J.A.B. Bulao & Associates

CASE 2011-0057: LEAGUE OF CITIES OF THE PHILIPPINES ET AL. VS. COMELEC ET AL. (G.R. NOS. 176951, G.R. NO. 177499; G.R. No. 178056, 15 FEBRUARY 2011, BERSAMIN, J.) SUBJECTS: CREATION OF CITIES; LEGISLATIVE POWER; EQUAL PROTECTION CLAUSE. (BRIEF TITLE: LEAGUE OF CITIES ET AL VS. COMELEC ET AL.

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RESOLUTION

BERSAMIN, J.:

          For consideration of this Court are the following pleadings:

1.       Motion for Reconsideration of the “Resolution” dated August 24, 2010 dated and filed on September 14, 2010 by respondents Municipality of Baybay, et al.; and

2.       Opposition [To the “Motion for Reconsideration of the ‘Resolution’ dated August 24, 2010”].

Meanwhile, respondents also filed on September 20, 2010 a Motion to Set “Motion for Reconsideration of the ‘Resolution’ dated August 24, 2010” for Hearing.  This motion was, however, already denied by the Court En Banc.

A brief background —

These cases were initiated by the consolidated petitions for prohibition filed by the League of Cities of the Philippines (LCP), City of Iloilo, City of Calbayog, and Jerry P. Treñas, assailing the constitutionality of the sixteen (16) laws,^[1][1] each converting the municipality covered thereby into a component city (Cityhood Laws), and seeking to enjoin the Commission on Elections (COMELEC) from conducting plebiscites pursuant to the subject laws.

In the Decision dated November 18, 2008, the Court En Banc, by a 6-5 vote,^[2][2] granted the petitions and struck down the Cityhood Laws as unconstitutional for violating Sections 10 and 6, Article X, and the equal protection clause.

In the Resolution dated March 31, 2009, the Court En Banc, by a 7-5 vote,^[3][3] denied the first motion for reconsideration.

On April 28, 2009, the Court En Banc issued a Resolution, with a vote of 6-6,^[4][4] which denied the second motion for reconsideration for being a prohibited pleading.

In its June 2, 2009 Resolution, the Court En Banc clarified its April 28, 2009 Resolution in this wise—

As a rule, a second motion for reconsideration is a prohibited pleading pursuant to Section 2, Rule 52 of the Rules of Civil Procedure which provides that: “No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.”  Thus, a decision becomes final and executory after 15 days from receipt of the denial of the first motion for reconsideration.

However, when a motion for leave to file and admit a second motion for reconsideration is granted by the Court, the Court therefore allows the filing of the second motion for reconsideration.  In such a case, the second motion for reconsideration is no longer a prohibited pleading.

In the present case, the Court voted on the second motion for reconsideration filed by respondent cities.  In effect, the Court allowed the filing of the second motion for reconsideration.  Thus, the second motion for reconsideration was no longer a prohibited pleading.  However, for lack of the required number of votes to overturn the 18 November 2008 Decision and 31 March 2009 Resolution, the Court denied the second motion for reconsideration in its 28 April 2009 Resolution.^[5][5]

Then, in another Decision dated December 21, 2009, the Court En Banc, by a vote of 6-4,^[6][6] declared the Cityhood Laws as constitutional.

On August 24, 2010, the Court En Banc, through a Resolution, by a vote of 7-6,^[7][7] resolved the Ad Cautelam Motion for Reconsideration and Motion to Annul the Decision of December 21, 2009, both filed by petitioners, and the Ad Cautelam Motion for Reconsideration filed by petitioners-in-intervention Batangas City, Santiago City, Legazpi City, Iriga City, Cadiz City, and Oroquieta City, reinstating the November 18, 2008 Decision.  Hence, the aforementioned pleadings.

Considering these circumstances where the Court En Banc has twice changed its position on the constitutionality of the 16 Cityhood Laws, and especially taking note of the novelty of the issues involved in these cases, the Motion for Reconsideration of the “Resolution” dated August 24, 2010 deserves favorable action by this Court on the basis of the following cogent points:

1.

The 16 Cityhood Bills do not violate Article X, Section 10 of the Constitution. 

          Article X, Section 10 provides—

Section 10.  No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

The tenor of the ponencias of the November 18, 2008 Decision and the August 24, 2010 Resolution is that the exemption clauses in the 16 Cityhood Laws are unconstitutional because they are not written in the Local Government Code of 1991 (LGC), particularly Section 450 thereof, as amended by Republic Act (R.A.) No. 9009, which took effect on June 30, 2001, viz.—

Section 450. Requisites for Creation. –a) A municipality or a cluster of barangays may be converted into a component city if it has a locally generated annual income, as certified by the Department of Finance, of at least One Hundred Million Pesos (P100,000,000.00) for at least two (2) consecutive years based on 2000 constant prices, and if it has either of the following requisites:

x x x x

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income. (Emphasis supplied)

Prior to the amendment, Section 450 of the LGC required only an average annual income, as certified by the Department of Finance, of at least P20,000,000.00 for the last two (2) consecutive years, based on 1991 constant prices.

          Before Senate Bill No. 2157, now R.A. No. 9009, was introduced by Senator Aquilino Pimentel, there were 57 bills filed for conversion of 57 municipalities into component cities.  During the 11^th Congress (June 1998-June 2001), 33 of these bills were enacted into law, while 24 remained as pending bills.  Among these 24 were the 16 municipalities that were converted into component cities through the Cityhood Laws.

          The rationale for the enactment of R.A. No. 9009 can be gleaned from the sponsorship speech of Senator Pimentel on Senate Bill No. 2157, to wit—

Senator Pimentel.  Mr. President, I would have wanted this bill to be included in the whole set of proposed amendments that we have introduced to precisely amend the Local Government Code.  However, it is a fact that there is a mad rush of municipalities wanting to be converted into cities.  Whereas in 1991, when the Local Government was approved, there were only 60 cities, today the number has increased to 85 cities, with 41 more municipalities applying for conversion to the same status.  At the rate we are going, I am apprehensive that before long this nation will be a nation of all cities and no municipalities.

It is for that reason, Mr. President, that we are proposing among other things, that the financial requirement, which, under the Local Government Code, is fixed at P20 million, be raised to P100 million to enable a municipality to have the right to be converted into a city, and the P100 million should be sourced from locally generated funds.

What has been happening, Mr. President, is, the municipalities aspiring to become cities say that they qualify in terms of financial requirements by incorporating the Internal Revenue share of the taxes of the nation on to their regularly generated revenue.  Under that requirement, it looks clear to me that practically all municipalities in this country would qualify to become cities.

It is precisely for that reason, therefore, that we are seeking the approval of this Chamber to amend, particularly Section 450 of Republic Act No. 7160, the requisite for the average annual income of a municipality to be converted into a city or cluster of barangays which seek to be converted into a city, raising that revenue requirement from P20 million to P100 million for the last two consecutive years based on 2000 constant prices.^[8][8]

While R.A. No. 9009 was being deliberated upon, Congress was well aware of the pendency of conversion bills of several municipalities, including those covered by the Cityhood Laws, desiring to become component cities which qualified under the P20 million income requirement of the old Section 450 of the LGC.  The interpellation of Senate President Franklin Drilon of Senator Pimentel is revealing, thus—

THE PRESIDENT.  The Chair would like to ask for some clarificatory point.

SENATOR PIMENTEL.  Yes, Mr. President.

THE PRESIDENT.  This is just on the point of the pending bills in the Senate which propose the conversion of a number of municipalities into cities and which qualify under the present standard.

            We would like to know the view of the sponsor: Assuming that this bill becomes a law, will the Chamber apply the standard as proposed in this bill to those bills which are pending for consideration?

SENATOR PIMENTEL.  Mr. President, it might not be fair to make this bill, on the assumption that it is approved, retroact to the bills that are pending in the Senate conversion from municipalities to cities.

THE PRESIDENT.  Will there be an appropriate language crafted to reflect that view? Or does it not become a policy of the Chamber, assuming that this bill becomes a law tomorrow, that it will apply to those bills which are already approved by the House under the old version of the Local Government Code and are now pending in the Senate?  The Chair does not know if we can craft a language which will limit the application to those which are not yet in the Senate.  Or is that a policy that the Chamber will adopt?

SENATOR PIMENTEL.  Mr. President, personally, I do not think it is necessary to put that provision because what we are saying here will form part of the interpretation of this bill.  Besides, if there is no retroactivity clause, I do not think that the bill would have any retroactive effect.

THE PRESIDENT.  So the understanding is that those bills which are already pending in the Chamber will not be affected.

SENATOR PIMENTEL.  These will not be affected, Mr. President.

THE PRESIDENT.  Thank you Mr. Chairman.^[9][9]

Clearly, based on the above exchange, Congress intended that those with pending cityhood bills during the 11^th Congress would not be covered by the new and higher income requirement of P100 million imposed by R.A. No. 9009.  When the LGC was amended by R.A. No. 9009, the amendment carried with it both the letter and the intent of the law, and such were incorporated in the LGC by which the compliance of the Cityhood Laws was gauged.

          Notwithstanding that both the 11^th and 12^th Congress failed to act upon the pending cityhood bills, both the letter and intent of Section 450 of the LGC, as amended by R.A. No. 9009, were carried on until the 13^th Congress, when the Cityhood Laws were enacted.  The exemption clauses found in the individual Cityhood Laws are the express articulation of that intent to exempt respondent municipalities from the coverage of R.A. No. 9009.

          Even if we were to ignore the above quoted exchange between then Senate President Drilon and Senator Pimentel, it cannot be denied that Congress saw the wisdom of exempting respondent municipalities from complying with the higher income requirement imposed by the amendatory R.A. No. 9009.  Indeed, these municipalities have proven themselves viable and capable to become component cities of their respective provinces.  It is also acknowledged that they were centers of trade and commerce, points of convergence of transportation, rich havens of agricultural, mineral, and other natural resources, and flourishing tourism spots.  In this regard, it is worthy to mention the distinctive traits of each respondent municipality, viz—

Batac, Ilocos Norte – It is the biggest municipality of the 2^nd District of Ilocos Norte, 2^nd largest and most progressive town in the province of Ilocos Norte and the natural convergence point for the neighboring towns to transact their commercial ventures and other daily activities.  A growing metropolis, Batac is equipped with amenities of modern living like banking institutions, satellite cable systems, telecommunications systems.  Adequate roads, markets, hospitals, public transport systems, sports, and entertainment facilities. [Explanatory Note of House Bill No. 5941, introduced by Rep. Imee R. Marcos.]

El Salvador, Misamis Oriental – It is located at the center of the Cagayan-Iligan Industrial Corridor and home to a number of industrial companies and corporations.  Investment and financial affluence of El Salvador is aptly credited to its industrious and preserving people.  Thus, it has become the growing investment choice even besting nearby cities and municipalities.  It is home to Asia Brewery as distribution port of their product in Mindanao.  The Gokongwei Group of Companies is also doing business in the area.  So, the conversion is primarily envisioned to spur economic and financial prosperity to this coastal place in North-Western Misamis Oriental.  [Explanatory Note of House Bill No. 6003, introduced by Rep. Augusto H. Bacullo.]

Cabadbaran, Agusan del Norte – It is the largest of the eleven (11) municipalities in the province of Agusan del Norte.  It plays strategic importance to the administrative and socio-economic life and development of Agusan del Norte.  It is the foremost in terms of trade, commerce, and industry.  Hence, the municipality was declared as the new seat and capital of the provincial government of Agusan del Norte pursuant to Republic Act No. 8811 enacted into law on August 16, 2000.  Its conversion will certainly promote, invigorate, and reinforce the economic potential of the province in establishing itself as an agro-industrial center in the Caraga region and accelerate the development of the area.  [Explanatory Note of House Bill No. 3094, introduced by Rep. Ma. Angelica Rosedell M. Amante.]

Borongan, Eastern Samar – It is the capital town of Eastern Samar and the development of Eastern Samar will depend to a certain degree of its urbanization.  It will serve as a catalyst for the modernization and progress of adjacent towns considering the frequent interactions between the populace.  [Explanatory Note of House Bill No. 2640, introduced by Rep. Marcelino C. Libanan.]

Lamitan, Basilan – Before Basilan City was converted into a separate province, Lamitan was the most progressive part of the city.  It has been for centuries the center of commerce and the seat of the Sultanate of the Yakan people of Basilan.  The source of its income is agro-industrial and others notably copra, rubber, coffee and host of income generating ventures.  As the most progressive town in Basilan, Lamitan continues to be the center of commerce catering to the municipalities of Tuburan, Tipo-Tipo and Sumisip.  [Explanatory Note of House Bill No. 5786, introduced by Rep. Gerry A. Salapuddin.]

Catbalogan, Samar – It has always been the socio-economic-political capital of the Island of Samar even during the Spanish era.  It is the seat of government of the two congressional districts of Samar.  Ideally located at the crossroad between Northern and Eastern Samar, Catbalogan also hosts trade and commerce activates among the more prosperous cities of the Visayas like Tacloban City, Cebu City and the cities of Bicol region.  The numerous banks and telecommunication facilities showcases the healthy economic environment of the municipality.  The preeminent and sustainable economic situation of Catbalogan has further boosted the call of residents for a more vigorous involvement of governance of the municipal government that is inherent in a city government.  [Explanatory Note of House Bill No. 2088, introduced by Rep. Catalino V. Figueroa.]

Bogo, Cebu – Bogo is very qualified for a city in terms of income, population and area among others.  It has been elevated to the Hall of Fame being a five-time winner nationwide in the clean and green program.  [Explanatory Note of House Bill No. 3042, introduced by Rep. Clavel A. Martinez.]

Tandag, Surigao del Sur – This over 350 year old capital town the province has long sought its conversion into a city that will pave the way not only for its own growth and advancement but also help in the development of its neighboring municipalities and the province as a whole.  Furthermore, it can enhance its role as the province’s trade, financial and government center.  [Explanatory Note of House Bill No. 5940, introduced by Rep. Prospero A. Pichay, Jr.]

Bayugan, Agusan del Sur – It is a first class municipality and the biggest in terms of population in the entire province.  It has the most progressive and thickly populated area among the 14 municipalities that comprise the province.  Thus, it has become the center for trade and commerce in Agusan del Sur.  It has a more developed infrastructure and facilities than other municipalities in the province.  [Explanatory Note of House Bill No. 1899, introduced by Rep. Rodolfo “Ompong” G. Plaza.]

Carcar, Cebu – Through the years, Carcar metamorphosed from rural to urban and now boast of its manufacturing industry, agricultural farming, fishing and prawn industry and its thousands of large and small commercial establishments contributing to the bulk of economic activities in the municipality.  Based on consultation with multi-sectoral groups, political and non-government agencies, residents and common folk in Carcar, they expressed their desire for the conversion of the municipality into a component city.  [Explanatory Note of House Bill No. 3990, introduced by Rep. Eduardo R. Gullas.]

Guihulngan, Negros Oriental – Its population is second highest in the province, next only to the provincial capital and higher than Canlaon City and Bais City.  Agriculture contributes heavily to its economy.  There are very good prospects in agricultural production brought about by its favorable climate.  It has also the Tanon Strait that provides a good fishing ground for its numerous fishermen.  Its potential to grow commercially is certain.  Its strategic location brought about by its existing linkage networks and the major transportation corridors traversing the municipality has established Guihulngan as the center of commerce and trade in this part of Negros Oriental with the first congressional district as its immediate area of influence.  Moreover, it has beautiful tourist spots that are being availed of by local and foreign tourists.  [Explanatory Note of House Bill No. 3628, introduced by Rep. Jacinto V. Paras.]

Tayabas, Quezon – It flourished and expanded into an important politico-cultural center in [the] Tagalog region.  For 131 years (1179-1910), it served as the cabecera of the province which originally carried the cabecera’s own name, Tayabas.  The locality is rich in culture, heritage and trade.  It was at the outset one of the more active centers of coordination and delivery of basic, regular and diverse goods and services within the first district of Quezon Province.  [Explanatory Note of House Bill No. 3348, introduced by Rep. Rafael P. Nantes.]

Tabuk, Kalinga – It not only serves as the main hub of commerce and trade, but also the cultural center of the rich customs and traditions of the different municipalities in the province.  For the past several years, the income of Tabuk has been steadily increasing, which is an indication that its economy is likewise progressively growing.  [Explanatory Note of House Bill No. 3068, introduced by Rep. Laurence P. Wacnang.]

Available information on Baybay, Leyte; Mati, Davao Oriental; and Naga, Cebu shows their economic viability, thus:

Covering an area of 46,050 hectares, Baybay [Leyte] is composed of 92 barangays, 23 of which are in the poblacion.  The remaining 69 are rural barangays.  Baybay City is classified as a first class city.  It is situated on the western coast of the province of Leyte.  It has a Type 4 climate, which is generally wet.  Its topography is generally mountainous in the eastern portion as it slopes down west towards the shore line.  Generally an agricultural city, the common means of livelihood are farming and fishing.  Some are engaged in hunting and in forestall activities.  The most common crops grown are rice, corn, root crops, fruits, and vegetables.  Industries operating include the Specialty Products Manufacturing, Inc. and the Visayan Oil Mill.  Various cottage industries can also be found in the city such as bamboo and rattan craft, ceramics, dress-making, fiber craft, food preservation, mat weaving, metal craft, fine Philippine furniture manufacturing and other related activities.  Baybay has great potential as a tourist destination, especially for tennis players.  It is not only rich in biodiversity and history, but it also houses the campus of the Visayas State University (formerly the Leyte State University/Visayas State College of Agriculture/Visayas Agricultural College/Baybay National Agricultural School/Baybay Agricultural High School and the Jungle Valley Park.)  Likewise, it has river systems fit for river cruising, numerous caves for spelunking, forests, beaches, and marine treasures.  This richness, coupled with the friendly Baybayanos, will be an element of a successful tourism program.  Considering the role of tourism in development, Baybay City intends to harness its tourism potential. (<http://en.wikipedia.org/wiki/Baybay City> visited September 19, 2008)

Mati [Davao Oriental] is located on the eastern part of the island of Mindanao.  It is one hundred sixty-five (165) kilometers away from Davao City, a one and a half-hour drive from Tagum City.  Visitors can travel from Davao City through the Madaum diversion road, which is shorter than taking the Davao-Tagum highway.  Travels by air and sea are possible, with the existence of an airport and seaport.  Mati boasts of being the coconut capital of Mindanao if not the whole country.  A large portion of its fertile land is planted to coconuts, and a significant number of its population is largely dependent on it.  Other agricultural crops such as mango, banana, corn, coffee and cacao are also being cultivated, as well as the famous Menzi pomelo and Valencia oranges.  Mati has a long stretch of shoreline and one can find beaches of pure, powder-like white sand.  A number of resorts have been developed and are now open to serve both local and international tourists.  Some of these resorts are situated along the coast of Pujada Bay and the Pacific Ocean.  Along the western coast of the bay lies Mt. Hamiguitan, the home of the pygmy forest, where bonsai plants and trees grow, some of which are believed to be a hundred years old or more.  On its peak is a lake, called “Tinagong Dagat,” or hidden sea, so covered by dense vegetation a climber has to hike trails for hours to reach it.  The mountain is also host to rare species of flora and fauna, thus becoming a wildlife sanctuary for these life forms. (<http://mati.wetpain.com/?t=anon>  accessed on September 19, 2008.)

Mati is abundant with nickel, chromite, and copper.  Louie Rabat, Chamber President of the Davao Oriental Eastern Chamber of Commerce and Industry, emphasized the big potential of the mining industry in the province of Davao Oriental.  As such, he strongly recommends Mati as the mining hub in the Region.

(<http://www.pia.gov.ph/default.asp?m=12&sec=reader&rp=1&fi=p080115.htm&no.=9&date, accessed on September 19, 2008)

Naga [Cebu]: Historical Background—In the early times, the place now known as Naga was full of huge trees locally called as “Narra.”  The first settlers referred to this place as Narra, derived from the huge trees, which later simply became Naga.  Considered as one of the oldest settlements in the Province of Cebu, Naga became a municipality on June 12, 1829.  The municipality has gone through a series of classifications as its economic development has undergone changes and growth.  The tranquil farming and fishing villages of the natives were agitated as the Spaniards came and discovered coal in the uplands.  Coal was the first export of the municipality, as the Spaniards mined and sent it to Spain.  The mining industry triggered the industrial development of Naga.  As the years progressed, manufacturing and other industries followed, making Naga one of the industrialized municipalities in the Province of Cebu.

Class of Municipality                             1^st class

Province                                               Cebu

Distance from Cebu City                       22 kms.

Number of Barangays                           28

No. of Registered Voters                      44,643 as of May 14, 2007

Total No. of Precincts                           237 (as of May 14, 2007)

Ann. Income (as of Dec. 31, 2006)       Php112,219,718.35                                                                       Agricultural, Industrial, Agro-Industrial, Mining Product

(<http://www.nagacebu.com/index.php?option=com.content&view=article id=53:naga-facts-and-figures&catid=51:naga-facts-and-figures&Itemid=75> visited September 19, 2008)

          The enactment of the Cityhood Laws is an exercise by Congress of its legislative power.  Legislative power is the authority, under the Constitution, to make laws, and to alter and repeal them.^[10][10]  The Constitution, as the expression of the will of the people in their original, sovereign, and unlimited capacity, has vested this power in the Congress of the Philippines.  The grant of legislative power to Congress is broad, general, and comprehensive.  The legislative body possesses plenary powers for all purposes of civil government.  Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere.  In fine, except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects, and extends to matters of general concern or common interest.^[11][11]

          Without doubt, the LGC is a creation of Congress through its law-making powers.  Congress has the power to alter or modify it as it did when it enacted R.A. No. 9009.  Such power of amendment of laws was again exercised when Congress enacted the Cityhood Laws.  When Congress enacted the LGC in 1991, it provided for quantifiable indicators of economic viability for the creation of local government units—income, population, and land area.  Congress deemed it fit to modify the income requirement with respect to the conversion  of municipalities into component cities when

it enacted R.A. No. 9009, imposing an amount of P100 million, computed only from locally-generated sources.  However, Congress deemed it wiser to exempt respondent municipalities from such a belatedly imposed modified income requirement in order to uphold its higher calling of putting flesh and blood to the very intent and thrust of the LGC, which is countryside development and autonomy, especially accounting for these municipalities as engines for economic growth in their respective provinces.

          Undeniably, R.A. No. 9009 amended the LGC.  But it is also true that, in effect, the Cityhood Laws amended R.A. No. 9009 through the exemption clauses found therein.  Since the Cityhood Laws explicitly exempted the concerned municipalities from the amendatory R.A. No. 9009, such Cityhood Laws are, therefore, also amendments to the LGC itself.  For this reason, we reverse the November 18, 2008 Decision and the August 24, 2010 Resolution on their strained and stringent view that the Cityhood Laws, particularly their exemption clauses, are not found in the LGC.

2.

The Cityhood Laws do not violate Section 6, Article X and the equal protection clause of the Constitution.

          Both the November 18, 2008 Decision and the August 24, 2010 Resolution impress that the Cityhood Laws violate the equal protection clause enshrined in the Constitution.  Further, it was also ruled that Section 6, Article X was violated because the Cityhood Laws infringed on the “just share” that petitioner and petitioners-in-intervention shall receive from the national taxes (IRA) to be automatically released to them.

          Upon more profound reflection and deliberation, we declare that there was valid classification, and the Cityhood Laws do not violate the equal protection clause.

As this Court has ruled, the equal protection clause of the 1987 Constitution permits a valid classification, provided that it: (1) rests on substantial distinctions; (2) is germane to the purpose of the law; (3) is not limited to existing conditions only; and (4) applies equally to all members of the same class.^[12][12]

          The petitioners argue that there is no substantial distinction between municipalities with pending cityhood bills in the 11^th Congress and municipalities that did not have pending bills, such that the mere pendency of a cityhood bill in the 11^th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement.  This contention misses the point.

          It should be recalled from the above quoted portions of the interpellation by Senate President Drilon of Senator Pimentel that the purpose of the enactment of R.A. No 9009 was merely to stop the “mad rush of municipalities wanting to be converted into cities” and the apprehension that before long the country will be a country of cities and without municipalities.  It should be pointed out that the imposition of the P100 million average annual income requirement for the creation of component cities was arbitrarily made.  To be sure, there was no evidence or empirical data, such as inflation rates, to support the choice of this amount.  The imposition of a very high income requirement of P100 million, increased from P20 million, was simply to make it extremely difficult for municipalities to become component cities.  And to highlight such arbitrariness and the absurdity of the situation created thereby, R.A. No. 9009 has, in effect, placed component cities at a higher standing than highly urbanized cities under Section 452 of the LGC, to wit—

            Section 452. Highly Urbanized Cities. – (a) Cities with a minimum population of two hundred thousand (200,000) inhabitants, as certified by the National Statistics Office, and with the latest annual income of at least Fifty Million Pesos (P50,000,000.00) based on 1991 constant prices, as certified by the city treasurer, shall be classified as highly urbanized cities.

            (b)  Cities which do not meet above requirements shall be considered component cities of the province in which they are geographically located.  (Emphasis supplied)

          The P100 million income requirement imposed by R.A. No. 9009, being an arbitrary amount, cannot be conclusively said to be the only amount “sufficient, based on acceptable standards, to provide for all essential    government    facilities    and    services   and    special   functions

commensurate with the size of its population,” per Section 7^[13][13] of the LGC.  It was imposed merely because it is difficult to comply with.  While it could be argued that P100 million, being more than P20 million, could, of course, provide the essential government facilities, services, and special functions vis-à-vis the population of a municipality wanting to become a component city, it cannot be said that the minimum amount of P20 million would be insufficient.  This is evident from the existing cities whose income, up to now, do not comply with the P100 million income requirement, some of which have lower than the P20 million average annual income.  Consider the list^[14][14] below—

The undeniable fact that these cities remain viable as component cities of their respective provinces emphasizes the arbitrariness of the amount of P100 million as the new income requirement for the conversion of municipalities into component cities.  This arbitrariness can also be clearly gleaned from the respective distinctive traits and level of economic development of the individual respondent municipalities as above submitted.

          Verily, the determination of the existence of substantial distinction with respect to respondent municipalities does not simply lie on the mere pendency of their cityhood bills during the 11^th Congress.  This Court sees the bigger picture.  The existence of substantial distinction with respect to respondent municipalities covered by the Cityhood Laws is measured by the purpose of the law, not by R.A. No. 9009, but by the very purpose of the LGC, as provided in its Section 2 (a), thus—

            SECTION 2. Declaration of Policy.—(a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals.  Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities and resources.  The process of decentralization shall proceed from the National Government to the local government units.

          Indeed, substantial distinction lies in the capacity and viability of respondent municipalities to become component cities of their respective provinces.  Congress, by enacting the Cityhood Laws, recognized this capacity and viability of respondent municipalities to become the State’s partners in accelerating economic growth and development in the provincial regions, which is the very thrust of the LGC, manifested by the pendency of their cityhood bills during the 11^th Congress and their relentless pursuit for cityhood up to the present.  Truly, the urgent need to become a component city arose way back in the 11^th Congress, and such condition continues to exist.

          Petitioners in these cases complain about the purported reduction of their “just share” in the IRA.  To be sure, petitioners are entitled to a “just share,” not a specific amount.  But the feared reduction proved to be false when, after the implementation of the Cityhood Laws, their respective shares increased, not decreased.  Consider the table^[15][15] below—

What these petitioner cities were stating as a reduction of their respective IRA shares was based on a computation of what they would receive if respondent municipalities were not to become component cities at all.  Of course, that would mean a bigger amount to which they have staked their claim.  After considering these, it all boils down to money and how much more they would receive if respondent municipalities remain as municipalities and not share in the 23% fixed IRA from the national government for cities. 

Moreover, the debates in the Senate on R.A. No. 9009, should prove enlightening:

SENATOR SOTTO.  Mr. President, we just want to be enlightened again on the previous qualification and the present one being proposed.  Before there were three…

SENATOR PIMENTEL.  There are three requisites for a municipality to become a city.  Let us start with the finance.

SENATOR SOTTO.  Will the distinguished sponsor please refresh us?  I used to be the chairman of the Committee on Local Government, but the new job that was given to me by the Senate has erased completely my memory as far as the Local Government Code is concerned.

SENATOR PIMENTEL.  Yes, Mr. President, with pleasure.  There are three requirements.  One is financial.

SENATOR SOTTO.  All right.  It used to be P20 million.

SENATOR PIMENTEL.  It is P20 million.  Now we are raising it to P100 million of locally generated funds.

SENATOR SOTTO.  In other words, the P20 million before includes the IRA.

SENATOR PIMENTEL.  No, Mr. President.

SENATOR SOTTO.  It should not have been included?

SENATOR PIMENTEL.  The internal revenue share should never have been included.  That was not the intention when we first crafted the Local Government Code.  The financial capacity was supposed to be demonstrated by the municipality wishing to become a city by its own effort, meaning to say, it should not rely on the internal revenue share that comes from the government.  Unfortunately, I think what happened in past conversions of municipalities into cities was, the Department of Budget and Management, along with the Department of Finance, had included the internal revenue share as a part of the municipality, demonstration that they are now financially capable and can measure up to the requirement of the Local Government Code of having a revenue of at least P20 million.

SENATOR SOTTO.  I am glad that the sponsor, Mr. President, has spread that into the Record because otherwise, if he did not mention the Department of Finance and the Department of Budget and Management, then I would have been blamed for the misinterpretation.  But anyway, the gentleman is correct.  That was the interpretation given to us during the hearings.

                        So now, from P20 million, we make it P100 million from locally generated income as far as population is concerned.

SENATOR PIMENTEL.  As far as population is concerned, there will be no change, Mr. President.  Still 150,000.

SENATOR SOTTO.  Still 150,000?

SENATOR PIMENTEL.  Yes.

SENATOR SOTTO.  And then the land area?

SENATOR PIMENTEL.  As to the land area, there is no change; it is still 100 square kilometers.

SENATOR SOTTO.  But before it was “either/or”?

SENATOR PIMENTEL.  That is correct.  As long as it has one of the three requirements, basically, as long as it meets the financial requirement, then it may meet the territorial requirement or the population requirement.

SENATOR SOTTO.  So, it remains “or”?

SENATOR PIMENTEL.  We are now changing it into AND.

SENATOR SOTTO.  AND?

SENATOR PIMENTEL.  Yes.

SENATOR SOTTO.  I see.

SENATOR PIMENTEL.  That is the proposal, Mr. President.  In other words…

SENATOR SOTTO.  Does the gentleman not think there will no longer be any municipality that will qualify, Mr. President?

SENATOR PIMENTEL.  There may still be municipalities which can qualify, but it will take a little time.  They will have to produce more babies.  I do not know—expand their territories, whatever, by reclamation or otherwise.  But the whole proposal is geared towards making it difficult for municipalities to convert into cities.

                        On the other hand, I would like to advert to the fact that in the amendments that we are proposing for the entire Local Government Code, we are also raising the internal revenue share of the municipalities.

SENATOR SOTTO.  I see.

SENATOR PIMENTEL.  So that, more or less, hindi naman sila dehado in this particular instance.

SENATOR SOTTO.  Well, then, because of that information, Mr. President, I throw my full support behind the measure.

                        Thank you, Mr. President.

SENATOR PIMENTEL.  Thank you very much, Mr. President. (Emphasis supplied)^[16][16]

From the foregoing, the justness in the act of Congress in enacting the Cityhood Laws becomes obvious, especially considering that 33 municipalities were converted into component cities almost immediately prior to the enactment of R.A. No. 9009.  In the enactment of the Cityhood Laws, Congress merely took the 16 municipalities covered thereby from the disadvantaged position brought about by the abrupt increase in the income requirement of R.A. No. 9009, acknowledging the “privilege” that they have already given to those newly-converted component cities, which prior to the enactment of R.A. No. 9009, were undeniably in the same footing or “class” as the respondent municipalities.  Congress merely recognized the capacity and readiness of respondent municipalities to become component cities of their respective provinces. 

Petitioners complain of the projects that they would not be able to pursue and the expenditures that they would not be able to meet, but totally ignored the respondent municipalities’ obligations arising from the contracts they have already entered into, the employees that they have already hired, and the projects that they have already initiated and completed as component cities.  Petitioners have completely overlooked the need of respondent municipalities to become effective vehicles intending to accelerate economic growth in the countryside.  It is like the elder siblings wanting to kill the newly-borns so that their inheritance would not be diminished. 

Apropos is the following parable:

There was a landowner who went out at dawn to hire workmen for his vineyard.  After reaching an agreement with them for the usual daily wage, he sent them out to his vineyard.  He came out about midmorning and saw other men standing around the marketplace without work, so he said to them, “You too go along to my vineyard and I will pay you whatever is fair.”  They went.  He came out again around noon and mid-afternoon and did the same.  Finally, going out in late afternoon he found still others standing around.  To these he said, “Why have you been standing here idle all day?” “No one has hired us,” they told him.  He said, “You go to the vineyard too.”  When evening came, the owner of the vineyard said to his foreman, “Call the workmen and give them their pay, but begin with the last group and end with the first.”  When those hired late in the afternoon came up they received a full day’s pay, and when the first group appeared they thought they would get more, yet they received the same daily wage.  Thereupon they complained to the owner, “This last group did only an hour’s work, but you have paid them on the same basis as us who have worked a full day in the scorching heat.”  “My friend,” he said to one in reply, “I do you no injustice.  You agreed on the usual wage, did you not?  Take your pay and go home.  I intend to give this man who was hired last the same pay as you.  I am free to do as I please with my money, am I not? Or are you envious because I am generous?”^[17][17]

Congress, who holds the power of the purse, in enacting the Cityhood Laws, only sought the well-being of respondent municipalities, having seen their respective capacities to become component cities of their provinces, temporarily stunted by the enactment of R.A. No. 9009.  By allowing respondent municipalities to convert into component cities, Congress desired only to uphold the very purpose of the LGC, i.e., to make the local government units “enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals,” which is the very mandate of the Constitution.

Finally, we should not be restricted by technical rules of procedure at the expense of the transcendental interest of justice and equity.  While it is true that litigation must end, even at the expense of errors in judgment, it is nobler rather for this Court of last resort, as vanguard of truth, to toil in order to dispel apprehensions and doubt, as the following pronouncement of this Court instructs:

The right and power of judicial tribunals to declare whether enactments of the legislature exceed the constitutional limitations and are invalid has always been considered a grave responsibility, as well as a solemn duty.  The courts invariably give the most careful consideration to questions involving the interpretation and application of the Constitution, and approach constitutional questions with great deliberation, exercising their power in this respect with the greatest possible caution and even reluctance; and they should never declare a statute void, unless its invalidity is, in their judgment, beyond reasonable doubt.  To justify a court in pronouncing a legislative act unconstitutional, or a provision of a state constitution to be in contravention of the Constitution x x x, the case must be so clear to be free from doubt, and the conflict of the statute with the constitution must be irreconcilable, because it is but a decent respect to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until the contrary is shown beyond reasonable doubt.  Therefore, in no doubtful case will the judiciary pronounce a legislative act to be contrary to the constitution.  To doubt the constitutionality of a law is to resolve the doubt in favor of its validity.^[18][18]

WHEREFORE, the Motion for Reconsideration of the “Resolution” dated August 24, 2010, dated and filed on September 14, 2010 by respondents Municipality of Baybay, et al. is GRANTED.  The Resolution dated August 24, 2010 is REVERSED and SET ASIDE.   The Cityhood Laws—Republic Acts Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491—are declared CONSTITUTIONAL.

            SO ORDERED.

                                                LUCAS P. BERSAMIN

                                                Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

MARIA LOURDES P. A. SERENO

Associate Justice

C E R T I F I C A T I O N

          Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

                                                RENATO C. CORONA

                                                Chief Justice

CASE 2011-0056: EXXONMOBIL PETROLEUM AND CHEMICAL HOLDINGS, INC. – PHILIPPINE BRANCH VS. COMMISSIONER OF INTERNAL REVENUE(G.R. NO.  180909,19 JANUARY 2011, MENDOZA, J.) SUBJECTS: TAX REFUND, EXCISE TAX INVOLVING BILATERAL AGREEMENTS; AFFIRMATIVE DEFENSES RAISED IN THE ANSWER. (BRIEF TITLE: EXXONMOBIL VS. CIR)

x ————————————————————– x

D E C I S I O N

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 filed             by petitioner Exxonmobil Petroleum and Chemical Holdings, Inc. – Philippine Branch (Exxon) to set aside the September 7, 2007 Decision      of the Court  of Tax Appeals En Banc (CTA-En Banc) in CTA E.B. No. 204,                 and its November 27, 2007 Resolution denying petitioner’s motion for reconsideration.

THE FACTS

          Petitioner Exxon is a foreign corporation duly organized and existing under the laws of the State of Delaware, United States of America. It is authorized to do business in the Philippines through its Philippine Branch, with principal office address at the 17/F The Orient Square, Emerald Avenue, Ortigas Center, Pasig City.

          Exxon is engaged in the business of selling petroleum products to domestic and international carriers. In pursuit of its business, Exxon purchased from Caltex Philippines, Inc. (Caltex) and Petron Corporation (Petron) Jet A-1 fuel and other petroleum products, the excise taxes on which were paid for and remitted by both Caltex and Petron.  Said taxes, however, were passed on to Exxon which ultimately shouldered the excise taxes on the fuel and petroleum products.

From November 2001 to June 2002, Exxon sold a total of 28,635,841 liters of Jet A-1 fuel to international carriers, free of excise taxes amounting to Php105,093,536.47. On various dates, it filed administrative claims for refund with the Bureau of Internal Revenue (BIR) amounting to Php105,093,536.47.

          On October 30, 2003, Exxon filed a petition for review with the CTA claiming a refund or tax credit in the amount of Php105,093,536.47, representing the amount of excise taxes paid on Jet A-1 fuel and other petroleum products it sold to international carriers from November 2001 to June 2002.

          Exxon and the Commissioner of Internal Revenue (CIR) filed their Joint Stipulation of Facts and Issues on June 24, 2004, presenting a total of fourteen (14) issues for resolution.

          During Exxon’s preparation of evidence, the CIR filed a motion dated January 28, 2005 to first resolve the issue of whether or not Exxon was the proper party to ask for a refund. Exxon filed its opposition to the motion on March 15, 2005.

          On July 27, 2005, the CTA First Division issued a resolution sustaining the CIR’s position and dismissing Exxon’s claim for refund. Exxon filed a motion for reconsideration, but this was denied on July 27, 2006.

          Exxon filed a petition for review with the CTA En Banc assailing the July 27, 2005 Resolution of the CTA First Division which dismissed the petition for review, and the July 27, 2006 Resolution which affirmed the said ruling.

RULING OF THE COURT OF TAX APPEALS EN BANC

          In its Decision dated September 7, 2007, the CTA En Banc dismissed the petition for review and affirmed the two resolutions of the First Division dated July 27, 2005 and July 27, 2006. Exxon filed a motion for reconsideration, but it was denied on November 27, 2007.

Citing Sections 130 (A)(2) and 204 (C) in relation to Section 135 (a) of the National Internal Revenue Code of 1997 (NIRC), the CTA  ruled that in consonance with its ruling in several cases, only the taxpayer or the manufacturer of the petroleum products sold has the legal personality to claim the refund of excise taxes paid on petroleum products sold to international carriers.

The CTA stated that Section 130(A)(2) makes the manufacturer or producer of the petroleum products directly liable for the payment of excise taxes. Therefore, it follows that the manufacturer or producer is the taxpayer.

          This determination of the identity of the taxpayer designated by law is pivotal as the NIRC provides that it is only the taxpayer who “has the legal personality to ask for a refund in case of erroneous payment of taxes.”

          Further, the excise tax imposed on manufacturers upon the removal of petroleum products by oil companies is an indirect tax, or a tax which is primarily paid by persons who can shift the burden upon someone else. The CTA cited the cases of Philippine Acetylene Co., Inc. v. Commissioner of Internal Revenue, Contex Corporation v. Commissioner of Internal Revenue, and Commissioner of Internal Revenue v. Philippine Long Distance Telephone Company, and explained that with indirect taxes, “although the burden of an indirect tax can be shifted or passed on to the purchaser of the goods, the liability for the indirect tax remains with the manufacturer.” Moreover, “the manufacturer has the option whether or not to shift the burden of the tax to the purchaser. When shifted, the amount added by the manufacturer becomes a part of the price, therefore, the purchaser does not really pay the tax per se but only the price of the commodity.”

          Going by such logic, the CTA concluded that a refund of erroneously paid or illegally received tax can only be made in favor of the taxpayer, pursuant to Section 204(C) of the NIRC. As categorically ruled in the Cebu Portland Cement and Contex cases, in the case of indirect taxes, it is the manufacturer of the goods who is entitled to claim any refund thereof. Therefore, it follows that the indirect taxes paid by the manufacturers or producers of the goods cannot be refunded to the purchasers of the goods because the purchasers are not the taxpayers.

          The CTA also emphasized that tax refunds are in the nature of tax exemptions and are, thus, regarded as in derogation of sovereign authority and construed strictissimi juris against the person or entity claiming the exemption.

Finally, the CTA disregarded Exxon’s argument that “in effectively holding that only petroleum products purchased directly from the manufacturers or producers are exempt from excise taxes, the First Division of [the CTA] sanctioned a universal amendment of existing bilateral agreements which the Philippines have with other countries, in violation of the basic principle of ‘pacta sunt servanda.’” The CTA explained that the findings of fact of the First Division (that when Exxon sold the Jet A-1 fuel to international carriers, it did so free of tax) negated any violation of the exemption from excise tax of the petroleum products sold to international carriers.  Second, the right of international carriers to invoke the exemption granted under Section 135(a) of the NIRC was neither affected nor restricted in any way by the ruling of the First Division. At the point of sale, the international carriers were free to invoke the exemption from excise taxes of the petroleum products sold to them. Lastly, the lawmaking body was presumed to have enacted a later law with the knowledge of all other laws involving the same subject matter.

THE ISSUES

          Petitioner now raises the following issues in its petition for review:

I.

WHETHER THE ASSAILED DECISION AND RESOLUTION ERRONEOUSLY PROHIBITED PETITIONER, AS THE DISTRIBUTOR AND VENDOR OF PETROLEUM PRODUCTS TO INTERNATIONAL CARRIERS REGISTERED IN FOREIGN COUNTRIES WHICH HAVE EXISTING BILATERAL AGREEMENTS WITH THE PHILIPPINES, FROM CLAIMING A REFUND OF THE EXCISE TAXES PAID THEREON; AND

II.

WHETHER THE ASSAILED DECISIONS ERRED IN AFFIRMING THE DISMISSAL OF PETITIONER’S CLAIM FOR REFUND BASED ON RESPONDENT’S “MOTION TO RESOLVE FIRST THE ISSUE OF WHETHER OR NOT THE PETITIONER IS THE PROPER PARTY THAT MAY ASK FOR A REFUND,” SINCE SAID MOTION IS ESSENTIALLY A MOTION TO DISMISS, WHICH SHOULD HAVE BEEN DENIED OUTRIGHT BY THE COURT OF TAX APPEALS FOR HAVING BEEN FILED OUT OF TIME.

RULING OF THE COURT

I.  On respondent’s “motion to resolve first the issue of whether or not the petitioner is the proper party that may ask for a refund.”

For a logical resolution of the issues, the court will tackle first the issue of whether or not the CTA erred in granting respondent’s Motion to Resolve First the Issue of Whether or Not the Petitioner is the Proper Party that may Ask for a Refund.  In said motion, the CIR prayed that the CTA First Division resolve ahead of the other stipulated issues the sole issue of whether petitioner was the proper party to ask for a refund.

Exxon opines that the CIR’s motion is essentially a motion to dismiss filed out of time, as it was filed after petitioner began presenting evidence more than a year after the filing of the Answer. By praying that Exxon be declared as not the proper party to ask for a refund, the CIR asked for the dismissal of the petition, as the grant of the Motion to Resolve would bring trial to a close.

Moreover, Exxon states that the motion should have also complied with the three-day notice and ten-day hearing rules provided in Rule 15 of the Rules of Court. Since the CIR failed to set its motion for any hearing before the filing of the Answer, the motion should have been considered a mere scrap of paper.

Finally, citing Maruhom v. Commission on Elections and Dimaporo, Exxon argues that a defendant who desires a preliminary hearing on special and affirmative defenses must file a motion to that effect at the time of filing of his answer.

The CIR, on the other hand, counters that it did not file a motion to dismiss. Instead, the grounds for dismissal of the case were pleaded as special and affirmative defenses in its Answer filed on December 15, 2003. Therefore, the issue of “whether or not petitioner is the proper party to claim for a tax refund of the excise taxes allegedly passed on by Caltex and Petron” was included as one of the issues in the Joint Stipulation of Facts and Issues dated June 24, 2004 signed by petitioner and respondent.

The CIR now argues that nothing in the Rules requires the preliminary hearing to be held before the filing of an Answer. However, a preliminary hearing cannot be held before the filing of the Answer precisely because any ground raised as an affirmative defense is pleaded in the Answer itself.

Further, the CIR contends that the case cited by petitioner, Maruhom v. Comelec, does not apply here.  In the said case, a motion to dismiss was filed after the filing of the answer. And, the said motion to dismiss was                                                                                      
found to be a frivolous motion designed to prevent the early termination of the proceedings in the election case therein. Here, the Motion to Resolve was filed not to delay the disposition of the case, but rather, to expedite proceedings.

Rule 16, Section 6 of the 1997 Rules of Civil Procedure provides:

SEC. 6. Pleading grounds as affirmative defenses. – If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer, and in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed.

The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. (Underscoring supplied.)

This case is a clear cut application of the above provision. The CIR did not file a motion to dismiss. Thus, he pleaded the grounds for dismissal as affirmative defenses in its Answer and thereafter prayed for the conduct of a preliminary hearing to determine whether petitioner was the proper party to apply for the refund of excise taxes paid.

The determination of this question was the keystone on which the entire case was leaning. If Exxon was not the proper party to apply for the refund of excise taxes paid, then it would be useless to proceed with the case.  It would not make any sense to proceed to try a case when petitioner had no standing to pursue it.

In the case of California and Hawaiian Sugar Company v. Pioneer Insurance and Surety Corporation, the Court held that:

Considering that there was only one question, which may even be deemed to be the very touchstone of the whole case, the trial court had no cogent reason to deny the Motion for Preliminary Hearing.  Indeed, it committed grave abuse of discretion when it denied a preliminary hearing on a simple issue of fact that could have possibly settled the entire case.  Verily, where a preliminary hearing appears to suffice, there is no reason to go on to trial.  One reason why dockets of trial courts are clogged is the unreasonable refusal to use a process or procedure, like a motion to dismiss, which is designed to abbreviate the resolution of a case. (Underscoring supplied.)

II. On whether petitioner, as the distributor and vendor of petroleum products to international carriers registered in foreign countries which have existing bilateral agreements with the Philippines, can claim a refund of the excise taxes paid thereon

          This brings us now to the substantive issue of whether Exxon, as the distributor and vendor of petroleum products to international carriers registered in foreign countries which have existing bilateral agreements with the Philippines, is the proper party to claim a tax refund for the excise taxes paid by the manufacturers, Caltex and Petron, and passed on to it as part of the purchase price.

Exxon argues that having paid the excise taxes on the petroleum products sold to international carriers, it is a real party in interest consistent with the rules and jurisprudence.

          It reasons out that the subject of the exemption is neither the seller nor the buyer of the petroleum products, but the products themselves, so long as they are sold to international carriers for use in international flight operations, or to exempt entities covered by tax treaties, conventions and other international agreements for their use or consumption, among other conditions.

          Thus, as the exemption granted under Section 135 attaches to the petroleum products and not to the seller, the exemption will apply regardless of whether the same were sold by its manufacturer or its distributor for two reasons. First, Section 135 does not require that to be exempt from excise tax, the products should be sold by the manufacturer or producer. Second, the legislative intent was precisely to make Section 135 independent from Sections 129 and 130 of the NIRC, stemming from the fact that unlike other products subject to excise tax, petroleum products of this nature have become subject to preferential tax treatment by virtue of either specific international agreements or simply of international reciprocity.

          Respondent CIR, on the other hand, posits that Exxon is not the proper party to seek a refund of excise taxes paid on the petroleum products. In so arguing, the CIR states that excise taxes are indirect taxes, the liability for payment of which falls on one person, but the burden of payment may be shifted to another. Here, the sellers of the petroleum products or Jet A-1 fuel subject to excise tax are Petron and Caltex, while Exxon was the buyer to whom the burden of paying excise tax was shifted. While the impact or burden of taxation falls on Exxon, as the tax is shifted to it as part of the purchase price, the persons statutorily liable to pay the tax are Petron and Caltex. As Exxon is not the taxpayer primarily liable to pay, and not exempted from paying, excise tax, it is not the proper party to claim for the refund of excise taxes paid.

The excise tax, when passed on to the purchaser, becomes part of the purchase price.

          Excise taxes are imposed under Title VI of the NIRC. They apply to specific goods manufactured or produced in the Philippines for domestic sale or consumption or for any other disposition, and to those that are imported. In effect, these taxes are imposed when two conditions concur: first, that the articles subject to tax belong to any of the categories of goods enumerated in Title VI of the NIRC; and second, that said articles are for domestic sale or consumption, excluding those that are actually exported.

          There are, however, certain exemptions to the coverage of excise taxes, such as petroleum products sold to international carriers and exempt entities or agencies. Section 135 of the NIRC provides:

         SEC. 135. Petroleum Products Sold to International Carriers and Exempt Entities or Agencies. – Petroleum products sold to the following are exempt from excise tax:

(a) International carriers of Philippine or foreign registry on their use or consumption outside the Philippines: Provided, That the petroleum products sold to these international carriers shall be stored in a bonded storage tank and may be disposed of only in accordance with the rules and regulations to be prescribed by the Secretary of Finance, upon recommendation of the Commissioner;

(b) Exempt entities or agencies covered by tax treaties, conventions and other international agreements for their use of consumption: Provided, however, That the country of said foreign international carrier or exempt entities or agencies exempts from similar taxes petroleum products sold to Philippine carriers, entities or agencies; and

(c) Entities which are by law exempt from direct and indirect taxes. (Underscoring supplied.)

          Thus, under Section 135, petroleum products sold to international carriers of foreign registry on their use or consumption outside the Philippines are exempt from excise tax, provided that the petroleum products sold to such international carriers shall be stored in a bonded storage tank and may be disposed of only in accordance with the rules and regulations to be prescribed by the Secretary of Finance, upon recommendation of the Commissioner.

          The confusion here stems from the fact that excise taxes are of the nature of indirect taxes, the liability for payment of which may fall on a person other than he who actually bears the burden of the tax.

          In Commissioner of Internal Revenue v. Philippine Long Distance Telephone Company, the Court discussed the nature of indirect taxes as follows:

             [I]ndirect taxes are those that are demanded, in the first instance, from, or are paid by, one person to someone else. Stated elsewise, indirect taxes are taxes wherein the liability for the payment of the tax falls on one person but the burden thereof can be shifted or passed on to another person, such as when the tax is imposed upon goods before reaching the consumer who ultimately pays for it. When the seller passes on the tax to his buyer, he, in effect, shifts the tax burden, not the liability to pay it, to the purchaser, as part of the goods sold or services rendered.

          Accordingly, the party liable for the tax can shift the burden to another, as part of the purchase price of the goods or services. Although the manufacturer/seller is the one who is statutorily liable for the tax, it is the buyer who actually shoulders or bears the burden of the tax, albeit not in the nature of a tax, but part of the purchase price or the cost of the goods or services sold.

As petitioner is not the statutory taxpayer, it is not entitled to claim a refund of excise taxes paid.

          The question we are faced with now is, if the party statutorily liable for the tax is different from the party who bears the burden of such tax, who is entitled to claim a refund of the tax paid?

          Sections 129 and 130 of the NIRC provide:

SEC. 129. Goods subject to Excise Taxes. – Excise taxes apply to goods manufactured or produced in the Philippines for domestic sales or consumption or for any other disposition and to things imported. The excise tax imposed herein shall be in addition to the value-added tax imposed under Title IV.

For purposes of this Title, excise taxes herein imposed and based on weight or volume capacity or any other physical unit of measurement shall be referred to as ‘specific tax’ and an excise tax herein imposed and based on selling price or other specified value of the good shall be referred to as ‘ad valorem tax.’

SEC. 130. Filing of Return and Payment of Excise Tax on Domestic Products. –

(A) Persons Liable to File a Return, Filing of Return on Removal and Payment of Tax. –

(1) Persons Liable to File a Return. – Every person liable to pay excise tax imposed under this Title shall file a separate return for each place of production setting forth, among others the description and quantity or volume of products to be removed, the applicable tax base and the amount of tax due thereon: Provided, however, That in the case of indigenous petroleum, natural gas or liquefied natural gas, the excise tax shall be paid by the first buyer, purchaser or transferee for local sale, barter or transfer, while the excise tax on exported products shall be paid by the owner, lessee, concessionaire or operator of the mining claim.

Should domestic products be removed from the place of production without the payment of the tax, the owner or person having possession thereof shall be liable for the tax due thereon.

(2) Time for Filing of Return and Payment of the Tax. – Unless otherwise specifically allowed, the return shall be filed and the excise tax paid by the manufacturer or producer before removal of domestic products from place of production: Provided, That the tax excise on locally manufactured petroleum products and indigenous petroleum/levied under Sections 148 and 151(A)(4), respectively, of this Title shall be paid within ten (10) days from the date of removal of such products for the period from January 1, 1998 to June 30, 1998; within five (5) days from the date of removal of such products for the period from July 1, 1998 to December 31, 1998; and, before removal from the place of production of such products from January 1, 1999 and thereafter: Provided, further, That the excise tax on nonmetallic mineral or mineral products, or quarry resources shall be due and payable upon removal of such products from the locality where mined or extracted, but with respect to the excise tax on locally produced or extracted metallic mineral or mineral products, the person liable shall file a return and pay the tax within fifteen (15) days after the end of the calendar quarter when such products were removed subject to such conditions as may be prescribed by rules and regulations to be promulgated by the Secretary of Finance, upon recommendation of the Commissioner. For this purpose, the taxpayer shall file a bond in an amount which approximates the amount of excise tax due on the removals for the said quarter. The foregoing rules notwithstanding, for imported mineral or mineral products, whether metallic or nonmetallic, the excise tax due thereon shall be paid before their removal from customs custody.

x x x

(Italics and underscoring supplied.)

          As early as the 1960’s, this Court has ruled that the proper party to question, or to seek a refund of, an indirect tax, is the statutory taxpayer, or the person on whom the tax is imposed by law and who paid the same, even if he shifts the burden thereof to another.

          In Philippine Acetylene Co., Inc. v. Commissioner of Internal Revenue, the Court held that the sales tax is imposed on the manufacturer or producer and not on the purchaser, “except probably in a very remote and inconsequential sense.” Discussing the “passing on” of the sales tax to the purchaser, the Court therein cited Justice Oliver Wendell Holmes’ opinion in Lash’s Products v. United States wherein he said:

              “The phrase ‘passed the tax on’ is inaccurate, as obviously the tax is laid and remains on the manufacturer and on him alone. The purchaser does not really pay the tax. He pays or may pay the seller more for the goods because of the seller’s obligation, but that is all. x  x  x  The price is the sum total paid for the goods. The amount added because of the tax is paid to get the goods and for nothing else. Therefore it is part of the price x  x  x.”

         Proceeding from this discussion, the Court went on to state:

                         It may indeed be that the economic burden of the tax finally falls on the purchaser; when it does the tax becomes a part of the price which the purchaser must pay. It does not matter that an additional amount is billed as tax to the purchaser. x  x  x  The effect is still the same, namely, that the purchaser does not pay the tax. He pays or may pay the seller more for the goods because of the seller’s obligation, but that is all and the amount added because of the tax is paid to get the goods and for nothing else.

                         But the tax burden may not even be shifted to the purchaser at all. A decision to absorb the burden of the tax is largely a matter of economics. Then it can no longer be contended that a sales tax is a tax on the purchaser.

         The above case was cited in the later case of Cebu Portland Cement Company v. Collector (now Commissioner) of Internal Revenue, where the Court ruled that as the sales tax is imposed upon the manufacturer or producer and not on the purchaser, “it is petitioner and not its customers, who may ask for a refund of whatever amount it is entitled for the percentage or sales taxes it paid before the amendment of section 246 of the Tax Code.”

          The Philippine Acetylene case was also cited in the first Silkair (Singapore) Pte, Ltd. v. Commissioner of Internal Revenue case, where the Court held that the proper party to question, or to seek a refund of, an indirect tax is the statutory taxpayer, the person on whom the tax is imposed by law and who paid the same even if he shifts the burden thereof to another.

          In the Silkair cases, petitioner Silkair (Singapore) Pte, Ltd. (Silkair), filed with the BIR a written application for the refund of excise taxes it claimed to have paid on its purchase of jet fuel from Petron. As the BIR did not act on the application, Silkair filed a Petition for Review before the CTA.

          In both cases, the CIR argued that the excise tax on petroleum products is the direct liability of the manufacturer/producer, and when added to the cost of the goods sold to the buyer, it is no longer a tax but part of the price which the buyer has to pay to obtain the article.

                 In the first Silkair case, the Court ruled:

The proper party to question, or seek a refund of, an indirect tax is the statutory taxpayer, the person on whom the tax is imposed by law and who paid the same even if he shifts the burden thereof to another. Section 130 (A) (2) of the NIRC provides that “[u]nless otherwise specifically allowed, the return shall be filed and the excise tax paid by the manufacturer or producer before removal of domestic products from place of production.” Thus, Petron Corporation, not Silkair, is the statutory taxpayer which is entitled to claim a refund based on Section 135 of the NIRC of 1997 and Article 4(2) of the Air Transport Agreement between RP and Singapore.

Even if Petron Corporation passed on to Silkair the burden of the tax, the additional amount billed to Silkair for jet fuel is not a tax but part of the price which Silkair had to pay as a purchaser. (Emphasis and underscoring supplied.)

                 Citing the above case, the second Silkair case was promulgated a few months after the first, and stated:

             The issue presented is not novel. In a similar case involving the same parties, this Court has categorically ruled that “the proper party to question, or seek a refund of an indirect tax is the statutory taxpayer, the person on whom the tax is imposed by law and who paid the same even if he shifts the burden thereof to another.” The Court added that “even if Petron Corporation passed on to Silkair the burden of the tax, the additional amount billed to Silkair for jet fuel is not a tax but part of the price which Silkair had to pay as a purchaser.”

          The CTA En Banc, thus, held that:

             The determination of who is the taxpayer plays a pivotal role in claims for refund because the same law provides that it is only the taxpayer who has the legal personality to ask for a refund in case of erroneous payment of taxes. Section 204 (C) of the 1997 NIRC, [provides] in part, as follows:

SEC. 204. Authority of the Commissioner to Compromise, Abate, and Refund or Credit Taxes. – The Commissioner may –

                        xxx                  xxx       xxx

(C)               Credit or refund taxes erroneously or illegally received or penalties imposed without authority, refund the value of internal revenue stamps when they are returned in good condition by the purchaser, and, in his discretion, redeem or change unused stamps that have been rendered unfit for use and refund their value upon proof of destruction. No credit or refund of taxes or penalties shall be allowed unless the taxpayer files in writing with the Commissioner a claim for credit or refund within two (2) years after the payment of the tax or penalty: Provided, however, That a return showing an overpayment shall be considered as a written claim for credit or refund.

                        xxx                  xxx       xxx

                        (Emphasis shown supplied by the CTA.)

          Therefore, as Exxon is not the party statutorily liable for payment of excise taxes under Section 130, in relation to Section 129 of the NIRC, it is not the proper party to claim a refund of any taxes erroneously paid.

There is no unilateral amendment of existing bilateral agreements of the Philippines with other countries.

          Exxon also argues that in effectively holding that only petroleum products purchased directly from the manufacturers or producers are exempt from excise taxes, the CTA En Banc sanctioned a unilateral amendment of existing bilateral agreements which the Philippines has with other countries, in violation of the basic international law principle of pacta sunt servanda.  The Court does not agree.

As correctly held by the CTA En Banc:

           One final point, petitioner’s argument “that in effectively holding that only petroleum products purchased directly from the manufacturers or producers are exempt from excise taxes, the First Division of this Court sanctioned a unilateral amendment of existing bilateral agreements which the Philippines have (sic) with other countries, in violation of the basic international principle of “pacta sunt servanda” is misplaced. First, the findings of fact of the First Division of this Court that “when petitioner sold the Jet A-1 fuel to international carriers, it did so free of tax” negates any violation of the exemption from excise tax of the petroleum products sold to international carriers insofar as this case is concerned. Secondly, the right of international carriers to invoke the exemption granted under Section 135 (a) of the 1997 NIRC has neither been affected nor restricted in any way by the ruling of the First Division of this Court. At the point of sale, the international carriers are free to invoke the exemption from excise taxes of the petroleum products sold to them. Lastly, the law-making body is presumed to have enacted a later law with the knowledge of all other laws involving the same subject matter.” (Underscoring supplied.)

WHEREFORE, the petition is DENIED. 

SO ORDERED.

JOSE CATRAL MENDOZA                                                                                                              

                       Associate Justice

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

Chairperson

ANTONIO EDUARDO B. NACHURA       DIOSDADO M. PERALTA

               Associate Justice                                   Associate Justice

ROBERTO A. ABAD

Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO

        Associate Justice

                                                          Chairperson, Second Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                                    RENATO C. CORONA

                                                                             Chief Justice

Rollo, pp. 62-88. Penned by Associate Justice Juanito C. Castañeda Jr., with Associate Justices Lovell R. Bautista, Erlinda P. Uy, Caesar A. Casanova and Olga Palanca-Enriquez, concurring. Presiding Justice Ernesto D. Acosta issued a separate dissenting opinion.

Id. at 89-94.

  Id. at 73.

  Id.

  Id.

  Id.

  Id.

  Id.

  Id.

Docketed as CTA Case No. 6809.

Rollo, p. 63.

Id.

Id. at 64.

Id. at 138. Associate Justices Lovell R. Bautista and Caesar A. Casanova, concurring. Presiding Justice Ernesto D. Acosta issued a separate dissenting opinion.

Id. at 150.

Id. at 95.

Id. at 62-63.

SEC. 130. Filing of Return and Payment of Excise Tax on Domestic Products. –

    (A) Persons Liable to File a Return, Filing of Return on Removal and Payment of Tax. –

    x  x  x

    (2) Time for Filing of Return and Payment of the Tax. – Unless otherwise specifically allowed, the return shall be filed and the excise tax paid by the manufacturer or producer before removal of domestic products from place of production: Provided, That the tax excise on locally manufactured petroleum products and indigenous petroleum levied under Sections 148 and 151(A)(4), respectively, of this Title shall be paid within ten (10) days from the date of removal of such products for the period from January 1, 1998 to June 30, 1998; within five (5) days from the date of removal of such products for the period from July 1, 1998 to December 31, 1998; and, before removal from the place of production of such products from January 1, 1999 and thereafter: Provided, further, That the excise tax on nonmetallic mineral or mineral products, or quarry resources shall be due and payable upon removal of such products from the locality where mined or extracted, but with respect to the excise tax on locally produced or extracted metallic mineral or mineral products, the person liable shall file a return and pay the tax within fifteen (15) days after the end of the calendar quarter when such products were removed subject to such conditions as may be prescribed by rules and regulations to be promulgated by the Secretary of Finance, upon recommendation of the Commissioner. For this purpose, the taxpayer shall file a bond in an amount which approximates the amount of excise tax due on the removals for the said quarter. The foregoing rules notwithstanding, for imported mineral or mineral products, whether metallic or nonmetallic, the excise tax due thereon shall be paid before their removal from customs custody.

    x  x  x

SEC. 135. Petroleum Products Sold to International Carriers and Exempt Entities or Agencies. – Petroleum products sold to the following are exempt from excise tax:

    (a) International carriers of Philippine or foreign registry on their use or consumption outside the Philippines: Provided, That the petroleum products sold to these international carriers shall be stored in a bonded storage tank and may be disposed of only in accordance with the rules and regulations to be prescribed by the Secretary of Finance, upon recommendation of the Commissioner;

    x  x  x

Koyo Manufacturing (Philippines) Corp. v. Commissioner of Internal Revenue. CTA E.B. No. 194, March 1, 2007; Mobil Philippines, Inc. v. Commissioner of Internal Revenue, CTA E.B. No. 110, July 26, 2006; Dunlop Slazenger Phils., Inc. v. Commissioner of Internal Revenue, CTA E.B. No. 102, May 18, 2006; Commissioner of Internal Revenue v. Silkair (Singapore) Pte. Ltd., CTA E.B. No. 67, January 5, 2006;; Commissioner of Internal Revenue v. Silkair (Singapore) Pte. Ltd., CTA E.B. No. 56, October 20, 2005; and Commissioner of Internal Revenue v. Silkair (Singapore) Pte. Ltd., CTA E.B. No. 25, May 20, 2005.

Rollo, p. 74.

Id. at 75.

Id.

Id, citing Section 204(C) of the NIRC of 1997, which reads:

    SEC. 204. Authority of the Commissioner to Compromise, Abate and Refund or Credit Taxes. – The Commissioner may –

    x  x  x

    (c) Credit or refund taxes erroneously or illegally received or penalties imposed without authority, refund the value of internal revenue stamps when they are returned in good condition by the purchaser, and, in his discretion, redeem or change unused stamps that have been rendered unfit for use and refund their value upon proof of destruction. No credit or refund of taxes or penalties shall be allowed unless the taxpayer files in writing with the Commissioner a claim for credit or refund within two (2) years after the payment of the tax or penalty: Provided, however, That a return filed showing an overpayment shall be considered as a written claim for credit or refund.

    x  x  x

Id. at 77, citing Maceda v. Macaraig, Jr., et. al., 274 Phil. 1060 (1991).

127 Phil. 461 (1967).

G.R. No. 151135, July 2, 2004, 433 SCRA 577.

G.R. No. 140230, December 15, 2005, 478 SCRA 61, citing Philippine Acetylene Co., Inc. v. Commissioner of Internal Revenue, supra note 27 at 470.

Rollo, p. 77.

Id. at  78.

Id. at  80.

Cebu Portland Cement Company v. Commissioner of Internal Revenue, 134 Phil. 735 (1968).

Contex Corporation v. Commissioner of Internal Revenue, supra note 27.

Rollo, p. 79, citing Section 204(C) of the 1997 NIRC and Cebu Portland Cement Company v. Collector of Internal Revenue, 134 Phil. 735 (1968).

Id. at 81.

Id.

Id. at  82.

Id.

Id. at 204.

Id. at 205.

Id. at 397.

Id. at 396.

Id. at 397.

Id. at 396.

Id. at 397.

Id.

387 Phil. 491 (2000).

Rollo, p.  399.

Id. at 279.

Id.

Id.

Id.

  Id.

Supra note 47.

Rollo, p. 280.

Id.

Id.

399 Phil. 795 (2000).

Id. at 805.

Rollo, p. 39.

Id. at 31.

Id. at 32.

Id.

Id., citing BIR Ruling DA-038-98.

Id. at 34.

Id. at 271.

Id.

Id.

Id. at 273.

Id. at  277.

J.C. Vitug and E.D. Acosta, Tax Law and Jurisprudence, 271 (2006). See also Republic Act No. 8424 (1997), as amended, Sec. 129.

Id.

Id. at 281.

Supra note 28 at 72, citing Commissioner of Internal Revenue v. Tours Specialists, Inc., 262 Phil. 437 (1990).

Silkair (Singapore) Pte, Ltd. v. Commissioner of Internal Revenue, G.R. No. 173594, February 6, 2008, 544 SCRA 100, 112; J.C. Vitug and E.D. Acosta, Tax Law and Jurisprudence, 317 (2006), citing Commissioner of Internal Revenue v. American Rubber Company and Court of Tax Appeals, 124 Phil. 1471 (1966); Cebu Portland Cement Co. v. Collector of Internal Revenue, 134 Phil. 735 (1968).  

Supra note 26.

Id. at 470.

278 U.S. 175 (1928).

Supra note 26 at 465-466.

Id. at 470, citing 47 Harv. Ld. Rev. 860, 869 (1934).

Supra note 32.

Id. at 743.

Supra note 75. See also Silkair (Singapore) Pte, Ltd. v. Commissioner of Internal Revenue, G.R. Nos. 171383 and 172379, November 14, 2008, 571 SCRA 141.

Id.

Silkair (Singapore) Pte, Ltd. v. Commissioner of Internal Revenue, G.R. No. 173594, February 6, 2008, 544 SCRA 100 and Silkair (Singapore) Pte, Ltd. v. Commissioner of Internal Revenue, G.R. Nos. 171383 and 172379, November 14, 2008, 571 SCRA 141.

Silkair (Singapore) Pte, Ltd. v. Commissioner of Internal Revenue, supra note 75.

Silkair (Singapore) Pte, Ltd. v. Commissioner of Internal Revenue, G.R. Nos. 171383 and 172379, November 14, 2008, 571 SCRA 141, 153-154.

Rollo, pp. 75-76.

Id. at  34.

Id. at  82.

CASE  2011-0055: BAYAN MUNA, AS REPRESENTED BY REP. SATUR OCAMPO, REP. CRISPIN BELTRAN, AND REP. LIZA L. MAZA VS. ALBERTO ROMULO, IN HIS CAPACITY AS EXECUTIVE SECRETARY, AND BLAS F. OPLE, IN HIS CAPACITY AS SECRETARY OF FOREIGN AFFAIRS (G.R. NO. 159618, 1 FEBRUARY 2011, VELASCO, JR., J.) SUBJECTS: RP-US NON-SURRENDER AGREEMENT; ROME STATUTE; SENATE APPROVAL NOT REQUIRED. (BRIEF TITLE: BAYAN MUNA VS. ALBERTO ROMULO ET AL.) 

x————————————————————-x

D E C I S I O N

VELASCO, JR., J.:

The Case

This petition^[1] for certiorari, mandamus and prohibition under Rule 65 assails and seeks to nullify the Non-Surrender Agreement concluded by and between the Republic of the Philippines (RP) and the United States of America (USA).

The Facts

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

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute^[3]  establishing the International Criminal Court (ICC) with“the power to exercise its jurisdiction over persons for the most serious crimes of international concern x x x and shall be complementary to the national criminal jurisdictions.”^[4]  The serious crimes adverted to cover those considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression.^[5]

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.^[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-surrender bilateral agreement (Agreement, hereinafter) between the USA and the RP.

Via Exchange of Notes No. BFO-028-03^[7] dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note adverted to and put in effect the Agreement with the US government. In esse, the Agreement aims to protect what it refers to and defines as  “persons” of the RP and US from frivolous and harassment suits that might be brought against them in international tribunals.^[8]  It is reflective of the increasing pace of the strategic security and defense partnership between the two countries.  As of May 2, 2003, similar bilateral agreements have been effected by and between the US and 33 other countries.^[9]

The Agreement pertinently provides as follows:

1.  For purposes of this Agreement, “persons” are current or former Government officials, employees (including contractors), or military personnel or nationals of one Party.

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

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

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

3.  When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third country, the [US] will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the Republic of the Philippines [GRP].

4.  When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third country, the [GRP] will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the [US].

5.  This Agreement shall remain in force until one year after the date on which one party notifies the other of its intent to terminate the Agreement.  The provisions of this Agreement shall continue to apply with respect to any act occurring, or any allegation arising, before the effective date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic notes constituted a legally binding agreement under international law; and that, under US law, the said agreement did not require the advice and consent of the US Senate.^[10]

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 petitioner’s 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.

The Issues

I.    WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY ABUSED THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR CONCLUDING THE RP-US NON SURRENDER AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS ALREADY SIGNED THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE PHILIPPINE SENATE.

A.    Whether by entering into the x x x Agreement Respondents gravely abused their discretion when they capriciously abandoned, waived and relinquished our only legitimate recourse through the Rome Statute of the [ICC] to prosecute and try “persons” as defined in the x x x Agreement, x x x or literally any conduit of American interests, who have committed crimes of genocide, crimes against humanity, war crimes and the crime of aggression, thereby abdicating Philippine Sovereignty.

B.     Whether after the signing and pending ratification of the Rome Statute of the [ICC] the [RP] President and the [DFA] Secretary x x x are obliged by the principle of good faith to refrain from doing all acts which would substantially impair the value of the undertaking as signed.

C.     Whether the x x x Agreement constitutes an act which defeats the object and purpose of the Rome Statute of the International Criminal Court and contravenes the obligation of good faith inherent in the signature of the President affixed on the Rome Statute of the International Criminal Court, and if so whether the x x x Agreement is void and unenforceable on this ground.

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

II.  WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR CONTRACTING OBLIGATIONS THATARE EITHER IMMORAL OR OTHERWISE AT VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.

III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE 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 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 second, whether or not theAgreement, 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 petitioner’s legal standing.

The Court’s Ruling

This petition is bereft of merit.

Procedural Issue:  Locus Standi of Petitioner

Petitioner, through its three party-list representatives, contends that the issue of the validity or invalidity of the Agreementcarries with it constitutional significance and is of paramount importance that justifies its standing.  Cited in this regard is what is usually referred to as the emergency powers cases,^[12] in which ordinary citizens and taxpayers were accorded the personality to question the constitutionality of executive issuances.

Locus standi is “a right of appearance in a court of justice on a given question.”^[13]  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”^[14] of the act being challenged, and “calls for more than just a generalized grievance.”^[15]  The term “interest” refers to material interest, as distinguished from one that is merely incidental.^[16]  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.”^[17]

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.^[18]  Consequently, in a catena of cases,^[19] this Court has invariably adopted a liberal stance on locus standi.

Going by the petition, petitioner’s 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.^[20] 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 a citizen, 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.^[21]

In the case at bar, petitioner’s representatives have complied with the qualifying conditions or specific requirements exacted under the locus standi rule.  As citizens, their interest in the subject matter of the petition is direct and personal.  At the very least, their assertions questioning the Agreement are made of a public right, i.e., to ascertain that the Agreement did not go against established national policies, practices, and obligations bearing on the State’s obligation to the community of nations.

At any event, the primordial importance to Filipino citizens in general of the issue at hand impels the Court to brush aside the procedural barrier posed by the traditional requirement of locus standi, as we have done in a long line of earlier cases, notably in the old but oft-cited emergency powers cases^[22] and Kilosbayan v. Guingona, Jr.^[23] In cases of transcendental importance, we wrote again in Bayan v. Zamora,^[24] “The Court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review.”

Moreover, bearing in mind what the Court said in Tañada v. Angara, “that it will not shirk, digress from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or department of the government,”^[25] we cannot but resolve head on the issues raised before us.  Indeed, where an action of any branch of government is seriously alleged to have infringed the Constitution or is done with grave abuse of discretion, it becomes not only the right but in fact the duty of the judiciary to settle it.  As in this petition, issues are precisely raised putting to the fore the propriety of the Agreement pending the ratification of the Rome Statute.

Validity of the RP-US Non-Surrender Agreement

Petitioner’s 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 well-recognized international doctrines, practices, and jargons––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.^[26] An exchange of notes falls “into the category of inter-governmental agreements,”^[27] 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.^[28]

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.^[29]  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.’”^[30]  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.^[31] x x x

It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-Surrender 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.

Senate Concurrence Not Required

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 instruments and whatever its particular designation.”^[32]  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.^[33]

Under international law, there is no difference between treaties and executive agreements in terms of their binding effects on the contracting states concerned,^[34] as long as the negotiating functionaries have remained within their powers.^[35] Neither, on the domestic sphere, 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.^[37] 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;^[38] a ratified treaty, unlike an executive agreement, takes precedence over any prior statutory enactment.^[39]

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of 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 Court reproduced the following observations made by US legal scholars: “[I]nternational agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties [while] those embodying adjustments of detail carrying out well established national policies and traditions and those involving arrangements of a more or less temporary nature  take the form of executive agreements.” ^[40]

Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the subject-categories that are enumerated in the Eastern Sea Trading case, and that may be covered by an executive agreement, such as commercial/consular relations, most-favored nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and settlement of claims.

In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and Merchant,^[41] holding that an executive agreement through an exchange of notes cannot be used to amend a treaty.

We are not persuaded. 

The categorization of subject matters that may be covered by   international agreements mentioned in Eastern Sea Trading is not cast in stone.  There are no hard and fast rules on the propriety of entering, on a given subject, into a treaty or an executive agreement as an instrument of international relations.  The primary consideration in the choice of the form of agreement is the parties’ intent and desire to craft an international agreement in the form they so wish to further their respective interests.  Verily, the matter of form takes a back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the parties in either international agreement each labor under the pacta sunt servanda^[42] principle.

As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea Trading.  Since then, the conduct of foreign affairs has become more complex 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 agreements executed 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 Eastern Sea Trading cannot circumscribe the option of each state on the matter of which the international agreement format would be convenient to serve its best interest.  As Francis Sayre said in his work referred to earlier:

x x x It would be useless to undertake to discuss here the large variety of executive agreements as such concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreement act, have been negotiated with foreign 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, custom matters and commercial relations generally, international claims, postal matters, the registration of trademarks and copyrights, etc. x x x

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

 But over and above the foregoing considerations is the fact that––save for the situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution^[46]––when a treaty is required, 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 is that treaties need the concurrence of the Senate by a vote defined therein to complete the ratification process. 

Petitioner’s reliance on Adolfo^[47] is misplaced, said case being inapplicable owing to different factual milieus.  There, the Court held that an executive agreement cannot be used to amend a duly ratified and existing treaty, i.e., the Bases Treaty.  Indeed, an executive agreement that does not require the concurrence of the Senate for its ratification may 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 being subject 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 main issue raised, referring to the validity and effectivity of the Agreement without the concurrence by at least two-thirds of all the members of the Senate.   The Court has, inEastern Sea Trading,^[48] as reiterated in Bayan,^[49] given recognition to the obligatory effect of 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 of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history, we have entered executive agreements covering such subjects as commercial and consular relations, most favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts.

The Agreement Not in Contravention of the Rome Statute

It is the petitioner’s next contention that the Agreement undermines the establishment of the ICC and is null and void insofar as it unduly restricts the ICC’s jurisdiction and infringes upon the effectivity of the Rome Statute.  Petitioner posits that the Agreementwas constituted solely for the purpose of providing individuals or groups of individuals with immunity 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 the Rome Statute.  It concludes that state parties with non-surrender agreements are prevented from meeting their obligations under the Rome Statute, thereby constituting a breach of Arts. 27,^[50] 86,^[51] 89^[52] and 90^[53] thereof. 

Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that 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 agreement—like the non-surrender agreement—that precludes the ICC from exercising its complementary function of acting when a state is unable to or unwilling to do so, defeats the object and purpose of the Rome Statute.

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

Contrary to petitioner’s pretense, the Agreement does 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].”^[54]  Art. 1 of the Rome Statute pertinently provides:

Article 1

The Court

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

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. 1^[55] of the Rome Statute.

Of particular note is the application of the principle of ne bis in idem^[56] 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 been tried by another court for conduct x x x [constituting crimes within its jurisdiction] shall be tried 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 of jurisdictional conflict between thePhilippines, as party to the non-surrender agreement, and the ICC; or the idea of the Agreement substantially impairing the value of the RP’s undertaking 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 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, petitioner’s suggestion––that the RP, by entering into the Agreement, violated its duty required by the imperatives of good faith and breached its commitment under the Vienna Convention^[57] to refrain from performing any act tending to impair the value of a treaty, e.g., the Rome Statute––has to be rejected outright.  For nothing in the provisions of theAgreement, 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

x x x x

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;^[58] 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, petitioner’s argument that State-Parties with non-surrender 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 “[i]f 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. x x x” 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.

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 petitioner’s 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, the Agreement is but a form of affirmance and confirmance of the Philippines’ 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, the Philippines may decide to try “persons” of the US, as the term is understood in the Agreement, under our national criminal justice system.  Or it may opt not to exercise its criminal jurisdiction over its erring citizens or over US “persons” 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, accord  discretion 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, the US must extend the same privilege to the Philippines with respect to “persons” of the RP committing high crimes within US territorial jurisdiction.

In the context of the Constitution, there can be no serious objection to the Philippines agreeing to undertake the things set forth in the Agreement. Surely, one State can agree to waive jurisdiction—to the extent agreed upon—to subjects of another State due to the recognition of the principle of extraterritorial immunity.  What the Court wrote in Nicolas v. Romulo^[59]—a case involving the implementation of the criminal jurisdiction provisions of the RP-US Visiting Forces Agreement—is apropos:

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State, diplomats and members of the armed forces contingents of a foreign State allowed to enter another State’s territory. x x x

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 reclusive Philippines isolated from the rest of the world.  It even adheres, as earlier stated, to the policy of cooperation and amity with all nations.^[60]

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 as part of the law of the land, a portion of sovereignty may be waived without violating the Constitution.^[61]  Such waiver does not amount to an unconstitutional diminution or deprivation of jurisdiction of Philippine courts.^[62]

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; x x x it precludes our country from delivering an American criminal to the [ICC] x x x.”^[63]

The above argument is a kind of recycling of 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.^[64] 

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by the Solicitor General, “is an assertion by the Philippines of its desire to try and punish crimes under its national law. x x x The agreement is a recognition of the primacy and competence of the 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.

No Grave Abuse of Discretion

Petitioner’s final point revolves around the necessity of the Senate’s 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 that petitioner virtually faults the President for performing, through respondents, a task conferred the President by the Constitution—the 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.^[65]  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, as Bayan would put it, “executive altogether.”  The right of the President to enter into or ratify binding executive agreements has been confirmed by long practice.^[66]

In thus agreeing to conclude the Agreement thru 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 President––by ratifying, thru her deputies, the non-surrender agreement––did nothing more than discharge a constitutional duty and exercise a prerogative that pertains to her office.

While the issue of ratification of the Rome Statute is not determinative of the other issues raised herein, it may perhaps be pertinent to remind all and sundry that about the time this petition was interposed, such issue of ratification was laid to rest inPimentel, Jr. v. Office of the Executive Secretary.^[67] As the Court emphasized in said case, the power to ratify a treaty, the Statute in that instance, rests with the President, subject to the concurrence of the Senate, whose role relative to the ratification of a treaty is limited merely to concurring in or withholding the ratification.  And concomitant with this treaty-making power of the President is his or her prerogative to refuse to submit a treaty to the Senate; or having secured the latter’s consent to the ratification of the treaty, refuse to ratify it.^[68]  This prerogative, the Court hastened to add, is the President’s alone and cannot be encroached upon via a writ of mandamus.  Barring intervening events, then, the Philippines remains to be just a signatory to the Rome Statute.  Under Art. 125^[69] thereof, the final acts required to complete the treaty process and, thus, bring it into force, insofar as the Philippines 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 International Humanitarian Law, Genocide, and Other Crimes Against Humanity.”  Sec. 17 of RA 9851, particularly the second paragraph thereof, provides:

Section 17.  Jurisdiction. –  x x x x

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime.  Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties.  (Emphasis supplied.)

A view is advanced that the Agreement amends existing municipal laws on the State’s 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, thePhilippines 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 the US, 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 the Agreement prevents the Philippines—without the consent of the US—from 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 the Philippines adopts, 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 perceive the 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.  The Agreement, 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.

Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the former merely reinforces the primacy of the national jurisdiction of the US and the Philippines in prosecuting criminal offenses committed by their respective citizens and military personnel, among others.  The jurisdiction of the ICC pursuant to the Rome Statute over high crimes indicated thereat is clearly and unmistakably complementary to the national criminal jurisdiction of the signatory states.

Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian law, genocide and other crimes against humanity;^[70] (2) provides penal sanctions and criminal liability for their commission;^[71] and (3) establishes special courts for the prosecution of these crimes and for the State to exercise primary criminal jurisdiction.^[72]  Nowhere in RA 9851 is there a proviso that goes against the tenor of the Agreement.

The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the Philippine State to surrender to the proper international tribunal those persons accused of crimes sanctioned under said law if it does not exercise its primary jurisdiction to prosecute such persons.  This view is not entirely correct, for the above quoted proviso clearly provides discretion to the Philippine State on whether to surrender or not a person accused of the crimes under RA 9851.  The statutory proviso uses the word “may.”  It is settled doctrine in statutory construction that the word “may” denotes discretion, and cannot be construed as having mandatory effect.^[73]  Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is simply permissive on the part of the Philippine State.

Besides, even granting that the surrender of a person is mandatorily required when the Philippines does not exercise its primary jurisdiction in cases where “another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime,” still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851.  Said legal proviso aptly provides that the surrender may be made “to another State pursuant to the applicable extradition laws and treaties.”  The Agreementcan already be considered a treaty following this Court’s decision in Nicolas v. Romulo^[74] which cited Weinberger v. Rossi.^[75] InNicolas, We held that “an executive agreement is a ‘treaty’ within the meaning of that word in international law and constitutes enforceable domestic law vis-à-vis the United States.”^[76]

Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US Extradition Treaty, which was executed on November 13, 1994. The pertinent Philippine law, on the other hand, is Presidential Decree No. 1069, issued on January 13, 1977.  Thus, the Agreement, in conjunction with the RP-US Extradition Treaty, would neither violate nor run counter to Sec. 17 of RA 9851.

The view’s reliance on Suplico v. Neda^[77] is similarly improper. In that case, several petitions were filed questioning the power of the President to enter into foreign loan agreements. However, before the petitions could be resolved by the Court, the Office of the Solicitor General filed a Manifestation and Motion averring that the Philippine Government decided not to continue with the ZTE National Broadband Network Project, thus rendering the petition moot. In resolving the case, the Court took judicial notice of the act of the executive department of the Philippines (the President) and found the petition to be indeed moot. Accordingly, it dismissed the petitions.

In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of an executive agreement. He stated that “an executive agreement has the force and effect of law x x x [it] cannot amend or repeal prior laws.”^[78] Hence, this argument finds no application in this case seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument cannot be found in the ratio decidendi of the case, but only in the dissenting opinion.

 The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, “[a]n offense shall be an extraditable offense if it is punishable under the laws in both Contracting Parties x x x,”^[79] and thereby concluding that while the Philippines has criminalized under RA 9851 the acts defined in the Rome Statute as war crimes, genocide and other crimes against humanity, there is no similar legislation in the US. It is further argued that, citing U.S. v. Coolidge, in the US, a person cannot be tried in the federal courts for an international crime unless Congress adopts a law defining and punishing the offense.

This view must fail.

On the contrary, the US has already enacted legislation punishing the high crimes mentioned earlier. In fact, as early as October 2006, the US enacted a law criminalizing war crimes. Section 2441, Chapter 118, Part I, Title 18 of the United States Code Annotated (USCA) provides for the criminal offense of “war crimes” which is similar to the war crimes found in both the Rome Statute and RA 9851, thus:

(a)    Offense – Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b)   Circumstances – The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in Section 101 of the Immigration and Nationality Act).

(c)    Definition – As used in this Section the term “war crime” means any conduct –

(1)   Defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

(2)   Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3)   Which constitutes a grave breach of common Article 3 (as defined in subsection [d]) when committed in the context of and in association with an armed conflict not of an international character; or

(4)   Of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.^[80]

Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:

§1091. Genocide

(a)                Basic Offense – Whoever, whether in the time of peace or in time of war and with specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as such–

(1)   kills members of that group;

(2)   causes serious bodily injury to members of that group;

(3)   causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;

(4)   subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;

(5)   imposes measures intended to prevent births within the group; or

(6)   transfers by force children of the group to another group;

shall be punished as provided in subsection (b).^[81]

Arguing further, another view has been advanced that the current US laws do not cover every crime listed within the jurisdiction of the ICC and that there is a gap between the definitions of the different crimes under the US laws versus the Rome Statute. The view used a report written by Victoria K. Holt and Elisabeth W. Dallas, entitled “On Trial: The US Military and the International Criminal Court,” as its basis.
          At the outset, it should be pointed out that the report used may not have any weight or value under international law. Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources of international law, as follows: (1) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (2) international custom, as evidence of a general practice accepted as law; (3) the general principles of law recognized by civilized nations; and (4) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. The report does not fall under any of the foregoing enumerated sources. It cannot even be considered as the “teachings of highly qualified publicists.” A highly qualified publicist is a scholar of public international law and the term usually refers to legal scholars or “academic writers.”^[82] It has not been shown that the authors^[83] of this report are highly qualified publicists.

Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the crimes are nonexistent. To highlight, the table below shows the definitions of genocide and war crimes under the Rome Statute vis-à-vis the definitions under US laws:

Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the report itself stated as much, to wit:

Few believed there were wide differences between the crimes under the jurisdiction of the Court and crimes within the Uniform Code of Military Justice that would expose US personnel to the Court. Since US military lawyers were instrumental in drafting the elements of crimes outlined in the Rome Statute, they ensured that most of the crimes were consistent with those outlined in the UCMJ and gave strength to complementarity for the US. Small areas of potential gaps between the UCMJ and the Rome Statute, military experts argued, could be addressed through existing military laws.^[87] x x x

The report went on further to say that “[a]ccording to those involved, the elements of crimes laid out in the Rome Statute have been part of US military doctrine for decades.”^[88] Thus, the argument proffered cannot stand.

Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine of incorporation.  As early as 1900, the esteemed Justice Gray in The Paquete Habana^[89] case already held international law as part of the law of the US, 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.^[90] (Emphasis supplied.)

Thus, a person can be tried in the US for an international crime despite the lack of domestic legislation.  The cited ruling inU.S. v. Coolidge,^[91] which in turn is based on the holding in U.S. v. Hudson,^[92] only applies to common law and not to the law of nations or international law.^[93] Indeed, the Court in U.S. v. Hudson only considered the question, “whether the Circuit Courts of theUnited States can exercise a common law jurisdiction in criminal cases.”^[94] Stated otherwise, there is no common law crime in theUS but this is considerably different from international law.

The US doubtless recognizes international law as part of the law of the land, necessarily including international crimes, even without any local statute.^[95] 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 Quirin^[96] the US Supreme Court noted that “[f]rom 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.”^[97] 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. x x x Similarly by the reference in the 15th Article of War to ‘offenders or offenses that x x x 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 x x x, and which may constitutionally be included within that jurisdiction.^[98] x x x (Emphasis supplied.)

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.^[99]

Customary international law or international custom is a source of international law as stated in the Statute of the ICJ.^[100] It is defined as the “general and consistent practice of states recognized and followed by them from a sense of legal obligation.”^[101] 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.^[102]

State practice refers to the continuous repetition of the same or similar kind of acts or norms by States.^[103] It is demonstrated upon the existence of the following elements: (1) generality; (2) uniformity and consistency; and (3) duration.^[104]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.”^[105]

“The term ‘jus cogens’ means the ‘compelling law.’”^[106] Corollary, “a jus cogens norm holds the highest hierarchical position among all other customary norms and principles.”^[107] As a result, jus cogens norms are deemed “peremptory and non-derogable.”^[108] 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.”^[109]

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.”^[110] “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”^[111] and thus granting every State jurisdiction over the crime.^[112]

          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.

Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the Rome Statute is notdeclaratory of customary international law.

The first element of customary international law, i.e., “established, widespread, and consistent practice on the part of States,”^[113] does not, under the premises, appear to be obtaining as reflected in this simple reality:  As of October 12, 2010, only 114^[114] States have ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier, or on July 1, 2002.  The fact that 114 States out of a total of 194^[115] countries in the world, or roughly 58.76%, have ratified the Rome Statute casts doubt on whether or not the perceived principles contained in the Statute have attained the status of customary law and should be deemed as obligatory international law.  The numbers even tend to argue against the urgency of establishing international criminal courts envisioned in the Rome Statute.  Lest it be overlooked, the Philippines, judging by the action or inaction of its top officials, does not even feel bound by the Rome Statute.  Res ipsa loquitur.  More than eight (8) years have elapsed since the Philippine representative signed the Statute, but the treaty has not been transmitted to the Senate for the ratification process. 

And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring elements, thus:

Custom or customary international law means “a general and consistent practice of states followed by them from a sense of legal obligation [opinio juris] x x x.” This statement contains the two basic elements of custom: the material factor, that is how the states behave, and the psychological factor or subjective factor, that is, why they behave the way they do.

x x x x

          The initial factor for determining the existence of custom is the actual behavior of states.  This includes several elements: duration, consistency, and generality of the practice of states.

The required duration can be either short or long.  x x x

x x x x

Duration therefore is not the most important element.  More important is the consistency and the generality of the practice.  x x x

x x x x

Once the existence of state practice has been established, it becomes necessary to determine why states behave the way they do. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a matter of courtesy?  Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes practice an international rule.  Without it, practice is not law.^[116] (Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the different countries in the world that the prosecution of internationally recognized crimes of genocide, etc. should be handled by a particular international criminal court.

Absent the widespread/consistent-practice-of-states factor, the second or the psychological element must be deemed non-existent, for an inquiry on why states behave the way they do presupposes, in the first place, that they are actually behaving, as a matter of settled and consistent practice, in a certain manner.  This implicitly requires belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.^[117]  Like the first element, the second element has likewise not been shown to be present.

Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated therein as evidenced by it requiring State consent.^[118] Even further, the Rome Statute specifically and unequivocally requires that: “This Statute is subjectto ratification, acceptance or approval by signatory States.”^[119] These clearly negate the argument that such has already attained customary status.

More importantly, an act of the executive branch with a foreign government must be afforded great respect. The power to enter into executive agreements has long been recognized to be lodged with the President. As We held in Neri v. Senate Committee on Accountability of Public Officers and Investigations, “[t]he power to enter into an executive agreement is in essence an executive power. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence.”^[120] The rationale behind this principle is the inviolable doctrine of separation of powers among the legislative, executive and judicial branches of the government. Thus, absent any clear contravention of the law, courts should exercise utmost caution in declaring any executive agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US Non-Surrender Agreement ought to be in the form of a treaty, to be effective, has to be rejected. 

WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack of merit.  No costs.

SO ORDERED.

                                                          PRESBITERO J. VELASCO, JR.

                                                                    Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

              ANTONIO T. CARPIO            CONCHITA CARPIO MORALES                                                Associate Justice                                Associate Justice

  ANTONIO EDUARDO B. NACHURA       TERESITA J. LEONARDO-DE CASTRO   

                        Associate Justice                                                 Associate Justice

     ARTURO D. BRION                              DIOSDADO M. PERALTA

          Associate Justice                                           Associate Justice

   LUCAS P. BERSAMIN                      MARIANO C. DEL CASTILLO

          Associate Justice                                            Associate Justice

               ROBERTO A. ABAD                           MARTIN S. VILLARAMA, JR.

                   Associate Justice                                             Associate Justice

JOSE PORTUGAL PEREZ                  JOSE CATRAL MENDOZA 

Associate Justice                                   Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

C E R T I F I C A T I O N

                Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

                                                                   RENATO C. CORONA

                                                                                                                          Chief Justice

^[1] Rollo, pp. 241-265.

^[2] He is now the DFA Secretary.

^[3] Rollo, pp. 74-145.

^[4] ROME STATUTE, Art. 1.

^[5] Id., Art. 5.

^[6] ROME STATUTE, Article 125.

^[7] Rollo, pp. 68-69.

^[8] Id. at 72, Paper on the RP-US Non-Surrender Agreement.

^[9] Id. at 70.

^[10] Id. at 175.

        ^[11] Id. at 25-27.

              ^[12] Philconsa v. Gimenez, No. L-23326, December 18, 1965, 15 SCRA 479; Iloilo Palay & Corn Planters Association, No. L-24022, March 3, 1965, 13 SCRA 377; Araneta v. Dinglasan, 84 Phil. 368 (1949).

^[13] David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.

^[14] Jumamil v. Café, G.R. No. 144570, September 21, 2005, 470 SCRA 475; citing Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000, 338 SCRA 81.

^[15] Id.

^[16] Id.

^[17] Fariñas v. Executive Secretary, G.R. Nos. 147387 & 152161, December 10, 2003, 417 SCRA 503; citing Baker v. Carr, 369 U.S. 186 (1962). See also Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000, 337 SCRA 733.

^[18] Agan, Jr. v. Philippine International Air Terminals Co., Inc., G.R. Nos. 155001, 155547 & 155661, May 5, 2003, 402 SCRA 612.

^[19] Constantino, Jr. v. Cuisia, G.R. No. 106064, October 13, 2005, 472 SCRA 515; Agan, Jr., supra note 18; Del Mar v. Philippine Amusement and Gaming Corporation, G.R. No. 138298, November 29, 2000, 346 SCRA 485; Tatad v. Garcia, G.R. No. 114222, April 6, 1995, 243 SCRA 436; Kilosbayan v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110.

^[20] G.R. No. 160261, November 10, 2003, 415 SCRA 45.

^[21] Id. at 136-137.

                ^[22] Supra note 12.

^[23] Supra note 19.

^[24] G.R. No. 138587, October 10, 2000, 342 SCRA 2000.

^[25] G.R. No. 118295, May 2, 1997, 272 SCRA 18, 48-49.

              ^[26] Cruz, PHILIPPINE POLITICAL LAW 55 (1995).

^[27] Harris, CASES AND MATERIALS ON INTERNATIONAL LAW 801 (2004).

^[28] Official Website of the UN <http://untreaty.un.org/English/guide.asp.>; cited in Abaya v. Ebdane,  G.R. No. 167919, February 14, 2007, 515 SCRA 720.

^[29] Abaya v. Ebdane, supra.

                ^[30] Id.; citing The Constitutionality of Trade Agreement Acts by Francis Sayre.

                ^[31] Cited in Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333 (1961).

                ^[32] Executive Order No. 459, dated November 25, 1997, contains a similar definition.

                ^[33] B.A. Boczek, INTERNATIONAL LAW: A DICTIONARY 346 (2005).

                ^[34] Bayan v. Zamora, supra note 24; citing Richard Erickson, “The Making of Executive Agreements by the US Department of Defense,” 13 Boston U. Intl. L. J. 58 (1955); Randall, The Treaty Power, 51 Ohio St. L.J., p. 4; see also Restatement (Third) of Foreign Relations Law § 301 (1987), which states that “[t]he terminology used for international agreements is varied. Among the terms used are: treaty, convention, agreement, protocol, covenant, charter, statute, act, declaration, concordat, exchange of notes, agreed minute, memorandum of agreement, memorandum of understanding, and modus vivendi. Whatever their designation, all agreements have the same legal status, except as their provisions or the circumstances of their conclusion indicate otherwise.” (Emphasis supplied.)

^[35] Id. at 489; citing 5 Hackworth, DIGEST OF INTERNATIONAL LAW 395; cited in USAFE Veterans Association Inc. v. Treasurer of the Philippines, 105 Phil. 1030, 1037 (1959).

                ^[36] Reid v. Covert, 354 U.S. 77 S. Ct.1230.

                ^[37] In the US constitutional system, it is the legal force of treaties and executive agreements on the domestic plane.

^[38] Henkin, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 224 (2nd ed., 1996).

^[39] Prof. Edwin Borchard, Treaties and Executive Agreements – Reply,  Yale Law Journal, June 1945; cited in Justice Antonio T. Carpio’s  Dissent in Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222, February 11, 2009, 578 SCRA 438.

^[40] No. L-14279, October 31, 1961, 3 SCRA 351, 356.

^[41] No. L-30650, July 31, 1970, 34 SCRA 166.

^[42] Latin for “agreements must be kept,” BLACK’S LAW DICTIONARY (8th ed., 2004).  The principle of pacta sunt servanda, in its most common sense, refers to privatecontracts, stressing that these pacts and clauses are the law between the parties, and implying that the non-fulfilment of respective obligations is a breach of the pact. 

With regard to international agreements, Art. 26 of the Vienna Convention on the Law of Treaties (signed on May 23, 1969 and entered into force on January 27, 1980) states that“every treaty in force is binding upon the parties to it and must be performed by them in good faith.”  Pacta sunt servanda is based on good faith.  This entitles states to require thatobligations be respected and to rely upon the obligations being respected.  This good-faith basis of treaties implies that a party to the treaty cannot invoke provisions of its domestic lawas justification for a failure to perform.  The only limit to pacta sunt servanda is jus cogens (Latin for “compelling law”), the peremptory norm of general international law.

^[43] Oona A. Hathaway, Presidential Power Over International Law: Restoring the Balance, 119 YLJ 140, 152 (2009).

                ^[44] Rotunda, Nowak and Young, TREATISE ON CONSTITUTIONAL LAW 394; cited in then Chief Justice Puno’s dissent in Bayan v. Zamora, supra.

^[45] Nicolas, supra note 39.

                ^[46] Sec. 25. After the expiration in 1991 of the [RP-US Military Bases Agreement]  foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate, and when Congress so requires, ratified x x x in a national referendum held for that purpose, and recognized as a treaty by the contracting state.

^[47] Supra note 39.

^[48] Supra note 41.

^[49] Supra note 31.

^[50]                                                                  Article 27

Irrelevance of official capacity

1.             This Statue shall apply equally to all persons without any distinction based on official capacity.  In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2.             Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

^[51]                                                                  Article 86

General Obligation to Cooperate

States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

^[52]                                                                  Article 89

Surrender of persons to the Court

1.             The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person.  States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

2.             Where the person sought for surrender brings a challenge before a national court on the basis of the principle of neb is in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility.  If the case is admissible, the requested State shall proceed with the execution of the request.  If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.

3.   (a)     A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender.

      (b)     A request by the Court for transit shall be transmitted in accordance with article 87.  The request for transit shall contain:

  (i)      A description of the person being transported;

 (ii)      A brief statement of the facts of the case and their legal characterization; and

(iii)      The warrant for arrest and surrender;

(c)        A person being transported shall be detained in custody during the period of transit;

(d)       No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State;

(e)        If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b).  The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time.

4.             If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

^[53]                                                                   Article 90

Competing requests

1.             A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person’s surrender, notify the Court and the requesting State of that fact.

2.             Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if:

       (a)    The Court has, pursuant to article 18 or 19, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or

       (b)    The Court makes the determination described in subparagraph (a) pursuant to the requested State’s notification under paragraph 1.

3.             Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal with the request for extradition from the requesting State but shall not extradite the person until the Court has determined that the case is inadmissible.  The Court’s determination shall be made on an expedited basis.

4.             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, if the Court has determined that the case is inadmissible.

5.             Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may, at its discretion, proceed to deal with the request for extradition from the requesting State.

6.             In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the requesting State.  In making its decision, the requested State shall consider all the relevant factors, including but not limited to:

       (a)    The respective dates of the requests;

       (b)    The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and

       (c)    The possibility of subsequent surrender between the Court and the requesting State.

7.             Where a State Party which receives a request from the Court for the surrender of a person also receives a request from any State for the extradition of the same person for conduct other than that which constitutes the crime for which the Court seeks the person’s surrender:

       (a)    The requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the request from the Court;

       (b)    The requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to surrender the person to the Court or to extradite the person to the requesting State.  In making its decision, the requested State shall consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in question.

8.             Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision.

^[54] Tenth preambular paragraph of the ICC Statute.

^[55] 1.  Having regard to paragraph 10 of the Preamble and Article 1, the Court shall determine that a case is inadmissible where:

(a)  The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b)  The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c)  The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d)  The case is not of sufficient gravity to justify further action by the Court.

^[56] Latin for “not twice for the same,” a legal principle that means no legal action can be instituted twice for the same cause of action.  In gist, it is a legal concept substantially the same as or synonymous to double jeopardy.

^[57] A state is obliged to refrain from acts that would defeat the object and purpose of a treaty when:  (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

^[58] VIENNA CONVENTION ON THE LAW OF TREATIES, Art. 18.

^[59] Supra note 39.

^[60] CONSTITUTION, Art. II, Sec. 2.

^[61] Tañada v. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA 18.

^[62] Dizon v. Phil. Ryubus Command, 81 Phil. 286 (1948); cited in Agpalo, PUBLIC INTERNATIONAL LAW 222-223 (2006).

^[63] Rollo, pp. 53-54.

^[64] Under VIENNA CONVENTION ON THE LAW OF TREATIES, Art. 18, a State has the obligations not to defeat the object and purpose of a treaty prior to its entry into force when (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

^[65] Bayan v. Zamora, supra.

^[66] Id.; citing Commissioner of Customs, supra.

^[67] G.R. No. 158088, July 6, 2005, 462 SCRA 622.

^[68] Id. at 637-638; citing Cruz, INTERNATIONAL LAW 174 (1998).

^[69] Signature, ratification, acceptance, approval or accession.

1.  This Statute shall be open for signature by all States in Rome, at the headquarters of the Food and Agriculture Organization of the United Nations, on 17 July 1998.  Thereafter, it shall remain open for signature in Rome at the Ministry of Foreign Affairs of Italy until 17 October 1998.  After that date, the Statute shall remain open for signature in New York, at United Nations Headquarters, until 31 December 2000.

2.  This Statute is subject to ratification, acceptance or approval by signatory States.  Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations.

3. This Statute shall be open to accession by all States.  Instruments of accession shall be deposited with the Secretary-General of the United Nations.

^[70] RA 9851, Secs. 4-6.

^[71] Id., Secs. 7-12.

^[72] Id., Secs. 17-18.

^[73] Republic Planters Bank v. Agana, Sr., G.R. No. 51765, May 3, 1997, 269 SCRA 1, 12.

^[74] Supra note 39.

^[75] 456 U.S. 25 (1982).

^[76] Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222, February 11, 2009, 578 SCRA 438, 467.

^[77] G.R. No. 178830, July 14, 2008, 558 SCRA 329.

^[78] Id. at 376. (Emphasis supplied.)

^[79] Par. 1, Art. 2, RP-US Extradition Treaty, Senate Resolution No. 11, November 27, 1995 (emphasis supplied).

^[80] 18 U.S.C.A. § 2441.

^[81] 18 U.S.C.A. § 1091.

^[82] Malcolm Shaw, INTERNATIONAL LAW 112 (2008).

^[83] Victoria K. Holt and Elisabeth W. Dallas, “On Trial: The US Military and the International Criminal Court,” The Henry L. Stimson Center, Report No. 55, March 2006, p. 92; available at <http://www.stimson.org/images/uploads/research-pdfs/US_Military_and_the_ICC_FINAL_website.pdf> last visited January 27, 2011. We quote Holt and Dallas’ profiles from the report:

Victoria K. Holt is a senior associate at the Henry L. Stimson Center, where she co-directs the Future of Peace Operations program. She has co-authored a study of peacekeeping reforms at the United Nations, analyzing the implementation of the 2000 Brahimi Report recommendations, and recently completed reports on African capacity for peace operations and the protection of civilians by military forces. Ms. Holt joined the Stimson Center in 2001, bringing policy and political expertise on UN and peacekeeping issues from her work at the US Department of State, in the NGO community and on Capitol Hill. She served as Senior Policy Advisor at the US State Department (Legislative Affairs), where she worked with Congress on issues involving UN peacekeeping and international organizations. Prior to joining State, she was Executive Director of the Emergency Coalition for US Financial Support of the United Nations, and also directed the Project on Peacekeeping and the UN at the Center for Arms Control and Nonproliferation in Washington, DC. From 1987 to 1994, Ms. Holt worked as a senior Congressional staffer, focusing on defense and foreign policy issues for the House Armed Services Committee. She served as Legislative Director for Rep. Thomas H. Andrews and as Senior Legislative Assistant to Rep. George J. Hochbrueckner. Ms. Holt is a graduate of the Naval War College and holds a B.A. with honors from Wesleyan University.

Elisabeth W. Dallas is a research associate with the Henry L. Stimson Center’s Future of Peace Operations program and is focusing her work on the restoration of the rule of law in post-conflict settings. In particular, she is analyzing what legal mechanisms are required to allow for international criminal jurisdiction within UN peace operations. Prior to working at the Stimson Center, Ms. Dallas was a Senior Fellow with the Public International Law & Policy Group in Washington, DC, where she served as a political and legal advisor for parties during international peace negotiations taking place in the Middle East, the Balkans and South Asia. Ms. Dallas earned an MA from Tufts University’s Fletcher School of Law & Diplomacy with a concentration in International Negotiation & Conflict Resolution and Public International Law, as well as a Certificate in Human Security and Rule of Law. She earned her BA from Haverford College. (Emphasis supplied.)

^[84] ( i) Wilful killing;

(ii) Torture or inhuman treatment, including biological experiments;

(iii) Wilfully causing great suffering, or serious injury to body or health;

(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(vii) Unlawful deportation or transfer or unlawful confinement;

(viii) Taking of hostages.

^[85] (d) Common Article 3 violations. –

(1)     Prohibited conduct – In subsection (c)(3), the term “grave breach of common Article 3” means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:

(A)    Torture. – The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.

(B)    Cruel or inhuman treatment. – The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanction), including serious physical abuse, upon another within his custody or control.

(C)    Performing biological experiments. – The act of a person who subjects, or conspires or attempts to subject, one or more person within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons.

(D)    Murder. – The act of a person who intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.

(E)    Mutilation or maiming.— The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose.

(F)     Intentionally causing serious bodily injury.— The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.

(G)    Rape.— The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object.

(H)   Sexual assault or abuse.— The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact.

(I)      Taking hostages.— The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons.

(2)     Definitions.— In the case of an offense under subsection (a) by reason of subsection (c)(3)—

(A)    the term “severe mental pain or suffering” shall be applied for purposes of paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in section 2340 (2) of this title;

(B)    the term “serious bodily injury” shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113 (b)(2) of this title;

(C)    the term “sexual contact” shall be applied for purposes of paragraph (1)(G) in accordance with the meaning given that term in section 2246 (3) of this title;

(D)    the term “serious physical pain or suffering” shall be applied for purposes of paragraph (1)(B) as meaning bodily injury that involves—

(i)       a substantial risk of death;

(ii)     extreme physical pain;

(iii)    a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or

(iv)   a significant loss or impairment of the function of a bodily member, organ, or mental faculty; and

(E)    the term “serious mental pain or suffering” shall be applied for purposes of paragraph (1)(B) in accordance with the meaning given the term “severe mental pain or suffering” (as defined in section 2340(2) of this title), except that —

(i)       the term “serious shall replace the term “sever” where it appears; and

(ii)     as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term “serious and non-transitory mental harm (which need not be prolonged)” shall replace the term “prolonged mental harm” where it appears.

(3)     Inapplicability of certain provisions with respect to collateral damage or incident of lawful attack.— The intent specified for the conduct stated in subparagraphs (D), (E), and (F) or paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (A) by reasons of subsection (C)(3) with respect to —

(A)    collateral damage; or

(B)    death, damage, or injury incident to a lawful attack.

(4)     Inapplicability of taking hostages to prisoner exchange.— Paragraph (1)(I) does not apply to an offense under subsection (A) by reason of subsection (C)(3) in the case of a prisoner exchange during wartime.

(5)     Definition of grave breaches. – The definitions in this subsection are intended only to define the grave breaches of common Article 3 and not the full scope of United Statesobligations under that Article.

^[86] 18 U.S.C.A. § 2441.

^[87] Victoria K. Holt and Elisabeth W. Dallas, supra note 83, at 7.

^[88] Id. at 35.

^[89] 175 U.S. 677, 20 S.Ct. 290 (1900).

^[90] Id. at 700; citing Hilton v. Guyot, 159 U.S. 113, 163, 164, 214, 215, 40 L. ed. 95, 108, 125, 126, 16 Sup. Ct. Rep. 139.

^[91] 14 U.S. 415, 1816 WL 1770 (U.S.Mass.) (1816).

^[92] 11 U.S. (7 Cranch) 32 (1812).

^[93] Jordan J. Paust, CUSTOMARY INTERNATIONAL LAW AND HUMAN RIGHTS TREATIES ARE LAW OF THE UNITED STATES, 20 MIJIL 301, 309 (1999).

^[94] 11 U.S. (7 Cranch) 32, 32 (1812).

^[95] “x x x [C]ustomary international law is part of the law of the United States to the limited extent that, 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.” U.S. v. Yousef, 327 F.3d 56, 92 (2003).

^[96] 317 U.S. 1 (1942).

^[97] Id. at 27-28; citing Talbot v. Jansen, 3 Dall. 133, 153, 159, 161, 1 L.Ed. 540; Talbot v. Seeman, 1 Cranch 1, 40, 41, 2 L.Ed. 15; Maley v. Shattuck, 3 Cranch 458, 488, 2 L.Ed. 498;Fitzsimmons v. Newport Ins. Co., 4 Cranch 185, 199, 2 L.Ed. 591; The Rapid, 8 Cranch 155, 159-164, 3 L.Ed. 520; The St. Lawrence, 9 Cranch 120, 122, 3 L.Ed. 676; Thirty Hogsheads of Sugar v. Boyle, 9 Cranch 191, 197, 198, 3 L.Ed. 701; The Anne, 3 Wheat. 435, 447, 448, 4 L.Ed. 428; United States v. Reading, 18 How. 1, 10, 15 L.Ed. 291; Prize Cases (The Amy Warwick), 2 Black 635, 666, 667, 687, 17 L.Ed. 459; The Venice, 2 Wall. 258, 274, 17 L.Ed. 866; The William Bagaley, 5 Wall. 377, 18 L.Ed. 583; Miller v. United States, 11 Wall. 268, 20 L.Ed. 135;Coleman v. Tennessee, 97 U.S. 509, 517, 24 L.Ed. 1118; United States v. Pacific R.R., 120 U.S. 227, 233, 7 S.Ct. 490, 492, 30 L.Ed. 634; Juragua Iron Co. v. United States, 212 U.S. 297, 29 S.Ct. 385, 53 L.Ed. 520.

^[98] Id. at 29-30.

^[99] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, I.C.J. judgment, February 26, 2007, § 161; M. Cherif Bassiouni, INTERNATIONAL CRIMES: JUS COGENS AND OBLIGATIO ERGA OMNES, 59-AUT Law & Contemp. Probs. 63, 68.

^[100] I.C.J. Statute, art. 38, ¶ 1 (b) international custom, as evidence of a general practice accepted as law.

^[101] North Sea Continental Shelf, 1969 I.C.J. ¶ 77; cited in Patrick Simon S. Perillo, Transporting the Concept of Creeping Expropriation from De Lege Ferenda to De Lege Lata: Concretizing the Nebulous Under International Law, 53 ATENEO L.J. 434, 509-510 (2008).

^[102] North Sea Continental Shelf, 1969 I.C.J. ¶ 77; D.J. Harris, CASES AND MATERIALS ON INTERNATIONAL LAW, 22 (2004).

^[103] North Sea Continental Shelf, 1969 I.C.J. at 175 (Tanaka, J., dissenting).

^[104] Fisheries Jurisdiction (U.K. v. Ice) (Merits), 1974 I.C.J. 3, 89-90 (de Castro, J., separate opinion).

^[105] North Sea Continental Shelf, 1969 I.C.J. ¶ 77.

^[106] M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59-AUT Law & Contemp. Probs. 63, 67.

^[107] Id.

^[108] Id.

^[109] Carlee M. Hobbs, THE CONFLICT BETWEEN THE ALIEN TORT STATUTE LITIGATION AND FOREIGN AMNESTY LAWS, 43 Vand. J. Transnat’l L. 505, 521 (2009-2010); citing Jeffrey L. Dunoff, et al., INTERNATIONAL LAW: NORMS, ACTORS PROCESS 58-59 (2d ed., 2006).

^[110] Id.; citing Jeffrey L. Dunoff et al., INTERNATIONAL LAW: NORMS, ACTORS PROCESS 380 (2d ed., 2006).

^[111] Id.

^[112] Id.

^[113] Pharmaceutical and Health Care Association of the Philippines v. Duque III, G.R. No. 173034, October 9, 2007, 535 SCRA 265.

^[114] See <http://www.icc-cpi.int/Menus/ASP/states+parties/> (last visited January 26, 2011).

^[115] <http://www.nationsonline.org  oneworld /states.org> (last visited October 18, 2010). The list does not include dependent territories.

^[116] Joaquin G. Bernas, S.J., AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW 10-13 (2002); cited in Pharmaceutical and Health Care Association of the Philippines v. Duque III, supra note 113, at 292.

^[117] Pharmaceutical and Health Care Association of the Philippines, supra note 113, at 290-291; citation omitted.

^[118] Article 12. Preconditions to the exercise of jurisdiction.

1.       A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.

2.       In the case of Article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a)     The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft.

(b)     The State of which the person accused of the crime is a national.

^[119] ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Art. 25, par. 2.

^[120] G.R. No. 180643, September 4, 2003, 564 SCRA 152, 197-198.