CASE DIGEST - AKBAYAN VS.

AQUINO Facts: The signing of the Japan-Philippines Economic Partnership Agreement (JPEPA) at the sidelines of the Asia-Europe Summit in Helsinki in September 2006 was hailed by both Japanese Prime Minister Junichiro Koizumi and Philippine President Gloria Macapagal Arroyo as a milestone in the continuing cooperation and collaboration, setting a new chapter of strategic partnership for mutual opportunity and growth (for both countries). JPEPA which has been referred to as a mega treaty is a comprehensive plan for opening up of markets in goods and services as well as removing barriers and restrictions on investments. It is a deal that encompasses even our commitments to the WTO. The complexity of JPEPA became all the more evident at the Senate hearing conducted by the Committee on Trade and Commerce last November 2006. The committee, chaired by Senator Mar Roxas, heard differing views and perspectives on JPEPA. On one hand the committee heard Governments rosy projections on the economic benefits of JPEPA and on the other hand the views of environmental and trade activists who raised there very serious concerns about the country being turned into Japans toxic waste basket. The discussion in the Senate showed that JPEPA is not just an issue concerning trade and economic relations with Japan but one that touches on broader national development concerns. Issues: 1. Do the therein petitioners have standing to bring this action for mandamus in their capacity as citizens of the Republic, as taxpayers, and as members of the Congress 2. Can this Honorable Court exercise primary jurisdiction of this case and take cognizance of the instant petition. 3. Are the documents and information being requested in relation to the JPEPA exempted from the general rules on transparency and full public disclosure such that the Philippine government is justified in denying access thereto. Rulings: The Supreme Court en banc promulgated last July 16, 2008 its ruling on the

case of Akbayan Citizens Action Party et al vs. Thomas G. Aquino et al (G.R. No. 170516). The Highest Tribunal dismissed the Petition for mandamus and prohibition, which sought to compel respondents Department of Trade Industry (DTI) Undersecretary Thomas Aquino et al to furnish petitioners the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA) and the lists of the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes thereto. In its Decision, the Court noted that the full text of the JPEPA has been made accessible to the public since 11 September 2006, and thus the demand to be furnished with copy of the said document has become moot and academic. Notwithstanding this, however, the Court lengthily discussed the substatives issues, insofar as they impinge on petitioners' demand for access to the Philippine and Japanese offers in the course of the negotiations. The Court held: Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidential since there should be 'ample opportunity for discussion before [a treaty] is approved' the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japenese representatives submitted their offers with the understanding that 'historic confidentiality' would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. It also reasoned out that opening for public scrutiny the Philippine offers in treaty negotiations would discourage future Philippine representatives from frankly expressing their views during negotiations. The Highest Tribunal recognized that treaty negotiations normally involve a process of quid pro quo, where negotiators would willingly grant concessions in an area of lesser importance in order to obtain more favorable terms in an area of greater national interest. In the same Decision, the Court took time to address the dissent of Chief Justice Reynato S. Puno. It said: We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our people's right to

information against any abuse of executive privilege. It is a zeal that We fully share. The Court, however, in its endeavour to guard against the abuse of executive privilege, should be careful not to veer towards the opposite extreme, to the point that it would strike down as invalid even a legitimate exercise thereof. Rulings: Neri vs. Senate Committee April 3, 2008 in CuRReNT IsSues Primer on the Supreme Court Decision in Neri vs. Senate Committee and its Implications IN GENERAL: What is the case of Neri vs. Senate Committee? This case is about the Senate investigation of anomalies concerning the NBN-ZTE project. During the hearings, former NEDA head Romulo Neri refused to answer certain questions involving his conversations with President Arroyo on the ground they are covered by executive privilege. When the Senate cited him in contempt and ordered his arrest, Neri filed a case against the Senate with the Supreme Court. On March 25, 2008, the Supreme Court ruled in favor of Neri and upheld the claim of executive privilege. What is executive privilege? It is the right of the President and high-level executive branch officials to withhold information from Congress, the courts and the public. It is a privilege of confidentiality which applies to certain types of information of a sensitive character that would be against the public interest to disclose. Executive privilege is based on the constitution because it relates to the Presidents effective discharge of executive powers. Its ultimate end is to promote public interest and no other. Is executive privilege absolute? No. Any claim of executive privilege must be weighed against other interests recognized by the constitution, like the state policy of full public disclosure of all transactions involving public interest, the right of the people to information on matters of public concern, the accountability of public officers, the power of legislative inquiry, and the judicial power to secure evidence in deciding cases. Did the revocation by the President of E.O. 464 on March 6, 2008 diminish the concept of executive privilege?

No. Executive privilege may still be invoked despite the Presidents revocation of E.O. 464 because it is based on the constitution. ON THE CONTENTS OF THE SUPREME COURT DECISION: What events led to the filing of the case before the Supreme Court? On April 21, 2007, the DOTC and Zhing Xing Telecommunications Equipment (ZTE), a corporation owned by the Peoples Republic of China, executed a Contract for the Supply of Equipment and Services for the National Broadband Network Project (NBN-ZTE Contract) worth US$329,481,290.00 (around PhP 16B). The project sought to provide landline, cellular and internet services in government offices nationwide and was to be financed through a loan by China to the Philippines. President Arroyo witnessed the contract signing in China. After its signing, reports of anomalies concerning the project (e.g., bribery, overpricing by US$ 130M, kickback commissions involving top government officials, and loss of the contract) prompted the Senate, through the Committees on Accountability of Public Officers and Investigations (Blue Ribbon), Trade and Commerce, and National Defense and Security, to conduct an inquiry in aid of legislation. The inquiry was based on a number of Senate resolutions and in connection with pending bills concerning funding in the procurement of government projects, contracting of loans as development assistance, and Senate concurrence to executive agreements. In one of the hearings held on Sept. 26, 2007, former NEDA Director General Romulo Neri testified that President Arroyo initially gave instructions for the project to be undertaken on a Build-OperateTransfer (BOT) arrangement so the government would not spend money for it, but eventually the project was awarded to ZTE with a government-to-government loan from China. He also said that then COMELEC Chairman Benjamin Abalos, the alleged broker in the project, offered him PhP 200M in exchange for NEDAs approval of the project. Neri testified that when he told President Arroyo of the bribe offer, she told him not to accept it. But Neri refused to answer questions about what he and the President discussed after that, invoking executive privilege since they concerned his conversations with the President. The Senate required him to appear again and testify on November 20, 2007. On November 15, 2007, Executive Secretary Eduardo Ermita wrote the Senate Committees and asked that Neris testimony on November 20, 2007 be dispensed with because he was invoking executive

privilege by Order of the President specifically on the following questions: a. Whether the President followed up on the NBN project? b. Were you dictated to prioritize the ZTE? c. Whether the President said to go ahead and approve the project after being told about the alleged bribe? When Neri failed to appear on November 20, 2007, the Senate required him to show cause why he should not be cited in contempt. Neri explained that he thought the only remaining questions were those he claimed to be covered by executive privilege and that should there be new matters to be taken up, he asked that he be informed in advance of what else he needs to clarify so he could prepare himself. On Dec. 7, 2007, Neri questioned the validity of the Senates show cause order before the Supreme Court. On January 30, 2008, the Senate cited Neri in contempt and ordered his arrest for his failure to appear in the Senate hearings. On February 1, 2008, Neri asked the Supreme Court to stop the Senate from implementing its contempt order, which the Court granted on Feb. 5, 2008. The Supreme Court also required the parties to observe the status quo prevailing before the issuance of the contempt order. What reasons were given for the claim of executive privilege? Executive Secretary Ermita said that the context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the Peoples Republic of China. Neri further added that his conversations with the President dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines. What issues were considered by the Supreme Court in resolving the case? The Supreme Court said there were two crucial questions at the core of the controversy: a. Are the communications sought to be elicited by the three questions covered by executive privilege? b. Did the Senate Committees commit grave abuse of discretion in citing Neri in contempt and ordering his arrest? How did the Supreme Court resolve these issues? The Supreme Court first recognized the power of Congress to conduct

inquiries in aid of legislation. The Court said that the power extends even to executive officials and the only way for them to be exempted is through a valid claim of executive privilege. On the first question, the Supreme Court said that the communications sought to be elicited by the three questions are covered by the presidential communications privilege, which is one type of executive privilege. Hence, the Senate cannot compel Neri to answer the three questions. On the second question, the Supreme Court said that the Senate Committees committed grave abuse of discretion in citing Neri in contempt. Hence, the Senate order citing Neri in contempt and ordering his arrest was not valid. Does the grant of the claim of executive privilege violate the right of the people to information on matters of public concern? No, for the following reasons: a. Neri appeared before the Senate on Sept. 26, 2007 and was questioned for 11 hours. He also expressed his willingness to answer more questions from the Senators, except the three questions. b. The right to information is subject to limitation, such as executive privilege. c. The right of Congress to obtain information in aid of legislation cannot be equated with the peoples right to information. Congress cannot claim that every legislative inquiry is an exercise of the peoples right to information. Was the claim of executive privilege properly invoked by the President in this case? Yes. For the claim to be properly invoked, there must be a formal claim by the President stating the precise and certain reason for preserving confidentiality. The grounds relied upon by Executive Secretary Ermita are specific enough, since what is required is only that an allegation be made whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc. The particular ground must only be specified, and the following statement of grounds by Executive Secretary Ermita satisfies the requirement: The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the Peoples Republic of China.

What reasons were given by the Supreme Court in holding that it was wrong for the Senate to cite Neri in contempt and order his arrest? a. There was a legitimate claim of executive privilege. b. The Senates invitations to Neri did not include the possible needed statute which prompted the inquiry, the subject of inquiry, and the questions to be asked. c. The contempt order lacked the required number of votes. d. The Senates rules of procedure on inquiries in aid of legislation were not duly published BAYAN VS. EXEC.SECRETARY
APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is the determination of which provision of the Constitution applies, with regard to the exercise by the senate of its constitutional power to concur with the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA has for its subject the presence of foreign military troops in the Philippines. Respondents, on the contrary, maintain that Section 21, Article VII should apply inasmuch as the VFA is not a basing arrangement but an agreement which involves merely the temporary visits of United States personnel engaged in joint military exercises. The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on treaties or international agreements. Section 21, Article VII, which herein respondents invoke, reads: 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. Section 25, Article XVIII, provides: After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning 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 and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. Section 21, Article VII deals with treatise or international agreements in general, in which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty, or international agreement, valid and binding on the part of the Philippines.

This provision lays down the general rule on treatise or international agreements and applies to any form of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treatise or those economic in nature. All treaties or international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective. In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII further requires that foreign military bases, troops, or facilities may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress, and recognized as such by the other contracting state. It is our considered view that both constitutional provisions, far from contradicting each other, actually share some common ground. These constitutional provisions both embody phrases in the negative and thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens with the clause No treaty x x x, and Section 25 contains the phrase shall not be allowed. Additionally, in both instances, the concurrence of the Senate is indispensable to render the treaty or international agreement valid and effective. To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and that the Senate extended its concurrence under the same provision, is immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is mandatory to comply with the strict constitutional requirements. On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies. Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense, however, the

provisions of section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the Senate, as will be further discussed hereunder. It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one. Lex specialis derogat generali. Thus, where there is in the same statute a particular enactment and also a general one which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language which are not within the provision of the particular enactment. In Leveriza vs. Intermediate Appellate Court, we enunciated: x x x that another basic principle of statutory construction mandates that general legislation must give way to a special legislation on the same subject, and generally be so interpreted as to embrace only cases in which the special provisions are not applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute prevails over a general statute (De Jesus vs. People, 120 SCRA 760) and that where two statutes are of equal theoretical application to a particular case, the one designed therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38). Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the reason that there is no permanent placing of structure for the establishment of a military base. On this score, the Constitution makes no distinction between transient and permanent. Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines. It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should not distinguish- Ubi lex non distinguit nec nos distinguire debemos. In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling since no foreign military bases, but merely foreign troops and facilities, are involved in the VFA. Notably, a perusal of said constitutional provision reveals that the proscription covers foreign military bases, troops, or facilities. Stated differently, this prohibition is not limited to the entry of troops and facilities without any foreign bases being established. The clause does not refer to foreign military bases, troops, or facilities collectively but treats them as separate and independent subjects. The use of comma and the disjunctive word or

clearly signifies disassociation and independence of one thing from the others included in the enumeration, such that, the provision contemplates three different situations - a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities - any of the three standing alone places it under the coverage of Section 25, Article XVIII. To this end, the intention of the framers of the Charter, as manifested during the deliberations of the 1986 Constitutional Commission, is consistent with this interpretation: MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas. This formulation speaks of three things: foreign military bases, troops or facilities. My first question is: If the country does enter into such kind of a treaty, must it cover the three-bases, troops or facilities-or could the treaty entered into cover only one or two? FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, the requirement will be the same. MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not bases but merely troops? FR. BERNAS. Yes. MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering only troops. FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some. We just want to cover everything. (Underscoring Supplied) Moreover, military bases established within the territory of another state is no longer viable because of the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even for months and years without returning to their home country. These military warships are actually used as substitutes for a land-home base not only of military aircraft but also of military personnel and facilities. Besides, vessels are mobile as compared to a land-based military headquarters. At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25 were complied with when the Senate gave its concurrence to the VFA. Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by congress, ratified by a majority of

the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state. There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution, whether under the general requirement in Section 21, Article VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter article requiring ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it. As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international agreement, to be valid and effective, must be concurred in by at least two-thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty be duly concurred in by the Senate. Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is clearly required so that the concurrence contemplated by law may be validly obtained and deemed present. While it is true that Section 25, Article XVIII requires, among other things, that the treaty-the VFA, in the instant case-be duly concurred in by the Senate, it is very true however that said provision must be related and viewed in light of the clear mandate embodied in Section 21, Article VII, which in more specific terms, requires that the concurrence of a treaty, or international agreement, be made by a two -thirds vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to section 21, Article, VII. As noted, the concurrence requirement under Section 25, Article XVIII must be construed in relation to the provisions of Section 21, Article VII. In a more particular language, the concurrence of the Senate contemplated under Section 25, Article XVIII means that at least two-thirds of all the members of the Senate favorably vote to concur with the treaty-the VFA in the instant case. Under these circumstances, the charter provides that the Senate shall be composed of twenty-four (24) Senators. Without a tinge of doubt, twothirds (2/3) of this figure, or not less than sixteen (16) members, favorably acting on the proposal is an unquestionable compliance with the requisite number of votes mentioned in Section 21 of Article VII. The fact that there were actually twenty-three (23) incumbent Senators at the time the voting was made, will not alter in any significant way the circumstance that more than two-thirds of the members of the Senate concurred with the proposed VFA, even if the two-thirds vote requirement is based on this figure of

actual members (23). In this regard, the fundamental law is clear that twothirds of the 24 Senators, or at least 16 favorable votes, suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the subject treaty. Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall now pass upon and delve on the requirement that the VFA should be recognized as a treaty by the United States of America. Petitioners content that the phrase recognized as a treaty, embodied in section 25, Article XVIII, means that the VFA should have the advice and consent of the United States Senate pursuant to its own constitutional process, and that it should not be considered merely an executive agreement by the United States. In opposition, respondents argue that the letter of United States Ambassador Hubbard stating that the VFA is binding on the United States Government is conclusive, on the point that the VFA is recognized as a treaty by the United States of America. According to respondents, the VFA, to be binding, must only be accepted as a treaty by the United States. This Court is of the firm view that the phrase recognized as a treaty means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase. Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use. Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty. A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international instrument 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. There are many other terms used for a treaty or international agreement, some of which are: act, protocol, agreement, compromis d arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter

and modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or titles of international agreements included under the general term treaty have little or no legal significance. Certain terms are useful, but they furnish little more than mere description. Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms, or to the meanings which may be given to them in the internal law of the State. Thus, in 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. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations. In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading, we had occasion to pronounce: x x x 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. x x x x x x x x x Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality of executive agreements entered into without Senate approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407). (Italics Supplied) (Emphasis Ours) The deliberations of the Constitutional Commission which drafted the 1987 Constitution is enlightening and highly-instructive: MR. MAAMBONG. Of course it goes without saying that as far as

ratification of the other state is concerned, that is entirely their concern under their own laws. FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done everything to make it a treaty, then as far as we are concerned, we will accept it as a treaty. The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the United States government has fully committed to living up to the terms of the VFA. For as long as the united States of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked compliance with the mandate of the Constitution. Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the Senate should be taken as a clear an unequivocal expression of our nations consent to be bound by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder. Ratification is generally held to be an executive act, undertaken by the head of the state or of the government, as the case may be, through which the formal acceptance of the treaty is proclaimed. A State may provide in its domestic legislation the process of ratification of a treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative, or was expressed during the negotiation. In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification. With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution, declares that the Philippines 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. As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct of its international relations. While

the international obligation devolves upon the state and not upon any particular branch, institution, or individual member of its government, the Philippines is nonetheless responsible for violations committed by any branch or subdivision of its government or any official thereof. As an integral part of the community of nations, we are responsible to assure that our government, Constitution and laws will carry out our international obligation. Hence, we cannot readily plead the Constitution as a convenient excuse for non-compliance with our obligations, duties and responsibilities under international law. Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 provides: Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty. Equally important is Article 26 of the convention which provides that Every treaty in force is binding upon the parties to it and must be performed by them in good faith. This is known as the principle of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most fundamental principles of positive international law, supported by the jurisprudence of international tribunals. SOMBILON VS. ROMULO Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces. He was charged with the crime of rape committed against a Filipina, petitioner herein, sometime on November 1, 2005, as follows: The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis, Keith Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the Revised Penal Code, as amended by Republic Act 8353, upon a complaint under oath filed by Suzette S. Nicolas, which is attached hereto and made an integral part hereof as Annex "A," committed as follows: "That on or about the First (1st) day of November 2005, inside the Subic Bay Freeport Zone, Olongapo City and within the jurisdiction of this Honorable Court, the above-named accuseds (sic), being then members of

the United States Marine Corps, except Timoteo L. Soriano, Jr., conspiring, confederating together and mutually helping one another, with lewd design and by means of force, threat and intimidation, with abuse of superior strength and taking advantage of the intoxication of the victim, did then and there willfully, unlawfully and feloniously sexually abuse and have sexual intercourse with or carnal knowledge of one Suzette S. Nicolas, a 22-year old unmarried woman inside a Starex Van with Plate No. WKF-162, owned by Starways Travel and Tours, with Office address at 8900 P. Victor St., Guadalupe, Makati City, and driven by accused Timoteo L. Soriano, Jr., against the will and consent of the said Suzette S. Nicolas, to her damage and prejudice. CONTRARY TO LAW."1 Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, the United States, at its request, was granted custody of defendant Smith pending the proceedings. During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the RTC of Makati for security reasons, the United States Government faithfully complied with its undertaking to bring defendant Smith to the trial court every time his presence was required. On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision, finding defendant Smith guilty, thus: WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient evidence against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC DUPLANTIS, all of the US Marine Corps assigned at the USS Essex, are hereby ACQUITTED to the crime charged. The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J. SMITH, also of the US Marine Corps at the USS Essex, this Court hereby finds him GUILTY BEYOND REASONABLE DOUBT of the crime of RAPE defined under Article 266-A, paragraph 1 (a) of the Revised Penal Code, as amended by R.A. 8353, and, in accordance with Article 266-B, first paragraph thereof, hereby sentences him to suffer the penalty of reclusion perpetua together with the accessory penalties provided

for under Article 41 of the same Code. and the Romulo-Kenney Agreement of December 22, 2006 which states: Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in the facilities that shall, thereafter, be agreed upon by appropriate Philippine and United States authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J. SMITH is hereby temporarily committed to the Makati City Jail. Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S. NICOLAS in the amount of P50,000.00 as compensatory damages plus P50,000.00 as moral damages. SO ORDERED.2 As a result, the Makati court ordered Smith detained at the Makati jail until further orders. On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a contingent of Philippine law enforcement agents, purportedly acting under orders of the Department of the Interior and Local Government, and brought to a facility for detention under the control of the United States government, provided for under new agreements between the Philippines and the United States, referred to as the Romulo-Kenney Agreement of December 19, 2006 which states: The Government of the Republic of the Philippines and the Government of the United States of America agree that, in accordance with the Visiting Forces Agreement signed between our two nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to U.S. military custody at the U.S. Embassy in Manila. (Sgd.) Kristie A. Kenney Representative of the United States of America DATE: 12-19-06 (Sgd.) Alberto G. Romulo Representative of the Republic of the Philippines DATE: December 19, 2006 The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United States of America agree that, in accordance with the Visiting Forces Agreement signed between the two nations, upon transfer of Lance Corporal Daniel J. Smith, United States Marine Corps, from the Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded round the clock by U.S. military personnel. The Philippine police and jail authorities, under the direct supervision of the Philippine Department of Interior and Local Government (DILG) will have access to the place of detention to ensure the United States is in compliance with the terms of the VFA. The matter was brought before the Court of Appeals which decided on January 2, 2007, as follows: WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having become moot.3

Francisco Vs. House Of Representatives [G.R. No. 160261; 10 Nov

2003] Facts: Impeachment proceedings were filed against Supreme Court Chief Justice Hilario
Davide. The controversy in front of the Court was the constitutionality of the subsequent filing of a second complaint to controvert the rules of impeachment provided for by law.

Issue: Whether or not the filing of the second impeachment complaint against Chief Justice
Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar provided in theConst it ut ion and whether the resolution thereof is a political question has resulted in a political crisis.

Held: In passing over the complex issues arising from the controversy, this Court is ever mindful of the essential truth that the inviolate doctrine of
separation of powers among the legislative, executive or judicial branches of government by no means prescribes for absolute autonomy in the discharge by each of that part of the governmental power assigned to it by the sovereign

people. The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal reached the floor proposing that "A vote of at least one-third of all the Members of the House shall be necessary to initiate impeachment proceedings," this was met by a proposal to delete the line on the ground that the vote of the House does not initiate impeachment proceeding but rather the filing of a complaint does. To the argument that only the House of Representatives as a body can initiate impeachment proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive power to initiate all cases of impeachment," This is a misreading of said provision and is contrary to the principle of reddendo singula singulis by equating "impeachment cases" with "impeachment proceeding." Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period. The Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed the constitutionally imposed oneyear time bar rule. Beyond this, it did not go about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political questions because it is not at all the business of this Court to assert judicial dominance over the other two great branches of the government. Thus, the Rules of Procedure in Impeachment Proceedings which were approved by the House of Representatives on November 28, 2001 are unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G. Davide, Jr is barred under paragraph 5, section 3 of Article XI of the Constitution.

June 10, 1953: RA 910 was enacted to provide the retirement pensions of SC & CA justices June 21, 1957: RA 910 was amended by RA 1797 w/c says that should the salary of the justices increase/ decrease, such increase/decreased salary shall be deemed to be the salary or retirement pension of retired SC justice (Sec 3-A) RA 1568 (amended by RA 3595) provided identical retirement benefits to members of the Constl Commission PD 578: provided similar benefits to AFP members, along with automatic readjustment features. PD 644 (Jan 25, 1975) repealed Sec 3-A of RA 1797 & RA 3595 & PD 578 PD 1638: the automatic readjustment of pensions of AFP members who retired before Sept 79 WHILE ADJUSTMENT OF RETIREMENT PENSIONS OF AFP WAS RESTORED, THAT OF THE RETIRED JUSTICES WAS NOT. Thus, Congress approved in 1990 HB 16297, a bill for the reenactment of the repealed provisions of RA 1797 & RA 3595 In July 11, 1990, Pres Awuino VETOED HB 16297 to strictly enforce the standardization of compensation (RA 6758) & bec the govt should not grant distinct privileges to select grp of officials whose retirement benefits under existing laws already enjoy preferential treatment over those of the others. Prior to instant petition, retired CA justices filed a letter/petition (Apr 22, 1991), which is treated as an ADMINISTRATIVE MATTER (A.M.) Petitioners therein asked Court for readjustment of their monthly pensions in accordance w/ RA 1797. They said that PD 644 repealing RA 1797 didnt become law as there was no valid publication pursuant to Tanada v. Tuvera) PD 644 promulgated on Jan 24, 1975 appeared for the 1st time only in the supplemental issue of OG, dated Apr 4, 1977, published only Sept 5, 1983. A.M. RESOLUTION: above request granted. The monthly pensions were authorized to be adjusted & paid on the basis of RA 1797. Pursuant to A.M. Resolution, Congress included in Gen Appropriation Bill for FY 1992 the appropriation for the Judiciary for payment of the adjusted pension rates due the retired SC justices (HB 34925)

BENGZON V. DRILON Petitioners: Retired SC justices Respondents: Drilon (Exec Sec); Carague (DBM Sec); Cajucan (Natl Treasurer) FACTS:

HB 34925 basically authorizes the CJ to augment, among others, the payment of adjusted pension rates to retired Justices entitled thereto pursuant to A.M. Resolution. Payment from its savings. In Jan 15, 1992, Aquino vetoed the underlined portions of HB 34925 (p. 141), for the reason that the A.M. Resolution nullified the veto of HB 16297. Aquino reiterated the same reasons for the prior veto of HB 16297. PETITIONERS ARGUMENTS: 1) subject veto is not an item veto; 2) veto by executive violates separation of powers; 3) veto deprives retired justices of their rights to the pensions due them; 4) veto impairs fiscal autonomy guaranteed by Consti ISSUES: Basic issue: Constitutionality of the veto by the President of certain provision in the GAA for FY 1992 relating to the payment of the adjusted pensions of retired Justices of the SC & CA. 1. WON subject veto is an item veto NO 2. WON PD 644 became law - NO 3. WON subject veto violates separation of powers - YES 4. WON veto deprives retired justices of their rights to pensions due them YES 5. WON veto impairs fiscal autonomy - YES RATIO 1. Subject veto is not an item veto On Appropriation, revenue, & tariff bills: Exec cant veto entire bill even if it may contain objectionable features. Thus, Consti provides for item veto power to avoid inexpedient riders being attached to an indispensable appropriation or revenue measure Only a particular item/s may be vetoed. Power to disapprove any item/s in an appropriate bill DOES NOT GRANT the authority to veto a part of an item & to approve the remaining portion of the same item (Gonzales v. Macaraig) ITEM: refers to the particulars, details, the distinct & severable parts; its an indivisible sum of money, not some general provision of law w/c happens to be put into an appropriation bill. The general fund adjustment is an ITEM w/c appropriates P500M to enable the govt to meet certain unavoidable obligations w/c may have been inadequately funded by the specific items for the diff branches, depts.,

bureaus, agencies, & offices of govt. THE PRES DIDNT VETO THIS ITEM. WHAT WERE VETOED WERE METHODS OR SYSTMS placed by the Congress to ensure that permanent & continuing obligations to certain officials would be paid when they fell due. Portions of the item have been chopped up into vetoed & unvetoed parts. Less than all of an item has been vetoed. THE VETOED PORTIONS ARE NOT ITEMS BUT PROVISIONS. The augmentation from savings is a PROVISION and NOT AN ITEM. It gives the CJ the power to transfer funds from one item to another. No specific appropriation of money was involved. 2. PD 644 never became law Simply because it was not properly published. (PD 644 is among those declared w/o force & effect in Tanada v. Tuvera) Thus, RA 1797 was never repealed. HB 16297 was superfluous as it tried to restore benefits w/c were never taken away validly by PD 644. The veto of HB 16297 in 1990 also did not produce effect. Both were based on erroneous & non-existent premises. When the Pres vetoed certain provisions of the GAA 1992, SHE WAS ACTUALLY VETOING RA 1797 w/c is beyond her power to accomplish. 3. Subject veto violated separation of powers EXECUTIVE HAS NO AUTHORITY TO SETA SIDE & OVERRULE A DECISION OF SC Congress included in the GAA 1992 provisions identifying funds & savings used to pay the adjusted pensions pursuant to the SC Resolution. As long as retirement laws remain in the statute book, there is an existing obligation on the part of the govt to pay the adjusted pension rate pursuant to RA 1797 & the A.M. Resolution NEITHER MAY THE VETO POWER BE EXERCISED AS A MEANS OF REPEALING RA 1797. Pres has no power to enact or amend statutes promulgated by her predecessors much less to repeal existing laws. 4. The attempt to use the veto power deprives retirees of benefits given them by RA 1797 The right to a public pension is of statutory origin. This is founded on services rendered to the state. Where a judge has complied w/ the statutory prerequisites for retirement w/ pay, his right to retire & draw

salary becomes vested & may not thereafter be revoked or impaired. In RP, retirement laws have been enacted to entice competent men & women to enter the govt service & permit them to retire therefrom w/ relative security. The rationale behind the veto w/c implies that Justices & constitutional officers are unduly favored is misimpression. The provisions regarding retirement pensions of Justices arise from the package of protections given by the Consti to guarantee & preserve the independence of the judiciary. Any argument w/c seeks to remove special privileges given by law to former Justices on the ground that there should be no grant of distinct privileges or preferential treatment to retired Justices ignores the Constl provisions (Art VIII & Sec 30, Art VI) that the Judiciary is not only independent, but also co-equal & coordinate. 5. Veto infringed on fiscal autonomy in Sec 3, Art VIII Fiscal autonomy is a guarantee of full flexibility to allocate & utilize their resources w/ the wisdom & dispatch that their needs require. It means freedom from outside control. The imposition of restrictions & constraints on the manner the independent constl offices allocate & utilize the funds appropriated for their operations is anathema to fiscal autonomy & violative not only the express mandate of the Consti but especially as regards the SC, of the independence & sep of powers upon w/c the entire fabric of our constl system is based. In the case at bar, the veto of specific provisions of GAA 1992 is tantamount to dictating to the Judiciary how its funds should be utilized, w/c is clearly repugnant to fiscal autonomy. The freedom of the CJ to make adjustments in the utilization of the funds appropriated for the expenditures of the judiciary, including the use of any savings from any particular item to cover deficits or shortages in other items of the judiciary is withheld. Art VI, Sec. 25: CJmayaugment any item in the gen appropriations law for their respective offices from savings in other items of their respective appropriations. The vetoed provisions w/c relate to the use of savings for augmenting items for the payment of the pension differentials, among others, are clearly in consonance w/ the abovestated pronouncements of the Court. The veto impairs the power of the CJ to augment other items in the Judiciarys appropriation, in contravention of the constl provision on fiscal autonomy . G.R. No. 164527 15 August 2007

CHAVEZ VS. NHA

FACTS: On August 5, 2004, former Solicitor General Francisco Chavez, filed an instant petition raising constitutional issues on the JVA entered by National Housing Authority and R-II Builders, Inc. On March 1, 1988, then-President Cory Aquino issued Memorandum order No. (MO) 161 approving and directing implementation of the Comprehensive and Integrated Metropolitan Manila Waste Management Plan. During this time, Smokey Mountain, a wasteland in Tondo, Manila, are being made residence of many Filipinos living in a subhuman state. As presented in MO 161, NHA prepared feasibility studies to turn the dumpsite into low-cost housing project, thus, Smokey Mountain Development and Reclamation Project (SMDRP), came into place. RA 6957 (Build-Operate-Transfer Law) was passed on July 1990 declaring the importance of private sectors as contractors in government projects. Thereafter, Aquino proclaimed MO 415 applying RA 6957 to SMDRP, among others. The same MO also established EXECOM and TECHCOM in the execution and evaluation of the plan, respectively, to be assisted by the Public Estates Authority (PEA). Notices of public bidding to become NHAs venture partner for SMDRP were published in newspapers in 1992, from which R-II Builders, Inc. (RBI) won the bidding process. Then-President Ramos authorized NHA to enter into a Joint Venture Agreement with RBI. Under the JVA, the project involves the clearing of Smokey Mountain for eventual development into a low cost housing complex and industrial/commercial site. RBI is expected to fully finance the development of Smokey Mountain and reclaim 40 hectares of the land at the Manila Bay Area. The latter together with the commercial area to be built on Smokey Mountain will be owned by RBI as enabling components. If the project is revoked or terminated by the Government through no fault of RBI or by mutual agreement, the Government shall compensate RBI for its actual expenses incurred in the Project plus a reasonable rate of return not exceeding that stated in the feasibility study and in the contract as of the date of such revocation, cancellation, or termination on a schedule to be

agreed upon by both parties. To summarize, the SMDRP shall consist of Phase I and Phase II. Phase I of the project involves clearing, levelling-off the dumpsite, and construction of temporary housing units for the current residents on the cleared and levelled site. Phase II involves the construction of a fenced incineration area for the on-site disposal of the garbage at the dumpsite. Due to the recommendations done by the DENR after evaluations done, the JVA was amended and restated (now ARJVA) to accommodate the design changes and additional work to be done to successfully implement the project. The original 3,500 units of temporary housing were decreased to 2,992. The reclaimed land as enabling component was increased from 40 hectares to 79 hectares, which was supported by the issuance of Proclamation No. 465 by President Ramos. The revision also provided for the 119-hectare land as an enabling component for Phase II of the project. Subsequently, the Clean Air Act was passed by the legislature which made the establishment of an incinerator illegal, making the off-site dumpsite at Smokey Mountain necessary. On August 1, 1998, the project was suspended, to be later reconstituted by President Estrada in MO No. 33. On August 27, 2003, the NHA and RBI executed a Memorandum of Agreement whereby both parties agreed to terminate the JVA and subsequent agreements. During this time, NHA reported that 34 temporary housing structures and 21 permanent housing structures had been turned over by RBI. ISSUES: 1. Whether respondents NHA and RBI have been granted the power and authority to reclaim lands of the public domain as this power is vested exclusively in PEA as claimed by petitioner 2. Whether respondents NHA and RBI were given the power and authority by DENR to reclaim foreshore and submerged lands 3. Whether respondent RBI can acquire reclaimed foreshore and submerged lands considered as alienable and outside the commerce of man 4. Whether respondent RBI can acquire reclaimed lands when there was no declaration that said lands are no longer needed for public use 5. Whether there is a law authorizing sale of reclaimed lands

6. Whether the transfer of reclaimed lands to RBI was done by public bidding 7. Whether RBI, being a private corporation, is barred by the Constitution to acquire lands of public domain 8. Whether respondents can be compelled to disclose all information related to the SMDRP 9. Whether the operative fact doctrine applies to the instant position HELD: 1. Executive Order 525 reads that the PEA shall be primarily responsible for integrating, directing, and coordinating all reclamation projects for and on behalf of the National Government. This does not mean that it shall be responsible for all. The requisites for a valid and legal reclamation project are approval by the President (which were provided for by MOs), favourable recommendation of PEA (which were seen as a part of its recommendations to the EXECOM), and undertaken either by PEA or entity under contract of PEA or by the National Government Agency (NHA is a government agency whose authority to reclaim lands under consultation with PEA is derived under PD 727 and RA 7279). 2. Notwithstanding the need for DENR permission, the DENR is deemed to have granted the authority to reclaim in the Smokey Mountain Project for the DENR is one of the members of the EXECOM which provides reviews for the project. ECCs and Special Patent Orders were given by the DENR which are exercises of its power of supervision over the project. Furthermore, it was the President via the abovementioned MOs that originally authorized the reclamation. It must be noted that the reclamation of lands of public domain is reposed first in the Philippine President. 3. The reclaimed lands were classified alienable and disposable via MO 415 issued by President Aquino and Proclamation Nos. 39 and 465 by President Ramos. 4. Despite not having an explicit declaration, the lands have been deemed to be no longer needed for public use as stated in Proclamation No. 39 that these are to be disposed to qualified beneficiaries. Furthermore, these lands have already been necessarily reclassified as alienable and disposable lands under the BOT law. 5. Letter I of Sec. 6 of PD 757 clearly states that the NHA can acquire property rights and interests and encumber or otherwise dispose of them as it may deem appropriate. 6. There is no doubt that respondent NHA conducted a public bidding of

the right to become its joint venture partner in the Smokey Mountain Project. It was noted that notices were published in national newspapers. The bidding proper was done by the Bids and Awards Committee on May 18, 1992. 7. RA 6957 as amended by RA 7718 explicitly states that a contractor can be paid a portion as percentage of the reclaimed land subject to the constitutional requirement that only Filipino citizens or corporation with at least 60% Filipino equity can acquire the same. In addition, when the lands were transferred to the NHA, these were considered Patrimonial lands of the state, by which it has the power to sell the same to any qualified person. 8. This relief must be granted. It is the right of the Filipino people to information on matters of public concerned as stated in Article II, Sec. 28, and Article III, Sec. 7 of the 1987 Constitution. 9. When the petitioner filed the case, the JVA had already been terminated by virtue of MOA between RBI and NHA. The properties and rights in question after the passage of around 10 years from the start of the projects implementation cannot be disturbed or questioned. The petitioner, being the Solicitor General at the time SMDRP was formulated, had ample opportunity to question the said project, but did not do so. The moment to challenge has passed.