Mejoff vs Director of Prisons 90 Phil 70

Facts
Boris Mejoff, a Russian, was captured as a Japanese spy by the US Army Counter Intelligence Corps on
March 18, 1948. He was turned over to the Phil Commonwealth Government for appropriate disposition.
His case was decided on by the Board of Commissioners of Immigration who declared him as an illegal
alien. The Board ordered his immediate deportation. In the meantime, we was placed in prison awaiting
the ship that will take him back home to Russia. Two Russian boats have been requested to bring him
back to Russia but the masters refused as they had no authority to do so. Two years passed and Mejoff
is still under detention awaiting the ship that will take him home.
This case is a petition for habeas corpus. However, the respondent held that the Mejoff should stay in
temporary detention as it is a necessary step in the process of exclusion or expulsion of undesirable
aliens. It further states that is has the right to do so for a reasonable length of time.

Issue
Whether or not Mejoff should be released from prison awaiting his deportation.

Ruling
The Supreme Court decided that Mejoff be released from custody but be placed under reasonable
surveillance of the immigration authorities to insure that he keep peace and be available when the
Government is ready to deport him. In the doctrine of incorporation, the Philippines in its constitution
adops the generally accepted principles of international law as part of the law of Nations. Also, the
Philippines has joined the United Nations in its Resolution entitled Universal Declaration of Human
Rights in proclaiming that life and liberty and all other fundamental rights shall be applied to all human
beings. The contention that he remains a threat of to the security of the country is unfounded as Japan
and the US or the Phils are no longer at war.

Mejoff V. Director Of Prisons (1951)

G.R. No. L-4254

September 26, 1951

Lessons Applicable: characteristics of human rights, constitutional guarantee that no

person shall be deprived of liberty without due process of law,
Laws Applicable: Bill of Rights
FACTS:

Boris Mejoff, an alien of Russian descent who was brought to this country from
Shanghai as a secret operative by the Japanese forces during the latter's regime
in these Islands. (The petitioner's entry into the Philippines was not unlawful; he
was brought by the armed and belligerent forces of a de facto government whose
decrees were law furing the occupation.)

He was arrested on March 18, 1948 as a Japanese spy, by U. S. Army

Counter Intelligence Corps. and later there was an order for his release.

But on April 5, 1948, the Board of Commissioners of Immigration declared that

Mejoff had entered the Philippines illegally in 1944 and ordered that he be
deported on the first available transportation to Russia.

He was transferred to Cebu Provincial Jail and then Bilibid Prison at Muntinlupa
on October, 1948.

He then filed a petition for writ of habeas corpus on the basis that too long a
detention may justify the issuance of a writ of habeas corpus - denied

Over two years having elapsed since the decision aforesaid was promulgated,
the Government has not found way and means of removing the petitioner out of
the country, and none are in sight, although it should be said in justice to the
deportation authorities, it was through no fault of theirs that no ship or country
would take the petitioner.

This is his 2nd petition for writ of habeas corpus

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

Aliens illegally staying in the Philippines have no right of asylum therein even if
they are "stateless," which the petitioner claims to be.

The protection against deprivation of liberty without due process of law and
except for crimes committed against the laws of the land is not limited to

Philippine citizens but extends to all residents, except enemy aliens, regardless
of nationality.

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

petitioner's unduly prolonged detention would be unwarranted by law and the

Constitution, if the only purpose of the detention be to eliminate a danger that is
by no means actual, present, or uncontrollable

Imprisonment to protect society from predicted but unconsummated offenses is

so unprecedented in this country and so fraught with danger of excesses and
injustice that I am loath to resort it, even as a discretionary judicial technique to
supplement conviction of such offenses as those of which defendants stand
convicted.

If that case is not comparable with ours on the issues presented, its underlying
principle is of universal application.

As already noted, not only are there no charges pending against the petitioner,
but the prospects of bringing any against him are slim and remote.

Kuroda vs Jalandoni 83 Phil 171

Facts
Shinegori Kuroda, a former Lieutenant-General of the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in the Philippines was charged before the Philippine Military

Commission for war crimes. As he was the commanding general during such period of war, he was tried
for failure to discharge his duties and permitting the brutal atrocities and other high crimes committed by
his men against noncombatant civilians and prisoners of the Japanese forces, in violation of of the laws
and customs of war.
Kuroda, in his petition, argues that the Military Commission is not a valid court because the law that
created it, Executive Order No. 68, is unconstitutional. He further contends that using as basis the
Hague Conventions Rules and Regulations covering Land Warfare for the war crime committed cannot
stand ground as the Philippines was not a signatory of such rules in such convention. Furthermore, he
alleges that the United States is not a party of interest in the case and that the two US prosecutors
cannot practice law in the Philippines.
Issue
1.Whether or not Executive Order No. 68 is constitutional
2.Whether or not the US is a party of interest to this case

Ruling
The Supreme Court ruled that Executive Order No. 68, creating the National War Crimes Office and
prescribing rules on the trial of accused war criminals, is constitutional as it is aligned with Sec 3,Article
2 of the Constitution which states 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.
The generally accepted principles of international law includes those formed during the Hague
Convention, the Geneva Convention and other international jurisprudence established by United
Nations. These include the principle that all persons, military or civilian, who have been guilty of
planning, preparing or waging a war of aggression and of the commission of crimes and offenses in
violation of laws and customs of war, are to be held accountable. In the doctrine of incorporation, the
Philippines abides by these principles and therefore has a right to try persons that commit such crimes
and most especially when it is committed againsts its citizens. It abides with it even if it was not a
signatory to these conventions by the mere incorporation of such principles in the constitution.
The United States is a party of interest because the country and its people have been equally, if not
more greatly, aggrieved by the crimes with which the petitioner is charged for. By virtue of Executive
Order No. 68, the Military Commission is a special military tribunal and that the rules as to parties and
representation are not governed by the rules of court but by the very provisions of this special law

Agustin vs Edu 88 SCRA 195

Facts
This case is a petition assailing the validity or the constitutionality of a Letter of Instruction No. 229,
issued by President Ferdinand E. Marcos, requiring all vehicle owners, users or drivers to procure early
warning devices to be installed a distance away from such vehicle when it stalls or is disabled. In
compliance with such letter of instruction, the Commissioner of the Land Transportation Office issued
Administrative Order No. 1 directing the compliance thereof.
This petition alleges that such letter of instruction and subsequent administrative order are unlawful and
unconstitutional as it violates the provisions on due process, equal protection of the law and undue
delegation of police power.

Issue
Whether or not the Letter of Instruction No. 229 and the subsequent Administrative Order issued is
unconstitutional

Ruling
The Supreme Court ruled for the dismissal of the petition. The statutes in question are deemed not
unconstitutional. These were definitely in the exercise of police power as such was established to
promote public welfare and public safety. In fact, the letter of instruction is based on the constitutional
provision of adopting to the generally accepted principles of international law as part of the law of the
land. The letter of instruction mentions, as its premise and basis, the resolutions of the 1968 Vienna
Convention on Road Signs and Signals and the discussions on traffic safety by the United Nations - that

such letter was issued in consideration of a growing number of road accidents due to stalled or parked
vehicles on the streets and highways.

Agustin v Edu (1979) 88 SCRA 195

Facts:
Leovillo Agustin, the owner of a Beetle, challenged the constitutionality of Letter of
Instruction 229 and its implementing order No. 1 issued by LTO Commissioner Romeo
Edu. His car already had warning lights and did not want to use this.
The letter was promulgation for the requirement of an early warning device installed on a
vehicle to reduce accidents between moving vehicles and parked cars.
The LTO was the issuer of the device at the rate of not more than 15% of the acquisition
cost.
The triangular reflector plates were set when the car parked on any street or highway for
30 minutes. It was mandatory.
Petitioner: 1. LOI violated the provisions and delegation of police power, equal protection,
and due process/
2. It was oppressive because the make manufacturers and car dealers millionaires at the
expense f car owners at 56-72 pesos per set.
Hence the petition.
The OSG denied the allegations in par X and XI of the petition with regard to the
unconstitutionality and undue delegation of police power to such acts.
The Philippines was also a member of the 1968 Vienna convention of UN on road signs
as a regulation. To the petitioner, this was still an unlawful delegation of police power.
Issue:
Is the LOI constitutional? If it is, is it a valid delegation of police power?
Held: Yes on both. Petition dismissed.
Ratio:
Police power, according to the case of Edu v Ericta, which cited J. Taney, is nothing more
or less than the power of government inherent in every sovereignty.
The case also says that police power is state authority to enact legislation that may
interfere with personal liberty or property to promote the general welfare.
Primicias v Fulgoso- It is the power to describe regulations to promote the health, morals,
peace, education, good order, and general welfare of the people.
J. Carazo- government limitations to protect constitutional rights did not also intend to
enable a citizen to obstruct unreasonable the enactment of measures calculated to insure
communal peace.
There was no factual foundation on petitioner to refute validity.
Ermita Malate Hotel-The presumption of constitutionality must prevail in the absence of
factual record in over throwing the statute.
Brandeis- constitutionality must prevail in the absence of some factual foundation in
overthrowing the statute.
Even if the car had blinking lights, he must still buy reflectors. His claims that the statute
was oppressive was fantastic because the reflectors were not expensive.
SC- blinking lights may lead to confusion whether the nature and purpose of the driver is
concerned.
Unlike the triangular reflectors, whose nature is evident because its installed when
parked for 30 minutes and placed from 400 meters from the car allowing drivers to see
clearly.
There was no constitutional basis for petitioner because the law doesnt violate any
constitutional provision.
LOI 229 doesnt force motor vehicle owners to purchase the reflector from the LTO. It
only prescribes rge requirement from any source.

The objective is public safety.

The Vienna convention on road rights and PD 207 both recommended enforcement for
installation of ewds. Bother possess relevance in applying rules with the decvlaration of
principles in the Constitution.
On the unlawful delegation of legislative power, the petitioners have no settled legal
doctrines.

Case Digest: Bayan Muna v. Romulo

G.R. No. 159618 : February 1, 2011
BAYAN MUNA, as represented by REP. SATUR OCAMPO, ET AL.,
Petitioners, v. ALBERTO ROMULO, in his capacity as Executive
Secretary, et al., Respondents.
VELASCO, JR.,J.:
FACTS:
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 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 d'Affaires 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.
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.
ViaExchange of Notes No. BFO-028-03 dated May 13, 2003 (E/N BFO-02803, 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.Inesse, theAgreementaims to protect what it refers to and
defines aspersons 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
theUSand 33 other countries.
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.
For their part, respondents question petitioners standing to maintain
a suit and counter that the Agreement, being in the nature of an
executive agreement, does not require Senate concurrence for its
efficacy. And for reasons detailed in their comment, respondents
assert the constitutionality of the Agreement.

ISSUES:
1) whether or not the Agreement was contracted validly, which
resolves itself into the question of whether or not respondents
gravely abused their discretion in concluding it; and
2) whether or not the Agreement,which has not been submitted to the
Senate for concurrence, contravenes and undermines the Rome Statute
and other treaties.But because respondents expectedly raised it, we
shall first tackle the issue of petitioners legal standing.
HELD: This petition is bereft of merit.
REMEDIAL LAW:locus standi of petitioner
Locus standi is a right of appearance in a court of justice on a
given question. Specifically, it is a party's personal and
substantial interest in a case where he has sustained or will sustain
direct injury as a result of the act being challenged, and calls for
more than just a generalized grievance. The term interest refers to
material interest, as distinguished from one that is merely
incidental.The rationale for requiring a party who challenges the
validity of a law or international agreement to allege such a
personal stake in the outcome of the controversy is to assure the
concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult
constitutional questions.
Locus standi, however, is merely a matter of procedure and it has
been recognized that, in some cases, suits are not brought by parties
who have been personally injured by the operation of a law or any
other government act, but by concerned citizens, taxpayers, or voters
who actually sue in the public interest.Consequently, in a catena of
cases, this Court has invariably adopted a liberal stance on locus
standi.
Going by the petition, petitioners representatives pursue the instant
suit primarily as concerned citizens raising issues of transcendental

importance, both for the Republic and the citizenry as a whole.

When suing as a citizen to question the validity of a law or other
government action, a petitioner needs to meet certain specific
requirements before he can be clothed with standing.Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc.expounded on this requirement, thus:
In a long line of cases, however, concerned citizens, taxpayers and
legislators when specific requirements have been met have been given
standing by this Court.
When suing as acitizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must
be able to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger of
sustaining some direct injury as a result of its enforcement, and not
merely that he suffers thereby in some indefinite way.It must appear
that the person complaining has been or is about to be denied some
right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by reason of the
statute or act complained of.In fine, when the proceeding involves
the assertion of a public right, the mere fact that he is a citizen
satisfies the requirement of personal interest.
In the case at bar, petitioners representatives have complied with
the qualifying conditions or specific requirements exacted under
thelocus standirule.As citizens, their interest in the subject matter
of the petition is direct and personal.At the very least, their
assertions questioning theAgreementare made of a public right,i.e.,
to ascertain that theAgreementdid not go against established national
policies, practices, and obligations bearing on the States obligation
to the community of nations.
POLITICAL LAW: 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 contention perhaps taken unaware of certain wellrecognized international doctrines, practices, and jargon is
untenable. One of these is the doctrine of incorporation, as
expressed in Section 2, Article II of the Constitution, wherein the
Philippines adopts the generally accepted principles of international
law and international jurisprudence as part of the law of the land
and adheres to the policy of peace, cooperation, and amity with all
nations.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. It is fairly clear from the
foregoing disquisition that E/NBFO-028-03be it viewed as the NonSurrender Agreement itself, or as an integral instrument of
acceptance thereof or as consent to be bound is a recognized mode of
concluding a legally binding international written contract among
nations.
POLITICAL LAW: Senate Concurrence Not Required; treaties
Article 2 of the Vienna Convention on the Law of Treaties defines a
treaty as an international agreement concluded between states in
written form and governed by international law,whether embodied in a
single instrument or in two or more related instrumentsand whatever
its particular designation.International agreements may be in the
form of (1) treaties that require legislative concurrence after
executive ratification; or (2) executive agreements that are similar
to treaties, except that they do not require legislative concurrence
and are usually less formal and deal with a narrower range of subject
matters than treaties.
Under international law, there is no difference between treaties and
executive agreements in terms of their binding effects on the
contracting states concerned,as long as the negotiating functionaries
have remained within their powers.Neither,on the domestic sphere, can
one be held valid if it violates the Constitution.Authorities are,
however, agreed that one is distinct from another for accepted
reasons apart from the concurrence-requirement aspect. As has been
observed by US constitutional scholars, a treaty has greater dignity
than an executive agreement, because its constitutional efficacy is
beyond doubt, a treaty having behind it the authority of the
President, the Senate, and the people;a ratified treaty, unlike an
executive agreement, takes precedence over any prior statutory
enactment.

POLITICAL LAW: The Agreement Not in Contravention of the Rome

Statute
Contrary to petitioners pretense, theAgreementdoes not contravene or
undermine, nor does it differ from, the Rome Statute.Far from going
against each other, one complements the other.As a matter of fact,
the principle of complementarity underpins the creation of the ICC.As
aptly pointed out by respondents and admitted by petitioners, the
jurisdiction of the ICC is to be complementary to national criminal
jurisdictions of the signatory states. Art. 1 of the Rome Statute
pertinently provides:
Article 1
The Court
AnInternational Crimininal Court(the Court) is hereby established.It
x x xshall have the power to exercise its jurisdictionover persons
for the most serious crimes of international concern, as referred to
in this Statute, andshall be complementary to national criminal
jurisdictions.The jurisdiction and functioning of the Court shall be
governed by the provisions of this Statute.
Significantly, the sixth preambular paragraph of the Rome Statute
declares that it is the duty of every State to exercise its criminal
jurisdiction over those responsible for international crimes.This
provision indicates that primary jurisdiction over the so-called
international crimes rests, at the first instance, with the state
where the crime was committed; secondarily, with the ICC in
appropriate situations contemplated under Art. 17, par. 1of
theRomeStatute.
Of particular note is the application of the principle ofne bis in
idemunder par. 3 of Art. 20, Rome Statute, which again underscores
the primacy of the jurisdiction of a state vis-a-vis that of the
ICC.As far as relevant, the provision states that no person who has
been tried by another court for conduct [constituting crimes within
its jurisdiction] shall be tried by the [International Criminal]
Court with respect to the same conduct.
The foregoing provisions of the Rome Statute, taken collectively,
argue against the idea of jurisdictional conflict between the
Philippines, as party to the non-surrender agreement, and the ICC; or
the idea of theAgreementsubstantially impairing the value of the RPs
undertaking under the Rome Statute.Ignoring for a while the fact that
the RP signed the Rome Statute ahead of the Agreement, it is
abundantly clear to us that the Rome Statute expressly recognizes the
primary jurisdiction of states, like the RP, over serious crimes
committed within their respective borders, the complementary
jurisdiction of the ICC coming into play only when the signatory
states are unwilling or unable to prosecute.
Given the above consideration, petitioners suggestionthat the RP, by
entering into theAgreement, violated its duty required by the
imperatives of good faith and breached its commitment under the

Vienna Conventionto refrain from performing any act tending to impair

the value of a treaty, e.g., the Rome Statutehas to be rejected
outright.For nothing in the provisions of the Agreement,in relation
to the Rome Statute, tends to diminish the efficacy of the Statute,
let alone defeats the purpose of the ICC.Lest it be overlooked, the
Rome Statute contains a proviso that enjoins the ICC from seeking the
surrender of an erring person, should the process require the
requested state to perform an act that would violate some
international agreement it has entered into.We refer to Art. 98(2) of
the Rome Statute, which reads:
Article 98
Cooperation with respect to waiver of immunity and consent to
surrender
2. The Court may not proceed with a request for surrender which would
require the requested State to act inconsistently with its
obligations under international agreements pursuant to which the
consent of a sending State is required to surrender a person of that
State to the Court, unless the Court can first obtain the cooperation
of the sending State for the giving of consent for the surrender.
Moreover, under international law, there is a considerable difference
between a State-Party and a signatory to a treaty. Under the Vienna
Convention on the Law of Treaties, a signatory state is only obliged
to refrain from acts which would defeat the object and purpose of a
treaty;whereas a State-Party, on the other hand, is legally obliged
to follow all the provisions of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only
a signatory to the Rome Statute and not a State-Party for lack of
ratification by the Senate. Thus, it is only obliged to refrain from
acts which would defeat the object and purpose of the Rome Statute.
Any argument obliging the Philippines to follow any provision in the
treaty would be premature.
As a result, petitioners argument that State-Parties with nonsurrender agreements are prevented from meeting their obligations
under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must
fail. These articles are only legally binding upon State-Parties, not
signatories.
Furthermore, a careful reading of said Art. 90 would show that the
Agreement is not incompatible with the Rome Statute. Specifically,
Art. 90(4) provides that if the requesting State is a State not Party
to this Statute the requested State, if it is not under an
international obligation to extradite the person to the requesting
State, shall give priority to the request for surrender from the
Court In applying the provision, certain undisputed facts should be
pointed out:first, the US is neither a State-Party nor a signatory to
the Rome Statute; and second, there is an international agreement
between the US and the Philippines regarding extradition or surrender
of persons, i.e., the Agreement. Clearly, even assuming that the
Philippines is a State-Party, the Rome Statute still recognizes the

primacy of international agreements entered into between States, even

when one of the States is not a State-Party to the Rome Statute.
POLITICAL LAW: Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement,
abdicated its sovereignty by bargaining away the jurisdiction of the
ICC to prosecute US nationals, government officials/employees or
military personnel who commit serious crimes of international
concerns in the Philippines.Formulating petitioners argument a bit
differently, the RP,by entering into the Agreement, does thereby
abdicate its sovereignty, abdication being done by its waiving or
abandoning its right to seek recourse through the Rome Statute of the
ICC for erring Americans committing international crimes in the
country.
We are not persuaded.As it were, theAgreementis but a form of
affirmance and confirmance of thePhilippines national criminal
jurisdiction.National criminal jurisdiction being primary, as
explained above, it is always the responsibility and within the
prerogative of the RP either to prosecute criminal offenses equally
covered by the Rome Statute or to accede to the jurisdiction of the
ICC.Thus, thePhilippinesmay decide to try persons of theUS, as the
term is understood in theAgreement, under our national criminal
justice system.Or it may opt not to exercise its criminal
jurisdiction over its erring citizens or overUSpersons committing
high crimes in the country and defer to the secondary criminal
jurisdiction of the ICC over them.As to persons of the US whom the
Philippines refuses to prosecute, the country would, in effect,
accorddiscretion to the US to exercise either its national criminal
jurisdiction over the person concerned or to give its consent to the
referral of the matter to the ICC for trial.In the same breath,
theUSmust extend the same privilege to thePhilippineswith respect to
persons of the RP committing high crimes withinUSterritorial
jurisdiction.
To be sure, the nullity of the subject non-surrender agreement cannot
be predicated on the postulate that some of its provisions constitute
a virtual abdication of its sovereignty.Almost every time a state
enters into an international agreement, it voluntarily sheds off part
of its sovereignty.The Constitution, as drafted, did not envision a
reclusivePhilippinesisolated from the rest of the world.It even
adheres, as earlier stated, to the policy of cooperation and amity
with all nations.
By their nature, treaties and international agreements actually have
a limiting effect on the otherwise encompassing and absolute nature
of sovereignty.By their voluntary act, nations may decide to
surrender or waive some aspects of their state power or agree to
limit the exercise of their otherwise exclusive and absolute
jurisdiction.The usual underlying consideration in this partial
surrender may be the greater benefits derived from a pact or a
reciprocal undertaking of one contracting party to grant the same
privileges or immunities to the other.On the rationale that the
Philippines has adopted the generally accepted principles of

international law aspart of the law of the land, a portion of

sovereignty may be waived without violating the Constitution. Such
waiver does not amount to an unconstitutional diminution or
deprivation of jurisdiction of Philippine courts.
POLITICAL LAW: Agreement Not Immoral/Not at Variance with
Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio
for imposing immoral obligations and/or being at variance with
allegedly universally recognized principles of international law.The
immoral aspect proceeds from the fact that the Agreement, as
petitioner would put it, leaves criminals immune from responsibility
for unimaginable atrocities that deeply shock the conscience of
humanity; it precludes our country from delivering an American
criminal to the ICC.
The above argument is a kind of recycling of petitioner's 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. The agreement is a recognition
of the primacy and competence of the country's judiciary to try
offenses under its national criminal laws and dispense justice fairly
and judiciously.
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.
REMEDIAL LAW: No Grave Abuse of Discretion
Petitioners final point revolves around the necessity of the Senates
concurrence in the Agreement.And without specifically saying so,
petitioner would argue that the non-surrender agreement was executed
by the President, thru the DFA Secretary, in grave abuse of

discretion.
The Court need not delve on and belabor the first portion of the
above posture of petitioner, the same having been discussed at length
earlier on.As to the second portion, We wish to state thatpetitioner
virtually faults the President for performing, through respondents, a
task conferred the President by the Constitutionthe power to enter
into international agreements.
By constitutional fiat and by the nature of his or her office, the
President, as head of state and government, is the sole organ and
authority in the external affairs of the country. The Constitution
vests in the President the power to enter into international
agreements, subject, in appropriate cases, to the required
concurrence votes of the Senate.But as earlier indicated, executive
agreements may be validly entered into without such concurrence.As
the President wields vast powers and influence, her conduct in the
external affairs of the nation is, asBayanwould put it, executive
altogether.The right of the President to enter into or ratify binding
executive agreements has been confirmed by long practice.
In thus agreeing to conclude theAgreementthru E/N BFO-028-03, then
President Gloria Macapagal-Arroyo, represented by the Secretary of
Foreign Affairs, acted within the scope of the authority and
discretion vested in her by the Constitution.At the end of the day,
the Presidentby ratifying, thru her deputies, the non-surrender
agreementdid nothing more than discharge a constitutional duty and
exercise a prerogative that pertains to her office.
POLITICAL LAW: Agreement Need Not Be in the Form of a Treaty
A view is advanced that the Agreement amends existing municipal laws
on the States obligation in relation to grave crimes against the law
of nations,i.e., genocide, crimes against humanity and war
crimes.Relying on the above-quoted statutory proviso, the view posits
that the Philippine is required to surrender to the proper
international tribunal those persons accused of the grave crimes
defined under RA 9851, if it does not exercise its primary
jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not
decide to prosecute a foreign national for violations of RA 9851, the
Philippines has only two options, to wit: (1) surrender the accused
to the proper international tribunal; or (2) surrender the accused to
another State if such surrender is pursuant to the applicable
extradition laws and treaties.But the Philippines may exercise these
options only in cases where another court or international tribunal
is already conducting the investigation or undertaking the
prosecution of such crime; otherwise, the Philippines must prosecute
the crime before its own courts pursuant to RA 9851.
Posing the situation of a US national under prosecution by an
international tribunal for any crime under RA 9851, the Philippines
has the option to surrender such US national to the international
tribunal if it decides not to prosecute such US national here.The

view asserts that this option of the Philippines under Sec. 17 of RA

9851 is not subject to the consent of theUS, and any derogation of
Sec. 17 of RA 9851, such as requiring the consent of the US before
the Philippines can exercise such option, requires an amendatory
law.In line with this scenario, the view strongly argues that
theAgreementprevents thePhilippineswithout the consent of theUSfrom
surrendering to any international tribunal US nationals accused of
crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA
9851.Consequently, the view is strongly impressed that the Agreement
cannot be embodied in a simple executive agreement in the form of an
exchange of notes but must be implemented through an extradition law
or a treaty with the corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II
of the Constitution, where thePhilippinesadopts, as a national
policy, the generally accepted principles of international law as
part of the law of the land, the Court is further impressed to
perceivethe Rome Statute as declaratory of customary international
law.In other words, the Statute embodies principles of law which
constitute customary international law or custom and for which reason
it assumes the status of an enforceable domestic law in the context
of the aforecited constitutional provision.As a corollary, it is
argued that any derogation from the Rome Statute principles cannot be
undertaken via a mere executive agreement, which, as an exclusive act
of the executive branch, can only implement, but cannot amend or
repeal, an existing law.TheAgreement, so the argument goes, seeks to
frustrate the objects of the principles of law or alters customary
rules embodied in the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced
considers the Agreement inefficacious, unless it is embodied in a
treaty duly ratified with the concurrence of the Senate, the theory
being that a Senate- ratified treaty partakes of the nature of a
municipal law that can amend or supersede another law, in this
instance Sec. 17 of RA 9851 and the status of the Rome Statute as
constitutive of enforceable domestic law under Sec. 2, Art. II of the
Constitution.
We are unable to lend cogency to the view thus taken. For one, we
find that the Agreement does not amend or is repugnant to RA 9851.For
another, the view does not clearly state what precise principles of
law, if any, the Agreement alters.And for a third, it does not
demonstrate in the concrete how the Agreement seeks to frustrate the
objectives of the principles of law subsumed in the Rome Statute.
Nonetheless, despite
theUSnotably follows
the esteemed Justice
international law as

the lack of actual domestic legislation,

the doctrine of incorporation.As early as 1900,
Gray inThe Paquete Habana case already held
part of the law of theUS, to wit:

International law is part of our law, and must be ascertained and

administered by the courts of justice of appropriate jurisdiction as
often as questions of right depending upon it are duly presented for
their determination. For this purpose, where there is no treaty and
no controlling executive or legislative act or judicial decision,

resort must be had to the customs and usages of civilized nations,

and, as evidence of these, to the works of jurists and commentators
who by years of labor, research, and experience have made themselves
peculiarly well acquainted with the subjects of which they treat.
Such works are resorted to by judicial tribunals, not for the
speculations of their authors concerning what the law ought to be,
but for the trustworthy evidence of what the law really is.
Thus, a person can be tried in the US for an international crime
despite the lack of domestic legislation.The cited ruling in U.S. v.
Coolidge,which in turn is based on the holding inU.S. v. Hudson, only
applies to common law and not to the law of nations or international
law.Indeed, the Court inU.S. v. Hudson only considered the question,
whether the Circuit Courts of the United States can exercise a common
law jurisdiction in criminal cases.Stated otherwise, there is no
common law crime in the US but this is considerably different from
international law.
TheUSdoubtless recognizes international law as part of the law of the
land, necessarily including international crimes, even without any
local statute.In fact, years later, US courts would apply
international law as a source of criminal liability despite the lack
of a local statute criminalizing it as such. So it was that in Ex
Parte Quir in the US Supreme Court noted that from the very beginning
of its history this Court has recognized and applied the law of war
as including that part of the law of nations which prescribes, for
the conduct of war, the status, rights and duties of enemy nations as
well as of enemy individuals. It went on further to explain that
Congress had not undertaken the task of codifying the specific
offenses covered in the law of war, thus:
It is no objection that Congress in providing for the trial of such
offenses has not itself undertaken to codify that branch of
international law or to mark its precise boundaries, or to enumerate
or define by statute all the acts which that law condemns. An Act of
Congress punishing the crime of piracy as defined by the law of
nations is an appropriate exercise of its constitutional authority,
Art. I, s 8, cl. 10, to define and punish the offense since it has
adopted by reference the sufficiently precise definition of
international law. Similarly by the reference in the 15th Article of
War to offenders or offenses that by the law of war may be triable by
such military commissions. Congress has incorporated by reference, as
within the jurisdiction of military commissions, all offenses which
are defined as such by the law of war, and which may constitutionally
be included within that jurisdiction.
This rule finds an even stronger hold in the case of crimes against
humanity. It has been held that genocide, war crimes and crimes
against humanity have attained the status of customary international
law.Some even go so far as to state that these crimes have attained
the status of jus cogens.
Customary international law or international custom is a source of
international law as stated in the Statute of the ICJ. It is defined
as the general and consistent practice of states recognized and

followed by them from a sense of legal obligation.In order to

establish the customary status of a particular norm, two elements
must concur: State practice, the objective element; andopinio juris
sive necessitates, the subjective element.
State practice refers to the continuous repetition of the same or
similar kind of acts or norms by States.It is demonstrated upon the
existence of the following elements: (1) generality; (2) uniformity
and consistency; and (3) duration. While,opinio juris, the
psychological element, requires that the state practice or norm be
carried out in such a way, as to be evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law
requiring it.
The term jus cogens means the compelling law.Corollary, ajus
cogensnorm holds the highest hierarchical position among all other
customary norms and principles.As a result,jus cogensnorms are deemed
peremptory and non-derogable.When applied to international crimes,
jus cogens crimes have been deemed so fundamental to the existence of
a just international legal order that states cannot derogate from
them, even by agreement.
These jus cogens crimes relate to the principle of universal
jurisdiction, i.e., any state may exercise jurisdiction over an
individual who commits certain heinous and widely condemned offenses,
even when no other recognized basis for jurisdiction exists.The
rationale behind this principle is that the crime committed is so
egregious that it is considered to be committed against all members
of the international community and thus granting every State
jurisdiction over the crime.
Therefore, even with the current lack of domestic legislation on the
part of the US, it still has both the doctrine of incorporation and
universal jurisdiction to try these crimes.
WHEREFORE, the petition for certiorari, mandamus and
prohibition is hereby DISMISSED for lack of merit.
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