PIL – 25 JUNE
Customary international law
A. GENERAL PRINCIPLES
1. Legal Basis
a. Art. II, Sec. 2 (Incorporation Clause), 1987 Constitution
SECTION 2. The Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of international law as part of
the law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations.
Pharmaceutical and Health Care Association of the Philippines v.
Duque III, 535 SCRA 265
FACTS: On October 28, 1986, Executive Order No. 51 (Milk Code) was
issued by President Corazon Aquino by virtue of the legislative powers granted
to the president under the Freedom Constitution. The Milk Code states that the
law seeks to give effect to Article 112 of the International Code of Marketing
of Breastmilk Substitutes (ICMBS), a code adopted by the World Health
Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several
Resolutions to the effect that breastfeeding should be supported, promoted and
protected, hence, it should be ensured that nutrition and health claims are not
permitted for breastmilk substitutes. the Philippines ratified the International
Convention on the Rights of the Child. Article 24 of said instrument provides
that State Parties should take appropriate measures to diminish infant and child
mortality, and ensure that all segments of society, specially parents and
children, are informed of the advantages of breastfeeding. the DOH issued
RIRR which was to take effect on July 7, 2006. a petition for certiorari under
Rule 65 of the Rules of Court, seeking to nullify Revised Implementing Rules
and Regulations of The “Milk Code,” assailing that the RIRR was going
beyond the provisions of the Milk Code, thereby amending and expanding the
coverage of said law.
ISSUE: Whether or not respondents officers of the DOH acted without or in
excess of jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and in violation of the provisions of the Constitution in
promulgating the RIRR
RULING: The Supreme Court PARTIALLY GRANTED the petition.
Sections 4(f), 11 and 46 of Administrative Order No. 2006-0012 dated May
12, 2006 are declared NULL and VOID for being ultra vires. The Department
of Health and respondents are PROHIBITED from implementing said
provisions. The international instruments pointed out by the respondents,
UNRC, ICESR, CEDAW, are deemed part of the law of the land and therefore
the DOH may implement them through the RIRR.
is deemed incorporated into our domestic system. Custom or customary
international law means “a general and consistent practice of states followed
by them from a sense of legal obligation (opinio juris). Under the 1987
Constitution, international law can become part of the sphere of domestic law
either by transformation or incorporation. The transformation method requires
that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. “Generally accepted
principles of international law” refers to norms of general or customary
international law which are binding on all states. The Milk Code is a verbatim
reproduction of the (ICMBS), but it did not prohibit advertising or other forms
of promotion to the general public of products. Instead, the Milk Code
expressly provides that advertising, promotion, or other marketing materials
may be allowed if such materials are duly authorized and approved by the
Inter-Agency Committee (IAC). In this regard, the WHA Resolutions adopting
the ICMBS are merely recommendatory and legally non-binding. This may
constitute “soft law” or non-binding norms, principles and practices that
influence state behavior. Respondents have not presented any evidence to
prove that the WHA Resolutions, although signed by most of the member
states, were in fact enforced or practiced by at least a majority of the member
states and obligatory in nature. The provisions of the WHA Resolutions cannot
be considered as part of the law of the land that can be implemented by
executive agencies without the need of a law enacted by the legislature. On the
other hand, the petitioners also failed to explain and prove by competent
evidence just exactly how such protective regulation would result in the
restraint of trade. Since all the regulatory provisions under the Milk Code
apply equally to both manufacturers and distributors, the Court sees no harm
in the RIRR. Except Sections 4(f), 11 and 46, the rest of the provisions of the
RIRR are in consonance with the objective, purpose and intent of the Milk
Code.
b. Art. VII, Sec. 21 (Treaty Ratification Clause)
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.
c. Art. VIII, Sections 4(2) and 5(2) (a), 1987 Constitution
SECTION 4. (2) All cases involving the constitutionality of a treaty,
international or executive agreement, or law, which shall be heard by the
Supreme Court en banc, and all other cases which under the Rules of Court are
required to be heard en banc, including those involving the constitutionality,
application, or operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations, shall be decided with the
concurrence of a majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon.
SECTION 5. The Supreme Court shall have the following powers:
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the
law or the Rules of Court may provide, final judgments and orders of lower
courts in:
(a) All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation is in question.
2. Sources of International Law
a. The 1987 Constitution
- Mijares v. Ranada, 455 SCRA 397
Facts: Invoking the Alien Tort Act, petitioners Mijares, et al.*, all of whom
suffered human rights violations during the Marcos era, obtained a Final
Judgment in their favor against the Estate of the late Ferdinand Marcos
amounting to roughly 1.9 Billion U.S. Dollars in compensatory and exemplary
damages for tortuous violations of international law in the US District Court
of Hawaii. This Final Judgment was affirmed by the US Court of Appeals.
As a consequence, Petitioners filed a Complaint with the Regional Trial Court
of Makati for the enforcement of the Final Judgment, paying Php 410.00 as
docket and filing fees based on Rule 141, Section 7(b) where the value of the
subject matter is incapable of pecuniary estimation. The Estate of Marcos
however, filed a MTD alleging the non-payment of the correct filing fees. The
Regional Trial Court of Makati dismissed the Complaint stating that the
subject matter was capable of pecuniary estimation as it involved a judgment
rendered by a foreign court ordering the payment of a definite sum of money
allowing for the easy determination of the value of the foreign judgment. As
such, the proper filing fee was 472 Million Philippine pesos, which Petitioners
had not paid.
Issue: Whether or not the amount paid by the Petitioners is the proper filing
fee?
Ruling: Yes, but on a different basis—amount merely corresponds to the same
amount required for “other actions not involving property”. The Regional Trial
Court of Makati erred in concluding that the filing fee should be computed on
the basis of the total sum claimed or the stated value of the property in
litigation. The Petitioner’s Complaint was lodged against the Estate of Marcos
but it is clearly based on a judgment, the Final Judgment of the US District
Court. However, the Petitioners erred in stating that the Final Judgment is
incapable of pecuniary estimation because it is so capable. On this point,
Petitioners state that this might lead to an instance wherein a first level court
(MTC, MeTC, etc.) would have jurisdiction to enforce a foreign judgment.
Under Batasang Pambansa 129, such courts are not vested with such
jurisdiction. Section 33 of Batasang Pambansa 129 refers to instances wherein
the cause of action or subject matter pertains to an assertion of rights over
property or a sum of money. But here, the subject matter is the foreign
judgment itself. Section 16 of Batasang Pambansa 129 reveals that the
complaint for enforcement of judgment even if capable of pecuniary
estimation would fall under the jurisdiction of the Regional Trial Courts. Thus,
the Complaint to enforce the US District Court judgment is one capable of
pecuniary estimations but at the same time, it is also an action based on
judgment against an estate, thus placing it beyond the ambit of Section 7(a) of
Rule 141. What governs the proper computation of the filing fees over
Complaints for the enforcement of foreign judgments is Section7(b)(3),
involving “other actions not involving property.”
a.1. Doctrine of Processual Presumption or Presumed Identity
Approach
EDI-Staffbuilders International, Inc. v. National Labor
Relations Commission, 537 SCRA 411
Facts: In 1993, EDI-Staffbuilders, Inc. (EDI), upon request of Omar Ahmed
Ali Bin Bechr Est. (OAB), a company in Saudi Arabia, sent to OAB resumes
from which OAB can choose a computer specialist. Eleazar Gran was selected.
It was agreed that his monthly salary shall be $850.00. But five months into
his service in Saudi Arabia, Gran received a termination letter and right there
and then was removed from his post. The termination letter states that he was
incompetent because he does not know the ACAD system which is required in
his line of work; that he failed to enrich his knowledge during his 5 month stay
to prove his competence; that he is disobedient because he failed to submit the
required daily reports to OAB. Gran then signed a quitclaim whereby he
declared that he is releasing OAB from any liability in exchange of 2,948.00
Riyal.
When Gran returned, he filed a labor case for illegal dismissal against EDI and
OAB. EDI in its defense averred that the dismissal is valid because when Gran
and OAB signed the employment contract, both parties agreed that Saudi labor
laws shall govern all matters relating to the termination of Gran’s employment;
that under Saudi labor laws, Gran’s termination due to incompetence and
insubordination is valid; that Gran’s insubordination and incompetence is
outlined in the termination letter Gran received. The labor arbiter dismissed
the labor case but on appeal, the National Labor Relations Commission
(NLRC) reversed the decision of the arbiter. The Court of Appeals likewise
affirmed the NLRC.
ISSUE: Whether or not the Saudi labor laws should be applied.
HELD: No. The specific Saudi labor laws were not proven in court. EDI did
not present proof as to the existence and the specific provisions of such foreign
law. Hence, processual presumption applies and Philippine labor laws shall be
used. Under our laws, an employee like Gran shall only be terminated upon
just cause. The allegations against him, at worst, shall only merit a suspension
not a dismissal. His incompetence is not proven because prior to being sent to
Saudi Arabia, he underwent the required trade test to prove his competence.
The presumption therefore is that he is competent and that it is upon OAB and
EDI to prove otherwise. No proof of his incompetence was ever adduced in
court. His alleged insubordination is likewise not proven. It was not proven
that the submission of daily track records is part of his job as a computer
specialist. There was also a lack of due process. Under our laws, Gran is
entitled to the two notice rule whereby prior to termination he should receive
two notices. In the case at bar, he only received one and he was immediately
terminated on the same day he received the notice.
Lastly, the quitclaim may not also release OAB from liability. Philippine laws
is again applied here sans proof of Saudi laws. Under Philippine Laws, a
quitclaim is generally frowned upon and are strictly examined. In this case,
based on the circumstances, Gran at that time has no option but to sign the
quitclaim. The quitclaim is also void because his separation pay was merely
2,948 Riyal which is lower than the $850.00 monthly salary (3,190 Riyal).
Orion Savings Bank v. Suzuki, 740 SCRA 347
Facts: Respondent Shigekane Suzuki, a Japanese national, met with Ms. Helen
Soneja to inquire about a condominium unit and a parking slot at Cityland
Pioneer, Mandaluyong City, allegedly owned by Yung Sam Kang, a Korean
national.
Soneja informed Suzuki that Unit No. 536 [covered by Condominium
Certificate of Title (CCT) No. 18186] and Parking Slot No. 42 [covered by
CCT No. 9118] were for sale. Soneja likewise assured Suzuki that the titles to
the unit and the parking slot were clean.
After payment of the price of the unit and parking slot, Kang then executed a
Deed of Absolute Sale. Suzuki took possession of the condominium unit and
parking lot, and commenced the renovation of the interior of the condominium
unit.
Kang thereafter made several representations with Suzuki to deliver the titles
to the properties, which were then allegedly in possession of Alexander Perez
(Perez, Orion’s Loans Officer) for safekeeping. Despite several verbal
demands, Kang failed to deliver the documents.
Suzuki later on learned that Kang had left the country, prompting Suzuki to
verify the status of the properties. He learned that CCT No. 9118 representing
the title to the Parking Slot No. 42 contained no annotations although it
remained under the name of Cityland Pioneer. Despite the cancellation of the
mortgage to Orion, the titles to the properties remained in possession of Perez.
Suzuki then demanded the delivery of the titles. Orion, through Perez,
however, refused to surrender the titles, and cited the need to consult Orion’s
legal counsel as its reason.
Issue: Whether or not Korean Law should be applied in conveying the conjugal
property of spouses Kang?
Ruling: In the present case, the Korean law should not be applied. It is a
universal principle that real or immovable property is exclusively subject to
the laws of the country or state where it is located. Thus, all matters concerning
the title and disposition of real property are determined by what is known as
the lex loci rei sitae, which can alone prescribe the mode by which a title can
pass from one person to another, or by which an interest therein can be gained
or lost.
On the other hand, property relations between spouses are governed
principally by the national law of the spouses. However, the party invoking the
application of a foreign law has the burden of proving the foreign law. The
foreign law is a question of fact to be properly pleaded and proved as the judge
cannot take judicial notice of a foreign law.
Matters concerning the title and disposition of real property shall be governed
by Philippine law while issues pertaining to the conjugal nature of the property
shall be governed by South Korean law, provided it is proven as a fact.
In the present case, Orion, unfortunately failed to prove the South Korean law
on the conjugal ownership of property. It merely attached a "Certification from
the Embassy of the Republic of Korea" to prove the existence of Korean Law.
This certification, does not qualify as sufficient proof of the conjugal nature of
the property for there is no showing that it was properly authenticated.
Accordingly, the International Law doctrine of presumed-identity approach or
processual presumption comes into play, i.e., where a foreign law is not
pleaded or, even if pleaded, is not proven, the presumption is that foreign law
is the same as Philippine Law.
Under Philippine Law, the phrase "Yung Sam Kang ‘married to' Hyun Sook
Jung" is merely descriptive of the civil status of Kang. In other words, the
import from the certificates of title is that Kang is the owner of the properties
as they are registered in his name alone, and that he is married to Hyun Sook
Jung. There is no reason to declare as invalid Kang’s conveyance in favor of
Suzuki for the supposed lack of spousal consent.
It is undisputed that notwithstanding the supposed execution of the Dacion en
Pago on February 2, 2003, Kang remained in possession of the condominium
unit. In fact, nothing in the records shows that Orion even bothered to take
possession of the property even six (6) months after the supposed date of
execution of the Dacion en Pago. Kang was even able to transfer possession
of the condominium unit to Suzuki, who then made immediate improvements
thereon.
Del Socorro v. Van Wilsen, 744 SCRA 516
Facts: Norma A. Del Socorro and respondent Ernst Johan Brinkman Van
Wilsem contracted marriage in Holland and were blessed with a son named
Roderigo Norjo Van Wilsem, who at the time of the filing of the instant
petition was sixteen (16) years of age. Unfortunately, their marriage bond
ended on July 19, 1995 by virtue of a Divorce Decree issued by the appropriate
Court of Holland. According to petitioner, respondent made a promise to
provide monthly support to their son however, since the arrival of petitioner
and her son in the Philippines, respondent never gave support to the son,
Roderigo. Not long thereafter, respondent came to the Philippines and
remarried in Pinamungahan, Cebu, and since then, have been residing thereat.
Petitioner filed a complaint-affidavit with the Provincial Prosecutor of Cebu
City against respondent for violation of Section 5, paragraph E(2) of R.A. No.
9262 for the latter’s unjust refusal to support his minor child with petitioner.
Issue: Whether or not Wilsem, a foreign citizen, may be held liable for
volation of RA 9262?
Held: Yes. The deprivation or denial of financial support to the child is
considered an act of violence against women and children. In addition,
considering that respondent is currently living in the Philippines, we find
strength in petitioner’s claim that the Territoriality Principle in criminal law,
in relation to Article 14 of the New Civil Code, applies to the instant case,
which provides that: “penal laws and those of public security and safety shall
be obligatory upon all who live and sojourn in Philippine territory, subject to
the principle of public international law and to treaty stipulations.” On this
score, it is indisputable that the alleged continuing acts of respondent in
refusing to support his child with petitioner is committed here in the
Philippines as all of the parties herein are residents of the Province of Cebu
City.
Continental Micronesia, Inc. v. Basso, 771 SCRA 331
Facts: Petitioner Continental Micronesia is a foreign corporation organized
and existing under the laws of and domiciled in the United States of America.
It is licensed to do business in the Philippines. Respondent, a US citizen
residing in the Philippines, accepted an offer to be a General Manager position
by Mr. Braden, Managing Director-Asia of Continental Airlines. On
November 7, 1992, CMI took over the Philippine operations of Continental,
with respondent retaining his position as General Manager. Thereafter,
respondent received a letter from Mr. Schulz, who was then CMI’s Vice
President of Marketing and Sales, informing him that he has agreed to work in
CMI as a consultant on an “as needed basis.” Respondent wrote a counter-
proposal that was rejected by CMI.
Respondent then filed a complaint for illegal dismissal against the petitioner
corporation. Alleging the presence of foreign elements, CMI filed a Motion to
Dismiss on the ground of lack of jurisdiction over the person of CMI and the
subject matter of the controversy.
The Labor Arbiter agreed with CMI that the employment contract was
executed in the US “since the letter-offer was under the Texas letterhead and
the acceptance of Complainant was returned there.” Thus, applying the
doctrine of lex loci celebrationis, US laws apply. Also, applying lex loci
contractus, the Labor Arbiter ruled that the parties did not intend to apply
Philippine laws.
The NLRC ruled that the Labor Arbiter acquired jurisdiction over the case
when CMI voluntarily submitted to his office’s jurisdiction by presenting
evidence, advancing arguments in support of the legality of its acts, and
praying for reliefs on the merits of the case.
The Court of Appeals ruled that the Labor Arbiter and the NLRC had
jurisdiction over the subject matter of the case and over the parties.
Issue: Whether labor tribunals have jurisdiction over the case.
Held: Yes. The Court ruled that the labor tribunals had jurisdiction over the
parties and the subject matter of the case. The employment contract of Basso
was replete with references to US laws, and that it originated from and was
returned to the US, do not automatically preclude our labor tribunals from
exercising jurisdiction to hear and try this case.
On the other hand, jurisdiction over the person of CMI was acquired through
the coercive process of service of summons. CMI never denied that it was
served with summons. CMI has, in fact, voluntarily appeared and participated
in the proceedings before the courts. Though a foreign corporation, CMI is
licensed to do business in the Philippines and has a local business address here.
The purpose of the law in requiring that foreign corporations doing business
in the country be licensed to do so, is to subject the foreign corporations to the
jurisdiction of our courts.
Where the facts establish the existence of foreign elements, the case presents
a conflicts-of-laws issue. Under the doctrine of forum non conveniens, a
Philippine court in a conflict-of-laws case may assume jurisdiction if it
chooses to do so, provided, that the following requisites are met: (1) that the
Philippine Court is one to which the parties may conveniently resort to; (2)
that the Philippine Court is in a position to make an intelligent decision as to
the law and the facts; and (3) that the Philippine Court has or is likely to have
power to enforce its decision. All these requisites are present here.
Kuroda v. Jalandoni, G.R. No. L-2662, March 26, 1949
FACTS: Petitioner Shigenori Kuroda, the Commanding General of the
Japanese Imperial Forces in the Philippines during the Japanese occupation,
was charged before the Philippine Military Commission of war crimes. He
questioned the constitutionality of E.O. No. 68 that created the National War
Crimes Office and prescribed rules on the trial of accused war criminals. He
contended the Philippines is not a signatory to the Hague Convention on Rules
and Regulations covering Land Warfare and therefore he is charged of crimes
not based on law, national and international.
ISSUE: Was E.O. No. 68 valid and constitutional?
RULING: YES, E.O. No. 68 valid and constitutional.
Article 2 of our Constitution provides in its section 3, that –
The Philippines renounces war as an instrument of national policy and adopts
the generally accepted principles of international law as part of the law of the
nation.
In accordance with the generally accepted principle of international law of the
present day including the Hague Convention the Geneva Convention and
significant precedents of international jurisprudence established by the United
Nation all those person military or civilian who have been guilty of planning
preparing or waging a war of aggression and of the commission of crimes and
offenses consequential and incidental thereto in violation of the laws and
customs of war, of humanity and civilization are held accountable therefor.
Consequently in the promulgation and enforcement of Execution Order No. 68
the President of the Philippines has acted in conformity with the generally
accepted and policies of international law which are part of the our
Constitution.
xxx xxx xxx
Petitioner argues that respondent Military Commission has no jurisdiction to
try petitioner for acts committed in violation of the Hague Convention and the
Geneva Convention because the Philippines is not a signatory to the first and
signed the second only in 1947. It cannot be denied that the rules and regulation
of the Hague and Geneva conventions form, part of and are wholly based on
the generally accepted principals of international law. In facts these rules and
principles were accepted by the two belligerent nations the United State and
Japan who were signatories to the two Convention. Such rule and principles
therefore form part of the law of our nation even if the Philippines was not a
signatory to the conventions embodying them for our Constitution has been
deliberately general and extensive in its scope and is not confined to the
recognition of rule and principle of international law as contained in treaties to
which our government may have been or shall be a signatory.
b. Art. 38. Statute of the International Court of Justice (Primary Source)
b.1 International conventions or treaties
b.2 International custom as evidence of a general practice accepted as
law
b.3 General principles of law recognized by civil nations
b.4 judicial decisions and teachings of most highly qualified publicists
However, under Art. 59 of the ICJ, decisions have binding
force only on the parties to the case
- Asaali v. Commissioner of Customs, 27 SCRA 312
Facts: At noontime of September 10, 1950, five sailing vessels, from Borneo
toward the ports of Tawi-tawi and Sulu, were spotted and intercepted in high
seas by the Custom Patrol Team. The said patrol team aboard Boat ST-23
found out that the five vessels contained 181 cases of “Herald” cigarettes, 9
cases of “Camel” cigarettes, and some rattan chairs. The sailing vessels were
all Philippine registered, owned and manned by Filipino residents from Sulu.
Petitioners, however, possessed no permit from the Commissioner of Customs
so that they can engage in the importation of the goods they carry (as required
by Section 1363 [a] of the Revised Administrative Code). Also, the goods the
petitioners carry were not covered by RA 426 or the Import Control Law. The
Custom Patrol Team then seized the goods even if they were in the high seas.
Petitioners claim that the interception and seizure of the items were illegal
because they were intercepted outside the territory of the Philippines. Also, the
petitioners contend that they could not have been engaged to the importation
of the above-mentioned items to incur the forfeiture under Section 1363 of the
Revised Administrative Code. The Court of Tax Appeals held that Section
1363 should be applied because all the vessels were all headed to Tawi-tawi. - Legality of the Use by a State of Nuclear Weapons, ICJ
No import license and permit were carried violating RA 426. Their course, that Reports, 1996 in relation to The Treaty on the Non-
is—they are about to enter the Philippine territory, announced loudly that they Proliferation of Nuclear Weapons
were about to import these items in the Philippines.

Issues:
Whether or not the interception and seizure by customs officials of the vessels
valid in the contention that importation had not yet begun and that the seizure - Paquete Habana case, 175 US 677 (1900)
was effected outside our territorial waters.
Whether or not the Import Control Law was violated since it had expired when
the offense was committed.

Ruling: The Court affirmed the decision of the Court of Tax Appeals stating - Preah Vihear Temple Case, ICJ Reports, 1962
that “it is quite irrational for Filipino sailors …to sneak out of the
Philippines…and come a long way back laden with highly taxable goods only
to turn about upon reaching the brink of our territorial waters and head for
another country”. Further, the Court said that the contention, regarding the
apprehension and seizure of the items, of the petitioner-appellant is without - Right of Passage Case (Case concerning Right to Passage
merit. The vessels are all Philippine registered and are therefore under the over Indian Territory: Portugal v. India)
jurisdiction of the Philippines as expressed in the Revised Penal Code. The
petitioners also violated Section 1363(a). Therefore, the action taken then by
the Commissioner of Customs was in accordance to the law.
The Court also ruled that “The expiration of the Import Control Law ‘did not
produce the effect the declaring legal the importation of goods which were - Corfu Channel Case, ICJ Reports, 1949
illegally imported and the seizure and forefeiture thereof as ordered by the
Collector of Customs illegal or null and void’.” The expiration of the law does
not mean that the law had been abrogated, meaning even if the law had already
expired, the Philippines should still have jurisdiction over this kinds of cases - Barcelona Traction, Light and Power Co. Case, ICJ
until their final determination. Reports, 1970

- North Sea Continental Shelf Case, ICJ Reports, 1969

b.5 teachings of highly qualified publicists

3. International Law defined

- Asylum Case, ICJ Reports, 1966
4. Nature and Scope

5. International Law in relation to Municipal law

- Co Kim Chan v. Valdez Tan Keh, G.R. No. L-5, September 17, 1945
Facts: Petitioner Co Kim Cham had a pending Civil Case with the Court of
First Instance of Manila initiated during the time of the Japanese occupation.
The respondent judge, Judge Arsenio Dizon, refused to continue hearings on
the case which were initiated during the Japanese military occupation on the
ground that the proclamation issued by General MacArthur that “all laws,
regulations and processes of any other government in the Philippines than that
of the said Commonwealth are null and void and without legal effect in areas
of the Philippines free of enemy occupation and control” had the effect of
invalidating and nullifying all judicial proceedings and judgments of the court
of the Philippines during the Japanese military occupation, and that the lower
courts have no jurisdiction to take cognizance of and continue judicial
proceedings pending in the courts of the defunct Republic of the Philippines
in the absence of an enabling law granting such authority.
Respondent, additionally contends that the government established during the
Japanese occupation were no de facto government.
Issues:
Whether or not judicial acts and proceedings of the court made during the
Japanese occupation were valid and remained valid even after the liberation or
reoccupation of the Philippines by the United States and Filipino forces.
Whether or not the October 23, 1944 proclamation issued by General
MacArthur declaring that “all laws, regulations and processes of any other
government in the Philippines than that of the said Commonwealth are null
and void and without legal effect in areas of the Philippines free of enemy
occupation and control” has invalidated all judgments and judicial acts and
proceedings of the courts.
Whether or not those courts could continue hearing the cases pending before
them, if the said judicial acts and proceedings were not invalidated by
MacArthur’s proclamation.
Discussions: Political and international law recognizes that all acts and
proceedings of a de facto government are good and valid. The Philippine
Executive Commission and the Republic of the Philippines under the Japanese
occupation may be considered de facto governments, supported by the military
force and deriving their authority from the laws of war. The doctrine upon this
subject is thus summed up by Halleck, in his work on International Law (Vol.
2, p. 444): “The right of one belligerent to occupy and govern the territory of
the enemy while in its military possession, is one of the incidents of war, and
flows directly from the right to conquer. We, therefore, do not look to the
Constitution or political institutions of the conqueror, for authority to establish
a government for the territory of the enemy in his possession, during its
military occupation, nor for the rules by which the powers of such government
are regulated and limited. Such authority and such rules are derived directly
from the laws war, as established by the usage of the world, and confirmed by
the writings of publicists and decisions of courts — in fine, from the law of
nations. . . . The municipal laws of a conquered territory, or the laws which
regulate private rights, continue in force during military occupation, excepts
so far as they are suspended or changed by the acts of conqueror. . . . He,
nevertheless, has all the powers of a de facto government, and can at his
pleasure either change the existing laws or make new ones.”
General MacArthur annulled proceedings of other governments in his
proclamation October 23, 1944, but this cannot be applied on judicial
proceedings because such a construction would violate the law of nations.
If the proceedings pending in the different courts of the Islands prior to the
Japanese military occupation had been continued during the Japanese military
administration, the Philippine Executive Commission, and the so-called
Republic of the Philippines, it stands to reason that the same courts, which had
become re-established and conceived of as having in continued existence upon
the reoccupation and liberation of the Philippines by virtue of the principle of
postliminy (Hall, International Law, 7th ed., p. 516), may continue the
proceedings in cases then pending in said courts, without necessity of enacting
a law conferring jurisdiction upon them to continue said proceedings. As
Taylor graphically points out in speaking of said principles “a state or other
governmental entity, upon the removal of a foreign military force, resumes its
old place with its right and duties substantially unimpaired. . . . Such political
resurrection is the result of a law analogous to that which enables elastic bodies
to regain their original shape upon removal of the external force, — and subject
to the same exception in case of absolute crushing of the whole fibre and
content.”
Rulings: The judicial acts and proceedings of the court were good and valid.
The governments by the Philippine Executive Commission and the Republic
of the Philippines during the Japanese military occupation being de facto
governments, it necessarily follows that the judicial acts and proceedings of
the court of justice of those governments, which are not of a political
complexion, were good and valid. Those not only judicial but also legislative
acts of de facto government, which are not of a political complexion, remained
good and valid after the liberation or reoccupation of the Philippines by the
American and Filipino forces under the leadership of General Douglas
MacArthur.
The phrase “processes of any other government” is broad and may refer not
only to the judicial processes, but also to administrative or legislative, as well
as constitutional, processes of the Republic of the Philippines or other
governmental agencies established in the Islands during the Japanese
occupation. Taking into consideration the fact that, as above indicated,
according to the well-known principles of international law all judgements and
judicial proceedings, which are not of a political complexion, of the de facto
governments during the Japanese military occupation were good and valid
before and remained so after the occupied territory had come again into the
power of the titular sovereign, it should be presumed that it was not, and could
not have been, the intention of General Douglas MacArthur, in using the
phrase “processes of any other government” in said proclamation, to refer to
judicial processes, in violation of said principles of international law.
Although in theory the authority of the local civil and judicial administration
is suspended as a matter of course as soon as military occupation takes place,
in practice the invader does not usually take the administration of justice into
his own hands, but continues the ordinary courts or tribunals to administer the
laws of the country which he is enjoined, unless absolutely prevented, to
respect. An Executive Order of President McKinley to the Secretary of War
states that “in practice, they (the municipal laws) are not usually abrogated but
are allowed to remain in force and to be administered by the ordinary tribunals
substantially as they were before the occupation. This enlightened practice is,
so far as possible, to be adhered to on the present occasion.” And Taylor in
this connection says: “From a theoretical point of view it may be said that the
conqueror is armed with the right to substitute his arbitrary will for all pre-
existing forms of government, legislative, executive and judicial. From the
stand-point of actual practice such arbitrary will is restrained by the provision
of the law of nations which compels the conqueror to continue local laws and
institution so far as military necessity will permit.” Undoubtedly, this practice
has been adopted in order that the ordinary pursuits and business of society
may not be unnecessarily deranged, inasmuch as belligerent occupation is
essentially provisional, and the government established by the occupant of
transient character.
B. TREATIES
6. Definition and functions
7. Four requisites for a valid treaty
A. Treaties are subject to the separation of powers
a. The executive branch negotiates and SIGNS the Treaty
- Gonzales v. Hechanova, 9 SCRA 230
FACTS: Exec. Secretary Hechanova authorised the importation of foreign rice
to be purchased from private sources. Gonzales filed a petition opposing the
said implementation because RA No. 3542 which allegedly repeals or amends
RA No. 2207, prohibits the importation of rice and corn "by the Rice and Corn
Administration or any other government agency."
Respondents alleged that the importation permitted in RA 2207 is to be
authorized by the President of the Philippines, and by or on behalf of the
Government of the Philippines. They add that after enjoining the Rice and
Corn administration and any other government agency from importing rice and
corn, S. 10 of RA 3542 indicates that only private parties may import rice
under its provisions. They contended that the government has already
constitute valid executive agreements with Vietnam and Burma, that in case
of conflict between RA 2207 and 3542, the latter should prevail and the
conflict be resolved under the American jurisprudence.
ISSUE: W/N the executive agreements may be validated in our courts.
RULING: No. The Court is not satisfied that the status of said tracts as alleged
executive agreements has been sufficiently established. Even assuming that
said contracts may properly considered as executive agreements, the same are
unlawful, as well as null and void, from a constitutional viewpoint, said
agreements being inconsistent with the provisions of Republic Acts Nos. 2207
and 3452. Although the President may, under the American constitutional
system enter into executive agreements without previous legislative authority,
he may not, by executive agreement, enter into a transaction which is
prohibited by statutes enacted prior thereto.
Under the Constitution, the main function of the Executive is to enforce laws
enacted by Congress. He may not interfere in the performance of the legislative
powers of the latter, except in the exercise of his veto power. He may not defeat
legislative enactments that have acquired the status of law, by indirectly
repealing the same through an executive agreement providing for the
performance of the very act prohibited by said laws.
- Secretary of Justice v. Lantion, 322 SCRA 160. MR.
Denied in 343 SCRA 377
FACTS: Secretary Of Justice Franklin Drilon, representing the Government of
the Republic of the Philippines, signed in Manila the “extradition Treaty
Between the Government of the Philippines and the Government of the U.S.A.
The Philippine Senate ratified the said Treaty.
On June 18, 1999, the Department of Justice received from the Department of
Foreign Affairs U.S Note Verbale No. 0522 containing a request for the
extradition of private respondent Mark Jiminez to the United States.
On the same day petitioner designate and authorizing a panel of attorneys to
take charge of and to handle the case. Pending evaluation of the aforestated
extradition documents, Mark Jiminez through counsel, wrote a letter to Justice
Secretary requesting copies of the official extradition request from the U.S
Government and that he be given ample time to comment on the request after
he shall have received copies of the requested papers but the petitioner denied
the request for the consistency of Article 7 of the RP-US Extradition Treaty
stated in Article 7 that the Philippine Government must present the interests of
the United States in any proceedings arising out of a request for extradition.
ISSUE: Whether or not to uphold a citizen’s basic due process rights or the
governments ironclad duties under a treaty.
RULING: Petition dismissed.
The human rights of person, whether citizen or alien, and the rights of the
accused guaranteed in our Constitution should take precedence over treaty
rights claimed by a contracting state. The duties of the government to the
individual deserve preferential consideration when they collide with its treaty
obligations to the government of another state. This is so although we
recognize treaties as a source of binding obligations under generally accepted
principles of international law incorporated in our Constitution as part of the
law of the land.
The doctrine of incorporation is applied whenever municipal tribunals are
confronted with situation in which there appears to be a conflict between a rule
of international law and the provision of the constitution or statute of the local
state.
Petitioner (Secretary of Justice) is ordered to furnish Mark Jimenez copies of
the extradition request and its supporting papers, and to grant him (Mark
Jimenez) a reasonable period within which to file his comment with supporting
evidence.
“Under the Doctrine of Incorporation, rules of international law form part of
the law of the land and no further legislative action is needed to make such
rules applicable in the domestic sphere.
“The doctrine of incorporation is applied whenever municipal tribunals are
confronted with situations in which there appears to be a conflict between a
rule of international law and the provisions of the constitution or statute of the
local state.
“Efforts should first be exerted to harmonize them, so as to give effect to both
since it is to be presumed that municipal law was enacted with proper regard
for the generally accepted principles of international law in observance of the
incorporation clause in the above cited constitutional provision.
“In a situation, however, where the conflict is irreconcilable and a choice has
to be made between a rule of international law and a municipal law,
jurisprudence dictates that municipal law should be upheld by the municipal
courts, for the reason that such courts are organs of municipal law and are
accordingly bound by it in all circumstances.
“The fact that international law has been made part of the law of the land does
not pertain to or imply the primacy of international law over national or
municipal law in the municipal sphere. The doctrine of incorporation, as
applied in most countries, decrees that rules of international law are given
equal standing with, but are not superior to, national legislative enactments.
Accordingly, the principle lex posterior derogate priori takes effect – a treaty
may repeal a statute and a statute may repeal a treaty. In states where the
Constitution is the highest law of the land, such as the Republic of the
Philippines, both statutes and treaties may be invalidated if they are in conflict
with the constitution.
- Government of the United States of America v.
Purganan, 389 SCRA 623
Facts: The petition at bar seeking to void and set aside the Orders issued by
the Regional Trial Court (RTC) of Manila, Branch 42. The first assailed Order
set for hearing petitioner’s application for the issuance of a warrant for the
arrest of Respondent Mark B. Jimenez.
Pursuant to the existing RP-US Extradition Treaty, the US Government
requested the extradition of Mark Jimenez. A hearing was held to determine
whether a warrant of arrest should be issued. Afterwards, such warrant was
issued but the trial court allowed Jimenez to post bail for his provisional
liberty.
Issue: Whether or not the right to bail is available in extradition proceedings
Discussions: The constitutional right to bail “flows from the presumption of
innocence in favor of every accused who should not be subjected to the loss of
freedom as thereafter he would be entitled to acquittal, unless his guilt be
proved beyond reasonable doubt.” It follows that the constitutional provision
on bail will not apply to a case like extradition, where the presumption of
innocence is not at issue.
Ruling: No. The court agree with petitioner. As suggested by the use of the
word “conviction,” the constitutional provision on bail quoted above, as well
as Section 4 of Rule 114 of the Rules of Court, applies only when a person has
been arrested and detained for violation of Philippine criminal laws. It does
not apply to extradition proceedings, because extradition courts do not render
judgments of conviction or acquittal.
It is also worth noting that before the US government requested the extradition
of respondent, proceedings had already been conducted in that country. But
because he left the jurisdiction of the requesting state before those proceedings
could be completed, it was hindered from continuing with the due processes
prescribed under its laws. His invocation of due process now has thus become
hollow. He already had that opportunity in the requesting state; yet, instead of
taking it, he ran away.
 - Cuevas v. Munoz, 348 SCRA 542
Extradition 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.] 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 extraditee’s 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
respondent’s 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.”
Facts: The Hong Kong Magistrate’s Court at Eastern Magistracy issued a
warrant for the arrest of respondent Juan Antonio Muñoz for seven (7) counts
of accepting an advantage as an agent and seven(7) counts of conspiracy to
defraud, contrary to the common law of Hong Kong The Department of Justice
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 pursuant to Article 11(1) of the RP-Hong Kong
Extradition Agreement. Upon application of the NBI, RTC of Manila issued
an Order granting the application for provisional arrest and issuing the
corresponding Order of Arrest. Consequently, respondent was arrested
pursuant to the said order, and is currently detained at the NBI detention cell.
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 grounds, among others 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. 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.
Issue: Whether or not the request for provisional arrest of respondent and its
accompanying documents must be authenticated.
Held: The request for provisional arrest of respondent and its accompanying
documents is valid despite lack of authentication. There is no requirement for
the authentication of a request for provisional arrest and its accompanying
documents. The enumeration in the provision of RP-Hong Kong Extradition
Agreement does not specify that these documents must be authenticated
copies. 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. In other words,
authentication is required for the request for surrender or extradition but not
for the request for provisional arrest. The RP-Hong Kong Extradition
Agreement, as they are worded, serves 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. Thus, it is an accepted practice for the requesting state
to rush its request in the form of a telex or diplomatic cable. Respondent’s
reliance on Garvida v. Sales, Jr. 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.
- Govt. of Hongkong Spl. Admin Region v. Olalia Jr.
521 SCRA 470
FACTS: Respondent Muñoz was charged of 3 counts of offences of “accepting
an advantage as agent”, and 7 counts of conspiracy to defraud, punishable by
the common law of Hongkong. The Hongkong Depoartment of Justice
requested DOJ for the provisional arrest of respondent Muñoz; the DOJ
forward the request to the NBI then to RTC. On the same day, NBI agents
arrested him.
Respondent filed with the CA a petition for certiorari, prohibition and
mandamus with application for preliminary mandatory injunction and writ of
habeas corpus questioning the validity of the order of arrest.
The CA declared the arrest void. Hence this petition by the Hongkong
Department of Justice thru DOJ.
DOJ filed a petition for certiorari in this Court and sustained the validity of the
arrest.
Hongkong Administrative Region then filed in the RTC petition for extradition
and arrest of respondent. Meanwhile, respondent filed a petition for bail, which
was opposed by the petitioner, initially the RTC denied the petition holding
that there is no Philippine Law granting bail in extradition cases and that
private responded is a “flight risk”.
Motion for reconsideration was filed by the respondent, which was granted.
Hence this petition.
ISSUE: Whether or not right to bail can be avail in extradition cases.
HELD: In Purganan case, the right to bail was not included in the extradition
cases, since it is available only in criminal proceedings.
However the Supreme Court, recognised the following trends in International
Law.
1. The growing importance of the individual person in publican international
law who, in the 20th century attained global recognition.
2. The higher value now being given in human rights in international sphere
3. The corresponding duty of countries to observe these human rights in
fulfilling their treaty obligations
4. The of duty of this court to balance the rights of the individual under our
fundamental law, on one hand, and the law on extradition on the other.
The modern trend in the public international law is the primacy placed on the
sanctity of human rights.
Enshrined the Constitution “The state values the dignity of every human
person and guarantees full respect for human rights.” The Philippines
therefore, has the responsibility of protecting and promoting the right of every
person to liberty and due process, ensuring that those detained or arrested can
participate in the proceeding before the a court, to enable it to decide without
delay on the legality of the detention and order their release if justified.
Examination of this Court in the doctrines provided for in the US Vs Purganan
provide the following.
1. The exercise of the State’s police power to deprive a person of his liberty
is not limited to criminal proceedings.
2. To limit the right to bail in the criminal proceeding would be to close our
eyes to jurisprudential history. Philippines has not limited the exercise of the
right to bail to criminal proceedings only. This Court has admitted to bail
persons who are not involved in criminal proceedings. In fact, bail has been
involved in this jurisdiction to persons in detention during the tendency of
administrative proceedings, taking into cognisance the obligation of the
Philippines under international conventions to uphold human rights.
EXTRADITION, is defined as the removal of an accused from the Philippines
with the object of placing him at the disposal of foreign authorities to enable
the requesting state or government to hold him in connection with criminal
investigation directed against him or execution of a penalty imposed on him
under the penal and criminal law of the requesting state or government. Thus
characterized as the right of the a foreign power, created by treaty to demand
the surrender of one accused or convicted of a crimes within its territorial
jurisdiction, and the correlative obligation of the other state to surrender him
to the demanding state.
The extradited may be subject to detention as may be necessary step in the
process of extradition, but the length of time in the detention should be
reasonable.
In the case at bar, the record show that the respondent, Muñoz has been
detained for 2 years without being convicted in Hongkong.
The Philippines has the obligation of ensuring the individual his right to liberty
and due process and should not therefor deprive the extraditee of his right to
bail PROVIDED that certain standards for the grant is satisfactorily met. In
other words there should be “CLEAR AND CONVINCING EVIDENCE”.
However in the case at bar, the respondent was not able to show and clear and
convincing evidence that he be entitled to bail. Thus the case is remanded in
the court for the determination and otherwise, should order the cancellation of
his bond and his immediate detention.
- Gov't of Hongkong Special Administrative Region v.
Munoz, 800 SCRA 467
RESOLUTION
BERSAMIN, J.:
Under the rule of specialty in international law, a Requested State shall
surrender to a Requesting State a person to be tried only for a criminal offense
specified in their treaty of extradition. Conformably with the dual criminality
rule embodied in the extradition treaty between the Philippines and the Hong
Kong Special Administrative Region (HKSAR), however, the Philippines as
the Requested State is not bound to extradite the respondent to the jurisdiction
of the HKSAR as the Requesting State for the offense of accepting an
advantage as an agent considering that the extradition treaty is forthright in
providing that surrender shall only be granted for an offense coming within the
descriptions of offenses in its Article 2 insofar as the offenses are punishable
by imprisonment or other form of detention for more than one year, or by a
more severe penalty according to the laws of both parties.
For consideration and resolution is the petitioner's motion for
reconsideration1 to seek the review and reversal of the decision promulgated
on August 16, 2016,2 whereby the Court affirmed the amended decision of the
Court of Appeals (CA) promulgated on March 1, 2013 in CA-G.R. CV No.
88610, and accordingly denied the petition for review on certiorari.3We
thereby held that respondent Juan Antonio Muñoz could only be extradited to
and tried by the HK.SAR for seven (7) counts of conspiracy to defraud, but
not for the other crime of accepting an advantage as an agent. This,
because conspiracy to defraud was a public sector offense, but accepting an
advantage as an agentdealt with private sector bribery; hence, the dual
criminality rule embodied in the treaty of extradition has not been met.
The Court DENIES the petitioner's motion for reconsideration for its lack of
merit considering that the basic issues being thereby raised were already
passed upon and no substantial arguments were presented to warrant the
reversal of the decision promulgated on August 16, 2016.
Article 2 of the RP-Hong Kong treaty provides that surrender of the extraditee
by the Requested State to the Requesting State shall only be for an offense
coming within any of the descriptions of the offenses therein listed insofar as
the offenses are punishable by imprisonment or other form of detention for
more than one year, or by a more severe penalty according to the laws of both
parties. The provision expresses the dual criminality rule. The determination
of whether or not the offense concerned complied with the dual criminality
rule rests on the Philippines as the requested party. Hence, the Philippines must
carefully ascertain the exact nature of the offenses involved in the request, and
thereby establish that the surrender of Muñoz for trial in the HKSAR will be
proper. On its part, the HKSAR as the requesting party should prove that the
offense is covered by the RP-Hong Kong Treaty, and punishable in our
jurisdiction.
A perusal of the motion for reconsideration shows that the petitioner has lifted
from the dissenting opinion the arguments it now advances to support its
insistence that Munoz must also be extradited for the crime of accepting an
advantage as an agent. In the last paragraph of the motion for reconsideration,
the petitioner cites the ruling supposedly handed down by the Court of Final
Appeal of the HKSAR in the case of B v. The Commissioner of the
Independent Commission Against Corruption to the effect that the
term agent in Section 9 of the HK.SAR' s Prevention of Bribery
Ordinance (POBO) also covered public servants in another jurisdiction.4 On
the basis of such supposed ruling, the petitioner prays that the exclusion of the
crime of accepting an advantage as an agent be reversed; and that the Court
should hold Muñoz to be extraditable also for such crime.
The petitioner's prayer cannot be granted. To grant it would be to take judicial
notice of the ruling in B v. The Commissioner of the Independent Commission
Against Corruption. Like all other courts in this jurisdiction, however, the
Court is not at liberty to take judicial notice of the ruling without contravening
our own rules on evidence under which foreign judgments and laws are not
considered as matters of a public or notorious nature that proved themselves.
Verily, foreign judgments and laws, if relevant, have to be duly alleged and
competently proved like any other disputed fact. Noveras v. Noveras5explains
why:
x x x Justice Herrera explained that, as a rule, "no sovereign is bound to give
effect within its dominion to a judgment rendered by a tribunal of another
country." This means that the foreign judgment and its authenticity must be
proven as facts under our rules on evidence, together with the alien's applicable
national law to show the effect of the judgment on the alien himself or herself.
The recognition may be made in an action instituted specifically for the
purpose or in another action where a party invokes the foreign decree as an
integral aspect of his claim or defense.
xxxx
Under Section 24 of Rule 132, the record of public documents of a sovereign
authority or tribunal may be proved by: (1) an official publication thereof or
(2) a copy attested by the officer having the legal custody thereof. Such official
publication or copy must be accompanied, if the record is not kept in the
Philippines, with a certificate that the attesting officer has the legal custody
thereof. The certificate may be issued by any of the authorized Philippine
embassy or consular officials stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office. The attestation must
state, in substance, that the copy is a correct copy of the original, or a specific
part thereof, as the case may be, and must be under the official seal of the
attesting officer.
Section 25 of the same Rule states that whenever a copy of a document or
record is attested for the purpose of evidence, the attestation must state, in
substance, that the copy is a correct copy of the original, or a specific part
thereof, as the case may be.1âwphi1 The attestation must be under the official
seal of the attesting officer, if there be any, or if he be the clerk of a court
having a seal, under the seal of such court.6
Worthy to remind in this regard is that the power to take judicial notice is to
be exercised by the courts of the Philippines with caution, and every
reasonable doubt should be resolved in the negative.7
Furthermore, the courts in the Philippines lacked expertise on the laws of the
HK.SAR. This precisely necessitated the hearing before the trial court to
receive the opinion testimonies of qualified experts on the laws of the
HK.SAR. The experts were Clive Stephen Grossman, the Senior Counsel of
the Hong Kong Bar Association, and Ian Charles Mc Walters, the Senior
Assistant Director of Public Prosecutions in the Department of Justice of the
HK.SAR. Not surprisingly, said legal experts shared the opinion that the
offense defined in Section 9 of the POBO was a private sector offense. The
CA thus decided against the petitioner's position. To extradite Muñoz also for
the crime for accepting an advantage as an agent would be devoid of
justification if the Philippines did not have an equivalent crime of accepting
an advantage as an agent.
At the time when the ruling in B v. The Commissioner of the Independent
Commission Against Corruption was supposedly handed down on January 28,
2010 by the Court of Final Appeal of the HK.SAR, this case was already
pending consideration on appeal by the CA. The CA promulgated the assailed
amended decision on March 1, 2013 upon Muñoz's motion for reconsideration
in order to declare that he could not be extradited for the crime of accepting an
advantage as an agent due to non-compliance with the dual criminality
rule. All throughout this time, the petitioner did not seasonably and properly
apprise the CA of the relevant case law in its jurisdiction. It was only in the
motion for reconsideration that the petitioner apprised the Court of the ruling,
but mentioned only the title of the case. The petitioner did not attempt to prove
the ruling as a fact.
The petitioner's belatedness in bringing the ruling to our attention was another
proof of the ruling's lack of relevance and applicability herein.
It is also notable that the petitioner did not present an official publication of
the ruling or at least a copy of it attested by the proper office or officer having
legal custody (if attestation was the rule in that jurisdiction). As a consequence,
the ruling was not also shown to be a public document under the laws of the
HK.SAR.
ACCORDINGLY, the Court DENIES the motion for reconsideration with
finality.
SO ORDERED.
- Pimentel v. Office of the Executive Secretary, 462
SCRA 622
Facts: This is a petition for mandamus filed by petitioners to compel the Office
of the Executive Secretary and the Department of Foreign Affairs to transmit
the signed copy of the Rome Statute of the International Criminal Court to the
Senate of the Philippines for its concurrence in accordance with Section 21,
Article VII of the 1987 Constitution.
The Rome Statute established the International Criminal Court which “shall
have the power to exercise its jurisdiction over persons for the most serious
crimes of international concern xxx and shall be complementary to the national
criminal jurisdictions.” Its jurisdiction covers the crime of genocide, crimes
against humanity, war crimes and the crime of aggression as defined in the
Statute. The Statute was opened for signature by all states in Rome on July 17,
1998 and had remained open for signature until December 31, 2000 at the
United Nations Headquarters in New York. The Philippines signed the Statute
on December 28, 2000 through Charge d’ Affairs Enrique A. Manalo of the
Philippine Mission to the United Nations. Its provisions, however, require that
it be subject to ratification, acceptance or approval of the signatory states.
Petitioners filed the instant petition to compel the respondents — the Office of
the Executive Secretary and the Department of Foreign Affairs — to transmit
the signed text of the treaty to the Senate of the Philippines for ratification.
It is the theory of the petitioners that ratification of a treaty, under both
domestic law and international law, is a function of the Senate. Hence, it is the
duty of the executive department to transmit the signed copy of the Rome
Statute to the Senate to allow it to exercise its discretion with respect to
ratification of treaties. Moreover, petitioners submit that the Philippines has a
ministerial duty to ratify the Rome Statute under treaty law and customary
international law.
Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the
states to refrain from acts which would defeat the object and purpose of a treaty
when they have signed the treaty prior to ratification unless they have made
their intention clear not to become parties to the treaty.
Issue: W/N the executive department has no duty to transmit the Rome Statute
to the Senate for concurrence; or
Whether the Executive Secretary and the Department of Foreign Affairs have
a ministerial duty to transmit to the Senate the copy of the Rome Statute signed
by a member of the Philippine Mission to the United Nations even without the
signature of the President.
Held: In our system of government, the President, being the head of state, is
regarded as the sole organ and authority in external relations and is the
country’s sole representative with foreign nations. As the chief architect of
foreign policy, the President acts as the country’s mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal
with foreign states and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact the business of
foreign relations. In the realm of treaty-making, the President has the sole
authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter
into treaties, the Constitution provides a limitation to his power by requiring
the concurrence of 2/3 of all the members of the Senate for the validity of the
treaty entered into by him. Section 21, Article VII of the 1987 Constitution
provides that “no treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the Senate.”
The 1935 and the 1973 Constitution also required the concurrence by the
legislature to the treaties entered into by the executive.
It should be emphasized that under our Constitution, the power to ratify is
vested in the President, subject to the concurrence of the Senate. The role of
the Senate, however, is limited only to giving or withholding its consent, or
concurrence, to the ratification. Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its
consent for its ratification, refuse to ratify it. Although the refusal of a state to
ratify a treaty which has been signed in its behalf is a serious step that should
not be taken lightly, such decision is within the competence of the President
alone, which cannot be encroached by this Court via a writ of mandamus. This
Court has no jurisdiction over actions seeking to enjoin the President in the
performance of his official duties. The Court, therefore, cannot issue the writ
of mandamus prayed for by the petitioners as it is beyond its jurisdiction to
compel the executive branch of the government to transmit the signed text of
Rome Statute to the Senate.
IN VIEW WHEREOF, the petition is DISMISSED.