Bayan

Muna
G. R. No. 159618, February 01, 2011

vs

Romulo

Facts:
Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized
sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during
the period material to this case. Respondent Alberto Romulo was impleaded in his capacity as then
Executive Secretary.
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome Statute establishing the International
Criminal Court (ICC) with the power to exercise its jurisdiction over persons for the most serious crimes
of international concern x x x and shall be complementary to the national criminal jurisdictions. The
serious crimes adverted to cover those considered grave under international law, such as genocide,
crimes against humanity, war crimes, and crimes of aggression.
On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed the Rome Statute
which, by its terms, is subject to ratification, acceptance or approval by the signatory states. As of the
filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the
ratification, approval and concurrence process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement
(Agreement,
hereinafter)
between
the
USA
and
the
RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP,
represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under
the US Embassy Note adverted to and put in effect the Agreement with the US government. In esse, the
Agreement aims to protect what it refers to and defines as persons of the RP and US from frivolous and
harassment suits that might be brought against them in international tribunals.8 It is reflective of the
increasing pace of the strategic security and defense partnership between the two countries. As of May 2,
2003, similar bilateral agreements have been effected by and between the US and 33 other countries.
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, persons are current or former Government officials, employees
(including contractors), or military personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall not, absent the express consent of the
first Party,
(a) be surrendered or transferred by any means to any international tribunal for any purpose, unless such
tribunal has been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third
country, for the purpose of surrender to or transfer to any international tribunal, unless such tribunal has
been established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third
country, the [US] will not agree to the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the UN Security Council, absent the
express consent of the Government of the Republic of the Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third country,
the [GRP] will not agree to the surrender or transfer of that person by the third country to any international
tribunal, unless such tribunal has been established by the UN Security Council, absent the express
consent of the Government of the [US].
5. This Agreement shall remain in force until one year after the date on which one party notifies the other
of its intent to terminate the Agreement. The provisions of this Agreement shall continue to apply with
respect to any act occurring, or any allegation arising, before the effective date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender
agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of
diplomatic notes constituted a legally binding agreement under international law; and that, under US law,
the said agreement did not require the advice and consent of the US Senate.
In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying
the Agreement and prays that it be struck down as unconstitutional, or at least declared as without force
and effect.
Issue: Whether or not the RP-US NON SURRENDER AGREEMENT is void ab initio for contracting
obligations that are either immoral or otherwise at variance with universally recognized principles of
international law.
Ruling: The petition is bereft of merit.
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form, its threshold posture being that E/N
BFO-028-03 cannot be a valid medium for concluding the Agreement.
Petitioners contentionperhaps taken unaware of certain well-recognized international doctrines,
practices, and jargonsis untenable. One of these is the doctrine of incorporation, as expressed in
Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted principles of
international law and international jurisprudence as part of the law of the land and adheres to the policy of
peace, cooperation, and amity with all nations. An exchange of notes falls into the category of intergovernmental agreements, which is an internationally accepted form of international agreement. The
United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows:
An exchange of notes is a record of a routine agreement, that has many similarities with the private law
contract. The agreement consists of the exchange of two documents, each of the parties being in the
possession of the one signed by the representative of the other. Under the usual procedure, the accepting

State repeats the text of the offering State to record its assent. The signatories of the letters may be
government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently
resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative
approval.
In another perspective, the terms exchange of notes and executive agreements have been used
interchangeably, exchange of notes being considered a form of executive agreement that becomes
binding through executive action. On the other hand, executive agreements concluded by the President
sometimes take the form of exchange of notes and at other times that of more formal documents
denominated agreements or protocols. As former US High Commissioner to the Philippines Francis B.
Sayre observed in his work, The Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and other governments ends and agreements
whether denominated executive agreements or exchange of notes or otherwise begin, may sometimes
be
difficult
of
ready
ascertainment.
x
x
x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as the Non-Surrender
Agreement itself, or as an integral instrument of acceptance thereof or as consent to be boundis a
recognized mode of concluding a legally binding international written contract among nations.
Agreement
Not
with Principles of International Law

Immoral/Not

at

Variance

Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations
and/or being at variance with allegedly universally recognized principles of international law. The immoral
aspect proceeds from the fact that the Agreement, as petitioner would put it, leaves criminals immune
from responsibility for unimaginable atrocities that deeply shock the conscience of humanity; x x x it
precludes our country from delivering an American criminal to the [ICC] x x x.63
The above argument is a kind of recycling of petitioners earlier position, which, as already discussed,
contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the
process undermined its treaty obligations under the Rome Statute, contrary to international law principles.
The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly
described by the Solicitor General, is an assertion by the Philippines of its desire to try and punish crimes
under its national law. x x x The agreement is a recognition of the primacy and competence of the
countrys judiciary to try offenses under its national criminal laws and dispense justice fairly and
judiciously.
Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos
and Americans committing high crimes of international concern to escape criminal trial and punishment.
This is manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute
can be prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the US,
before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries to the
Rome Statute have been met. For perspective, what the Agreement contextually prohibits is the surrender
by either party of individuals to international tribunals, like the ICC, without the consent of the other party,
which may desire to prosecute the crime under its existing laws. With the view we take of things, there is
nothing immoral or violative of international law concepts in the act of the Philippines of assuming criminal

jurisdiction pursuant to the non-surrender agreement over an offense considered criminal by both
Philippine laws and the Rome Statute.

Pimentel v. Executive Secretary Digest

G.R. No. 158088 July 6, 2005
Facts:
1. The petitioners filed a petition for mandamus 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 Philippinesfor its concurrence pursuant to Sec. 21, Art VII of the 1987
Constitution.
2. The Rome Statute established the Int'l Criminal Court which will have jurisdiction over the most serious
crimes as genocide, crimes against humanity, war crimes and crimes of aggression as defined by the
Statute. The Philippines through the Chargie du Affairs in UN. The provisions of the Statute however
require that it be subject to ratification, acceptance or approval of the signatory state.
3. Petitioners contend that ratification of a treaty, under both domestic and international law, is a function
of the Senate, hence it is the duty of the Executive Department to transmit the signed copy to the senate
to allow it to exercise its discretion.
Issue: Whether or not the Exec. Secretary and the DFA have the ministerial duty to transmit to the
Senate the copy of the Rome Statute signed by a member of the Philippine mission to the U.N.
even without the signature of the President.
The Supreme Court held NO.
1. The President as the head of state is the sole organ and authorized in the external relations and he is
also the country's sole representative with foreign nations, He is the mouthpiece with respect to the
country's foreign affairs.
2. In treaty-making, the President has the sole authority to negotiate with other states and enter into
treaties but this power is limited by the Constitution with the 2/3 required vote of all the members of the
Senate for the treaty to be valid. (Sec. 21, Art VII).
3. The legislative branch part is essential to provide a check on the executive in the field of foreign
relations, to ensure the nation's pursuit of political maturity and growth

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINESvs. HEALTH

SECRETARY FRANCISCO T. DUQUE III
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. Customary international law 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.

SECRETARY OF JUSTICE v. LANTION

October 26, 2012 1 Comment

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

request

for

extradition.

ISSUE: Whether or not to uphold a citizens 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

ANG LADLAD VS. COMELEC

MARCH 28, 2013 ~ VBDIAZ
ANG LADLAD VS. COMELEC
Facts:
Petitioner is a national organization which represents the lesbians, gays, bisexuals, and trans-genders. It
filed a petition for accreditation as a party-list organization to public respondent. However, due to moral
grounds, the latter denied the said petition. To buttress their denial, COMELEC cited certain biblical and
quranic passages in their decision. It also stated that since their ways are immoral and contrary to public
policy, they are considered nuissance. In fact, their acts are even punishable under the Revised Penal
Code in its Article 201.
A motion for reconsideration being denied, Petitioner filed this instant Petition on Certiorari under Rule 65
of

the

ROC.

Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious
dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also
claimed that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech
and assembly, and equal protection of laws, as well as constituted violations of the Philippines
international obligations against discrimination based on sexual orientation.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national
political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also
argued for the first time that the LGBT sector is not among the sectors enumerated by the Constitution
and RA 7941, and that petitioner made untruthful statements in its petition when it alleged its national
existence contrary to actual verification reports by COMELECs field personnel.
Issue:
WON

Respondent

violated

the

Non-establishment

clause

of

the

WON Respondent erred in denying Petitioners application on moral and legal grounds.
Held:

Constitution;

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only
those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas
workers, and professionals) may be registered under the party-list system. As we explicitly ruled in Ang
Bagong Bayani-OFW Labor Party v. Commission on Elections, the enumeration of marginalized and
under-represented sectors is not exclusive. The crucial element is not whether a sector is specifically
enumerated, but whether a particular organization complies with the requirements of the Constitution and
RA 7941.
Our Constitution provides in Article III, Section 5 that [n]o law shall be made respecting an establishment
of religion, or prohibiting the free exercise thereof. At bottom, what our non-establishment clause calls for
is government neutrality in religious matters. Clearly, governmental reliance on religious justification is
inconsistent with this policy of neutrality. We thus find that it was grave violation of the non-establishment
clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad. Be it
noted that government action must have a secular purpose.
Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is
required for the youth. Neither has the COMELEC condescended to justify its position that petitioners
admission into the party-list system would be so harmful as to irreparably damage the moral fabric of
society.
We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best;
disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as any act, omission,
establishment, condition of property, or anything else which shocks, defies, or disregards decency or
morality, the remedies for which are a prosecution under the Revised Penal Code or any local ordinance,
a civil action, or abatement without judicial proceedings. A violation of Article 201 of the Revised Penal
Code, on the other hand, requires proof beyond reasonable doubt to support a criminal conviction. It
hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket
invocation of public morals cannot replace the institution of civil or criminal proceedings and a judicial
determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify
exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlads

registration on purely moral grounds amounts more to a statement of dislike and disapproval of
homosexuals, rather than a tool to further any substantial public interest.