THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OFCUSTOMS,

petitioners,vs.
EASTERN SEA TRADING,
respondent.
G.R. No. L-14279October 31, 1961

Topic: Executive Agreements

NATURE OF THE CASE

This is a petition for review of a decision of the Court of Tax Appeals, which reversed a decision of
the Commissioner of Customs

FACTS
Several onion and garlic shipments imported by respondent consignee from Hongkong and Japan were
seized and subjected to forfeiture proceedings for alleged violations of Section 1363 of the Revised
Administrative Code. Allegedly, none of the shipments had the certificate required by Central Bank
Circulars 44 and 45 (requiring a Central Bank license and a certificate authorizing the importation or
release of the subject good) for their release. The Collector of Customs of Manila rendered judgment
declaring the forfeiture of the goods in favor of the Government. Upon appeal, the Commissioner of
Customs upheld the Collector’s decision. Respondent filed a petition for review with the Court of Tax
Appeals. The CTA reversed the Commissioner’s decision. Hence, this present petition.

ISSUES
1. Whether the seizure and forfeiture of the goods imported from Japan can be justified under EO
328 (which implements an executive agreement extending the effectivity of the Trades and Financial
Agreements of the Philippines with Japan)
---YES.
2. Whether the executive agreement sought to be implemented by EO 328 is legal and valid, considering
that the Senate has not concurred in the making of said executive agreement
---NO.

RULING
Treaties are different from executive agreements. While treaties are formal documents which require
ratification by the Senate, executive agreements become binding through executive action without the
need of a vote by the Senate or Congress. Further, international agreements involving political issues or
changes of national policy and those involving international arrangements of a permanent character
usually take the form of treaties; on the other hand, international agreements embodying adjustments
of detail carrying out well-established national policies and traditions and those involving arrangements of
a more or less temporary nature usually take the form of executive agreements. The right of the
Executive to enter into binding agreements without the necessity of subsequent Congressional approval
has been confirmed by long usage. From the earliest days of our history we have entered into executive
agreements covering such subjects as commercial and consular relations, most-favored-nation rights,
patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement
of claims.
The validity of these has never been seriously questioned by our courts. Francis Saye, former US High
Commissioner to the Philippines, further states that xxx it would seem to be sufficient, in order to show
that the trade agreements under the act of 1934 are not anomalous in character, that they are not
treaties, and that they have abundant precedent in our history, to refer to certain classes of agreements
entered into by the Executive without the approval of the Senate. They cover such subjects as the
inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil aircraft,
customs matters, and commercial relations generally, international claims, postal matters, the registration
of trademarks and copyrights, etcetera. Some of them were concluded not by specific congressional
authorization but in conformity with policies declared in acts of Congress with respect to the general
subject matter, such as tariff acts; while still others, particularly those with respect of the settlement of
claims against foreign governments, were concluded independently of any legislation The Parity Rights
Agreement, which was provided for in the Ordinance Appended to the Constitution was the subject of
an executive agreement, made without the concurrence of 2/3 of the Senate of the US. Hence, the
validity of the executive agreement in question in this case is patent. The authority to issue
import licenses was not vested exclusively upon the Import Control Commission or Administration. EO
328 provided for export or import licenses "from the Central Bank of the Philippines or the Import Control
Administration" or Commission. Indeed, the latter was created only to perform the task of implementing
certain objectives of the Monetary Board and the Central Bank, which otherwise had to be undertaken
by these two (2) agencies. Upon the abolition of said Commission, the duty to provide means and ways for
the accomplishment of said objectives had merely to be discharged directly by the Monetary Board and
the Central Bank, even if the aforementioned Executive Order had been silent thereon. The decision of
the CTA is reversed
USAFFE VETERANS ASSOCIATION, INC. vs. THE TREASURER OF THE PHILIPPINES, ET
AL.

DOCTRINE:

ART. VII. Section 21. No treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the Senate.

FACTS: In October 1954, the USAFFE Veterans Associations Inc. (Usaffe), prayed in its
complaint before the Manila court of first instance that the Romulo-Snyder Agreement (1950)
whereby the Philippine Government undertook to return to the United States Government in
ten annual installments, a total of about 35-million dollars advanced by the United States to,
but unexpanded by, the National Defense Forces of the Philippines be annulled, that payments
thereunder be declared illegal and that defendants as officers of the Philippine Republic be
restrained from disbursing any funds in the National Treasury in pursuance of said Agreement.
Said Usaffe Veterans further asked that the moneys available, instead of being remitted to the
United States, should be turned over to the Finance Service of the Armed Forces of the
Philippines for the payment of all pending claims of the veterans represented by plaintiff.

The complaint rested on plaintiff's three propositions: first, that the funds to be "returned"
under the Agreement were funds appropriated by the American Congress for the Philippine
army, actually delivered to the Philippine Government and actually owned by said Government;
second, that U.S. Secretary Snyder of the Treasury, had no authority to retake such funds from
the P.I. Government; and third, that Philippine foreign Secretary Carlos P. Romulo had no
authority to return or promise to return the aforesaid sums of money through the so-called
Romulo-Snyder Agreement.

The defendants moved to dismiss, alleging Governmental immunity from suit. But the court
required an answer, and then heard the case merits. Thereafter, it dismissed the complaint,
upheld the validity of the Agreement and dissolved the preliminary injunction i had previously
issued. The plaintiff appealed.

ISSUE: Whether the Romulo-Snyder Agreement is void.

HELD: There is no doubt that President Quirino approved the negotiations. And he had power
to contract budgetary loans under Republic Act No. 213, amending the Republic Act No. 16.
The most important argument, however, rests on the lack of ratification of the Agreement by
the Senate of the Philippines to make it binding on this Government. On this matter, the
defendants explain as follows:

That the agreement is not a "treaty" as that term is used in the Constitution, is conceded. The
agreement was never submitted to the Senate for concurrence (Art. VII, Sec. 10 (7). However, it
must be noted that treaty is not the only form that an international agreement may assume.
For the grant of the treaty-making power to the Executive and the Senate does not exhaust the
power of the government over international relations. Consequently, executive agreements may
be entered with other states and are effective even without the concurrence of the Senate. It is
observed in this connection that from the point of view of the international law, there is no
difference between treaties and executive agreements in their binding effect upon states
concerned as long as the negotiating functionaries have remained within their powers. "The
distinction between so-called executive agreements" and "treaties" is purely a constitutional
one and has no international legal significance".
There are now various forms of such pacts or agreements entered into by and between
sovereign states which do not necessarily come under the strict sense of a treaty and which do
not require ratification or consent of the legislative body of the State, but nevertheless, are
considered valid international agreements.

In the leading case of Altman vs, U. S., 224, U. S. 583, it was held that "an international
compact negotiated between the representatives of two sovereign nations and made in the
name and or behalf of the contracting parties and dealing with important commercial relations
between the two countries, is a treaty both internationally although as an executive agreement
it is not technically a treaty requiring the advice and consent of the Senate.

Nature of Executive Agreements.

Executive Agreements fall into two classes: (1) agreements made purely as executive acts
affecting external relations and independent of or without legislative authorization, which may
be termed as presidential agreements and (2) agreements entered into in pursuants of acts of
Congress, which have been designated as Congressional-Executive Agreements.

The Romulo-Snyder Agreement may fall under any of these two classes, for precisely on
September 18, 1946, Congress of the Philippines specifically authorized the President of the
Philippines to obtain such loans or incur such indebtedness with the Government of the United
States, its agencies or instrumentalities.

Even granting, arguendo, that there was no legislative authorization, it is hereby maintained
that the Romulo-Snyder Agreement was legally and validly entered into to conform to the
second category, namely, "agreements entered into purely as executive acts without legislative
authorization." This second category usually includes money agreements relating to the
settlement of pecuniary claims of citizens. It may be said that this method of settling such
claims has come to be the usual way of dealing with matters of this kind.

Such considerations seems persuasive; indeed, the Agreement was not submitted to the U.S.
Senate either; but we do not stop to check the authorities above listed nor test the conclusions
derived therefrom in order to render a definite pronouncement, for the reason that our Senate
Resolution No. 153 practically admits the validity and binding force of such Agreement.
Furthermore, the acts of Congress Appropriating funds for the yearly installments necessary to
comply with such Agreements constitute a ratification thereof, which places the question the
validity out of the Court's reach, no constitutional principle having been invoked to restrict
Congress' plenary power to appropriate funds-loan or no loan.

Petition denied.
Abaya vs. Ebdane G.R. No. 167919 Feb. 14, 2007

FACTS :

This a petition for certiorari and prohibition to set aside and nullify Res. No. PJHL-A-04-012
dated May 27, 2004 issued by the Bids and Action Committee (BAC) of the DPWH. This
resolution recommended the award to private respondent China Road and Bridge Corporation
of the contract which consist of the improvement and rehabilitation of a 79.818-km road in the
island of Catanduanes.

Based on an Exchange of Notes, Japan and the Philippines have reached an understanding that
Japanese loans are to be extended to the country with the aim of promoting economic
stabilization and development efforts.

In accordance with the established prequalification criteria, eight contractors were evaluated or
considered eligible to bid as concurred by the JBIC. Prior to the opening of the respective bid
proposals, it was announced that the Approved Budget for the Contract (ABC) was in the
amount of P738,710,563.67. Consequently, the bid goes to private respondent in the amount
of P952,564,821.71 (with a variance of 25.98% from the ABC). Hence this petition on the
contention that it violates Sec. 31 of RA 9184 which provides that :

Sec. 31 – Ceiling for Bid Prices. – The ABC shall be the upper limit or ceiling for the bid prices.
Bid prices that exceed this ceiling shall be disqualified outright from further participating in the
proceeding. There shall be no lower limit to the amount of the award.

The petitioners further contends that the Loan Agreement between Japan and the Philippines is
neither an international nor an executive agreement that would bar the application of RA9184.
They pointed out that to be considered as such, the parties must be two (2) sovereigns or states
whereas in this loan agreement, the parties were the Philippine government and the JBIC, a
banking agency of Japan, which has a separate juridical personality from the Japanese
government.

ISSUE :

Whether or not the assailed resolution violates RA 9184.

RULING :

The petition is dismissed. Under the fundamental principle of international law of pacta sunt
servanda, which is in fact, embodied is Section 4 of RA9184, “any treaty or international or
executive agreement affecting the subject matter of this Act to which the Philippine government
is a signatory, shall be observed”. The DPWH, as the executing agency of the project financed
by the Loan Agreement rightfully awarded the contract to private respondent China Road and
Bridge Corporation.

The Loan Agreement was executed and declared that it was so entered by the parties “in the
light of the contents of the Exchange of Notes between the government of Japan and the
government of the Philippines dated Dec. 27, 1999.” Under the circumstances, the JBIC may well
be considered an adjunct of the Japanese government. The JBIC procurement guidelines
absolutely prohibit the imposition of ceilings and bids.
BAYAN MUNA v. ALBERTO ROMULO, GR No. 159618, 2011-02-01
Facts:
Having a key determinative bearing on this case is the Rome Statute[3] establishing the International
Criminal Court (ICC) with "the power to exercise its jurisdiction over persons for the most serious crimes
of international concern x x x... and shall be complementary to the national criminal jurisdictions."
The serious crimes adverted to cover those considered grave under international law, such as genocide,
crimes against humanity, war crimes, and crimes of... aggression.
RP, through Charge d'Affaires Enrique A. Manalo, signed the Rome Statute which, by its terms, is
"subject to ratification, acceptance or approval" by the signatory states.
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... the RP,... greed 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.
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.
Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that those
responsible for the worst possible crimes are brought to justice in all cases, primarily by states, but as a
last resort, by the ICC; thus, any agreement like the non-surrender... agreement that precludes the ICC
from exercising its complementary function of acting when a state is unable to or unwilling to do so,
defeats the object and purpose of the Rome Statute.
Petitioner would add that the President and the DFA Secretary, as representatives of a signatory of the
Rome Statute, are obliged by the imperatives of good faith to refrain from performing acts that
substantially devalue the purpose and object of the Statute, as signed.
Issues:
whether or not the Agreement was contracted validly, which resolves itself into the question of whether or
not respondents gravely abused their discretion in concluding it... whether or not... the Agreement, which
has not been submitted to the Senate for concurrence, contravenes and undermines the Rome Statute
and other treaties.
Petitioner's initial challenge against the Agreement relates to form, its threshold posture being that E/N
BFO-028-03 cannot be a valid medium for concluding the Agreement.
It is the petitioner's next contention that the Agreement undermines the establishment of the ICC and is
null and void insofar as it unduly restricts the ICC's jurisdiction and infringes upon the effectivity of the
Rome Statute.
It concludes that state parties with non-surrender agreements are prevented from meeting their
obligations under the Rome Statute, thereby constituting a breach of Arts. 27,[50] 86,[51] 89[52] and
90[53] thereof.
Ruling:
Petitioners' contention perhaps taken unaware of certain well-recognized international doctrines,
practices, and jargons is untenable. One of these is the doctrine of incorporation, as expressed in Section
2, Article II of the Constitution, wherein the Philippines adopts the... generally accepted principles of
international law and international jurisprudence as part of the law of the land and adheres to the policy of
peace, cooperation, and amity with all nations.[26] An exchange of notes falls "into the category of... inter-
governmental agreements,"[27] which is an internationally accepted form of international agreement.
he 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.[29] 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' orprotocols.'"
E/N BFO-028-03--be it viewed as the Non-Surrender Agreement itself, or as an integral instrument of
acceptance thereof or as consent to be bound--is a recognized mode of concluding a legally binding
international written... contract among nations.
Under international law, there is no difference between treaties and executive agreements in terms of
their binding effects on the contracting states concerned,[34] as long as the negotiating functionaries
have remained within their powers.[35] Neither, on the domestic sphere, can one be held valid if it
violates the Constitution.
As has been observed by US constitutional scholars, a treaty has greater "dignity" than an executive
agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the authority of
the President, the Senate, and the people;[38] a ratified treaty, unlike an executive agreement, takes
precedence over any prior statutory enactment.
Petitioner takes a cue from Commissioner of Customs v. Eastern Sea Trading, in which the
Court reproduced the following observations made by US legal scholars: "[I]nternational agreements
involving political issues or changes of national policy and those involving international arrangements of a
permanent character usually take the form of treaties [while] those... embodying adjustments of detail
carrying out well established national policies and traditions and those involving arrangements of a more
or less temporary nature take the form of executive agreements."
Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the
subject-categories that are enumerated in the Eastern Sea Trading case, and that may be covered by an
executive agreement, such as commercial/consular relations,... most-favored nation rights, patent rights,
trademark and copyright protection, postal and navigation arrangements and settlement of claims.
holding that an executive agreement through an exchange of notes cannot be used to amend a treaty.
We are not persuaded.
The categorization of subject matters that may be covered by international agreements mentioned in
Eastern Sea Trading is not cast in stone.
The primary consideration in the choice of the form of agreement is the parties' intent and desire to craft
an international agreement in the form they so wish to further their respective interests. Verily, the...
matter of form takes a back seat when it comes to effectiveness and binding effect of the enforcement of
a treaty or an executive agreement, as the parties in either international agreement each labor under the
pacta sunt servanda[42]... principle.
As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea
Trading.
And lest it be overlooked, one type of executive agreement is a treaty-authorized[44] or a treaty-
implementing executive agreement,[45] which necessarily would cover the same matters subject of the
underlying treaty.
the Constitution does not classify any subject, like that involving... political issues, to be in the form of,
and ratified as, a treaty. What the Constitution merely prescribes is that treaties need the concurrence of
the Senate by a vote defined therein to complete the ratification process.
[T]he right of the Executive to enter into binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage. From the earliest days of our history, we
have entered executive agreements covering such subjects as... commercial and consular relations, most
favored-nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of these has never been seriously questioned by
our courts.
Contrary to petitioner's pretense, the Agreement does not contravene or undermine, nor does it differ
from, the Rome Statute. Far from going against each other, one complements the other.
As a matter of fact, the principle of complementarity underpins the... creation of the ICC. As aptly pointed
out by respondents and admitted by petitioners, the jurisdiction of the ICC is to "be complementary to
national criminal jurisdictions [of the signatory states]."... primary jurisdiction over the so-called...
international crimes rests, at the first instance, with the state where the crime was committed; secondarily,
with the ICC in appropriate situations contemplated under Art. 17, par. 1[55] of the Rome Statute.
Of particular note is the application of the principle of ne bis in idem[56] under par. 3 of Art. 20, Rome
Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC.
The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional
conflict between the Philippines, as party to the non-surrender agreement, and the ICC; or the idea of the
Agreement substantially impairing the value of the RP's... undertaking under the Rome Statute.
the Rome Statute expressly recognizes the primary jurisdiction of states, like the RP, over serious
crimes... committed within their respective borders, the complementary jurisdiction of the ICC coming into
play only when the signatory states are unwilling or unable to prosecute.
Given the above consideration, petitioner's suggestion--that the RP, by entering into the Agreement,
violated its duty required by the imperatives of good faith and breached its commitment under the Vienna
Convention[57] to refrain from performing... any act tending to impair the value of a treaty, e.g., the Rome
Statute--has to be rejected outright.
the Rome Statute contains a proviso that enjoins the ICC from seeking the surrender of an erring person,
should the process require the requested state to perform an act that would violate some international
agreement it has entered into.
Article 98
Cooperation with respect to waiver of immunity... and consent to surrender... x x x x
2. The Court may not proceed with a request for surrender which would require the requested State
to act inconsistently with its obligations under international agreements pursuant to which the consent of a
sending State is... required to surrender a person of that State to the Court, unless the Court can first
obtain the cooperation of the sending State for the giving of consent for the surrender.
Moreover, under international law, there is a considerable difference between a State-Party and a
signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only
obliged to refrain from acts which would defeat the object and purpose of a... treaty;[58] whereas a State-
Party, on the other hand, is legally obliged to follow all the provisions of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and not
a State-Party for lack of ratification by the Senate
As a result, petitioner's argument that State-Parties with non-surrender agreements are prevented from
meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These
articles are only legally binding upon State-Parties, not... signatories.
Specifically, Art. 90(4) provides that "[i]f the requesting State is a State not Party to this Statute the
requested State, if it is not under an... international obligation to extradite the person to the requesting
State, shall give priority to the request for surrender from the Court.
first, the US is neither a State-Party nor a... signatory to the Rome Statute; and second, there is an
international agreement between the US and the Philippines regarding extradition or surrender of
persons, i.e., the Agreement. Clearly, even assuming that the Philippines is a State-Party, the Rome
Statute... still recognizes the primacy of international agreements entered into between States, even
when one of the States is not a State-Party to the Rome Statute.
the Philippines may decide to try "persons" of the US, as the term is understood in the Agreement, under
our national... criminal justice system. Or it may opt not to exercise its criminal jurisdiction over its erring
citizens or over US "persons" committing high crimes in the country and defer to the secondary criminal
jurisdiction of the ICC over them.
To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate that
some of its provisions constitute a virtual abdication of its sovereignty. Almost every time a state enters
into an international agreement, it voluntarily sheds off... part of its sovereignty. The Constitution, as
drafted, did not envision a reclusive Philippines isolated from the rest of the world. It even adheres, as
earlier stated, to the policy of cooperation and amity with all nations.[60]
The usual underlying consideration in this partial surrender may be the greater benefits derived from a
pact or a reciprocal undertaking of one contracting party to grant the same privileges or immunities to...
the other.
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.
"leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the conscience
of humanity; x x x it precludes our country from delivering an American criminal to the [ICC]
Suffice it to state in this regard that the non-surrender agreement, as aptly described by the Solicitor
General, "is an assertion by the Philippines of its desire to try and punish crimes under its national law. x
x x The agreement is a recognition... of the primacy and competence of the country's judiciary to try
offenses under its national criminal laws and dispense justice fairly and judiciously."
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.
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.
On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851, otherwise
known as the "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other
Crimes Against Humanity."... the authorities may surrender or extradite suspected or accused persons in
the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable
extradition laws and treaties.
The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national for
violations of RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to the proper
international tribunal; or (2) surrender the accused to... another State if such surrender is "pursuant to the
applicable extradition laws and treaties."
But the Philippines may exercise these options only in cases where "another court or international tribunal
is already conducting the investigation or undertaking the prosecution... of such crime;" otherwise, the
Philippines must prosecute the crime before its own courts pursuant to RA 9851.
n... line with this scenario, the view strongly argues that the Agreement prevents the Philippines without
the consent of the US from surrendering to any international tribunal US nationals accused of crimes
covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851
Consequently, the view is strongly impressed that the Agreement cannot be embodied in a simple
executive agreement in the form of an exchange of notes but must be implemented through an extradition
law or a treaty with the corresponding formalities.
the Statute embodies principles of law which constitute customary international law or custom and for
which reason it assumes the status of an enforceable domestic law in the context of the... aforecited
constitutional provision.
As a corollary, it is argued that any derogation from the Rome Statute principles cannot be undertaken via
a mere executive agreement, which, as an exclusive act of the executive branch, can only implement, but
cannot amend or repeal,... an existing law.
Prescinding from the foregoing premises, the view thus advanced considers the Agreement inefficacious,
unless it is embodied in a treaty duly ratified with the concurrence of the Senate,... We are unable to lend
cogency to the view thus taken. For one, we find that the Agreement does not amend or is repugnant to
RA 9851. For another, the view does not clearly state what precise principles of law, if any, the
Agreement alters. And for a... third, it does not demonstrate in the concrete how the Agreement seeks to
frustrate the objectives of the principles of law subsumed in the Rome Statute... the Agreement does not
undermine the Rome Statute
The jurisdiction of the ICC pursuant to the Rome Statute over high crimes indicated thereat is clearly and
unmistakably complementary to the national criminal jurisdiction of the signatory states.
On the contrary, the US has already enacted legislation punishing the high crimes mentioned earlier.
Arguing further, another view has been advanced that the current US laws do not cover every crime listed
within the jurisdiction of the ICC and that there is a gap between the definitions of the different crimes
under the US laws versus the Rome Statute.
Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the crimes are
nonexistent.
Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine of
incorporation.
Thus, a person can be tried in the US for an international crime despite the lack of domestic legislation.
The US doubtless recognizes international law as part of the law of the land, necessarily including
international crimes, even without any local statute.
This rule finds an even stronger hold in the case of crimes against humanity.
Customary international law or international custom is a source of international law as stated in the
Statute of the ICJ.
These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state may exercise
jurisdiction over an individual who commits certain heinous and widely condemned offenses, even when
no other recognized basis for jurisdiction exists."
Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the
doctrine of incorporation and universal jurisdiction to try these crimes.
Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the Rome
Statute is not declaratory of customary international law.
Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the different
countries in the world that the prosecution of internationally recognized crimes of genocide, etc. should be
handled by a particular international criminal... court.
Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated
therein as evidenced by it requiring State consent.[118] Even further, the Rome Statute specifically and
unequivocally requires that: "This Statute... is subject to ratification, acceptance or approval by signatory
States."[119] These clearly negate the argument that such has already attained customary status.
Principles:
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an international agreement
concluded between states in written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments and whatever its... particular designation."
International agreements may be in the form of (1) treaties that require legislative concurrence after
executive ratification; or (2) executive agreements that are similar to treaties, except that they do not
require legislative... concurrence and are usually less formal and deal with a narrower range of subject
matters than treaties.
 Rene A.V. Saguisag v. Executive Secretary Paquito Ochoa
G.R. No. 212426 & 212444; January 12, 2016

Ponente: C.J. Sereno

FACTS: The Enhanced Defense Cooperation Agreement (EDCA) is an executive agreement that gives U.S.
troops, planes and ships increased rotational presence in Philippine military bases and allows the U.S. to build
facilities to store fuel and equipment there. It was signed against the backdrop of the Philippines' maritime
dispute with China over the West Philippine Sea. The US embassy and DFA exchanged diplomatic notes
confirming all necessary requirements for the agreement to take force. The agreement was signed on April
2014. President Benigno Aquino III ratified the same on June 2014. It was not submitted to Congress on the
understanding that to do so was no longer necessary. Petitions for Certiorari were filed before the
Supreme Court assailing the constitutionality of the agreement. Herein petitioners now contend that it should
have been concurred by the senate as it is not an executive agreement. The Senate issued Senate Resolution
No. 105 expressing a strong sense that in order for EDCA to be valid and binding, it must first be transmitted
to the Senate for deliberation and concurrence.

ISSUE: Whether or not the EDCA between the Philippines and the U.S. is constitutional.

RULING: YES. The EDCA is an executive agreement and does not need the Senate's concurrence. As an
executive agreement, it remains consistent with existing laws and treaties that it purports to
implement.

Petitioners contend that the EDCA must be in the form of a treaty duly concurred by Senate. They hinge their
argument under the following Constitutional provisions:

 Sec. 21, Art. VII: “No treaty or international agreement shall be valid and effective unless concurred in
by at least 2/3rds of all the Members of the Senate.”
 Section 25, Article XVIII: “ xxx Military Bases, foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in by the Senate xxx ”

The President, however, may enter into an executive agreement on foreign military bases, troops, or
facilities, if (a) it is not the instrument that allows the presence of foreign military bases, troops, or
facilities; or (b) it merely aims to implement an existing law or treaty

In Commissioner of Customs v. Eastern Sea Trading: Executive Agreements are defined as international
agreements embodying adjustments of detail carrying out well-established national policies and traditions
and those involving arrangements of a more or less temporary nature.

Treaties are formal documents which require ratification with the approval of two-thirds of the Senate. The
right of the Executive to enter into binding agreements without the necessity of subsequent Congressional
approval has been confirmed by long usage. The Visiting Forces Agreement – a treaty ratified by the Senate in
1999 – already allowed the return of US troops. EDCA is consistent with the content, purpose, and framework
of the Mutual Defense Treaty and the VFA. The practice of resorting to executive agreements in adjusting the
details of a law or a treaty that already deals with the presence of foreign military forces is not at all unusual
in this jurisdiction.

In order to keep the peace in its archipelago and to sustain itself at the same time against the destructive
forces of nature, the Philippines will need friends. Who they are, and what form the friendships will take, are
for the President to decide. The only restriction is what the Constitution itself expressly prohibits. EDCA is not
constitutionally infirm. As an executive agreement, it remains consistent with existing laws and treaties that it
purports to implement. Petition is DISMISSED.
INTELLECTUAL PROPERTY ASSOCIATION OF THE PHILIPPINES v. PAQUITO OCHOA, GR No.
204605, 2016-07-19

Facts:

the Intellectual Property Office of the Philippines (IPOPHL)

It ultimately arrived at the conclusion that accession would benefit the country and help raise the level of
competitiveness for Filipino brands. Hence, it recommended in September 2011 to the Department of
Foreign Affairs (DFA) that the Philippines should accede to the Madrid Protocol.

After its own review, the DFA endorsed to the President the country's accession to the Madrid Protocol.

the DFA determined that the Madrid Protocol was an executive agreement. The IPOPHL, the Department
of Science and Technology, and the Department of Trade and Industry concurred in the recommendation
of the DFA.

President Benigno C. Aquino III ratified the Madrid Protocol through an instrument of accession. The
instrument of accession was deposited with the Director General of the World Intellectual Property
Organization (WIPO) on April 25, 2012,[8] The Madrid Protocol entered into force in the Philippines on
July 25, 2012

IPAP, an association of more than 100 law firms and individual practitioners in Intellectual Property Law...
has commenced this special civil action for certiorari and prohibition... to challenge the validity of the
President's accession to the Madrid Protocol without the concurrence of the Senate

According to the IPAP, the Madrid Protocol is a treaty, not an executive agreement; hence, respondent
DFA Secretary Albert Del Rosario acted with grave abuse of discretion in determining the Madrid Protocol
as an executive agreement.

The IPAP has argued that the implementation of the Madrid Protocol in the Philippines, specifically the
processing of foreign trademark applications, conflicts with the IP Code,[14] whose Section 125 states

The IPAP has insisted that Article 2 of the Madrid Protocol means that foreign trademark applicants may
file their applications through the International Bureau or the WIPO, and their applications will be
automatically granted trademark protection without the need for designating their resident agents in the
country.

The IPAP has prayed that the implementation of the Madrid Protocol in the Philippines be restrained in
order to prevent future wrongs considering that the IPAP and its constituency have a clear and
unmistakable right not to be deprived of the rights granted them by the IP Code and existing local laws.

Issues:

Whether or not the President's ratification of the Madrid Protocol is valid and constitutional;

Whether or not the Madrid Protocol is in conflict with the IP Code.

Ruling:

Accession to the Madrid Protocol was constitutional

International agreements involving political issues or changes of national policy and those involving
international arrangements of a permanent character usually take the form of treaties. But international
agreements embodying adjustments of detail carrying out well-established national policies and traditions
and those involving arrangements of a more or less temporary nature usually take the form of executive
agreements.

In view of the expression of state policy having been made by the Congress itself, the IPAP is plainly
mistaken in asserting that "there was no Congressional act that authorized the accession of the
Philippines to the Madrid Protocol."

Accordingly, DFA Secretary Del Rosario's determination and treatment of the Madrid Protocol as an
executive agreement, being in apparent contemplation of the express state policies on intellectual
property as well as within his power under Executive Order No. 459, are upheld.

There is no conflict between the Madrid Protocol and the IP Code

The IPAP also rests its challenge on the supposed conflict between the Madrid Protocol and the IP Code,
contending that the Madrid Protocol does away with the requirement of a resident agent under Section
125 of the IP Code; and that the Madrid Protocol is unconstitutional for being in conflict with the local law,
which it cannot modify,The IPAP's contentions stand on a faulty premise. The method of registration
through the IPOPHL, as laid down by the IP Code, is distinct and separate from the method of registration
through the WIPO, as set in the Madrid Protocol. Comparing the two methods of registration despite their
being governed by two separate systems of registration is thus misplaced.In arguing that the Madrid
Protocol conflicts with Section 125 of the IP Code, the IPAP highlights the importance of the requirement
for the designation of a resident agent, It underscores that the requirement is intended to ensure that non-
resident entities seeking protection or privileges under Philippine Intellectual Property Laws will be
subjected to the country's jurisdiction. It submits that without such resident agent, there will be a need to
resort to costly, time consuming and cumbersome extraterritorial service of writs and processes.[37]The
IPAP misapprehends the procedure for examination under the Madrid Protocol. The difficulty, which the
IPAP illustrates, is minimal, if not altogether inexistent. The IPOPHL actually requires the designation of
the resident agent when it refuses the registration of a mark. Local representation is further required in
the submission of the Declaration of Actual Use, as well as in the submission of the license contract.[38]
The Madrid Protocol accords with the intent and spirit of the IP Code, particularly on the subject of the
registration of trademarks. The Madrid Protocol does not amend or modify the IP Code on the acquisition
of trademark rights considering that the applications under the Madrid Protocol are still examined
according to the relevant national law. In that regard, the IPOPHL will only grant protection to a mark that
meets the local registration requirements.

Principles:

The Madrid System for the International Registration of Marks {Madrid System), which is the centralized
system providing a one-stop solution for registering and managing marks worldwide, allows the trademark
owner to file one application in one language, and to pay one set of fees to protect his mark in the
territories of up to 97 member-states.[2] The Madrid System is governed by the Madrid Agreement,
concluded in 1891, and the Madrid Protocol, concluded in 1989.

The Madrid Protocol, which was adopted in order to remove the challenges deterring some countries from
acceding to the Madrid Agreement, has two objectives, namely: (1) to facilitate securing protection for
marks; and (2) to make the management of the registered marks easier in different countries.
Province of North Cotabato v. Government of the Republic of the Philippines
(G.R. Nos. 183591, 183752, 183893, 183951, & 183962) (14 October 2008)
Facts:
On 8 August 2008, the Government of the Republic of the Philippines (GRP), represented by the
GRP Peace Panel and the Presidential Adviser on the Peace Process (PAPP), and the Moro Islamic
Liberation Front (MILF) were scheduled to sign the Memorandum of Agreement on the Ancestral Domain
(MOA-AD) Aspect of the previous GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur,
Malaysia.
The MOA-AD included, among others, a stipulation that creates the Bangsamoro Juridical Entity
(BJE), to which the GRP grants the authority and jurisdiction over the ancestral domain and ancestral
lands of the Bangsamoro—defined as the present geographic area of the ARMM constituted by Lanao del
Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City, as well as the municipalities of Lanao del
Norte which voted for inclusion in the ARMM in the 2001 plebiscite. The BJE is then granted the power to
build, develop, and maintain its own institutions. The MOA-AD also described the relationship of the GRP
and the BJE as “associative,” characterized by shared authority and responsibility. It further provides that
its provisions requiring “amendments to the existing legal framework” shall take effect upon signing of a
Comprehensive Compact.
Before the signing, however, the Province of North Cotabato sought to compel the respondents to
disclose and furnish it with complete and official copies of the MOA-AD, as well as to hold a public
consultation thereon, invoking its right to information on matters of public concern. A subsequent petition
sought to have the City of Zamboanga excluded from the BJE. The Court then issued a Temporary
Restraining Order (TRO) on 4 August 2008, directing the public respondents and their agents to cease
and desist from formally signing the MOA-AD.

Issues and Ruling:

1. W/N the President has the power to pursue reforms that would require new legislation and
constitutional amendments.
YES. However, the stipulation in the MOA-AD that virtually guarantees that necessary changes shall be
effected upon the legal framework of the GRP must be struck down as unconstitutional as it is
inconsistent with the limits of the President’s authority to propose constitutional amendments. Because
although the President’s power to conduct peace negotiations is implicitly included in her powers as Chief
Executive and Commander-in-Chief, and, in the course of conducting peace negotiations, may validly
consider implementing even those policies that require changes to the Constitution, she may not
unilaterally implement them without the intervention of Congress, or act in any way as if the assent of that
body were assumed as a certainty.

2. W/N there is a violation of the people’s right to information on matters of public concern (1987
Constitution, Art. III, Sec. 7) under a state policy of full disclosure of all its transactions
involving public interest (1987 Constitution, Art. II, Sec. 28), including public consultation
under RA No. 7160 (Local Government Code of 1991).
YES. At least three pertinent laws animate these constitutional imperatives and justify the exercise of the
people’s right to be consulted on relevant matters relating to the peace agenda:
a. EO No. 3, which enumerates the functions and responsibilities of the PAPP, is replete with
mechanics for continuing consultations on both national and local levels and for a principal forum
for consensus-building. In fact, it is the duty of the PAPP to conduct regular dialogues to seek
relevant information, comments, advice, and recommendations from peace partners and
concerned sectors of society;
b. RA No. 7160 (LGC) requires all national offices to conduct consultations before any project or
program critical to the environment and human ecology including those that may call for the
eviction of a particular group of people residing in such locality, is implemented therein. The
MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast
 territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora
or displacement of a great number of inhabitants from their total environment;
c. RA No. 8371 (IPRA) provides for clear-cut procedure for the recognition and delineation of
ancestral domain, which entails, among other things, the observance of the free and prior
informed consent of the Indigenous Cultural Communities/Indigenous Peoples (ICC/IP).

3. W/N the GRP Peace Panel and the PAPP committed grave abuse of discretion amounting to
lack or excess of jurisdiction.
YES. The PAPP committed grave abuse of discretion when he failed to carry out the pertinent
consultation process, as mandated by EO No. 3, RA No. 7160, and RA No. 8371. The furtive process by
which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and
amounts to a whimsical, capricious, oppressive, arbitrary, and despotic exercise thereof. It illustrates a
gross evasion of positive duty and a virtual refusal to perform the duty enjoined.

4. W/N the MOA-AD is constitutional.

NO. It cannot be reconciled with the present Constitution and laws. Not only its specific provisions, but the
very concept underlying them, namely, the associative relationship envisioned between the GRP and the
BJE, are unconstitutional, for the concept presupposes that the associated entity is a state and implies
that the same is on its way to independence. While there is a clause in the MOA-AD stating that the
provisions thereof inconsistent with the present legal framework will not be effective until that framework
is amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing an
associative relationship between the BJE and the Central Government is, itself, a violation of the
Memorandum of Instructions From The President addressed to the government peace panel. Moreover,
as the clause is worded, it virtually guarantees that the necessary amendments to the Constitution and
the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is
authorized to make such a guarantee. Upholding such an act would amount to authorizing a usurpation of
the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves
through the process of initiative, for the only way that the Executive can ensure the outcome of the
amendment process is through an undue influence or interference with that process.

5. W/N the GRP can invoke executive privilege.

NO. 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.
Carpio-Morales, J.
The people’s right to information on matters of public concern under Sec. 7, Art. III of the Constitution is in
splendid symmetry with the state policy of full public disclosure of all its transactions involving public
interest under Sec. 28, Art. II of the Constitution.

The right to information guarantees the right of the people to demand information, while the policy of
public disclosure recognizes the duty of officialdom to give information even if nobody demands.

The IPRA does not grant the Executive Department or any government agency the power to delineate
and recognize an ancestral domain claim by mere agreement or compromise.

An association is formed when two states of unequal power voluntarily establish durable links. In the
basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while
maintaining its international status as a state. Free associations represent a middle ground between
integration and independence.

The recognized sources of international law establish that the right to self-determination of a people is
normally fulfilled through internal self-determination—a people’s pursuit of its political, economic, social,
and cultural development within the framework of an existing state. A right to external self-determination
(which in this case potentially takes the form of the assertion of a right to unilateral secession) arises only
in the most extreme of cases and, even then, under carefully defined circumstances.
That the authority of the President to conduct peace negotiations with rebel groups is not explicitly
mentioned in the Constitution does not mean that she has no such authority.
The President has authority, as stated in her oath of office, only to preserve and defend the Constitution.
Such presidential power does not, however, extend to allowing her to change the Constitution, but simply
to recommend proposed amendments or revision. As long as she limits herself to recommending these
changes and submits to the proper procedure for constitutional amendments and revision, her mere
recommendation need not be construed as an unconstitutional act.

Public statements of a state representative may be construed as a unilateral declaration only when the
following conditions are present: the statements were clearly addressed to the international community,
the state intended to be bound to that community by its statements, and that not to give legal effect to
those statements would be detrimental to the security of international intercourse. Plainly, unilateral
declarations arise only in peculiar circumstances.

.
 BORIS MEJOFF, petitioner,
vs.
THE DIRECTOR OF PRISONS, respondent.
G.R. No. L-4254 September 26, 1951

FACTS:

 This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a
decision of this Court of July 30, 1949.
 The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from
Shanghai as a secret operative by the Japanese forces during the latter's regime in these Islands.
Upon liberation he was arrested as a Japanese spy, by U.S. Army Counter Intelligence Corps.
 Later he was handed to theCommonwealth Government for disposition in accordance with
Commonwealth Act No. 682. Thereafter, the People's Court ordered his release. But the
deportation Board taking his case up, found that having no travel documents Mejoff was illegally
in this country, and consequently referred the matter to the immigration authorities.
 After the corresponding investigation, the Board of commissioners of Immigration on April 5,
1948, declared that Mejoff had entered the Philippines illegally in 1944, without inspection and
admission by the immigration officials at a designation port of entry and, therefore, it ordered that
he be deported on the first available transportation to Russia.
 The petitioner was then under custody, he having been arrested on March 18, 1948. In May 1948
he was transferred to the Cebu Provincial Jail together with three other Russians to await the
arrival of some Russian vessels.
 In July and August of that year two boats of Russian nationality called at the Cebu Port. But their
masters refused to take petitioner and his companions alleging lack of authority to do so.
 In October 1948 after repeated failures to ship this deportee abroad, the authorities moved him to
Bilibid Prison at Muntinglupa where he has been confined up to the present time, inasmuch as
the Commissioner of Immigration believes it is for the best interests of the country to keep him
under detention while arrangements for his departure are being made.
 The Court held the petitioner's detention temporary and said that "temporary detention is a
necessary step in the process of exclusion or expulsion of undesirable aliens and that pending
arrangements for his deportation, the Government has the right to hold the undesirable alien
under confinement for a reasonable lenght of time."
 No period was fixed within which the immigration authorities should carry out the contemplated
deportation beyond the statement that "The meaning of 'reasonable time' depends upon the
circumstances, specially the difficulties of obtaining a passport, the availability of transportation,
the diplomatic arrangements with the governments concerned and the efforts displayed to send
the deportee away;" but the Court warned that "under established precedents, too long a
detention may justify the issuance of a writ of habeas corpus."
 Over two years having elapsed since the decision aforesaid was promulgated, the Government
has not found way and means of removing the petitioner out of the country, and none are in sight,
although it should be said in justice to the deportation authorities, it was through no fault of theirs
that no ship or country would take the petitioner.

ISSUE:
W/N the Writ of Habeas Corpus should be granted.
HELD:
YES.
Aliens illegally staying in the Philippines have no right of asylum therein (Sowapadji vs. Wixon, Sept. 18,
1946, 157 F. ed., 289, 290), even if they are "stateless," which the petitioner claims to be. It is no less true
however, as impliedly stated in this Court's decision, supra, that foreign nationals, not enemy against
whom no charge has been made other than that their permission to stay has expired, may not indefinitely
be kept in detention. The protection against deprivation of liberty without due process of law and except
for crimes committed against the laws of the land is not limited to Philippine citizens but extends to all
residents, except enemy aliens, regardless of nationality. Whether an alien who entered the country in
violation of its immigration laws may be detained for as long as the Government is unable to deport him,
is a point we need not decide. The petitioner's entry into the Philippines was not unlawful; he was brought
by the armed and belligerent forces of a de facto government whose decrees were law furing the
occupation.

Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted principles of
international law as part of the law of Nation." And in a resolution entitled "Universal Declaration of
Human Rights" and approved by the General Assembly of the United Nations of which the Philippines is a
member, at its plenary meeting on December 10, 1948, the right to life and liberty and all other
fundamental rights as applied to all human beings were proclaimed. It was there resolved that "All human
beings are born free and equal in degree and rights" (Art. 1); that "Everyone is entitled to all the rights and
freedom set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, nationality or social origin, property, birth, or other status" (Art. 2): that
"Every one has the right to an effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the Constitution or by law" (Art. 8); that "No one shall be subjected to
arbitrary arrest, detention or exile" (Art. 9); etc.

In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to release from custody
an alien who has been detained an unreasonably long period of time by the Department of Justice after it
has become apparent that although a warrant for his deportation has been issued, the warrant can not be
effectuated;" that "the theory on which the court is given the power to act is that the warrant of
deportation, not having been able to be executed, is functus officio and the alien is being held without any
authority of law." The decision cited several cases which, it said, settled the matter definitely in that
jurisdiction, adding that the same result had reached in innumerable cases elsewhere. The cases referred
to were United States ex rel. Ross vs. Wallis, 2 Cir. 279 F. 401, 404; Caranica vs. Nagle, 9 Cir., 28 F. 2d
955; Saksagansky vs. Weedin, 9 Cir., 53 F. 2d 13, 16 last paragraph; Ex parte Matthews, D.C.W.D.
Wash., 277 F. 857; Moraitis vs. Delany, D.C. Md. Aug. 28, 1942, 46 F. Supp. 425.

Premises considered, the writ will issue commanding the respondents to release the petitioner from
custody upon these terms: The petitioner shall be placed under the surveillance of the immigration
authorities or their agents in such form and manner as may be deemed adequate to insure that he keep
peace and be available when the Government is ready to deport him. The surveillance shall be
reasonable and the question of reasonableness shall be submitted to this Court or to the Court of First
Instance of Manila for decision in case of abuse. He shall also put up a bond for the above purpose in the
amount of P5,000 with sufficient surety or sureties, which bond the Commissioner of Immigration is
authorized to exact by section 40 of Commonwealth Act No. 613.
KURADO VS JALANDONI

G.R. No. L-2662 83 Phil 171 March 26, 1949

SHIGENORI KURODA, petitioner,

vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO
TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS,
MELVILLE S. HUSSEY and ROBERT PORT, respondents.

Facts:

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in The Philippines during Second World War. He was charged
before a military commission convened by the Chief of Staff of the Armed forces of the Philippines with
having unlawfully disregarded and failed to discharge his duties as such command, permitting them to
commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the
Imperial Japanese Forces in violation of the laws and customs of war”. The said military commission was
empaneled under the authority of Executive Order 68 of the President of the Philippines.

Kuroda challenged the validity of Executive Order 68. His arguments, were as follows:

(1) Executive Order 68 is illegal on the ground that it violates not only the provisions of our constitutional
law but also our local laws.

(2) Military Commission has no Jurisdiction to try him for acts committed in violation of the Hague
Convention and the Geneva Convention because the Philippines is not a signatory to the first and signed
the second only in 1947 and, therefore, he is charged with “crime” not based on law, national or
international

(3) Hussey and Port have no personality as prosecutors in this case because they are not qualified to
practice law in Philippines in accordance with our Rules of court and the appointment of said attorneys as
prosecutors is violative of our national sovereignty.

Issue/s:

Whether or not Executive Order 68 had violated the provisions of our constitutional law

Discussions:

The provision of Article 2 Sec 3 states that “The Philippines renounces war as an instrument of national
policy, adopts generally accepted principles of international law as part of the law of the land, and
adheres to the policy of peace, equality, justice freedom, cooperation and amity with all nations”. Every
State is, by reason of its membership in the family of nations, bound by the generally accepted principles
of international law, which are considered to be automatically part of its own laws.
Ruling/s:

No. Executive Order 68 has not violated the provision of our constitutional law. The tribunal has
jurisdiction to try Kuroda. This executive order is in accordance with Article 2 Sec 3, of Constitution. It is in
accordance with generally accepted principles of international law including the Hague Convention and
Geneva Convention, and other international jurisprudence established by the UN, including the principle
that all persons (military or civilian) guilty of plan, preparing, waging a war of aggression and other
offenses in violation of laws and customs of war.

The Philippines may not be a signatory to the 2 conventions at that time but the rules and regulations of
both are wholly based on the generally accepted principles of international law. They were accepted even
by the 2 belligerent nations (US and Japan)

Furthermore, the Phil. Military Commission is a special military tribunal and rules as to parties and
representation are not governed by the rules of court but the provision of this special law.

Article 2 of our Constitution provides in its section 3, that –

The Philippines renounces war as an instrument of national policy and adopts the generally
accepted principles of international law as part of the law of the nation.

In accordance with the generally accepted principle of international law of the present day
including the Hague Convention the Geneva Convention and significant precedents of international
jurisprudence established by the United Nation all those person military or civilian who have been guilty of
planning preparing or waging a war of aggression and of the commission of crimes and offenses
consequential and incidental thereto in violation of the laws and customs of war, of humanity and
civilization are held accountable therefor. Consequently in the promulgation and enforcement of
Execution Order No. 68 the President of the Philippines has acted in conformity with the generally
accepted and policies of international law which are part of the our Constitution.

xxx xxx xxx

Petitioner argues that respondent Military Commission has no jurisdiction to try petitioner for acts
committed in violation of the Hague Convention and the Geneva Convention because the Philippines is
not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and
regulation of the Hague and Geneva conventions form, part of and are wholly based on the generally
accepted principals of international law. In facts these rules and principles were accepted by the two
belligerent nations the United State and Japan who were signatories to the two Convention. Such rule
and principles therefore form part of the law of our nation even if the Philippines was not a signatory to
the conventions embodying them for our Constitution has been deliberately general and extensive in its
scope and is not confined to the recognition of rule and principle of international law as contained in
treaties to which our government may have been or shall be a signatory.
Agustin v Edu (1979) 88 SCRA 195
Facts:

Leovillo Agustin, the owner of a Beetle, challenged the constitutionality of Letter of Instruction 229 and its
implementing order No. 1 issued by LTO Commissioner Romeo Edu. His car already had warning lights
and did not want to use this.

The letter was promulgation for the requirement of an early warning device installed on a vehicle to
reduce accidents between moving vehicles and parked cars.

The LTO was the issuer of the device at the rate of not more than 15% of the acquisition cost.

The triangular reflector plates were set when the car parked on any street or highway for 30 minutes. It
was mandatory.

Petitioner: 1. LOI violated the provisions and delegation of police power, equal protection, and due
process/

2. It was oppressive because the make manufacturers and car dealers millionaires at the expense f car
owners at 56-72 pesos per set.

Hence the petition.

The OSG denied the allegations in par X and XI of the petition with regard to the unconstitutionality and
undue delegation of police power to such acts.

The Philippines was also a member of the 1968 Vienna convention of UN on road signs as a regulation.
To the petitioner, this was still an unlawful delegation of police power.

Issue:

Is the LOI constitutional? If it is, is it a valid delegation of police power?

Held: Yes on both. Petition dismissed.

Ratio:

Police power, according to the case of Edu v Ericta, which cited J. Taney, is nothing more or less than the
power of government inherent in every sovereignty.

The case also says that police power is state authority to enact legislation that may interfere with personal
liberty or property to promote the general welfare.

Primicias v Fulgoso- It is the power to describe regulations to promote the health, morals, peace,
education, good order, and general welfare of the people.

J. Carazo- government limitations to protect constitutional rights did not also intend to enable a citizen to
obstruct unreasonable the enactment of measures calculated to insure communal peace.
There was no factual foundation on petitioner to refute validity.

Ermita Malate Hotel-The presumption of constitutionality must prevail in the absence of factual record in
over throwing the statute.

Brandeis- constitutionality must prevail in the absence of some factual foundation in overthrowing the
statute.

Even if the car had blinking lights, he must still buy reflectors. His claims that the statute was oppressive
was fantastic because the reflectors were not expensive.

SC- blinking lights may lead to confusion whether the nature and purpose of the driver is concerned.

Unlike the triangular reflectors, whose nature is evident because it’s installed when parked for 30
minutes and placed from 400 meters from the car allowing drivers to see clearly.

There was no constitutional basis for petitioner because the law doesn’t violate any constitutional
provision.

LOI 229 doesn’t force motor vehicle owners to purchase the reflector from the LTO. It only prescribes rge
requirement from any source.

The objective is public safety.

The Vienna convention on road rights and PD 207 both recommended enforcement for installation of
ewd’s. Bother possess relevance in applying rules with the decvlaration of principles in the Constitution.

On the unlawful delegation of legislative power, the petitioners have no settled legal doctrines.
JOSE B. L. REYES, in behalf of ANTI-BASES COALITION vs. RAMON BAGATSING

G.R. No. L-65366

Fernando, CJ.:

FACTS:

Anti-Bases Coalition (ABC), herein represented by retired Justice Jose B. L. Reyes, sought a permit to hold
a protest action and hold a peaceful march from Luneta up to the front gate of the US Embassy. However, Manila
mayor Ramin Bagatsing disapproved the permit, claiming that he had been receiving police intelligence reports that
the protest action may be infiltrated by lawless elements. According to the police “intelligence”, there are alleged
plans of subversive/criminal elements to infiltrate and/or disrupt any assmebly or congragations where a large
number is expected to attend.

However, Bagatsing suggested that a permit may be issued IF the protest action shall be held in the Rizal
Coliseum or any other enclosed area where the safety of the participants themselves and the general public may be
ensured.

In addition, Bagatsing issued City Ordinance No. 7259 which prohibits staging of rallies within the 500
meter radius from the US Embassy. According to him, it was his intention to provide “protection” to our diplomatic
relations, thus favoring the US Embassy from such protest action which was allegedly reported to have been
infiltrated by “lawless elements”.

ISSUE: Whether or not the participants should be granted the permit.

HELD:

AFFIRMATIVE J

Such denial of the people’s right to peacably assemble and petition the government for redress of
grievances, despite the police intelligence report, did not pass the clear and present danger test. Mere assertion of the
report that the protest being infiltrated by subversives does not suffice. It is enough that the police chief assure to
take all necessary steps to ensure a peaceful assembly

Furthermore, Ordinance No. 7259 cannot be applied yet because it cannot be shown that the protesters are
indeed within the 500 meter radius of the embassy.

PETITION GRANTED! J
 SECOND DIVISION

[G.R. No. 140520. December 18, 2000

JUSTICE SERAFIN R. CUEVAS, substituted by ARTEMIO G. TUQUERO in his capacity as

Secretary of Justice, Petitioner, v. JUAN ANTONIO MUOZ, Respondent.

DECISION

DE LEON, JR., J.:

Before us is a petition for review on certiorari of the Decision[1 of the Court of Appeals,
dated November 9, 1999, directing the immediate release of respondent Juan Antonio Muoz
from the custody of law upon finding the Order2 of provisional arrest dated September 20,
1999 issued by Branch 19 of the Regional Trial Court of Manila to be null and void.

The antecedent facts:

On August 23, 1997, the Hong Kong Magistrates Court at Eastern Magistracy issued a
warrant for the arrest of respondent for seven (7) counts of accepting an advantage as an
agent contrary to Section 9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong
Kong, and seven (7) counts of conspiracy to defraud, contrary to the common law of Hong
Kong.3Said warrant remains in full force and effect up to the present time.4

On September 13, 1999, the Philippine Department of Justice (hereafter, Philippine DOJ)
received a request for the provisional arrest of the respondent from the Mutual Legal
Assistance Unit, International Law Division of the Hong Kong Department of Justice
(hereafter, Hong Kong DOJ)5 pursuant to Article 11(1) of the Agreement Between The
Government Of The Republic Of The Philippines And The Government Of Hong Kong For The
Surrender Of Accused And Convicted Persons (hereafter, RP-Hong Kong Extradition
Agreement).6 The Philippine DOJ forwarded the request for provisional arrest to the Anti-
Graft Division of the National Bureau of Investigation (NBI).

On September 17, 1999, for and in behalf of the government of Hong Kong, the NBI filed an
application for the provisional arrest of respondent with the Regional Trial Court (RTC) of
Manila.

On September 20, 1999, Branch 19 of the RTC of Manila issued an Order granting the
application for provisional arrest and issuing the corresponding Order of Arrest.

On September 23, 1999, respondent was arrested pursuant to the said order, and is
currently detained at the NBI detention cell.8
On October 14, 1999, respondent filed with the Court of Appeals, a petition for certiorari,
prohibition and mandamus with application for preliminary mandatory injunction and/or writ
of habeas corpus assailing the validity of the Order of Arrest. The Court of Appeals rendered
a decision declaring the Order of Arrest null and void on the following grounds:

(1) that there was no urgency to warrant the request for provisional arrest under Article
11(1) of the RP-Hong Kong Extradition Agreement;

(2) that the request for provisional arrest and the accompanying warrant of arrest and
summary of facts were unauthenticated and mere facsimile copies which are insufficient to
form a basis for the issuance of the Order of Arrest;

(3) that the twenty (20) day period for provisional arrest under Section 20(d) of Presidential
Decree No. 1069 otherwise known as the Philippine Extradition Law, was not amended by
Article 11(3) of the RP-Hong Kong Extradition Agreement which provides for a forty-five
(45) day period for provisional arrest;11

(4) that the Order of Arrest was issued without the Judge having personally determined the
existence of probable cause;[12 and

(5) that the requirement of dual criminality under Section 3(a) of P.D. No. 1069 has not
been satisfied as the crimes for which respondent is wanted in Hong Kong, namely
accepting an advantage as an agent and conspiracy to commit fraud, are not punishable by
Philippine laws.

Thus, petitioner Justice Serafin R. Cuevas, in his capacity as the Secretary of the
Department of Justice, lost no time in filing the instant petition.[14

On November 17, 1999, respondent filed an Urgent Motion For Release Pending Appeal. He
primarily contended that, since Section 20(d) of P.D. No. 1069 sets the maximum period of
provisional arrest at twenty (20) days, and he has been detained beyond the said period,
without both a request for extradition having been received by the Philippine DOJ and the
corresponding petition for extradition having been filed in the proper RTC, he should be
released from detention. 15

On December 16, 1999, petitioner filed a Manifestation with this Court stressing the fact
that as early as November 5, 1999, the Philippine DOJ had already received from the Hong
Kong DOJ, a formal request for the surrender of respondent. Petitioner also informed this
Court that pursuant to the said request for extradition, the Philippine DOJ, representing the
Government of Hong Kong, filed on November 22, 1999, a verified petition for the
extradition of respondent docketed as Case No. 99-95733 and currently pending in Branch
10 of the RTC of Manila.16

Petitioner submits that the Court of Appeals erred in nullifying the Order of provisional
arrest against respondent.

Petitioner imputes the following errors in the subject Decision of the Court of Appeals, to
wit:

I
The Court of Appeals gravely erred in holding that:

A. there was no urgency for the provisional arrest of respondent;

B. the municipal law (P.D. No. 1069) subordinates an international agreement (RP-
Hongkong Agreement);

C. the supporting documents for a request for provisional arrest have to be authenticated;

D. there was lack of factual and legal bases in the determination of probable cause; and

E. the offense of accepting an advantage as an agent is not an offense under the Anti-Graft
and Corrupt Practices Act, as amended.

II

The Court of Appeals seriously erred in declaring as null and void the trial courts Order of
Arrest dated September 20, 1999 despite that (sic) respondent waived the right to assail
the order of arrest by filing in the trial court a motion for release on recognizance, that (sic)
the issue of legality of the order of arrest was being determined by the trial court, and
respondent mocked the established rules of procedure intended for an orderly
administration of justice.

Petitioner takes exception to the finding of the Court of Appeals that the offense of
accepting an advantage as an agent is not punishable under Republic Act (R.A.) No. 3019
otherwise known as the Anti-Graft and Corrupt Practices Act, thus, obviating the application
of P.D. No. 106918 that requires the offense to be punishable under the laws both of the
requesting state or government and the Republic of the Philippines. 19

However, the issue of whether or not the rule of double criminality applies was not for the
Court of Appeals to decide in the first place. The trial court in which the petition for
extradition is filed is vested with jurisdiction to determine whether or not the offenses
mentioned in the petition are extraditable based on the application of the dual criminality
rule and other conditions mentioned in the applicable treaty. In this case, the presiding
Judge of Branch 10 of the RTC of Manila has yet to rule on the extraditability of the offenses
for which the respondent is wanted in Hong Kong. Therefore, respondent has prematurely
raised this issue before the Court of Appeals and now, before this Court.

Petitioners other arguments, however, are impressed with merit.

First. There was urgency for the provisional arrest of the respondent.

Section 20(a) of P.D. No. 1069 reads as follows:

Provisional Arrest. - (a) In case of urgency, the requesting state may, pursuant to the
relevant treaty or convention and while the same remains in force, request for the
provisional arrest of the accused, pending receipt of the request for extradition made in
accordance with Section 4 of this Decree;

and Article 11 of the Extradition Agreement between the Philippines and Hong Kong
provides in part that:
(1) In urgent cases, the person sought may, in accordance with the law of the requested
Party, be provisionally arrested on the application of the requesting Party. x x x.

Nothing in existing treaties or Philippine legislation defines the meaning of urgency as used
in the context of a request for provisional arrest. Using reasonable standards of
interpretation, however, we believe that urgency connotes such conditions relating to the
nature of the offense charged and the personality of the prospective extraditee which would
make him susceptible to the inclination to flee or escape from the jurisdiction if he were to
learn about the impending request for his extradition and/or likely to destroy the evidence
pertinent to the said request or his eventual prosecution and without which the latter could
not proceed.20

We find that such conditions exist in respondents case.

First. It should be noted that at the time the request for provisional arrest was made,
respondents pending application for the discharge of a restraint order over certain assets
held in relation to the offenses with which he is being charged, was set to be heard by the
Court of First Instance of Hong Kong on September 17, 1999. The Hong Kong DOJ was
concerned that the pending request for the extradition of the respondent would be disclosed
to the latter during the said proceedings, and would motivate respondent to flee the
Philippines before the request for extradition could be made. 21

There is also the fact that respondent is charged with seven (7) counts of accepting an
advantage as an agent and seven (7) counts of conspiracy to defraud, for each count of
which, if found guilty, he may be punished with seven (7) and fourteen (14) years
imprisonment, respectively. Undoubtedly, the gravity of the imposable penalty upon an
accused is a factor to consider in determining the likelihood that the accused will abscond if
allowed provisional liberty. It is, after all, but human to fear a lengthy, if not a lifetime,
incarceration. Furthermore, it has also not escaped the attention of this Court that
respondent appears to be affluent and possessed of sufficient resources to facilitate an
escape from this jurisdiction.[22

The arguments raised by the respondent in support of his allegation that he is not a flight
risk, are, to wit:

a) He did not flee or hide when the Central Bank and the NBI investigated the matter
alleged in the request for extradition of the Hongkong Government during the second half of
1994; he has since been cleared by the Central Bank;

b) He did not flee or hide when the Hongkong Governments Independent Commission
Against Corruption (ICAC) issued a warrant for his arrest in August 1997; he has in fact
filed a case in Hongkong against the Hongkong Government for the release of his frozen
assets;

c) He never changed his address nor his identity, and has sought vindication of his rights
before the courts in Hongkong and in the Philippines;

d) He has never evaded arrest by any lawful authority, and certainly will never fly away now
that his mother is on her death bed.
do not convince this Court. That respondent did not flee despite the investigation conducted
by the Central Bank and the NBI way back in 1994, nor when the warrant for his arrest was
issued by the Hong Kong ICAC in August 1997, is not a guarantee that he will not flee now
that proceedings for his extradition are well on the way. Respondent is about to leave the
protective sanctuary of his mother state to face criminal charges in another jurisdiction. It
cannot be denied that this is sufficient impetus for him to flee the country as soon as the
opportunity to do so arises.

Respondent also avers that his mothers impending death makes it impossible for him to
leave the country. However, by respondents own admission, his mother finally expired at
the Cardinal Santos Hospital in Mandaluyong City last December 5, 1999. 24

Second. Twelve (12) days after respondent was provisionally arrested, the Philippine DOJ
received from the Hong Kong DOJ, a request for the surrender or extradition of respondent.

On one hand, Section 20(d) of P.D. No. 1069 reads as follows:

(d) If within a period of twenty (20) days after the provisional arrest the Secretary of
Foreign Affairs has not received the request for extradition and the documents mentioned in
Section 4 of this Decree, the accused shall be released from custody.

On the other hand, Article 11(3) of the RP-Hong Kong Extradition Agreement provides that:

(3) The provisional arrest of the person sought shall be terminated upon the expiration of
forty-five days from the date of arrest if the request for surrender has not been received,
unless the requesting Party can justify continued provisional arrest of the person sought in
which case the period of provisional arrest shall be terminated upon the expiration of a
reasonable time not being more than a further fifteen days. This provision shall not prevent
the re-arrest or surrender of the person sought if the request for the persons surrender is
received subsequently.

Petitioner contends that Article 11(3) of the RP-Hong Kong Extradition Agreement which
allows a period of forty-five (45) days for provisional arrest absent a formal request for
extradition has amended Section 20(d) of P.D. No. 1069 which provides only a twenty (20)
day period for the same.

Petitioners argument on this point, however, has been rendered moot and academic by the
fact that as early as November 5, 1999 or twelve (12) days after respondents arrest on
September 23, 1999, the Philippine DOJ already received from the Hong Kong DOJ, a
request for the surrender of respondent. The crucial event, after all, which tolls the
provisional detention period is the transmittal of the request for the extradition or surrender
of the extraditee. Hence, the question as to whether the period for provisional arrest stands
at twenty (20) days, as provided for in P.D. No. 1069, or has been extended to forty-five
(45) days under the Extradition Agreement between Hong Kong and the Philippines is
rendered irrelevant by the actual request made by the Hong Kong DOJ for the extradition of
respondent twelve (12) days after the request for the latters provisional arrest.

Likewise, respondents contention in his motion for release pending appeal, that his
incarceration cannot continue beyond the twenty (20) day period without a petition for his
extradition having been filed in court, is simply bereft of merit. It is clear from the above-
cited provisions, that for the provisional arrest of an accused to continue, the formal request
for extradition is not required to be filed in court. It only need be received by the requested
state within the periods provided for by P.D. No. 1069 and the RP-Hong Kong Extradition
Agreement. By no stretch of imagination may we infer from the required receipt of the
request for extradition and its accompanying documents, the additional requisite that the
same be filed in the court within the same periods.

Third. The request for provisional arrest of respondent and its accompanying documents are
valid despite lack of authentication.

Section 20(b) of P.D. No. 1069 reads as follows:

(b) A request for provisional arrest shall be sent to the Director of the National Bureau of
Investigation, Manila, either through the diplomatic channels or direct by post or telegraph.

and Article 11(1) of the RP-Hong Kong Extradition Agreement provides in part that:

x x x. The application for provisional arrest shall contain an indication of intention to request
the surrender of the person sought and the text of a warrant of arrest or a judgment of
conviction against that person, a statement of the penalty for that offense, and such further
information, if any, as would be necessary to justify the issue of a warrant of arrest had the
offense been committed, or the person convicted, within the jurisdiction of the requested
Party.

The language of the abovequoted provisions is clear. There is no requirement for the
authentication of a request for provisional arrest and its accompanying documents.

We also note that under Section 20(d) of P.D. No. 1069, viz:

(d) If within a period of 20 days after the request for provisional arrest the Secretary of
Foreign Affairs has not received the request for extradition and the documents mentioned in
Section 4 of this Decree,[26 the accused shall be released from custody.27

the original or authenticated copies of the decision or sentence imposed upon the accused
by the requesting state or the criminal charge and the warrant of arrest issued by the
authority of the requesting state, need not accompany the request for provisional arrest and
may, in fact, be transmitted after the said request has already been received by the
requested state.

Furthermore, the pertinent provision of the RP-Hong Kong Extradition Agreement

enumerates the documents that must accompany the request, as follows: (1) an indication
of the intention to request the surrender of the person sought; (2) the text of a warrant of
arrest or judgment of conviction against that person; (3) a statement of penalty for that
offense; and (4) such further information as would justify the issue of a warrant of arrest
had the offense been committed, or the person convicted, within the jurisdiction of the
requested party.[28That the enumeration does not specify that these documents must be
authenticated copies, is not a mere omission of law. This may be gleaned from the fact that
while Article 11(1) does not require the accompanying documents of a request for
provisional arrest to be authenticated, Article 9 of the same Extradition Agreement makes
authentication a requisite for admission in evidence of any document accompanying
a request for surrender or extradition.[29 In other words, authentication is required for the
request for surrender or extradition but not for the request for provisional arrest.
We must also state that the above mentioned provisions of P.D. No. 1069 and the RP-Hong
Kong Extradition Agreement, as they are worded, serve the purpose sought to be achieved
by treaty stipulations for provisional arrest.

The process of preparing a formal request for extradition and its accompanying documents,
and transmitting them through diplomatic channels, is not only time-consuming but also
leakage-prone. There is naturally a great likelihood of flight by criminals who get an
intimation of the pending request for their extradition. To solve this problem, speedier initial
steps in the form of treaty stipulations for provisional arrest were formulated.30 Thus, it is
an accepted practice for the requesting state to rush its request in the form of a telex or
diplomatic cable, the practicality of the use of which is conceded.[31 Even our own
Extradition Law (P.D. No. 1069) allows the transmission of a request for provisional
arrest via telegraph.[32 In the advent of modern technology, the telegraph or cable have
been conveniently replaced by the facsimile machine. Therefore, the transmission by the
Hong Kong DOJ of the request for respondents provisional arrest and the accompanying
documents, namely, a copy of the warrant of arrest against respondent, a summary of the
facts of the case against him, particulars of his birth and address, a statement of the
intention to request his provisional arrest and the reason therefor, by fax machine, more
than serves this purpose of expediency.

Respondents reliance on Garvida v. Sales, Jr.33 is misplaced. The proscription against the
admission of a pleading that has been transmitted by facsimile machine has no application
in the case at bar for obvious reasons. First, the instant case does not involve a pleading;
and second, unlike the COMELEC Rules of Procedure which do not sanction the filing of a
pleading by means of a facsimile machine, P.D. No. 1069 and the RP Hong Kong Extradition
Agreement do not prohibit the transmission of a request for provisional arrest by means of a
fax machine.

In a futile attempt to convince this Court, respondent cites our ruling in the recent case
of Secretary of Justice v. Hon. Lantion, et al.[34, where we held that the right of an
extraditee to due process necessarily includes the right to be furnished with copies of the
extradition request and supporting papers, and to file a comment thereto during the
evaluation stage of the extradition proceedings.

Respondent posits that, in the same vein, the admission by the RTC of the request for
provisional arrest and its supporting documents despite lack of authentication is a violation
of the respondents right to due process. This contention fails to impress us

Respondents contention is now a non-issue, in view of our Resolution dated October 17,
2000 in the said case of Secretary of Justice v. Hon. Lantion, et al. reconsidering and
reversing our earlier decision therein. Acting on therein petitioners Motion for
Reconsideration, we held that therein respondent is bereft of the right to notice and hearing
during the evaluation stage of the extradition process.[35 Worthy to reiterate is the
following concluding pronouncement of this Court in the said case:

In tilting the balance in favor of the interests of the State, the Court stresses that it is not
ruling that the private respondent has no right to due process at all throughout the length
and breath of the extrajudicial proceedings. Procedural due process requires a
determination of what process is due, when it is due and the degree of what is due. Stated
otherwise, a prior determination should be made as to whether procedural protections are
at all due and when they are due, which in turn depends on the extent to which an
individual will be condemned to suffer grievous loss.[37 We have explained why an extraditee
has no right to notice and hearing during the evaluation stage of the extradition process. As aforesaid,
P.D. 1069 xxx affords an extraditee sufficient opportunity to meet the evidence against him once the
petition is filed in court. The time for the extraditee to know the basis of the request for his extradition is
merely moved to the filing in court of the formal petition for extradition. The extraditees right to know
is momentarily withheld during the evaluation stage of the extradition process to accommodate the more
compelling interest of the State to prevent escape of potential extraditees which can be precipitated by
premature information of the basis of the request for his extradition. No less compelling at that stage of
the extradition proceedings is the need to be more deferential to the judgment of a co-equal branch of the
government, the Executive, which has been endowed by our Constitution with greater power over matters
involving our foreign relations. Needless to state, this balance of interests is not a static but a moving
balance which can be adjusted as the extradition process moves from the administrative stage to the
judicial stage and to the execution stage depending on factors that will come into play. In sum, we rule
that the temporary hold on private respondents privilege of notice and hearing is a soft restraint on his
right to due process which will not deprive him of fundamental fairness should he decide to resist the
request for his extradition to the United States. There is no denial of due process as long as fundamental
fairness is assured a party.

Respondent also contends that the request for his provisional arrest was rendered defective
by the fact that the person who made the request was not a foreign diplomat as provided
for in Section 4 (2) of P.D. No. 1069, to wit:

SEC. 4. Request; By Whom Made; Requirements.-

(1) Any foreign state or government with which the Republic of the Philippines has entered
into extradition treaty or convention, and only when the relevant treaty or convention,
remains in force, may request for the extradition of any accused who is suspected of being
in the territorial jurisdiction of the Philippines.

(2) The request shall be made by the Foreign Diplomat of the requesting state or
government, addressed to the Secretary of Foreign Affairs, x x x.

This contention deserves scant consideration. The foregoing refers to the requirements for a
request for extradition and not for a request for provisional arrest. The pertinent provisions
are Article 11(2) which states:

An application for provisional arrest may be forwarded through the same channels as a
request for surrender or through the International Criminal Police Organization
(INTERPOL);[38

and Article 8(1) which provides:

Requests for surrender and related documents shall be conveyed through the appropriate
authority as may be notified from time to time by one party to another.

Hence, there is sufficient compliance with the foregoing if the request for provisional arrest
is made by an official who is authorized by the government of the requesting state to make
such a request and the authorization is communicated to the requested state.

The request for provisional arrest of respondent was signed by Wayne Walsh, Senior
Government Counsel of the Mutual Legal Assistance Unit, International Law Division of the
Hong Kong DOJ who stated in categorical terms that:
The Department of Justice (Mutual Legal Assistance Unit) of the HKSAR is the appropriate
authority under the Agreement to make requests for provisional arrest and surrender. I
confirm that as a member of the Mutual Legal Assistance Unit, I am authorized (sic) to
make this request for provisional arrest.40

Last. There was sufficient factual and legal basis for the determination of probable cause as
a requisite for the issuance of the Order of Arrest.[41

We have defined probable cause for the issuance of a warrant of arrest as the existence of
such facts and circumstances that would lead a reasonably discreet and prudent person to
believe that an offense has been committed by the person sought to be arrested. 42 The
determination of probable cause is a function of the Judge. Such is the mandate of our
Constitution which provides that a warrant of arrest shall issue only upon probable cause to
be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce.43 In the case of Allado v. Diokno,[44 we
stated that personal determination by the Judge of the existence of probable cause means
that he -

(a) shall personally evaluate the report and the supporting documents submitted by the
fisegarding the existence of probable cause and, on the basis thereof, issue a warrant of
arrest; or, (b) if on the basis thereof he finds no probable cause, may disregard the fiscals
report and require the submission of supporting affidavits of witnesses to aid him in arriving
at a conclusion on the existence of probable cause.45

The Judge cannot, therefore, merely rely on the certification issued by the prosecutor. He is,
however, not required to personally examine ipso facto the complainant and his witnesses.
He sufficiently complies with the requirement of personal determination if he reviews the
information and the documents attached thereto, and on the basis thereof forms a belief
that the accused is probably guilty of the crime with which he is being charged. 46 The Judge
determines the existence of probable cause to pass upon whether a warrant of arrest should
be issued against the accused, that is, whether there is a necessity for placing him under
immediate custody in order not to frustrate the ends of justice.

The request for the respondents provisional arrest was accompanied by facsimile copies of
the outstanding warrant of arrest issued by the Hong Kong government, a summary of the
facts of the case against respondent, particulars of his birth and address, an intention to
request his provisional arrest and the reason therefor. The said documents were appended
to the application for respondents provisional arrest filed in the RTC,[48 and formed the
basis of the judges finding of probable cause for the issuance of the warrant of arrest
against respondent.

Respondent alleges the contrary and surmises that all that the trial judge did was to
interview NBI agent Saunar who filed the application for the issuance of the warrant of
provisional arrest, and that her honor did not probably even notice that the supporting
documents were not authenticated.[49 The allegation, baseless and purely speculative, is
one which we cannot countenance in view of the legal presumption that official duty has
been regularly performed.[50

That the Presiding Judge of RTC Manila, Branch 19, made a personal determination of the
existence of probable cause on the basis of the documents forwarded by the Hong Kong DOJ
is further supported by the Order of Arrest against respondent which states:
 ORDER

This treats of the Application For Provisional Arrest of Juan Antonio Muoz, for the purpose of
extradition from the Republic of the Philippines.

This application was filed in behalf of the Government of Hong Kong Special Administrative
Region for the provisional arrest of Juan Antonio Muoz, pursuant to Section 20 of
Presidential Decree No. 1069, in relation to paragraph 1, Article 11 of the Agreement for the
Surrender of Accused and Convicted Persons between the Republic of the Philippines and
Hong Kong on provisional arrest. The application alleged that Juan Antonio Muoz is wanted
in Hong Kong for seven (7) counts of the offense of accepting an advantage as an agent,
contrary to Section 9(1) (9) of the Prevention of Bribery Ordinance Cap. 201 of Hong Kong
and seven (7) counts of the offense of conspiracy to defraud, contrary to the Common Law
of Hong Kong.

That a warrant of arrest was issued by the Magistrates Court at Eastern Magistracy, Hong
Kong on August 23, 1997, pursuant to the 14 charges filed against him before the issuing
Court. Juan Antonio Muoz is now alleged to be in the Philippines. He was born on June 24,
1941, a holder of Philippines Passport No. 2K 934808, formerly an employee of the Central
Bank of the Philippines and with address at Phase 3, BF Homes, No. 26 D C Chuan Street,
Metro Manila.

That there is an urgency in the issuance of the provisional arrest warrant for the reason that
the application to discharge the restraint over the funds, subject of the offenses, in his
Citibank Account in Hong Kong was set for hearing on September 17, 1999 and that his
lawyer in Hong Kong will be notified of the request of the Hong Kong Government for his
provisional arrest (sic) and Juan Antonio E. Muoz upon knowledge of the request.

Considering that the Extradition treaty referred to is part of our systems of laws and
recognized by Presidential Decree No. 1069 and the Constitution itself by the adoption of
international laws, treaties and conventions as parts (sic) of the law of the land, the
application for provisional arrest of Juan Antonio Muoz is hereby GRANTED. Let a warrant
for his provisional arrest therefore issue.

SO ORDERED.[51 (Underscoring supplied.)

Finally, petitioner also avers that the respondent has waived his right to assail the validity of
his provisional arrest when he filed a motion for release on recognizance. Considering that
we find petitioners other contentions to be impressed with merit, there is no need to delve
further into this particular issue.

WHEREFORE, the petition is GRANTED, and the assailed Decision of the Court of Appeals,
dated November 9, 1999, in CA-G.R. SP No. 55343 is hereby REVERSED and SET ASIDE.
Respondents Urgent Motion For Release Pending Appeal is hereby DENIED.

SO ORDERED.

Bellosillo, Mendoza, Quisumbing, and Buena, JJ., concur.

Philip Morris v. CA (G.R. No. 91332)
Facts:

Petitioners are foreign corporations organized under US laws not doing business in the Philippines and
registered owners of symbols ‘MARK VII,’ ‘MARK TEN,’ and ‘LARK’ used in their cigarette products.
Petitioners moved to enjoin respondent Fortune Tobacco from manufacturing and selling cigarettes bearing
the symbol ‘MARK’ asserting that it is identical or confusingly similar with their trademarks. Petitioners
relied on Section 21-A of the Trademark Law to bring their suit and the Paris Convention to protect their
trademarks. The court denied the prayer for injunction stating that since petitioners are not doing business in
the Philippines, respondent’s cigarettes would not cause irreparable damage to petitioner. CA granted the
injunction but on a subsequent motion, dissolved the writ.

Issues:
(1) Whether or not petitioner’s mark may be afforded protection under said laws;
(2) Whether or not petitioner may be granted injunctive relief.

Ruling:

(1) NO. Yet, insofar as this discourse is concerned, there is no necessity to treat the matter with an extensive
response because adherence of the Philippines to the 1965 international covenant due to pact sunt
servanda had been acknowledged in La Chemise. Given these confluence of existing laws amidst the cases
involving trademarks, there can be no disagreement to the guiding principle in commercial law that foreign
corporations not engaged in business in the Philippines may maintain a cause of action for infringement
primarily because of Section 21-A of the Trademark Law when the legal standing to sue is alleged, which
petitioners have done in the case at hand. Petitioners may have the capacity to sue for infringement
irrespective of lack of business activity in the Philippines on account of Section 21-A of the Trademark Law
but the question whether they have an exclusive right over their symbol as to justify issuance of the
controversial writ will depend on actual use of their trademarks in the Philippines in line with Sections 2 and
2-A of the same law. It is thus incongruous for petitioners to claim that when a foreign corporation not
licensed to do business in Philippines files a complaint for infringement, the entity need not be actually using
its trademark in commerce in the Philippines. Such a foreign corporation may have the personality to file a
suit for infringement but it may not necessarily be entitled to protection due to absence of actual use of the
emblem in the local market.

(2) NO. More telling are the allegations of petitioners in their complaint as well as in the very petition filed
with this Court indicating that they are not doing business in the Philippines, for these frank representations
are inconsistent and incongruent with any pretense of a right which can breached. Indeed, to be entitled to an
injunctive writ, petitioner must show that there exists a right to be protected and that the facts against which
injunction is directed are violative of said right. On the economic repercussion of this case, we are extremely
bothered by the thought of having to participate in throwing into the streets Filipino workers engaged in the
manufacture and sale of private respondent’s “MARK” cigarettes who might be retrenched and forced to join
the ranks of the many unemployed and unproductive as a result of the issuance of a simple writ of
preliminary injunction and this, during the pendency of the case before the trial court, not to mention the
diminution of tax revenues represented to be close to a quarter million pesos annually. On the other hand, if
the status quo is maintained, there will be no damage that would be suffered by petitioners inasmuch as they
are not doing business in the Philippines. In view of the explicit representation of petitioners in the complaint
that they are not engaged in business in the Philippines, it inevitably follows that no conceivable damage can
be suffered by them not to mention the foremost consideration heretofore discussed on the absence of their
“right” to be protected.