cases in civil procedure

7/28/2019 Cases in Civil Procedure

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Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 165423 January 19, 2011

NILO PADRE, Petitioner,vs.FRUCTOSA BADILLO, FEDILA BADILLO, PRESENTACION CABALLES, EDWINAVICARIO (d) represented by MARY JOY VICARIO-ORBETA and NELSONBADILLO, Respondents.

D E C I S I O N

DEL CASTILLO, J.:

"A void judgment is no judgment at all. It cannot be the source of any right nor the creatorof any obligation. All acts performed pursuant to it and all claims emanating from it haveno legal effect."1

This petition for review on certiorari assails the Orders dated July 21 and September 20,20042issued by the Regional Trial Court (RTC) of Allen, Northern Samar, Branch 23 inSpecial Civil Action No. A-927, which affirmed the ruling of the Municipal Trial Court (MTC)of San Isidro, Northern Samar that it has jurisdiction to try Civil Case No. 104.

Factual Antecedents

On October 13, 1986, the RTC of Allen, Northern Samar, Branch 23, renderedjudgment3in Civil Case No. A-514 for Ownership and Recovery of Possession with

Damages in favor of therein plaintiffs Fructosa Badillo, Fedila Badillo, Edwina Badillo,Presentacion Badillo and Nelson Badillo and against therein defendants, includingConsesa Padre. The dispositive portion of the said Decision reads:

WHEREFORE, on preponderance of evidence, the Court hereby renders judgment infavor of the plaintiffs and against the defendants, declaring and ordering as follows:

1. That the herein plaintiffs are the lawful owners of the five-sixth (5/6) portion ofLot No. 4080, Pls-54, registered in Original Certificate of Title No. 736, moreparticularly, the said five-sixth portion is described, delineated and/or indicatedin the Sketch Plan which is now marked as Exhibit "B-1";

2. That the said five-sixth (5/6) portion which [is] herein adjudged as beingowned by the herein plaintiffs, include the portions of land presently beingoccupied by defendants x x x, Concesa Padre, x x x;

3. Ordering the defendants mentioned in No. 2 hereof to vacate x x x the lotsrespectively occupied by them and restore to [the herein plaintiffs] the materialpossessions thereof;

4. Condemning and ordering each of the same defendants herein above-namedto pay plaintiffs the amount of P100.00 per month, as monthly rental, startingfrom January 19, 1980, until the lots in question shall have been finally restoredto the plaintiffs; and

5. Condemning and ordering the herein defendants named above to jointly andseverally pay the plaintiffs the amount of P5,000.00 representing attorneys feesand P2,000.00 as litigation expenses, and to pay the costs of suit.

SO ORDERED.4

This Decision became final and executory on November 5, 1986.5

On December 29, 1997, the Badillo family filed another complaint against those whooccupy their property which included some of the defendants in Civil Case No. A-514.6The case was filed with the MTC of San Isidro, Northern Samar and was docketedas Civil Case No. 104.7 As Consesa Padre had already died in 1989, her heir, Nilo Padre(Nilo), was impleaded as one of the defendants. While some of the defendants filed theirrespective answers, Nilo was one of those who were declared in default for failure to filetheir answer to the complaint.8

Although denominated as one for "Ownership and Possession," the Badillo family allegedin their complaint in Civil Case No. 104 viz:

4. That plaintiffs are the joint owners of Lot No. 4080. Pls-54, with a total area of10,167 square meters, covered by OCT No. 736 in the name of EutequioBadillo, deceased husband of plaintiff Fructosa Badillo and father of the rest ofthe other plaintiffs, covered by Tax Declaration No. 9160 and assessedatP26,940.00;

5. That plaintiffs in Civil Case No. A-514, entitled Fructosa Badillo versus CelsoCastillo, et. al., were the prevailing parties in the aforesaid case as evidenced bythe hereto attached copy of the decision rendered by the Regional Trial Court inthe above-entitled case and marked as Annex "A" and made integral part of thiscomplaint;

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6. That after the judgment in the above-mentioned case became final, the samewas executed as evidenced by a copy of the writ of execution hereto attachedas Annex "B" and made integral part hereof;

7. That despite the service of the writ of execution and vacating the properties xx x illegally occupied by the afore-mentioned defendants, [said defendants] re-entered the property in 1990 after the execution and refused to vacate the same[thereby] reasserting their claims of ownership x x x despite repeated demands;

8. That all attempts towards a peaceful settlement of the matter outside of Courtto avoid a civil suit, such as referring the matter of the Brgy. Captain and theBrgy. Lupon of Brgy. Alegria, San Isidro, N. Samar were of no avail as thedefendants refused to heed lawful demands of plaintiffs to x x x vacate thepremises[. I]nstead, defendants claimed ownership of the property in question[and] refused to vacate the same despite repeated demands [such] that havinglost all peaceful remedies, plaintiffs were constrained to file this suit. Certificateto file Action is hereby attached and marked as Annex "C" and made integralpart hereof;9(Emphasis supplied.)

Ruling of the Municipal Trial Court

The MTC rendered judgment10on July 17, 2003. Interpreting the suit of the Badillo familyas an action to revive the dormant judgment in Civil Case No. A-514, the court recognizedthe right of the plaintiffs to finally have such judgment enforced. The MTC disposed of thecase as follows:

WHEREFORE, judgment is ordered reviving the previous judgment of the Regional TrialCourt there being, and still, preponderance of evidence in favor of plaintiffs, as follows:

1. That the herein plaintiffs are the lawful owners of the five-sixth (5/6) portion ofLot No. 4080, Pls-54, registered in Original Certificate of Title No. 730, moreparticularly x x x described, delineated and/or indicated in the Sketch Plan which

is now marked as Exhibit "B-1";

2. That the said five-sixth portion which is herein adjudged as being owne[d] byherein plaintiffs, includes the portions of land presently being occupied bydefendants Victor Eulin, Consesa Padre, Celso Castillo, Leo Atiga, SantosCorollo, Iego Armogela, Salustiano Millano, Milagros Gile, Pusay Enting,Galeleo Pilapil, more particularly indicated in Exhibit "B-1" and marked asExhibits "B-3", "B-4", "B-5," "B-6," "B-7," "B-8," "B-9," "B-10," "B-11," "B-12," and"B-13", respectively;

3. Ordering the defendants mentioned in No. 2, hereof and THOSEPRESENTLY NAMED AS PARTY-DEFENDANTS IN THIS REVIVAL OFJUDGMENT AND THOSE ACTING IN PRIVITY to vacate from the lots

respectively occupied by them and restore [to] the herein plaintiff x x x thematerial possession thereof;

4. Condemning and ordering each of the same defendants named in theprevious civil case and those NAMED ANEW to jointly and severally pay theplaintiffs the amount of P

5,000.00, representing attorneys fees, and P2,000.00as litigation expenses;

5. CONDEMNING ALL DEFENDANTS HEREIN TO PAY EXEMPLARYDAMAGES FOR OBSTINATELY VIOLATING THE DECISION OF THE COURTJOINTLY AND SEVERALLY X X X THE AMOUNT OF P

5,000.00, and to paythe costs of the suit.

SO ORDERED.11

Nilo thereafter appeared and moved to reconsider12the MTC judgment. He argued that theMTC is without jurisdiction over the case, opining that the action for revival of judgment isa real action and should be filed with the same court, i.e., the RTC, which rendered the

decision sought to be revived. Or, assuming arguendo that the MTC has jurisdiction overreal actions, it must be noted that the subject property is assessed at P26,940.00, anamount beyond the P20,000.00 limit for the MTC to have jurisdiction over real actions, inaccordance with Republic Act (RA) No. 7691. 13 Nilo also contended that the action isdismissible for a) lack of certificate of non-forum shopping in the complaint and b)prescription, the complaint for revival of judgment having been filed beyond the 10-yearreglementary period14 from the time the judgment sought to be revived became final andexecutory in November 1986.

The MTC denied the motion for reconsideration.15It held that the case is an action forrevival of judgment and not an action for ownership and possession, which had alreadylong been settled. To the MTC, the former is a personal action under Section 2, Rule 4 ofthe Rules of Court which may be filed, at the election of plaintiffs, either at the court of theplace where they reside or where the defendants reside. The court found excusable theabsence of the certification against forum shopping, justifying that the action filed before it

is merely a continuation of the previous suit for ownership. Moreover, the counsel for theBadillo family, a nonagenarian, may not yet have been familiar with the rule when CivilCase No. 104 was filed. To it, this mistake should not prejudice the Badillo family whodeserve to possess and enjoy their properties.

Ruling of the Regional Trial Court

By way of a special civil action for certiorari, Nilo elevated the case to the RTC to questionthe MTCs jurisdiction,16 reiterating the same grounds he had raised before the MTC. Thecase was docketed as Special Civil Action No. A-927.

On July 21, 2004, however, the RTC dismissed said petition 17on the ground that it wasfiled late. Moreover, the RTC upheld the MTCs jurisdiction over the case, affirming the

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MTCs ratiocination that an action for enforcement of a dormant judgment is a personalaction, and hence may be filed either at the court of the place where plaintiffs reside orwhere the defendants reside.

In his Motion for Reconsideration,18 Nilo contended that his petition with the RTC was

timely filed as shown by the registry receipt dated March 1, 2004,19 stamped on the mailingenvelope he used in filing said petition. He argued that this date of mailing is also the dateof filing. He also contended that the RTCs Decision was bereft of any explanation as towhy it ruled that the case is a personal action. He further alleged that the RTC failed todiscuss the issues of prescription and non-compliance with the rule against forumshopping.

In its Order dated September 20, 2004, the RTC denied the motion for reconsideration. Itsaid:

Assuming that the date of posting was March 1, 2004, as shown in the registry receipts,still the 60-day reglementary period had already lapsed with December 30, 2003 as thereckoning period when petitioner received the December 9, 2003 Order of Hon. JudgeJose A. Benesisto. With the month of February, 2004 having 29 days, it is now clear that

the petition was filed sixty one (61) days after; hence, there is no timeliness of the petitionto speak of.

Civil Case No. 104 is an ordinary action to enforce a dormant judgment filed by plaintiffsagainst defendants. Being an action for the enforcement of dormant judgment fordamages is a personal one and should be brought in any province where the plaintiff ordefendant resides, at the option of the plaintiff. As regards prescription, the present rulenow is, the prescriptive period commences to run anew from the finality of the revived

judgment. A revived judgment is enforceable again by motion within five years andthereafter by another action within ten years from the finality of the revived judgment.There is, therefore, no prescription or beyond the statute of limitations to speak [sic] in theinstant case. Petitioners contention must therefore fail.

It is but proper and legal that the plaintiffs in Civil Case No. 514 of which they are the

prevailing parties to institute for the enforcement of a dormant judgment [which right] theyhave failed to exercise x x x for more than a decade. Being an ordinary action to enforce adormant judgment, not even testimonial evidence is necessary to enforce such judgmentbecause the decision had long obtained its finality.

x x x x20

Hence, this petition.

Petitioners Arguments

Nilo finds the RTCs adverse ruling as wanting in sufficient explanation as to the factualand legal bases for upholding the MTC. He also highlights the failure of the Badillo family

to attach to their complaint a certificate of non-forum shopping. Petitioner also argues thatthe date of mailing of his petition with the RTC is the date of his filing. He stressed that thefiling of his petition on March 1, 2004 was well within the prescriptive period. As the 60thday from December 30, 2003 fell on a Saturday, he maintains that the Rules of Courtallows him to file his petition on the next working day, which is March 1, 2004, a Monday.

As have al ready been raised in the courts below, Nilo mentions the following grounds forthe dismissal of the action against him before the MTC:

a) The MTC lacks jurisdiction. Nilo reiterates that the prime objective of theBadillo family in Civil Case No. 104 is to recover real property, which makes it areal action. Citing the case of Aldeguer v. Gemelo,21 he contends that this suitmust be brought before the RTC of Allen, Northern Samar. Besides, theassessed value of the land in controversy, i.e., P26,940.00, divests the MTC of

jurisdiction.

b) Prescription. Nilo claims that the Badillo familys suit had already lapsed asthey allowed 11 years to pass without resorting to any legal remedy before filingthe action for revival of judgment. Although the Badillo family moved for the

issuance of a writ of execution in Civil Case No. A-514, the same did notinterrupt the running of the period to have the judgment enforced by motion orby action.

Respondents Arguments

While impliedly acknowledging that Nilo seasonably filed his petition for certiorari with theRTC, the Badillo family note that he should have filed an appeal before the RTC. Theyclaim that they properly filed their case, a personal action, with the MTC of San Isidro,Northern Samar as they are allowed under Section 2, Rule 4 of the Rules of Court to electthe venue as to where to file their case.

Granting that their action is considered a revival of judgment, the Badillos claim that they

filed their suit within the 10-year period. They contend that in filing Civil Case No. 104 inDecember 1997, the prescriptive period should not be counted from the finality ofjudgment in Civil Case No. A-514, but shou ld be reckoned from August 22, 1989, whenthe RTC issued an Order that considered as abandoned the motion to declare thedefendants in default in the contempt proceedings.

Issue

The question that should be settled is whether the RTC correctly affirmed the MTC rulingthat it has jurisdiction over Civil Case No. 104.

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Our Ruling

Indeed, "[t]he existence and availability of the right of appeal proscribes a resort tocertiorari."22 The court a quo could have instead dismissed Nilos petition on the groundthat this question should have been raised by way of an appeal.23 This rule is subject to

exceptions, such as "when the writs issued are null and void or when the questioned orderamounts to an oppressive exercise of judicial authority." 24As will be later on discussed, theRTC, although it ultimately erred in its judgment, was nevertheless correct in entertainingthe special civil action for certiorari. The exceptions we mentioned apply in the case at bar,as it turns out that petitioners jurisdictional objection has compelling basis.

Timeliness of the petition for certiorari

The petition for certiorari before the RTC was timely filed. If the pleading filed was notdone personally, the date of mailing, as stamped on the envelope or the registry receipt, isconsidered as the date of filing. 25 By way of registered mail, Nilo filed his petition forcertiorari with the RTC on March 1, 2004, as indicated in the date stamped on itsenvelope. From the time Nilo received on December 30, 2003 the MTCs denial of hismotion for reconsideration, the last day for him to file his petition with the RTC fell on

February 28, 2004, a Saturday. Under the Rules, should the last day of the period to file apleading fall on a Saturday, a Sunday, or a legal holiday, a litigant is allowed to file his orher pleading on the next working day,26 which in the case at bar, fell on a Monday, i.e.,March 1, 2004.

Jurisdiction over Civil Case No. 104

We shall now look into the core argument of Nilo anent the MTCs lack of jurisdiction overthe case and the alleged prescription of the action.

"[W]hat determines the nature of the action and which court has jurisdiction over it are theallegations in the complaint and the character of the relief sought." 27 In their complaint inCivil Case No. 104, some of the allegations of the Badillo family, which petitioner never

opposed and are thus deemed admitted by him, states:

4. That plaintiffs are the joint owners of Lot No. 4080. Pls-54, with a total area of10,167 square meters, covered by OCT No. 736 in the name of EutequioBadillo, deceased husband of plaintiff Fructosa Badillo and father of the rest ofthe other plaintiffs, covered by Tax Declaration No. 9160 and assessedatP26,940.00;

5. That plaintiffs in Civil Case No. A-514, entitled Fructosa Badillo versus CelsoCastillo, et. al., were the prevailing parties in the aforesaid case as evidenced bythe hereto attached copy of the decision rendered by the Regional Trial Court inthe above-entitled case and marked as Annex "A" and made integral part of thiscomplaint;

6. That after the judgment in the above-mentioned case became final, the samewas executed as evidenced by a copy of the writ of execution hereto attachedas Annex "B" and made integral part hereof;

7. That despite the service of the writ of execution and vacating the properties x

x x illegally occupied by the afore-mentioned defendants, the latter re-enteredthe property in 1990 after the execution and refused to vacate the same[thereby] reasserting their claims of ownership over [the disputed properties]and refused to vacate the same despite repeated demands;

8. That all attempts towards a peaceful settlement of the matter outside of Courtto avoid a civil suit, such as referring the matter of the Brgy. Captain and theBrgy. Lupon of Brgy. Alegria, San Isidro, N. Samar were of no avail as thedefendants refused to heed lawful demands of plaintiffs to x x x vacate thepremises[. I]nstead, defendants claimed ownership of the property in questionrefused to vacate the same despite repeated demands [such] that having lost allpeaceful remedies, plaintiffs were constrained to file this suit. Certificate to file

Action is hereby attached and marked as Annex "C" and made integral parthereof;28

(Emphasis supplied.)

Under paragraph 6 of their complaint, the Badillos alleged that judgment in Civil Case No.A-514 had become final and had been executed. Further, in paragraph 7, they alleged thatin 1990, the defendants re-entered the property and despite repeated demands theyrefused to vacate the same. Thus, the Badillos were not at all seeking a revival of the

judgment. In reality, they were asking the MTC to legally oust the occupants from theirlots.

The Badillo family would have been correct in seeking judicial recourse from the MTC hadthe case been an action for ejectment, i.e., one of forcible entry under Rule 70 of theRules of Court wherein essential facts constituting forcible entry 29 have been averred andthe suit filed within one year from the time of unlawful deprivation or withholding ofpossession, as the MTC has exclusive original jurisdiction over such suit.30However, asthe alleged dispossession occurred in 1990, the one-year period to bring a case for

forcible entry had expired since the Badillos filed their suit only in December 1997. Wethus construe that the remedy they availed of is the plenary action of accion publiciana,which may be instituted within 10 years. 31"It is an ordinary civil proceeding to determinethe better right of possession of realty independently of title. It also refers to an ejectmentsuit filed after the expiration of one year from the accrual of the cause of action or from theunlawful withholding of possession of the realty."32

Whether the case filed by the Badillo family is a real or a personal action is irrelevant.Determining whether an action is real or personal is for the purpose only of determiningvenue. In the case at bar, the question raised concerns jurisdiction, not venue.

Although the Badillo family correctly filed a case for accion publiciana, they pleaded the ircase before the wrong court. In civil cases involving realty or interest therein not withinMetro Manila, the MTC has exclusive original jurisdiction only if the assessed value of the

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subject property or interest therein does not exceed P20,000.00. 33 As the assessed valueof the property subject matter of this case is P26,940.00, and since more than one yearhad expired after the dispossession, jurisdiction properly belongs to the RTC. 34 Hence, theMTC has no judicial authority at all to try the case in the first place. "A decision of the courtwithout jurisdiction is null and void; hence, it could never logically become final and

executory. Such a judgment may be attacked directly or collaterally."35

Based on the foregoing discussion, it is not anymore necessary to discuss the issue raisedconcerning the failure to include a certification of non-forum shopping.

Although we are compelled to dismiss respondents action before the MTC, they arenonetheless not precluded from filing the necessary judicial remedy with the propercourt.lawphi1

WHEREFORE, the petition is GRANTED. The Orders dated July 21 and September 20,2004 of the Regional Trial Court of Allen, Northern Samar, Branch 23 in Special Civil

Action No. A-927 are hereby SET ASIDE. The Municipal Trial Court of San Isidro,Northern Samar is DIRECTED to dismiss Civil Case No. 104 for lack of jurisdiction.

SO ORDERED.

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 159618 February 1, 2011

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN,and Rep. LIZA L. MAZA,Petitioner,vs.ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, inhis capacity as Secretary of Foreign Affairs, Respondents.

D E C I S I O N

VELASCO, JR., J.:

The Case

This petition1for certiorari, mandamus and prohibition under Rule 65 assails and seeks tonullify the Non-Surrender Agreement concluded by and between the Republic of thePhilippines (RP) and the United States of America (USA).

The Facts

Petitioner Bayan Muna is a duly registered party-list group established to represent themarginalized sectors of society. Respondent Blas F. Ople, now deceased, was theSecretary of Foreign Affairs during the period material to this case. Respondent AlbertoRomulo was impleaded in his capacity as then Executive Secretary.2

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute 3establishing theInternational Criminal Court (ICC) with "the power to exercise its jurisdiction over personsfor the most serious crimes of international concern x x x and shall be complementary tothe national criminal jurisdictions."4The serious crimes adverted to cover those consideredgrave under international law, such as genocide, crimes against humanity, war crimes,and crimes of aggression.5

On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed theRome Statute which, by its terms, is "subject to ratification, acceptance or approval" by thesignatory states.6 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-surrenderbilateral agreement (Agreement, hereinafter) between the USA and the RP.

Via Exchange of Notes No. BFO-028-037dated May 13, 2003 (E/N BFO-028-03,hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and acceptedthe US proposals embodied under the US Embassy Note adverted to and put in effecttheAgreementwith the US government. In esse, the Agreementaims to protect what itrefers to and defines as "persons" of the RP and US from frivolous and harassment suitsthat might be brought against them in international tribunals.8 It is reflective of theincreasing pace of the strategic security and defense partnership between the twocountries. As of May 2, 2003, similar bilateral agreements have been effected by andbetween the US and 33 other countries.9

TheAgreementpertinently provides as follows:

1. For purposes of this Agreement, "persons" are current or former Governmentofficials, employees (including contractors), or military personnel or nationals ofone Party.

2. Persons of one Party present in the territory of the other shall not, absent theexpress consent of the first Party,

(a) be surrendered or transferred by any means to any internationaltribunal for any purpose, unless such tribunal has been established bythe UN Security Council, or

(b) be surrendered or transferred by any means to any other entity orthird country, or expelled to a third country, for the purpose ofsurrender to or transfer to any international tribunal, unless suchtribunal has been established by the UN Security Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of thePhilippines to a third country, the [US] will not agree to the surrender or transferof that person by the third country to any international tribunal, unless suchtribunal has been established by the UN Security Council, absent the expressconsent 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

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that person by the third country to any international tribunal, unless such tribunalhas been established by the UN Security Council, absent the express consentof 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. Theprovisions of this Agreement shall continue to apply with respect to any actoccurring, 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 thenon-surrender agreement, Ambassador Ricciardone replied in his letter of October 28,2003 that the exchange of diplomatic notes constituted a legally binding agreement underinternational law; and that, under US law, the said agreement did not require the adviceand consent of the US Senate.10

In this proceeding, petitioner imputes grave abuse of discretion to respondents inconcluding and ratifying theAgreementand prays that i t be struck down asunconstitutional, or at least declared as without force and effect.

For their part, respondents question petitioners standing to maintain a suit and counterthat theAgreement, being in the nature of an executive agreement, does not requireSenate concurrence for its efficacy. And for reasons detailed in their comment,respondents assert the constitutionality of theAgreement.

The Issues

I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x xGRAVELY ABUSED THEIR DISCRETION AMOUNTING TO LACK OREXCESS OF JURISDICTION FOR CONCLUDING THE RP-US NONSURRENDER AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13

MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS ALREADY SIGNEDTHE ROME STATUTE OF THE [ICC]ALTHOUGH THIS IS PENDINGRATIFICATION BY THE PHILIPPINE SENATE.

A. Whether by entering into the x x x Agreement Respondentsgravely abused their discretion when they capriciously abandoned,waived and relinquished our only legitimate recourse throughthe Rome Statute of the [ICC]to prosecute and try "persons" asdefined in the x x x Agreement, x x x or literally any conduit of

American interests, who have commi tted crimes of genocide, crimesagainst humanity, war crimes and the crime of aggression, therebyabdicating Philippine Sovereignty.

B. Whether after the signing and pending ratification of the RomeStatute of the [ICC]the [RP] President and the [DFA] Secretary x x xare obliged by the principle of good faith to refrain from doing all actswhich would substantially impair the value of the undertaking assigned.

C. Whether the x x x Agreement constitutes an act which defeats theobject and purpose of theRome Statute of the International CriminalCourtand contravenes the obligation of good faith inherent in thesignature of the President affixed on the Rome Statute of theInternational Criminal Court, and if so whether the x x x Agreement isvoid and unenforceable on this ground.

D. Whether the RP-US Non-Surrender Agreement is void andunenforceable for grave abuse of discretion amounting to lack orexcess of jurisdiction in connection with its execution.

II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOIDABINITIO FOR CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL

OR OTHERWISE AT VARIANCE WITH UNIVERSALLY RECOGNIZEDPRINCIPLES OF INTERNATIONAL LAW.

III. WHETHER THE x x x AGREEMENT IS VALID, BINDING ANDEFFECTIVE WITHOUT THE CONCURRENCE BY AT LEAST TWO-THIRDS(2/3) OF ALL THE MEMBERS OF THE SENATE x x x.11

The foregoing issues may be summarized into two: first, whether or nottheAgreementwas contracted validly, which resolves itself into the question of whether ornot respondents gravely abused their discretion in concluding it; and second, whether ornot theAgreement, which has not been submitted to the Senate for concurrence,contravenes and undermines the Rome Statute and other treaties. But becauserespondents expectedly raised it, we shall first tackle the issue of petitioners legalstanding.

The Courts Ruling

This petition is bereft of merit.

Procedural Issue: Locus Standiof Petitioner

Petitioner, through its three party-list representatives, contends that the issue of thevalidity or invalidity of theAgreementcarries with it constitutional significance and is ofparamount importance that justifies its standing. Cited in this regard is what is usuallyreferred to as the emergency powers cases, 12in which ordinary citizens and taxpayerswere accorded the personality to question the constitutionality of executive issuances.

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Locus standi is "a right of appearance in a court of justice on a givenquestion."13 Specifically, it is "a partys personal and substantial interest in a case where hehas sustained or will sustain direct injury as a result" 14of the act being challenged, and"calls for more than just a generalized grievance."15 The term "interest" refers to materialinterest, as distinguished from one that is merely incidental. 16The rationale for requiring a

party who challenges the validity of a law or international agreement to allege such apersonal stake in the outcome of the controversy is "to assure the concrete adversenesswhich sharpens the presentation of issues upon which the court so largely depends forillumination of difficult constitutional questions."17

Locus standi, however, is merely a matter of procedure and it has been recognized that, insome cases, suits are not brought by parties who have been personally injured by theoperation of a law or any other government act, but by concerned citizens, taxpayers, orvoters who actually sue in the public interest. 18 Consequently, in a catena of cases,19thisCourt has invariably adopted a liberal stance on locus standi.

Going by the petition, petitioners representatives pursue the instant suit primarily asconcerned citizens raising issues of transcendental importance, both for the Republic andthe citizenry as a whole.

When suing as a citizen to question the validity of a law or other government action, apetitioner needs to meet certain specific requirements before he can be clothed withstanding. Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mgaManggagawang Pilipino, Inc.20 expounded on this requirement, thus:

In a long line of cases, however, concerned citizens, taxpayers and legislators whenspecific requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of astatute must be direct and personal. He must be able to show, not only that the law or anygovernment act is invalid, but also that he sustained or is in imminent danger of sustainingsome direct injury as a result of its enforcement, and not merely that he suffers thereby insome 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 besubjected to some burdens or penalties by reason of the statute or act complained of. Infine, when the proceeding involves the assertion of a public right, the mere fact that he is acitizen satisfies the requirement of personal interest.21

In the case at bar, petitioners representatives have complied with the qualifying conditionsor specific requirements exacted under the locus standirule. As citizens, their interest inthe subject matter of the petition is direct and personal. At the very least, their assertionsquestioning the Agreement are made of a public right, i.e., to ascertain thattheAgreementdid not go against established national policies, practices, and obligationsbearing on the States obligation to the community of nations.

At any event, the primordial importance to Filipino citizens in general of the issue at handimpels the Court to brush aside the procedural barrier posed by the traditional requirement

oflocus standi, as we have done in a long line of earlier cases, notably in the old but oft-cited emergency powers cases22 and Kilosbayan v. Guingona, Jr.23In cases of transcendental importance, we wrote again in Bayan v. Zamora,24 "The Court may relaxthe standing requirements and allow a suit to prosper even where there is no direct injuryto the party claiming the right of judicial review."

Moreover, bearing in mind what the Court said in Taada v. Angara, "that it will not shirk,digress from or abandon its sacred duty and authority to uphold the Constitution in mattersthat involve grave abuse of discretion brought before it in appropriate cases, committed byany officer, agency, instrumentality or department of the government," 25 we cannot butresolve head on the issues raised before us. Indeed, where an action of any branch ofgovernment is seriously alleged to have infringed the Constitution or is done with graveabuse of discretion, it becomes not only the right but in fact the duty of the judiciary tosettle it. As in this petition, issues are precisely raised putting to the fore the propriety oftheAgreementpending the ratification of the Rome Statute.

Validity of the RP-US Non-Surrender Agreement

Petitioners initial challenge against theAgreementrelates to form, its threshold posture

being that E/N BFO-028-03 cannot be a valid medium for concluding theAgreement.

Petitioners contentionperhaps taken unaware of certain well-recognized internationaldoctrines, practices, and jargonsis untenable. One of these is the doctrine ofincorporation, as expressed in Section 2, Article II of the Constitution, wherein thePhilippines 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.26An exchange of notes falls "into the category ofinter-governmental agreements,"27 which is an internationally accepted form ofinternational agreement. The United Nations Treaty Collections (Treaty Reference Guide)defines the term as follows:

An "exchange of notes" i s a record of a routine agreement, that has many similarities withthe 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 torecord its assent. The signatories of the letters may be government Ministers, diplomats ordepartmental heads. The technique of exchange of notes is frequently resorted to, eitherbecause of its speedy procedure, or, sometimes, to avoid the process of legislativeapproval.28

In another perspective, the terms "exchange of notes" and "executive agreements" havebeen used interchangeably, exchange of notes being considered a form of executiveagreement that becomes binding through executive action. 29 On the other hand, executiveagreements concluded by the President "sometimes take the form of exchange of notesand at other times that of more formal documents denominated agreements orprotocols."30As former US High Commissioner to the Philippines Francis B. Sayreobserved in his work, The Constitutionality of TradeAgreement Acts:

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The point where ordinary correspondence between this and other governments ends andagreements whether denominated executive agreements or exchange of notes orotherwise begin, may sometimes be difficult of ready ascertainment.31 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 asconsent to be boundis a recognized mode of concluding a legally binding internationalwritten contract among nations.

Senate Concurrence Not Required

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "aninternational agreement concluded between states in written form and governed byinternational law, whether embodied in a single instrument or in two or more relatedinstruments and whatever its particular designation." 32 International agreements may be inthe 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 requirelegislative concurrence and are usually less formal and deal with a narrower range ofsubject matters than treaties.33

Under international law, there is no difference between treaties and executive agreementsin terms of their binding effects on the contracting states concerned, 34as long as thenegotiating functionaries have remained within their powers.35 Neither, on the domesticsphere, can one be held valid if it violates the Constitution. 36 Authorities are, however,agreed that one is distinct from another for accepted reasons apart from the concurrence-requirement aspect.37As has been observed by US constitutional scholars, a treaty hasgreater "dignity" than an executive agreement, because its constitutional efficacy isbeyond doubt, a treaty having behind it the authority of the President, the Senate, and thepeople;38 a ratified treaty, unlike an executive agreement, takes precedence over any priorstatutory enactment.39

Petitioner parlays the notion that theAgreementis of dubious validity, partaking as it doesof the nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner

takes a cue from Commissioner of Customs v. Eastern Sea Trading, in which the Courtreproduced the following observations made by US legal scholars: "[I]nternationalagreements involving political issues or changes of national policy and those involvinginternational arrangements of a permanent character usually take the form of treaties[while] those embodying adjustments of detail carrying out well established nationalpolicies and traditions and those involving arrangements of a more or less temporarynature take the form of executive agreements." 40

Pressing its point, petitioner submits that the subject of the Agreementdoes not fall underany of the subject-categories that are enumerated in the Eastern Sea Tradingcase, andthat may be covered by an executive agreement, such as commercial/consular relations,most-favored nation rights, patent rights, trademark and copyright protection, postal andnavigation arrangements and settlement of claims.

In addition, petitioner foists the applicability to the instant case ofAdolfo v. CFI ofZambales and Merchant,41holding that an executive agreement through an exchange ofnotes cannot be used to amend a treaty.

We are not persuaded.

The categorization of subject matters that may be covered by international agreementsmentioned in Eastern Sea Tradingis not cast in stone. There are no hard and fast rules onthe propriety of entering, on a given subject, into a treaty or an executive agreement as aninstrument of international relations. The primary consideration in the choice of the form ofagreement is the parties intent and desire to craft an international agreement in the formthey so wish to further their respective interests. Verily, the matter of form takes a backseat when it comes to effectiveness and binding effect of the enforcement of a treaty or anexecutive agreement, as the parties in either international agreement each labor underthepacta sunt servanda42principle.

As may be noted, a lmost half a century has elapsed since the Court rendered its decisionin Eastern Sea Trading. Since then, the conduct of foreign affairs has become morecomplex and the domain of international law wider, as to include such subjects as human

rights, the environment, and the sea. In fact, in the US alone, the executive agreementsexecuted by its President from 1980 to 2000 covered subjects such as defense, trade,scientific cooperation, aviation, atomic energy, environmental cooperation, peace corps,arms limitation, and nuclear safety, among others.43 Surely, the enumeration in EasternSea Tradingcannot circumscribe the option of each state on the matter of which theinternational agreement format would be convenient to serve its best interest. As FrancisSayre said in his work referred to earlier:

x x x It would be useless to undertake to discuss here the large variety of executiveagreements as such concluded from time to time. Hundreds of executive agreements,other than those entered into under the trade-agreement act, have been negotiated withforeign governments. x x x They cover such subjects as the inspection of vessels,navigation dues, income tax on shipping profits, the admission of civil air craft, custommatters and commercial relations generally, international claims, postal matters, theregistration of trademarks and copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement is a treaty-authorized 44or atreaty-implementing executive agreement,45which necessarily would cover the samematters subject of the underlying treaty.

But over and above the foregoing considerations is the fact thatsave for the situationand matters contemplated in Sec. 25, Art. XVIII of the Constitution 46when a treaty isrequired, the Constitution does not classify any subject, like that involving political issues,to be in the form of, and ratified as, a treaty. What the Constitution merely prescribes isthat treaties need the concurrence of the Senate by a vote defined therein to complete theratification process.

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Petitioners reliance onAdolfo47is misplaced, said case being inapplicable owing todifferent factual milieus. There, the Court held that an executive agreement cannot beused to amend a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, anexecutive agreement that does not require the concurrence of the Senate for its ratificationmay not be used to amend a treaty that, under the Constitution, is the product of the

ratifying acts of the Executive and the Senate. The presence of a treaty, purportedly beingsubject to amendment by an executive agreement, does not obtain under the premises.

Considering the above discussion, the Court need not belabor at length the third mainissue raised, referring to the validity and effectivity of theAgreementwithout theconcurrence by at least two-thirds of all the members of the Senate. The Court has,in Eastern Sea Trading,48as reiterated in Bayan,49given recognition to the obligatory effectof executive agreements without the concurrence of the Senate:

x x x [T]he right of the Executive to enter into binding agreements without the necessity ofsubsequent Congressional approval has been confirmed by long usage. From the earliestdays of our history, we have entered executive agreements covering such subjects ascommercial and consular relations, most favored-nation rights, patent rights, trademarkand copyright protection, postal and navigation arrangements and the settlement of

claims. The validity of these has never been seriously questioned by our courts.

The Agreement Not in Contravention of the Rome Statute

It is the petitioners next contention that theAgreementundermines the establishment ofthe ICC and is null and void insofar as it unduly restricts the ICCs jurisdiction and infringesupon the effectivity of the Rome Statute. Petitioner posits that theAgreementwasconstituted solely for the purpose of providing individuals or groups of individuals withimmunity from the jurisdiction of the ICC; and such grant of immunity through non-surrender agreements allegedly does not legitimately fall within the scope of Art. 98 of theRome Statute. It concludes that state parties with non-surrender agreements areprevented from meeting their obligations under the Rome Statute, thereby constituting abreach of Arts. 27,50 86,518952 and 9053 thereof.

Petitioner stresses that the overall object and purpose of the Rome Statute is to ensurethat those responsible for the worst possible crimes are brought to justice in all cases,primarily by states, but as a last resort, by the ICC; thus, any agreementlike the non-surrender agreementthat precludes the ICC from exercising its complementary functionof acting when a state is unable to or unwilling to do so, defeats the object and purpose ofthe Rome Statute.

Petitioner would add that the President and the DFA Secretary, as representatives of asignatory of the Rome Statute, are obliged by the imperatives of good faith to refrain fromperforming acts that substantially devalue the purpose and object of the Statute, assigned. Adding a nullifying ingredient to the Agreement, according to petitioner, is the factthat it has an immoral purpose or is otherwise at variance with a priorly executed treaty.

Contrary to petitioners pretense, theAgreementdoes not contravene or undermine, nordoes it differ from, the Rome Statute. Far from going against each other, onecomplements the other. As a matter of fact, the principle of complementarity underpins thecreation 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]."54

Art. 1 of the Rome Statute pertinently provides:

Article 1The Court

An International Crimininal Court ("the Court") is hereby established. It x x x shall havethe power to exercise its jurisdiction over persons for the most serious crimes ofinternational concern, as referred to in this Statute, and shall be complementary tonational criminal jurisdictions. The jurisdiction and functioning of the Court shall begoverned by the provisions of this Statute. (Emphasis ours.)

Significantly, the sixth preambular paragraph of the Rome Statute declares that "it is theduty of every State to exercise its criminal jurisdiction over those responsible forinternational crimes." This provision indicates that primary jurisdiction over the so-called

international crimes rests, at the first instance, with the state where the crime wascommitted; secondarily, with the ICC in appropriate situations contemplated under Art. 17,par. 155of the Rome Statute.

Of particular note is the application of the principle ofne bis in idem56 under par. 3 of Art.20, Rome Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC. As far as relevant, the provision states that "no person who has beentried by another court for conduct x x x [constituting crimes within its jurisdiction] shall betried by the [International Criminal ] Court with respect to the same conduct x x x."

The foregoing provisions of the Rome Statute, taken collectively, argue against the idea ofjurisdictional conflict between the Philippines, as party to the non-surrender agreement,and the ICC; or the idea of the Agreement substantially impairing the value of the RPsundertaking under the Rome Statute. Ignoring for a while the fact that the RP signed the

Rome Statute ahead of theAgreement, it is abundantly clear to us that the Rome Statuteexpressly recognizes the primary jurisdiction of states, like the RP, over serious crimescommitted within their respective borders, the complementary jurisdiction of the ICCcoming into play only when the signatory states are unwilling or unable to prosecute.

Given the above consideration, petitioners suggestionthat the RP, by entering intotheAgreement, violated its duty required by the imperatives of good faith and breached itscommitment under the Vienna Convention57 to refrain from performing any act tending toimpair the value of a treaty, e.g., the Rome Statutehas to be rejected outright. Fornothing in the provisions of the Agreement, in relation to the Rome Statute, tends todiminish the efficacy of the Statute, let alone defeats the purpose of the ICC. Lest it beoverlooked, the Rome Statute contains a proviso that enjoins the ICC from seeking thesurrender of an erring person, should the process require the requested state to perform

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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 98Cooperation with respect to waiver of immunity

and consent to surrender

x x x x

2. The Court may not proceed with a request for surrender which would require therequested State to act inconsistently with its obligations under international agreementspursuant to which the consent of a sending State is required to surrender a person of thatState to the Court, unless the Court can first obtain the cooperation of the sending Statefor 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, asignatory state is only obliged to refrain from acts which would defeat the object and

purpose of a treaty;58

whereas a State-Party, on the other hand, is legally obliged to followall the provisions of a treaty in good faith.

In the instant case, it bears stressing that the Philippines is only a signatory to the RomeStatute and not a State-Party for lack of ratification by the Senate. Thus, it is only obligedto refrain from acts which would defeat the object and purpose of the Rome Statute. Anyargument obliging the Philippines to follow any provision in the treaty would be premature.

As a result, petitioners argument that State-Parties with non-surrender agreements areprevented 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, notsignatories.

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 "[i]f therequesting State is a State not Party to this Statute the requested State, if it is not underan international obligation to extradite the person to the requesting State, shall give priorityto the request for surrender from the Court. x x x" In applying the provision, certainundisputed facts should be pointed out: first, the US is neither a State-Party nor asignatory to the Rome Statute; and second, there is an international agreement betweenthe 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 Statutestill recognizes the primacy of international agreements entered into between States, evenwhen one of the States is not a State-Party to the Rome Statute.

Sovereignty Limited by International Agreements

Petitioner next argues that the RP has, through theAgreement, abdicated its sovereigntyby bargaining away the jurisdiction of the ICC to prosecute US nationals, governmentofficials/employees or military personnel who commit serious crimes of international

concerns in the Philippines. Formulating petitioners argument a bit differently, the RP, byentering into theAgreement, does thereby abdicate its sovereignty, abdication being doneby its waiving or abandoning its right to seek recourse through the Rome Statute of theICC for erring Americans committing international crimes in the country.

We are not persuaded. As it were, theAgreementis but a form of affirmance andconfirmance of the Philippines national criminal jurisdiction. National criminal jurisdictionbeing primary, as explained above, it is always the responsibility and within theprerogative of the RP either to prosecute criminal offenses equally covered by the RomeStatute or to accede to the jurisdiction of the ICC. Thus, the Philippines may decide to try"persons" of the US, as the term is understood in the Agreement, under our nationalcriminal justice system. Or it may opt not to exercise its criminal jurisdiction over its erringcitizens or over US "persons" committing high crimes in the country and defer to thesecondary criminal jurisdiction of the ICC over them. As to "persons" of the US whom the

Philippines refuses to prosecute, the country would, in effect, accord discretion to the USto exercise either its national criminal jurisdiction over the "person" concerned or to give itsconsent to the referral of the matter to the ICC for trial. In the same breath, the US mustextend the same privilege to the Philippines with respect to "persons" of the RPcommitting high crimes within US territorial jurisdiction.

In the context of the Constitution, there can be no serious objection to the Philippinesagreeing to undertake the things set forth in the Agreement. Surely, one State can agreeto waive jurisdictionto the extent agreed uponto subjects of another State due to therecognition of the principle of extraterritorial immunity. What the Court wrote inNicolas v.Romulo59a case involving the implementation of the criminal jurisdiction provisions of theRP-US Visiting Forces Agreementis apropos:

Nothing in the Constitution prohibits such agreements recognizing immunity fromjurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recogn izedsubjects of such immunity like Heads of State, diplomats and members of the armedforces contingents of a foreign State allowed to enter another States territory. x x x

To be sure, the nullity of the subject non-surrender agreement cannot be predicated onthe postulate that some of its provisions constitute a virtual abdication of its sovereignty.

Almost every time a state en ters into an in ternational agreement, it voluntaril y sheds offpart of its sovereignty. The Constitution, as drafted, did not envision a reclusive Philippinesisolated from the rest of the world. It even adheres, as earlier stated, to the policy ofcooperation and amity with all nations.60

By their nature, treaties and international agreements actually have a limiting effect on theotherwise 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

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limit the exercise of their otherwise exclusive and absolute jurisdiction. The usualunderlying consideration in this partial surrender may be the greater benefits derived froma pact or a reciprocal undertaking of one contracting party to grant the same privileges orimmunities to the other. On the rationale that the Philippines has adopted the generallyaccepted principles of international law as part of the law of the land, a portion of

sovereignty may be waived without violating the Constitution.61

Such waiver does notamount to an unconstitutional diminution or deprivation of jurisdiction of Philippine courts .62

Agreement Not Immoral/Not at Variancewith Principles of International Law

Petitioner urges that theAgreementbe struck down as void ab initio for imposing immoralobligations and/or being at variance with allegedly universally recognized principles ofinternational law. The immoral aspect proceeds from the fact that the Agreement, aspetitioner would put it, "leaves criminals immune from responsibility for unimaginableatrocities that deeply shock the conscience of humanity; x x x it precludes our country fromdelivering 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 theAgreement, virtually abdicated itssovereignty and in the process undermined its treaty obligations under the Rome Statute,contrary to international law principles.64

The Court is not persuaded. Suffice it to state in this regard that the non-surrenderagreement, as aptly described by the Solicitor General, "is an assertion by the Philippinesof its desire to try and punish crimes under its national law. x x x The agreement is arecognition of the primacy and competence of the countrys judiciary to try offenses underits national criminal laws and dispense justice fairly and judiciously."

Petitioner, we believe, labors under the erroneous impression that the Agreement wouldallow Filipinos and Americans committing high crimes of international concern to escapecriminal trial and punishment. This is manifestly incorrect. Persons who may havecommitted 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 theRome Statute have been met. For perspective, what theAgreementcontextually prohibitsis the surrender by either party of individuals to international tribunals, like the ICC, withoutthe consent of the other party, which may desire to prosecute the crime under its existinglaws. With the view we take of things, there is nothing immoral or violative of internationallaw concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to thenon-surrender agreement over an offense considered criminal by both Philippine laws andthe Rome Statute.

No Grave Abuse of Discretion

Petitioners final point revolves around the necessity of the Senates concurrence in theAgreement. And without specifically saying so, petitioner would argue that the non-

surrender agreement was executed by the President, thru the DFA Secretary, in graveabuse of discretion.

The Court need not delve on and belabor the first portion of the above posture ofpetitioner, the same having been discussed at length earlier on. As to the second portion,

We wish to state that petitioner virtually faults the President for performing, throughrespondents, a task conferred the President by the Constitutionthe power to enter intointernational agreements.

By constitutional fiat and by the nature of his or her office, the President, as head of stateand government, is the sole organ and authority in the external affairs of the country. 65TheConstitution vests in the President the power to enter into international agreements,subject, in appropriate cases, to the required concurrence votes of the Senate. But asearlier indicated, executive agreements may be validly entered into without suchconcurrence. As the President wields vast powers and influence, her conduct in theexternal affairs of the nation is, as Bayan would put it, "executive altogether." The right ofthe President to enter into or ratify binding executive agreements has been confirmed bylong practice.66

In thus agreeing to conclude theAgreementthru E/N BFO-028-03, then President GloriaMacapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scopeof the authority and discretion vested in her by the Constitution. At the end of the day, thePresidentby ratifying, thru her deputies, the non-surrender agreementdid nothingmore than discharge a constitutional duty and exercise a prerogative that pertains to heroffice.

While the issue of ratification of the Rome Statute is not determinative of the other issuesraised herein, it may perhaps be pertinent to remind all and sundry that about the time thispetition was interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Officeof the Executive Secretary.67 As the Court emphasized in said case, the power to ratify atreaty, the Statute in that instance, rests with the President, subject to the concurrence ofthe Senate, whose role relative to the ratification of a treaty is limited merely to concurringin or withholding the ratification. And concomitant with this treaty-making power of thePresident is his or her prerogative to refuse to submit a treaty to the Senate; or havingsecured the latters consent to the ratification of the treaty, refuse to ratify it. 68 Thisprerogative, the Court hastened to add, is the Presidents alone and cannot beencroached upon via a writ of mandamus. Barring intervening events, then, the Philippinesremains to be just a signatory to the Rome Statute. Under Art. 125 69 thereof, the final actsrequired to complete the treaty process and, thus, bring it into force, insofar as thePhilippines is concerned, have yet to be done.

Agreement Need Not Be in the Form of a Treaty

On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA)9851, otherwise known as the "Philippine Act on Crimes Against InternationalHumanitarian Law, Genocide, and Other Crimes Against Humanity." Sec. 17 of RA 9851,particularly the second paragraph thereof, provides:

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Section 17.Jurisdiction. x x x x

In the interest of justice, the relevant Philippine authorities maydispense with theinvestigation or prosecution of a crime punishable under this Act if another court orinternational tribunal is already conducting the investigation or undertaking the prosecution

of such crime. Instead, the authorities maysurrender or extradite suspected or accusedpersons in the Philippines to the appropriate international court, if any, or to another Statepursuant to the applicable extradition laws and treaties. (Emphasis supplied.)

A view is advanced that theAgreementamends existing municipal laws on the Statesobligation in relation to grave crimes against the law of nations, i.e., genocide, crimesagainst humanity and war crimes. Relying on the above-quoted statutory proviso, the viewposits that the Philippine is required to surrender to the proper international tribunal thosepersons accused of the grave crimes defined under RA 9851, if it does not exercise itsprimary jurisdiction to prosecute them.

The basic premise rests on the interpretation that if it does not decide to prosecute aforeign 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 andtreaties." But the Philippines may exercise these options only in cases where "anothercourt or international tribunal is already conducting the investigation or undertaking theprosecution of such crime;" otherwise, the Philippines must prosecute the crime before itsown courts pursuant to RA 9851.

Posing the situation of a US national under prosecution by an international tribunal for anycrime under RA 9851, the Philippines has the option to surrender such US national to theinternational tribunal if it decides not to prosecute such US national here. The view assertsthat this option of the Philippines under Sec. 17 of RA 9851 is not subject to the consent ofthe US, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of theUS before the Philippines can exercise such option, requires an amendatory law. In linewith this scenario, the view strongly argues that the Agreementprevents the Philippineswithout the consent of the USfrom surrendering to any international tribunal USnationals accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 ofRA 9851. Consequently, the view is strongly impressed that the Agreementcannot beembodied in a simple executive agreement in the form of an exchange of notes but mustbe 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 the Philippines adopts, as a national policy, the "generally accepted principles ofinternational 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, theStatute embodies principles of law which constitute customary international law or customand for which reason it assumes the status of an enforceable domestic law in the contextof the aforecited constitutional provision. As a corollary, it is argued that any derogationfrom 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. The Agreement, so the argument goes, seeks to frustrate theobjects of the principles of law or alters customary rules embodied in the Rome Statute.

Prescinding from the foregoing premises, the view thus advanced considerstheAgreementinefficacious, 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 thenature 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 domesticlaw under Sec. 2, Art. II of the Constitution.

We are unable to lend cogency to the view thus taken. For one, we find thattheAgreementdoes not amend or is repugnant to RA 9851. For another, the view doesnot clearly state what precise principles of law, if any, theAgreementalters. And for a third,it does not demonstrate in the concrete how theAgreementseeks to frustrate theobjectives of the principles of law subsumed in the Rome Statute.

Far from it, as earlier explained, theAgreementdoes not undermine the Rome Statute asthe former merely reinforces the primacy of the national jurisdiction of the US and thePhilippines in prosecuting criminal offenses committed by their respective citizens and

military personnel, among others. The jurisdiction of the ICC pursuant to the Rome Statuteover high crimes indicated thereat is clearly and unmistakably complementary to thenational criminal jurisdiction of the signatory states.

Moreover, RA 9851 clearly: (1) defines and establishes the crimes against internationalhumanitarian law, genocide and other crimes against humanity;70(2) provides penalsanctions and criminal liability for their commission;71 and (3) establishes special courts forthe prosecution of these crimes and for the State to exercise primary criminal

jurisdiction.72 Nowhere in RA 9851 is there a proviso that goes

cases in civil procedure

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