or of any blockade. She had no arms or ammunition on board, and
made on attempt to run the blockade after she knew of its existence, nor any resistance at the
time of the capture.
 43

The Paquete Habana (1st vessel) was a sloop and had a crew of three Cubans, including the
master, who had a fishing license from the Spanish government, and no other commission or
license. She left Havana and was captured by the United States gunboat Castine.

The Lola (2nd vessel) was a schooner and had a crew of six Cubans, including the master, and no
commission or license. She was stopped by the United States steamship Cincinnati, and was
warned not to go into Havana, but was told that she would be allowed to land at Bahia Honda.
She then set for Bahia Honda, but on the next morning, when near that port, was captured by the
United States steamship Dolphin.

Both the fishing vessels were brought by their captors into Key West. A libel for the
condemnation of each vessel and her cargo as prize of war was filed. Each vessel was sold by
auction (the Paquete Habana for the sum of $490 and the Lola for the sum of $800). There was
no other evidence in the record of the value of either vessel or of her cargo.

Issue:

Whether or not the fishing smacks were subject to capture during the war with Spain.

Held:

No. By an ancient usage among civilized nations, beginning centuries ago, and gradually
ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching
and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from
capture as prize of war. (The case then discussed instances throughout history where fishing
vessels were captured.)

It will be convenient to refer to some leading French treatises on international law as determined
by the general consent of civilized nations.

'Enemy ships,' say Pistoye and Duverdy, in their Treatise on Maritime Prizes, published in 1855,
'are good prize. Not all, however; for it results from the unanimous accord of the maritime
powers that an exception should be made in favor of coast fishermen. Such fishermen are
respected by the enemy so long as they devote themselves exclusively to fishing.'
De Cussy, in his work on the Phases and Leading Cases of the Maritime Law of Nations, affirms
in the clearest language the exemption from capture of fishing boats, saying, that 'in time of war
the freedom of fishing is respected by belligerents; fishing boats are considered as neutral; in
law, as in principle, they are not subject either to capture or to confiscation.

Ortolan, in the fourth edition of his Regles Internationales et Diplomatie de la Mer, after stating
the general rule that the vessels and cargoes of subjects of the enemy are lawful prize, says:
'Nevertheless, custom admits an exception in favor of boats engaged in the coast fishery; these
boats, as well as their crews, are free from capture and exempt from all hostilities. The coast-
fishing industry is, in truth, wholly pacific, and of much less importance in regard to the national
wealth that it may produce than maritime commerce or the great fisheries. Peaceful and wholly
inoffensive, those who carry it on, may be called the harvesters of the territorial seas, since they
confine themselves to gathering in the products thereof; they are for the most part poor families
 44

who seek in this calling hardly more than the means of gaining their livelihood.' Again, after
observing that there are very few solemn public treaties which make mention of the immunity of
fishing boats in time of war, he says: 'From another point of view the custom which sanctions
this immunity is not so general that it can be considered as making an absolute international rule;
but it has been so often put in practice, and, besides, it accords so well with the rule in use in
wars on land, in regard to peasants and husbandmen, to whom coast fishermen may be likened,
that it will doubtless continue to be followed in maritime wars to come. (A lot of opinions of
other writers were also included which will not be mentioned in this digest)

This review of the precedents and authorities on the subject appears to us abundantly to
demonstrate that at the present day, by the general consent of the civilized nations of the world,
and independently of any express treaty or other public act, it is an established rule of
international law, founded on considerations of humanity to a poor and industrious order of men,
and of the mutual convenience of belligerent states, that coast fishing vessels, with their
implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful
calling of catching and bringing in fresh fish, are exempt from capture as prize of war.

The exemption, of course, does not apply to coast fishermen or their vessels if employed for a
warlike purpose, or in such a way as to give aid or information to the enemy; nor when military
or naval operations create a necessity to which all private interests must give way.

Nor has the exemption been extended to ships or vessels employed on the high sea in taking
whales or seals or cod or other fish which are not brought fresh to market, but are salted or
otherwise cured and made a regular article of commerce.

This rule of international law is one which prize courts administering the law of nations are
bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public
act of their own government in relation to the matter.

By the practice of all civilized nations, vessels employed only for the purposes of discovery or
science are considered as exempt from the contingencies of war, and therefore not subject to
capture. It has been usual for the government sending out such an expedition to give notice to
other powers; but it is not essential.

To this subject in more than one aspect are singularly applicable the words uttered by Mr. Justice
Strong, speaking for this court: 'Undoubtedly no single nation can change the law of the sea. The
law is of universal obligation and no statute of one or two nations can create obligations for the
world. Like all the laws of nations, it rests upon the common consent of civilized communities. It
is of force, not because it was prescribed by any superior power, but because it has been
generally accepted as a rule of conduct. Whatever may have been its origin, whether in the
usages of navigation, or in the ordinances of maritime states, or in both, it has become the law of
the sea only by the concurrent sanction of those nations who may be said to constitute the
commercial world. Many of the usages which prevail, and which have the force of law, doubtless
originated in the positive prescriptions of some single state, which were at first of limited effect,
but which, when generally accepted, became of universal obligation.'
 45

In the case, each vessel was of a moderate size, such as is not unusual in coast fishing smacks,
and was regularly engaged in fishing on the coast of Cuba. The crew of each were few in
number, had no interest in the vessel, and received, in return for their toil and enterprise, two
thirds of her catch, the other third going to her owner by way of compensation for her use. Each
vessel went out from Havana to her fishing ground, and was captured when returning along the
coast of Cuba. The cargo of each consisted of fresh fish, caught by her crew from the sea, and
kept alive on board. Although one of the vessels extended her fishing trip, we cannot doubt that
each was engaged in the coast fishery, and not in a commercial adventure, within the rule of
international law.

The case was adjudged that the capture was unlawful and without probable cause ordered that
the proceeds of the sale of the vessel, together with the proceeds of any sale of her cargo, be
restored to the claimant, with damages and costs.

Overview:

Columbia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru.
Was Columbia entitled to make a unilateral and definitive qualification of the offence (as a
political offence) in a manner binding on Peru and was Peru was under a legal obligation to
provide safe passage for the Peruvian to leave Peru?

Facts of the Case:

Peru issued an arrest warrant against Victor Raul Haya de la Torre in respect of the crime of
military rebellion which took place on October 3, 1949, in Peru. 3 months after the rebellion,
Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed that
Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention
on Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently, the
 46

Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with
Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the
same as the Refugee Convention of 1951). Peru refused to accept the unilateral qualification and
refused to grant safe passage.

Questions before the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence
for the purpose of asylum under treaty law and international law?

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?

(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter
called the Havana Convention) when it granted asylum and is the continued maintenance of
asylum a violation of the treaty?

The Courts Decision:

Relevant Findings of the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence
for the purpose of asylum under treaty law and international law?

1. The court stated that in the normal course of granting diplomatic asylum a diplomatic
representative has the competence to make a provisional qualification of the offence (for
example, as a political offence) and the territorial State has the right to give consent to this
qualification. In the Torres case, Colombia has asserted, as the State granting asylum, that it is
competent to qualify the nature of the offence in a unilateral and definitive manner that is
binding on Peru. The court had to decide if such a decision was binding on Peru either because of
treaty law (in particular the Havana Convention of 1928 and the Montevideo Convention of
1933), other principles of international law or by way of regional or local custom.

2. The court held that there was no expressed or implied right of unilateral and definitive
qualification of the State that grants asylum under the Havana Convention or relevant principles
of international law (p. 12, 13). The Montevideo Convention of 1933, which accepts the right of
unilateral qualification, and on which Colombia relied to justify its unilateral qualification, was
not ratified by Peru. The Convention, per say, was not binding on Peru and considering the low
numbers of ratifications the provisions of the latter Convention cannot be said to reflect
customary international law (p. 15).

3. Colombia also argued that regional or local customs support the qualification. The court held
that the burden of proof on the existence of an alleged customary law rests with the party making
the allegation:
 47

The Party which relies on a custom of this kind must prove that this custom is established in
such a manner that it has become binding on the other Party (that) it is in accordance with a
(1) constant and uniform usage (2) practiced by the States in question, and that this usage is (3)
the expression of a right appertaining to the State granting asylum (Columbia) and (4) a duty
incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the Statute
of the Court, which refers to international custom as evidence of a general practice accepted as
law(text in brackets added).

4. The court held that Columbia did not establish the existence of a regional custom because it
failed to prove consistent and uniform usage of the alleged custom by relevant States. The
fluctuations and contradictions in State practice did not allow for the uniform usage (see also
Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of State
practice). The court also reiterated that the fact that a particular State practice was followed
because of political expediency and not because of a belief that the said practice is binding on the
State by way of a legal obligation (opinio juris) is detrimental to the formation of a customary
law (see North Sea Continental Shelf Cases and Lotus Case for more on opinio juris):

[T]he Colombian Government has referred to a large number of particular cases in which
diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule of
unilateral and definitive qualification was invoked or that it was, apart from conventional
stipulations, exercised by the States granting asylum as a right appertaining to them and
respected by the territorial States as a duty incumbent on them and not merely for reasons of
political expediency. The facts brought to the knowledge of the Court disclose so much
uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic
asylum and in the official views expressed on various occasions, there has been so much
inconsistency in the rapid succession of conventions on asylum, ratified by some States and
rejected by others, and the practice has been so much influenced by considerations of political
expediency in the various cases, that it is not possible to discern in all this any constant and
uniform usage, mutually accepted as law, with regard to the alleged rule of unilateral and
definitive qualification of the offence.

5. The court held that even if Colombia could prove that such a regional custom existed, it would
not be binding on Peru, because Peru far from having by its attitude adhered to it, has, on the
contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and
1939, which were the first to include a rule concerning the qualification of the offence [as
political in nature] in matters of diplomatic asylum. (See in this regard, the lesson on
persistent objectors. Similarly in the North Sea Continental Shelf Cases the court held in any
event the . . . rule would appear to be inapplicable as against Norway in as much as she had
always opposed any attempt to apply it to the Norwegian coast.)

6. The court concluded that Columbia, as the State granting asylum, is not competent to qualify
the offence by a unilateral and definitive decision, binding on Peru.

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?
 48

7. The court held that there was no legal obligation on Peru to grant safe passage either because
of the Havana Convention or customary law. In the case of the Havana Convention, a plain
reading of Article 2 results in an obligation on the territorial state (Peru) to grant safe passage
only after it requests the asylum granting State (Columbia) to send the person granted asylum
outside its national territory (Peru). In this case the Peruvian government had not asked that
Torre leave Peru. On the contrary, it contested the legality of asylum granted to him and refused
to grant safe conduct.

8. The court looked at the possibility of a customary law emerging from State practice where
diplomatic agents have requested and been granted safe passage for asylum seekers, before the
territorial State could request for his departure. Once more, the court held that these practices
were a result of a need for expediency and other practice considerations over an existence of a
belief that the act amounts to a legal obligation (see paragraph 4 above).

There exists undoubtedly a practice whereby the diplomatic representative who grants asylum
immediately requests a safe conduct without awaiting a request from the territorial state for the
departure of the refugeebut this practice does not and cannot mean that the State, to whom
such a request for safe-conduct has been addressed, is legally bound to accede to it.

(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum
and is the continued maintenance of asylum a violation of the treaty?

9. Article 1 of the Havana Convention states that It is not permissible for States to grant
asylum to persons accused or condemned for common crimes (such persons) shall be
surrendered upon request of the local government.

10. In other words, the person-seeking asylum must not be accused of a common crime (for
example, murder would constitute a common crime, while a political offence would not).The
accusations that are relevant are those made before the granting of asylum. Torres accusation
related to a military rebellion, which the court concluded was not a common crime and as such
the granting of asylum complied with Article 1 of the Convention.

11. Article 2 (2) of the Havana Convention states that Asylum granted to political offenders in
legations, warships, military camps or military aircraft, shall be respected to the extent in which
allowed, as a right or through humanitarian toleration, by the usages, the conventions or the laws
of the country in which granted and in accordance with the following provisions: First: Asylum
may not be granted except in urgent cases and for the period of time strictly indispensable for the
person who has sought asylum to ensure in some other way his safety.

12. An essential pre-requisite for the granting of asylum is the urgency or, in other words, the
presence of an imminent or persistence of a danger for the person of the refugee. The court
held that the facts of the case, including the 3 months that passed between the rebellion and the
time when asylum was sought, did not establish the urgency criteria in this case (pp. 20 -23). The
court held:
 49

In principle, it is inconceivable that the Havana Convention could have intended the term
urgent cases to include the danger of regular prosecution to which the citizens of any country
lay themselves open by attacking the institutions of that country In principle, asylum cannot be
opposed to the operation of justice.

13. In other words, Torre was accused of a crime but he could not be tried in a court because
Colombia granted him asylum. The court held that protection from the operation of regular legal
proceedings was not justified under diplomatic asylum.

14. The court held:

In the case of diplomatic asylum the refugee is within the territory of the State. A decision to
grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws
the offender from the jurisdiction of the territorial State and constitutes an intervention in matters
which are exclusively within the competence of that State. Such a derogation from territorial
sovereignty cannot be recognised unless its legal basis is established in each particular case.

15. As a result, exceptions to this rule are strictly regulated under international law.

An exception to this rule (asylum should not be granted to those facing regular prosecutions) can
occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. Such would
be the case if the administration of justice were corrupted by measures clearly prompted by
political aims. Asylum protects the political offender against any measures of a manifestly extra-
legal character which a Government might take or attempt to take against its political
opponents On the other hand, the safety which arises out of asylum cannot be construed as a
protection against the regular application of the laws and against the jurisdiction of legally
constituted tribunals. Protection thus understood would authorize the diplomatic agent to obstruct
the application of the laws of the country whereas it is his duty to respect them Such a
conception, moreover, would come into conflict with one of the most firmly established
traditions of Latin-America, namely, non-intervention [for example, by Colombia into the
internal affairs of another State like Peru].

16. Asylum may be granted on humanitarian grounds to protect political prisoners against the
violent and disorderly action of irresponsible sections of the population. (for example during a
mob attack where the territorial State is unable to protect the offender). Torre was not in such a
situation at the time when he sought refuge in the Colombian Embassy at Lima.

17. The court concluded that the grant of asylum and reasons for its prolongation were not in
conformity with Article 2(2) of the Havana Convention (p. 25).

The grant of asylum is not an instantaneous act which terminates with the admission, at a given
moment of a refugee to an embassy or a legation. Any grant of asylum results in, and in
consequence, logically implies, a state of protection, the asylum is granted as long as the
continued presence of the refugee in the embassy prolongs this protection.
 50

Name of the Case: The North Sea Continental Shelf Cases (Germany/Denmark;
Germany/Netherlands); Year of Decision: 1969; and Court: ICJ.

NB: This post discussed only aspects of the case related to treaty or customary international law.

Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual
requirement for forming customary international law State practice (objective element) and
opinio juris (subjective element). It elaborated the criteria necessary to establish State practice
widespread and representative participation. The case highlighted that the State practice
of importance were of those States whose interests were affected by the custom. It also identified
the fact that uniform and consistent practice was necessary to show opinio juris a belief that
the practice amounts to a legal obligation. The North Sea Continental Self Cases also dispelled
the myth that duration of the practice (i.e. the number of years) was an essential factor in
forming customary international law.
 51

The case involved the delimitation of the continental shelf areas in the North Sea between
Germany and Denmark and Germany and Netherlands beyond the partial boundaries previously
agreed upon by these States. The parties requested the ICJ to decide the principles and rules of
international law that are applicable to the above delimitation. The parties disagreed on the
applicable principles or rules of delimitation Netherlands and Denmark relied on the principle
of equidistance (the method of determining the boundaries in such a way that every point in the
boundary is equidistant from the nearest points of the baselines from which the breath of the
territorial sea of each State is measured). Germany sought to get a decision in favour of the
notion that the delimitation of the relevant continental shelf is governed by the principle that
each coastal state is entitled to a just and equitable share (hereinafter called just and equitable
principle/method). Contrary to Denmark and Netherlands, Germany argued that the principle of
equidistance was neither a mandatory rule in delimitation of the continental shelf nor a rule of
customary international law that was not binding on Germany. The court was not asked to
delimit the parties agreed to delimit the continental shelf as between their countries, by
agreement, after the determination of the ICJ on the applicable principles.

Facts of the Case:

Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle
(A-B and C-D). An agreement on further prolongation of the boundary proved difficult because
Denmark and Netherlands wished this prolongation to take place based on the equidistance
principle (B-E and D-E) where as Germany was of the view that, together, these two boundaries
would produce an inequitable result for her. Germany stated that due to its concave coastline,
such a line would result in her loosing out on her share of the continental shelf based on
proportionality to the length of its North Sea coastline. The Court had to decide the principles
and rules of international law applicable to this delimitation. In doing so, the court had to decide
if the principles espoused by the parties were binding on the parties either through treaty law or
customary international law.

Questions before the Court (as relevant to this post):

Is Germany under a legal obligation to accept the equidistance-special circumstances principle,

contained in Article 6 of the Geneva Convention, either as a customary international law rule or
on the basis of the Geneva Convention?

The Courts Decision:

The use of the equidistance method had not crystallised into customary law and was is not
obligatory for the delimitation of the areas in the North Sea related to the present proceedings.

Relevant Findings of the Court:

Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6,
binding on Germany?
 52

1. Article 6 of the Geneva Convention on the Continental Shelf states that unless the parties have
agreed on a method for delimitation or unless special circumstances exist, the equidistance
method would apply (see Article 6). Germany has signed but not ratified the Geneva Convention,
while Netherlands and Denmark are parties to the Convention. The latter two States argue that
while Germany is not a party to the Convention (not having ratified it), she is still bound by
Article 6 of the Convention because:

(1) by conduct, by public statements and proclamations, and in other ways, the Republic has
unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the
conventional regime; or has recognized it as being generally applicable to the delimitation of
continental shelf areas

(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a
manner as to cause other States, and in particular Denmark and the Netherlands, to rely on the
attitude thus taken up (the latter is called the principle of estoppel).

2. The Court rejected the first argument. It stated that only a very definite very consistent course
of conduct on the part of a State would allow the court to presume that a State had somehow
become bound by a treaty (by a means other than in a formal manner: i.e. ratification) when the
State was at all times fully able and entitled to accept the treaty commitments in a formal
manner. The Court held that Germany had not unilaterally assumed obligations under the
Convention. The court also took notice of the fact that even if Germany ratified the treaty, she
had the option of entering into a reservation on Article 6 following which that particular article
would no longer be applicable to Germany (i.e. even if one were to assume that Germany had
intended to become a party to the Convention, it does not presuppose that it would have also
undertaken those obligations contained in Article 6).

3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in
1980, discusses more fully the obligations of third States to treaties. It clearly stipulates that an
obligation arises for a third State from a provision of a treaty only if (1) the parties to the treaty
intend the provision to create this obligation for the third States; and (2) the third State expressly
accepts that obligation in writing (A. 35 of the VCLT). The VCLT was not in force when the ICJ
deliberated on this case. However, as seen above, the ICJs position was consistent the VCLT.
(See the relevant provisions of the Vienna Convention on the Law of Treaties).

4. The court held that the existence of a situation of estoppel would have allowed Article 6 to
become binding on Germany but held that Germanys action did not support an argument for
estoppel. The court also held that the mere fact that Germany may not have specifically objected
to the equidistance principle as contained in Article 6 is not sufficient to state that the principle is
now binding upon it.

5. In conclusion, the court held that Germany had not acted in any way to incur obligations
contained in Article 6 of the Geneva Convention. The equidistance special circumstances rule
was not binding on Germany by way of treaty.
 53

Nature of the customary international law obligation: Is Germany bound by the provisions of
Article 6 of the Geneva Convention by way of customary international law?

6. Netherlands and Denmark argued that Article 6 also reflected the accepted rule of general
international law on the subject of continental shelf delimitation and existed independently of
the Convention. Therefore, they argued, Germany is bound by it by way of customary
international law.

7. To decide if the equidistance principle bound Germany by way of customary international law,
the court examined (1) the status of the principle contained in Article 6 as it stood when the
Convention was being drawn up (2) and after the latter came into force.

What was the customary law status of Article 6 at the time of drafting the Convention?

8. The court held the principle of equidistance, as contained in Article 6, did not form a part of
existing or emerging customary international law at the time of drafting the Convention. The
Court supported this finding based on (1) the hesitation expressed by the drafters of the
Convention International Law Commission on the inclusion of Article 6 (para. 62) and (2)
the fact reservations to Article 6 was permissible under the Convention (Article 12). The court
held:

Article 6 is one of those in respect of which, under the reservations article of the Convention
(Article 12) reservations may be made by any State on signing, ratifying or acceding for,
speaking generally, it is a characteristic of purely conventional rules and obligations that, in
regard to them, some faculty of making unilateral reservations may, within certain limits, be
admitted; whereas this cannot be so in the case of general or customary law rules and obligations
which, by their very nature, must have equal force for all members of the international
community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at
will by any one of them in its own favor. The normal inference would therefore be that any
articles that do not figure among those excluded from the faculty of reservation under Article 12,
were not regarded as declaratory of previously existing or emergent rules of law (see para 65 for
a counter argument and the courts careful differentiation)

Did the provisions in Article 6 on the equidistance principle attain the customary law status after
the Convention came into force?

9. The court then examined whether the rule contained in Article 6 had become customary
international law after the Convention entered into force either due the convention itself (i.e., if
enough States had ratified the Convention in a manner to fulfil the criteria specified below), or
because of subsequent State practice (i.e. even if adequate number of States had not ratified the
Convention one could find sufficient State practice to meet the criteria below). The court held
that Article 6 of the Convention had not attained a customary law status (compare the 1958
Geneva Convention with the four Geneva Conventions on 1949 in the field of international
humanitarian law in terms of its authority as a pronouncement of customary international law).
 54

10. For a customary rule to emerge the court held that it needed: (1) very widespread and
representative participation in the convention, including States whose interests were specially
affected (i.e. generality); and (2) virtually uniform practice (i.e. consistent and uniform usage)
undertaken in a manner that demonstrates (3) a general recognition of the rule of law or legal
obligation (i.e. opinio juries). In the North Sea Continental Shelf cases the court held that the
passage of a considerable period of time was unnecessary (i.e. duration) for the formation of a
customary law.

Widespread and representative participation

11. The court held that the first criteria was not met. The number of ratifications and accessions
to the convention (39 States) were not adequately representative (including of coastal States i.e.
those States whose rights are affected) or widespread.

Duration

12. The court held that duration taken for the customary law rule to emerge is not as important as
widespread and representative participation, uniform usage and the existence of an opinio juris.

Although the passage of only a short period of time (in this case, 3 5 years) is not necessarily,
or of itself, a bar to the formation of a new rule of customary international law on the basis of
what was originally a purely conventional rule, an indispensable requirement would be that
within the period in question, short though it might be, State practice, including that of States
whose interests are specially affected, should have been both extensive and virtually uniform in
the sense of the provision invoked and should moreover have occurred in such a way as to show
a general recognition that a rule of law or legal obligation is involved (text in brackets added).

Opinio juris

13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case) in so
far as those acts or omissions are done following a belief that the said State is obligated by law to
act or refrain from acting in a particular way. (For more on opinio juris click here).

14. The Court examined 15 cases where States had delimited their boundaries using the
equidistance method, after the Convention came into force (paras. 75 -77). The court concluded,
even if there were some State practice in favour of the equidistance principle the court could not
deduct the necessary opinio juris from this State practice. The North Sea Continental Shelf Cases
confirmed that both State practice (the objective element) and opinio juris (the subjective
element) are essential pre-requisites for the formation of a customary law rule. This is consistent
with Article 38 (1) (b) of the Statute of the ICJ. The following explains the concept of opinio
juris and the difference between customs (i.e. habits) and customary law:

Not only must the acts concerned amount to a settled practice, but they must also be such, or 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 need for such a belief, i.e, the existence of a
subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States
 55

concerned must therefore feel that they are conforming to what amounts to a legal
obligation. The frequency, or even habitual character of the acts is not in itself enough. There are
many international acts, e.g., in the field of ceremonial and protocol, which are performed almost
invariably, but which are motivated only by considerations of courtesy, convenience or tradition,
and not by any sense of legal duty.

15. The court concluded that the equidistance principle was not binding on Germany by way of
treaty or customary international law because, in the case of the latter, the principle had not
attained a customary international law status at the time of the entry into force of the Geneva
Convention or thereafter. As such, the court held that the use of the equidistance method is not
obligatory for the delimitation of the areas concerned in the present proceedings.

Nuclear Tests Case (Australia & New Zealand v. France) case brief

Nuclear Tests Case (Australia & New Zealand v. France)

Procedural History:
Proceeding before the International Court of Justice.

Overview:
Australia and New Zealand (P) demanded that France (D) cease atmospheric nuclear tests in the
South Pacific. France (D) completed a series of nuclear tests in the South Pacific. Australia and
New Zealand (P) applied to the !.C.). demanding that France (D) cease testing immediately.
 56

While the case was pending, France (D) announced the series of tests was complete and that it
did not plan any further such tests. France (D) moved to dismiss the applications.

Issue:
May declarations made by way of unilateral acts have the effect of creating legal obligations?

Rule:
declerations made by way of unilateral acts may have the effect of creating legal obligations.

Analysis:
The unilateral statements made by French authorities were first communicated to the government
of Australia. To have legal effect there was no need tor the statements to be directed to any
particular state. The general nature and characteristics of the statements alone were relevant for
evaluation of their legal implications.

Outcome:
Yes. Declarations made by way of unilateral acts may have the effect of creating legal
obligations. The sole relevant question is whether the language employed in any given
declaration reveals a clear intention. One of the basic principles governing the creation and
performance of legal obligations is the principle of good faith. The statements made by the
President of the French Republic must be held to constitute an engagement of the State in regard
to the circumstances and intention with which they were made. The statements made by the
French authorities are therefore relevant and legally binding. Applications dismissed.

acts of the Case:

In July 1979 the Government of President Somoza collapsed following an armed opposition led
by the Frente Sandinista de Liberacibn Nacional (FSLN) . The new government installed by
FSLN began to meet armed opposition from supporters of the former Somoza Government and
ex-members of the National Guard. The US initially supportive of the new government
changed its attitude when, according to the United States, it found that Nicaragua was providing
logistical support and weapons to guerrillas in El Salvador. In April 1981 it terminated United
States aid to Nicaragua and in September 1981, according to Nicaragua, the United
States decided to plan and undertake activities directed against Nicaragua.
 57

The armed opposition to the new Government was conducted mainly by (1)
Fuerza Democratica Nicaragense (FDN), which operated along the border with Honduras, and
(2) Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa
Rica, (see map of the region). Initial US support to these groups fighting against the Nicaraguan
Government (called contras) was covert. Later, the United States officially acknowledged its
support (for example: In 1983 budgetary legislation enacted by the United States Congress made
specific provision for funds to be used by United States intelligence agencies for supporting
directly or indirectly military or paramilitary operations in Nicaragua).

Nicaragua also alleged that the United States is effectively in control of the contras, the United
States devised their strategy and directed their tactics and that they were paid for and directly
controlled by United States personal. Nicaragua also alleged that some attacks were carried out
by United States military with the aim to overthrow the Government of Nicaragua. Attacks
against Nicaragua included the mining of Nicaraguan ports and attacks on ports, oil installations
and a naval base. Nicaragua alleged that aircrafts belonging to the United States flew over
Nicaraguan territory to gather intelligence, supply to the contras in the field and to intimidate the
population.

The United States did not appear before the ICJ at the merit stages, after refusing to accept the
ICJs jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing,
however, stated that it relied on an inherent right of collective self-defence guaranteed in A. 51 of
the UN Charter by providing, upon request, proportionate and appropriate assistance to
Costa Rica, Honduras and El Salvador in response to Nicaraguas alleged acts aggression against
those countries (paras. 126, 128).

Questions before the Court:

Did the United States breach its customary international law obligation not to intervene in the
affairs of another State when it trained, armed, equipped and financed the contra forces or
encouraged, supported and aided the military and paramilitary activities against Nicaragua?

Did the United States breach its customary international law obligation not to use force against
another State when it directly attacked Nicaragua in 1983 1984 and when its activities in
bullet point 1 above resulted in the use of force?

If so, can the military and paramilitary activities that the United States undertook in and against
Nicaragua be justified as collective self-defence?

Did the United States breach its customary international law obligation not to violate the
sovereignty of another State when it directed or authorized its aircrafts to fly over Nicaraguan
territory and by acts referred to in bullet point 2 above?

Did the United States breach its customary international law obligations not to violate the
sovereignty of another State, not to intervene in its affairs, not to use force against another State
and not to interrupt peaceful maritime commerce when it laid mines in the internal waters and
the territorial sea of Nicaragua?
 58

ICJ decision: The United States violated customary international law in relation to bullet points
1, 2, 4 and 5 above. On bullet point 3, the Court found that the United States could not rely on
collective self-defence to justify its use of force against Nicaragua.

Relevant Findings of the Court:

1. The court held that the United States breached its customary international law
obligation not to use force against another State: (1) when it directly attacked Nicaragua
in 1983 1984; and (2) when its activities with the contra forces resulted in the threat or
use of force (see paras 187 -201).

The Court held that:

The prohibition on the use of force is found in Article 2(4) of the UN Charter and in customary
international law.

In a controversial finding the court sub-classified the use of force as: (1) the most grave forms of
the use of force (i.e. those that constitute an armed attack) and (2) the less grave form (i.e.
organizing, instigating, assisting or participating in acts of civil strife and terrorist acts in another
State when the acts referred to involve a threat or use of force not amounting to an armed
attack).

The United States violated the customary international law prohibition on the use of force when
it laid mines in Nicaraguan ports. It violated this prohibition when it attacked Nicaraguan ports,
oil installations and a naval base (see below). The United States could justify its action on
collective self-defence, if certain criteria were met this aspect is discussed below.

The United States violated the customary international law prohibition on the use of force when
it assisted the contras by organizing or encouraging the organization of irregular forces and
armed bands for incursion into the territory of another state and participated in acts of civil
strifein another State when these acts involved the threat or use of force.

The supply of funds to the contras did not violate the prohibition on the use of force. Nicaragua
argued that the timing of the offensives against it was determined by the United States: i.e. an
offensive could not be launched until the requisite funds were available. The Court held that it
does not follow that each provision of funds by the United States was made to set in motion a
particular offensive, and that that offensive was planned by the United States. The Court held
further that while the arming and training of the contras involved the threat or use of force
against Nicaragua, the supply of funds, in it self, only amounted to an act of intervention in the
internal affairs of Nicaragua (para 227) this aspect is discussed below.

What is an armed attack?

A controversial but interesting aspect of the Courts judgement was its definition of an armed
attack. The Court held that an armed attack included:

(1) action by regular armed forces across an international border; and

 59

(2) the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries,
which carry out acts of armed force against another State of such gravity as to amount to (inter
alia) an actual armed attack conducted by regular forces, or its (the States)
substantial involvement therein

NB: The second point somewhat resembles Article 3 (g) of the UNGA Resolution 3314 (XXIX) on
the Definition of Aggression.

Mere frontier incidents are not considered as an armed attack unless because of its scale and
effects it would have been classified as an armed attack if it was carried out by regular forces.

Assistance to rebels in the form of provision of weapons or logistical support did not
constitute an armed attack it can be regarded as a threat or use of force, or an intervention in
the internal or external affairs of other States (see paras 195, 230).

Under Article 51 of the UN Charter and under CIL self-defence is only available against a use of
force that amounts to an armed attack (para 211).

NB: In in the Case Concerning Oil Platforms and the advisory opinion on the Legal
Consequences of of the Construction of a Wall in the Occupied Palestinian Territory (hereinafter
called the Palestine wall case) the ICJ upheld the definition of armed attack proposed in the
Nicaragua case. In the Palestinian wall case, the attacks from which Israel was claiming self
defence originated from non-State actors. However, the Court held that Article 51s inherent
right of self defence was available to one State only against another State (para 139). Judges
Higgins, Buergenthal and Kooijmans opposed this narrow view. Articles on State Responsibility,
prepared by the International Law Commission, provided significant guidance as to when acts of
non-State actors may be attributed to States. These articles, together with recent State practice
relating attacks on terrorists operating from other countries (see legal opinions surrounding the
United States attack on Afghanistan), may have widened the scope of an armed attack, and
consequently, the right of self defence, envisaged by the ICJ.

2. The Court held that the United States could not justify its military and paramilitary
activities on the basis of collective self-defence.

Customary international law allows for exceptions to the prohibition on the use of force
including the right to individual or collective self-defence (for a difference between the two
forms of self defence, click here). The United States, at an earlier stage of the proceedings, had
asserted that the Charter itself acknowledges the existence of this customary international law
right when it talks of the inherent right of a State under Article 51 of the Charter (para.193).

When a State claims that it used force in collective self-defence, the Court would look into two
aspects:

(1) whether the circumstances required for the exercise of self-defence existed and
 60

(2) whether the steps taken by the State, which was acting in self-defence, corresponds to the
requirements of international law (i.e. did it comply with the principles of necessity and
proportionality).

Several criteria must be met for a State to exercise the right of individual or collective self-
defence:

(1) A State must have been the victim of an armed attack;

(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an
armed attack took place nor not is done by the state who was subjected to the attack. A third
State cannot exercise a right of collective self-defence based its (the third States) own
assessment]; and

(3) In the case of collective self-defence the victim State must request for assistance (there is
no rule permitting the exercise of collective self-defence in the absence of a request by the State
which regards itself as the victim of an armed attack).

(4) The State does not, under customary international law, have the same obligation as under
Article 51 of the UN Charter to report to the Security Council that an armed attack happened
but the absence of a report may be one of the factors indicating whether the State in question
was itself convinced that it was acting in self-defence (see below).

At this point, the Court may consider whether in customary international law there is any
requirement corresponding to that found in the treaty law of the United Nations Charter, by
which the State claiming to use the right of individual or collective self-defence must report to an
international body, empowered to determine the conformity with international law of the
measures which the State is seeking to justify on that basis. Thus Article 51 of the United Nations
Charter requires that measures taken by States in exercise of this right of self-defence must
be immediately reported to the Security Council. As the Court has observed above
(paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in customary
international law, may well be so unencumbered with the conditions and modalities surrounding
it in the treaty. Whatever influence the Charter may have had on customary international law in
these matters, it is clear that in customary international law it is not a condition of the
lawfulness of the use of force in self-defence that a procedure so closely dependent on the
content of a treaty commitment and of the institutions established by it, should have been
followed. On the other hand, if self-defence is advanced as a justification for measures which
would otherwise be in breach both of the principle of customary international law and of that
contained in the Charter, it is to be expected that the conditions of the Charter should
be respected. Thus for the purpose of enquiry into the customary law position, the absence of a
report may be one of the factors indicating whether the State in question was itself convinced
that it was acting in self-defence (See paras 200, 232 -236).

The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and Honduras
in determining whether an armed attack was undertaken by Nicaragua against the three
countries which in turn would necessitate self-defence (paras 230 236). The Court referred
to statements made by El Salvador, Costa Rica, Honduras and the United States before the
 61

Security Council. None of the countries who were allegedly subject to an armed attack by
Nicaragua (1) declared themselves as a victim of an armed attack or request assistance from the
United States in self-defence at the time when the United States was allegedly acting in
collective self-defence; and (2) the United States did not claim that it was acting under Article 51
of the UN Charter and it did not report that it was so acting to the Security Council. The Court
concluded that the United States cannot justify its use of force as collective self-defence.

The criteria with regard to necessity and proportionality, that is necessary when using force in
self-defence was also not fulfilled (para 237).

3. The Court held that the United States breached its CIL obligation not to intervene in
the affairs of another State when it trained, armed, equipped and financed the contra
forces or encouraged, supported and aided the military and paramilitary activities against
Nicaragua.

The principle of non- intervention means that every State has a right to conduct its affairs
without outside interference i.e it forbids States or groups of States to intervene directly or
indirectly in internal or external affairs of other States. . This is a corollary of the principle of
sovereign equality of States.

A prohibited intervention must accordingly be one bearing on matters in which each State is
permitted, by the principle of State sovereignty to decide freely. One of these is the choice of a
political, economic, social and cultural system, and the formulation of foreign policy.
Intervention is wrongful when it uses methods of coercion in regard to such choices, which must
remain free ones. The element of coercion, which defines, and indeed forms the very essence of,
prohibited intervention, is particularly obvious in the case of an intervention which uses force,
either in the direct form of military action, or in the indirect form of support for subversive or
terrorist armed activities within another State (para 205).

Nicaragua stated that the activities of the United States were aimed to overthrow the
government of Nicaragua and to substantially damage the economy and weaken the political
system to coerce the Government of Nicaragua to accept various political demands of the United
States. The Court held:

first, that the United States intended, by its support of the contras, to coerce the Government
of Nicaragua in respect of matters in which each State is permitted, by the principle of State
sovereignty, to decide freely (see paragraph 205 above) ; and secondly that the intention of the
contras themselves was to overthrow the present Government of Nicaragua The Court
considers that in international law, if one State, with a view to the coercion of another State,
supports and assists armed bands in that State whose purpose is to overthrow the government
of that State, that amounts to an intervention by the one State in the internal affairs of the other,
whether or not the political objective of the State giving such support and assistance is equally
far reaching.

The financial support, training, supply of weapons, intelligence and logistic support given by the
United States to the contras was a breach of the principle of non-interference. no such
general right of intervention, in support of an opposition within another State, exists in
 62

contemporary international law, even if such a request for assistance is made by an opposition
group of that State (see para 246 for more).

However, in a controversial finding, the Court held that the United States did not devise the
strategy, direct the tactics of the contras or exercise control on them in manner so as to make
their acts committed in violation of international law imputable to the United States (see in this
respect Determining US responsibility for contra operations under international law 81 AMJIL
86).T he Court concluded that a number of military and paramilitary operations of the contras
were decided and planned, if not actually by United States advisers, then at least in close
collaboration with them, and on the basis of the intelligence and logistic support which the
United States was able to offer, particularly the supply aircraft provided to the contras by the
United States but not all contra operations reflected strategy and tactics wholly devised by the
United States.

In sum, the evidence available to the Court indicates that the various forms of assistance
provided to the contras by the United States have been crucial to the pursuit of their activities,
but is insufficient to demonstrate their complete dependence on United States aid. On the other
hand, it indicates that in the initial years of United States assistance the contra force was so
dependent. However, whether the United States Government at any stage devised the strategy
and directed the tactics of the contras depends on the extent to which the United States made use
of the potential for control inherent in that dependence. The Court already indicated that it has
insufficient evidence to reach a finding on this point. It is a fortiori unable to determine that the
contra force may be equated for legal purposes with the forces of the United StatesThe Court
has taken the view (paragraph 110 above) that United States participation, even if preponderant
or decisive, in the financing, organizing, training, supplying and equipping of the contras, the
selection of its military or paramilitary targets, and the planning of the whole of its operation, is
still insufficient in itself, on the basis of the evidence in the possession of the Court, for the
purpose of attributing to the United States the acts committed by the contras in the course of
their military or paramilitary operations in Nicaragua. All the forms of United States
participation mentioned above, and even the general control by the respondent State over a force
with a high degree of dependency on it, would not in themselves mean, without further evidence,
that the United States directed or enforced the perpetration of the acts contrary to human rights
and humanitarian law alleged by the applicant State. Such acts could well be committed by
members of the contras without the control of the United States. For this conduct to give rise to
legal responsibility of the United States, it would in principle have to be proved that that State
had effective control of the military or paramilitary.

Interesting, however, the Court also held that providing humanitarian aid to persons or forces
in another country, whatever their political affiliations or objectives, cannot be regarded as
unlawful intervention, or as in any other way contrary to international law (para 242).

In the event one State intervenes in the affairs of another State, the victim State has a right to
intervene in a manner that is short of an armed attack (210).

While an armed attack would give rise to an entitlement to collective self-defence, a use of
force of a lesser degree of gravity cannot as the Court has already observed (paragraph 21 1
above). produce any entitlement to take collective countermeasures involving the use of force.
 63

The acts of which Nicaragua is accused, even assuming them to have been established and
imputable to that State, could only have justified proportionate counter-measures on the part of
the State which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica.
They could not justify counter-measures taken by a third State, the United States, and
particularly could not justify intervention involving the use of force.

4. The United States breached its customary international law obligation not to violate the
sovereignty of another State when it directed or authorized its aircrafts to fly over
Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its
territorial sea.

The ICJ examined evidence and found that in early 1984 mines were laid in or close to ports of
the territorial sea or internal waters of Nicaragua by persons in the pay or acting ion the
instructions of the United States and acting under its supervision with its logistical support. The
United States did not issue any warning on the location or existence of mines and this resulted in
injuries and increases in maritime insurance rates.

The court found that the United States also carried out high-altitude reconnaissance flights over
Nicaraguan territory and certain low-altitude flights, complained of as causing sonic booms.

The basic concept of State sovereignty in customary international law is found in Article 2(1) of the
UN Charter. State sovereignty extends to a States internal waters, its territorial sea and the air space
above its territory. The United States violated customary international law when it laid mines in the
territorial sea and internal waters of Nicaragua and when it carried out unauthorised overflights over
Nicaraguan airspace by aircrafts that belong to or was under the control of the United States.

G.R. No. 118295 May 2, 1997

WIGBERTO E. TAADA et al, petitioners,

vs.

EDGARDO ANGARA, et al, respondents.

Facts:
 64

Petitioners prayed for the nullification, on constitutional grounds, of the concurrence of the
Philippine Senate in the ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization (WTO Agreement, for brevity) and for the prohibition
of its implementation and enforcement through the release and utilization of public funds, the
assignment of public officials and employees, as well as the use of government properties and
resources by respondent-heads of various executive offices concerned therewith.

They contended that WTO agreement violates the mandate of the 1987 Constitution to develop
a self-reliant and independent national economy effectively controlled by Filipinos x x x (to)
give preference to qualified Filipinos (and to) promote the preferential use of Filipino labor,
domestic materials and locally produced goods as (1) the WTO requires the Philippines to
place nationals and products of member-countries on the same footing as Filipinos and local
products and (2) that the WTO intrudes, limits and/or impairs the constitutional powers of
both Congress and the Supreme Court.

Issue:

Whether provisions of the Agreement Establishing the World Trade Organization unduly limit,
restrict and impair Philippine sovereignty specifically the legislative power which, under Sec. 2,
Article VI, 1987 Philippine Constitution is vested in the Congress of the Philippines.

Held:

No, the WTO agreement does not unduly limit, restrict, and impair the Philippine sovereignty,
particularly the legislative power granted by the Philippine Constitution. The Senate was acting
in the proper manner when it concurred with the Presidents ratification of the agreement.

While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic
level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations. Unquestionably, the Constitution
did not envision a hermit-type isolation of the country from the rest of the world. In its
Declaration of Principles and State Policies, the Constitution adopts the generally accepted
principles of international law as part of the law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity, with all nations. By the doctrine of
incorporation, the country is bound by generally accepted principles of international law, which
are considered to be automatically part of our own laws. One of the oldest and most fundamental
rules in international law is pacta sunt servanda international agreements must be performed
in good faith. A treaty engagement is not a mere moral obligation but creates a legally binding
obligation on the parties x x x. A state which has contracted valid international obligations is
bound to make in its legislations such modifications as may be necessary to ensure the
fulfillment of the obligations undertaken.

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their
voluntary act, nations may surrender some aspects of their state power in exchange for greater
benefits granted by or derived from a convention or pact. After all, states, like individuals, live
with coequals, and in pursuit of mutually covenanted objectives and benefits, they also
 65

commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties have been
used to record agreements between States concerning such widely diverse matters as, for
example, the lease of naval bases, the sale or cession of territory, the termination of war, the
regulation of conduct of hostilities, the formation of alliances, the regulation of commercial
relations, the settling of claims, the laying down of rules governing conduct in peace and the
establishment of international organizations. The sovereignty of a state therefore cannot in fact
and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations
imposed by the very nature of membership in the family of nations and (2) limitations imposed
by treaty stipulations. As aptly put by John F. Kennedy, Today, no nation can build its destiny
alone. The age of self-sufficient nationalism is over. The age of interdependence is here.

The WTO reliance on most favored nation, national treatment, and trade without
discrimination cannot be struck down as unconstitutional as in fact they are rules of equality
and reciprocity that apply to all WTO members. Aside from envisioning a trade policy based on
equality and reciprocity, the fundamental law encourages industries that are competitive in
both domestic and foreign markets, thereby demonstrating a clear policy against a sheltered
domestic trade environment, but one in favor of the gradual development of robust industries that
can compete with the best in the foreign markets. Indeed, Filipino managers and Filipino
enterprises have shown capability and tenacity to compete internationally. And given a free trade
environment, Filipino entrepreneurs and managers in Hongkong have demonstrated the Filipino
capacity to grow and to prosper against the best offered under a policy of laissez faire.

WHEREFORE, the petition is DISMISSED for lack of merit

GR No. 139325 - April 12, 2005

[G.R. No. 139325. April 12, 2005]

PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B. NARCISO, SR.
MARIANI DIMARANAN, SFIC, and JOEL C. LAMANGAN in their behalf and on
behalf of the Class Plaintiffs in Class Action No. MDL 840, United States District
Court of Hawaii, petitioners, vs. HON. SANTIAGO JAVIER RANADA, in his
 66

capacity as Presiding Judge of Branch 137, Regional Trial Court, Makati City, and
the ESTATE OF FERDINAND E. MARCOS, through its court appointed legal
representatives in Class Action MDL 840, United States District Court of Hawaii,
namely: Imelda R. Marcos and Ferdinand Marcos, Jr., respondents.
Facts:

Invoking the Alien Tort Act, petitioners Mijares, et al.*, all of whom suffered human rights
violations during the Marcos era, obtained a Final Judgment in their favor against the
Estate of the late Ferdinand Marcos amounting to roughly 1.9 Billion U.S. Dollars in
compensatory and exemplary damages for tortuous violations of international law in the
US District Court of Hawaii. This Final Judgment was affirmed by the US Court of
Appeals.

As a consequence, Petitioners filed a Complaint with the Regional Trial Court of Makati
for the enforcement of the Final Judgment, paying Php 410.00 as docket and filing fees
based on Rule 141, Section 7(b) where the value of the subject matter is incapable of
pecuniary estimation. The Estate of Marcos however, filed a MTD alleging the non-
payment of the correct filing fees. The Regional Trial Court of Makati dismissed the
Complaint stating that the subject matter was capable of pecuniary estimation as it
involved a judgment rendered by a foreign court ordering the payment of a definite sum
of money allowing for the easy determination of the value of the foreign judgment. As
such, the proper filing fee was 472 Million Philippine pesos, which Petitioners had not
paid.

Issue:

Whether or not the amount paid by the Petitioners is the proper filing fee?

Ruling:

Yes, but on a different basisamount merely corresponds to the same amount required
for other actions not involving property. The Regional Trial Court of Makati erred in
concluding that the filing fee should be computed on the basis of the total sum claimed
or the stated value of the property in litigation. The Petitioners Complaint was lodged
against the Estate of Marcos but it is clearly based on a judgment, the Final Judgment
of the US District Court. However, the Petitioners erred in stating that the Final
Judgment is incapable of pecuniary estimation because it is so capable. On this point,
Petitioners state that this might lead to an instance wherein a first level court (MTC,
MeTC, etc.) would have jurisdiction to enforce a foreign judgment. Under Batasang
Pambansa 129, such courts are not vested with such jurisdiction. Section 33 of
Batasang Pambansa 129 refers to instances wherein the cause of action or subject
matter pertains to an assertion of rights over property or a sum of money. But here, the
subject matter is the foreign judgment itself. Section 16 of Batasang Pambansa 129
reveals that the complaint for enforcement of judgment even if capable of pecuniary
estimation would fall under the jurisdiction of the Regional Trial Courts. Thus, the
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Complaint to enforce the US District Court judgment is one capable of pecuniary

estimations but at the same time, it is also an action based on judgment against an
estate, thus placing it beyond the ambit of Section 7(a) of Rule 141. What governs the
proper computation of the filing fees over Complaints for the enforcement of foreign
judgments is Section7(b)(3), involving other actions not involving property.

Filartiga v. Pena-Irala case brief, 630 F.2d 876 (1980)

Filartiga v. Pena-Irala
630 F.2d 876 (1980)

Alien Tort Statute (ATS) (28 U.S.C. 1350) provides: " the district courts shall have original
jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of
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nations or of a treaty of the United States."

This law was pretty much never used between the time it was enacted (1789), and during the
1980s.

FACTS
Filartiga was a Paraguayan dissident. Filartiga's son was tortured and murdered by a Paraguayan
official named Pena-Irala (where does one get a name like that!?) in the state of Paraguay.

o The killing was politically motivated.

o Filartigia tried to get justice in Paraguay, was unsuccessful. :(

Pena-Irala came to the US on vacation, and was sued by Filartiga (who lived in the US)
under the ATS. (Maybe he will get some justice now!)

PROCEDURAL HISTORY

The Trial Court dismissed the claim. Filartiga appealed.

o Trial Court found that the "law of nations" as used in the ATS does not govern a
State's treatment of its own citizens.

The Court was stating that they did not have jurisdiction over what
Paraguayan officials did to Paraguayan citizens on Paraguayan soil.

Appellate Court reversed: (looks like he will get some justice after all!)

o The Appellate Court looked to [The Paquette Habana (175 U.S. 677 (1900))], and
stated that "the law of nations" should be interpreted as customary international
law.

o The Court found that under customary international law, there exists a set of
"human rights and fundamental freedoms."

The Court also noted that the extent of those rights and freedoms is
debatable, but surely includes the right to not to be tortured and killed.

Official torture is prohibited by the law of nations. (this is a good thing!)

o The Court found that Filartigia actually did have a claim under the ATS since
Pena-Iralia was accused of violating the law of nations.