Public International Law case digests 2

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#7 Bayan v. Zamora, G.R. No. 138570, October 10, 2000 I. THE FACTS The Republic of the Philippines and the United States of America entered into an agreement called the Visiting Forces Agreement (VFA). The agreement was treated as a treaty by the Philippine government and was ratified by then-President Joseph Estrada with the concurrence of 2/3 of the total membership of the Philippine Senate. The VFA defines the treatment of U.S. troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits, and further defines the rights of the U.S. and the Philippine governments in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies. Petitioners argued, inter alia, that the VFA violates §25, Article XVIII of the 1987 Constitution, which provides that “foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate . . . and recognized as a treaty by the other contracting State.” II. THE ISSUE Was the VFA unconstitutional? III. THE RULING [The Court DISMISSED the consolidated petitions, held that the petitioners did not commit grave abuse of discretion, and sustained the constitutionality of the VFA.] NO, the VFA is not unconstitutional. Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state. There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution . . . the provision in [in §25, Article XVIII] requiring ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it. xxx xxx xxx This Court is of the firm view that the phrase “recognized as a treaty” means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase. Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use. Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty. xxx xxx xxx The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the United States government has fully committed to living up to the terms of the VFA. For as long as the United States of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked compliance with the mandate of the Constitution.

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#8 Abaya vs. Ebdane G.R. No. 167919 Feb. 14, 2007 FACTS : This a petition for certiorari and prohibition to set aside and nullify Res. No. PJHL-A-04-012 dated May 27, 2004 issued by the Bids and Action Committee (BAC) of the DPWH. This resolution recommended the award to private respondent China Road and Bridge Corporation of the contract which consist of the improvement and rehabilitation of a 79.818-km road in the island of Catanduanes. Based on an Exchange of Notes, Japan and the Philippines have reached an understanding that Japanese loans are to be extended to the country with the aim of promoting economic stabilization and development efforts. In accordance with the established prequalification criteria, eight contractors were evaluated or considered eligible to bid as concurred by the JBIC. Prior to the opening of the respective bid proposals, it was announced that the Approved Budget for the Contract (ABC) was in the amount of P738,710,563.67. Consequently, the bid goes to private respondent in the amount of P952,564,821.71 (with a variance of 25.98% from the ABC). Hence this petition on the contention that it violates Sec. 31 of RA 9184 which provides that : Sec. 31 – Ceiling for Bid Prices. – The ABC shall be the upper limit or ceiling for the bid prices. Bid prices that exceed this ceiling shall be disqualified outright from further participating in the proceeding. There shall be no lower limit to the amount of the award. The petitioners further contends that the Loan Agreement between Japan and the Philippines is neither an international nor an executive agreement that would bar the application of RA9184. They pointed out that to be considered as such, the parties must be two (2) sovereigns or states whereas in this loan agreement, the parties were the Philippine government and the JBIC, a banking agency of Japan, which has a separate juridical personality from the Japanese government. ISSUE : Whether or not the assailed resolution violates RA 9184. RULING : The petition is dismissed. Under the fundamental principle of international law of pacta sunt servanda, which is in fact, embodied is Section 4 of RA9184, “any treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory, shall be observed”. The DPWH, as the executing agency of the project financed by the Loan Agreement rightfully awarded the contract to private respondent China Road and Bridge Corporation. The Loan Agreement was executed and declared that it was so entered by the parties “in the light of the contents of the Exchange of Notes between the government of Japan and the government of the Philippines dated Dec. 27, 1999.” Under the circumstances, the JBIC may well be considered an adjunct of the Japanese government. The JBIC procurement guidelines absolutely prohibit the imposition of ceilings and bids.

#9 China National Machinery v. Santamaria Executive agreement; requisites. An executive agreement is similar to a treaty, except that the former (a) does not require legislative concurrence; (b) is usually less formal; and (c) deals with a narrower range of subject matters. Despite these differences, to be considered an executive agreement, the following three requisites provided under the Vienna Convention must nevertheless concur: (a) the agreement must be between states; (b) it must be written; and (c) it must governed by international law. China National machinery & Equipment Corp. v. Hon. Cesar Santamaria, et. al, G.R. No. 185572, February 7, 2012. Facts: On 14 September 2002, petitioner China National Machinery & Equipment Corp. (Group) (CNMEG), represented by its chairperson, Ren Hongbin, entered into a Memorandum of Understanding with the North Luzon

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Railways Corporation (Northrail), represented by its president, Jose L. Cortes, Jr. for the conduct of a feasibility study on a possible railway line from Manila to San Fernando, La Union (the Northrail Project). On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the Department of Finance of the Philippines (DOF) entered into a Memorandum of Understanding (Aug 30 MOU), wherein China agreed to extend Preferential Buyer’s Credit to the Philippine government to finance the Northrail Project.3 The Chinese government designated EXIM Bank as the lender, while the Philippine government named the DOF as the borrower. Under the Aug 30 MOU, EXIM Bank agreed to extend an amount not exceeding USD 400,000,000 in favor of the DOF, payable in 20 years, with a 5-year grace period, and at the rate of 3% per annum. On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui (Amb. Wang), wrote a letter to DOF Secretary Jose Isidro Camacho (Sec. Camacho) informing him of CNMEG’s designation as the Prime Contractor for the Northrail Project. On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for the construction of Section I, Phase I of the North Luzon Railway System from Caloocan to Malolos on a turnkey basis (the Contract Agreement).7 The contract price for the Northrail Project was pegged at USD 421,050,000. On 26 February 2004, the Philippine government and EXIM Bank entered into a counterpart financial agreement – Buyer Credit Loan Agreement No. BLA 04055 (the Loan Agreement). In the Loan Agreement, EXIM Bank agreed to extend Preferential Buyer’s Credit in the amount of USD 400,000,000 in favor of the Philippine government in order to finance the construction of Phase I of the Northrail Project. On 13 February 2006, respondents filed a Complaint for Annulment of Contract and Injunction with Urgent Motion for Summary Hearing to Determine the Existence of Facts and Circumstances Justifying the Issuance of Writs of Preliminary Prohibitory and Mandatory Injunction and/or TRO against CNMEG, the Office of the Executive Secretary, the DOF, the Department of Budget and Management, the National Economic Development Authority and Northrail. The case was filed before the Regional Trial Court, National Capital Judicial Region, Makati City, Branch 145 (RTC Br. 145). In the Complaint, respondents alleged that the Contract Agreement and the Loan Agreement were void for being contrary to (a) the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184), otherwise known as the Government Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise known as the Government Auditing Code; and (d) Executive Order No. 292, otherwise known as the Administrative Code. On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEG’s Motion to Dismiss and setting the case for summary hearing to determine whether the injunctive reliefs prayed for should be issued. CNMEG then filed a Motion for Reconsideration, which was denied by the trial court in an Order dated 10 March 2008. Thus, CNMEG filed before the CA a Petition for Certiorari with Prayer for the Issuance of TRO and/or Writ of Preliminary Injunction dated 4 April 2008. the appellate court dismissed the Petition for Certiorari. Subsequently, CNMEG filed a Motion for Reconsideration, which was denied by the CA in a Resolution dated 5 December 2008. Petitioners Argument: Petitioner claims that the EXIM Bank extended financial assistance to Northrail because the bank was mandated by the Chinese government, and not because of any motivation to do business in the Philippines, it is clear from the foregoing provisions that the Northrail Project was a purely commercial transaction. Respondents Argument: respondents alleged that the Contract Agreement and the Loan Agreement were void for being contrary to (a) the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184), otherwise known as the Government Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise known as the Government Auditing Code; and (d) Executive Order No. 292, otherwise known as the Administrative Code. Issues: Whether or not petitioner CNMEG is an agent of the sovereign People’s Republic of China.

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Whether or not the Northrail contracts are products of an executive agreement between two sovereign states. Ruling: The instant Petition is DENIED. Petitioner China National Machinery & Equipment Corp. (Group) is not entitled to immunity from suit, and the Contract Agreement is not an executive agreement. CNMEG’s prayer for the issuance of a TRO and/or Writ of Preliminary Injunction is DENIED for being moot and academic. The Court explained the doctrine of sovereign immunity in Holy See v. Rosario, to wit: There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis. (Emphasis supplied; citations omitted.) As it stands now, the application of the doctrine of immunity from suit has been restricted to sovereign or governmental activities (jure imperii). The mantle of state immunity cannot be extended to commercial, private and proprietary acts (jure gestionis). Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature of the act involved – whether the entity claiming immunity performs governmental, as opposed to proprietary, functions. As held in United States of America v. Ruiz Admittedly, the Loan Agreement was entered into between EXIM Bank and the Philippine government, while the Contract Agreement was between Northrail and CNMEG. Although the Contract Agreement is silent on the classification of the legal nature of the transaction, the foregoing provisions of the Loan Agreement, which is an inextricable part of the entire undertaking, nonetheless reveal the intention of the parties to the Northrail Project to classify the whole venture as commercial or proprietary in character. Thus, piecing together the content and tenor of the Contract Agreement, the Memorandum of Understanding dated 14 September 2002, Amb. Wang’s letter dated 1 October 2003, and the Loan Agreement would reveal the desire of CNMEG to construct the Luzon Railways in pursuit of a purely commercial activity performed in the ordinary course of its business. #10 DEPARTMENT O BUDGET AND MANAGEMENT PROCUREMENT SERVICE (DBM-PS) and the inter-Agency Bids and Awards Committee (IABAC), petetioners VS. KOLONWEL TRADING, respondent. FACTS: Before the Court are these consolidated three (3) petitions for review under Rule 45 of the Rules of Court, with a prayer for a temporary restraining order, to nullify and set aside the Order dated December 4, 2006 of the Manila Regional Trial Court (RTC), Branch 18, in SP Civil Case No. 06-116010, a special civil action for certiorari and prohibition thereat commenced by herein respondent Kolonwel Trading (Kolonwel for short) against the Department of Budget and Management Procurement Service (DBM-PS), et al. At the core of the controversy are the bidding and the eventual contract awards for the supply and delivery of some 17.5 million copies of Makabayan (social studies) textbooks and teachers manuals, a project of the Department of Education (DepEd). The contract was awarded to several publishers for the different textbooks and Kolonwel was disqualified for which it appealed to the Inter-Agency Bids and Awards Committee but was denied. Kolonwel filed with the RTC of Manila a special civil action for certiorari and prohibition with a prayer for a temporary restraining order (TRO) and/or writ of preliminary injunction. Docketed as SP Civil Case No. 06-116010, and raffled to Branch 18 of the court, the petition sought to nullify IABAC Res. Nos. 001-2006 and 001-2006-A and to set aside the contract awards in favor of other publishers. Other publishers filed a motion to dismiss Kolonwel’s petition on several grounds, among them want of jurisdiction and lack of cause of action, inter alia alleging that the latter had pursued judicial relief without first complying with the protest procedure prescribed by Republic Act (R.A.) No. 9184, otherwise known as the “Government Procurement Reform Act.”. ISSUE:

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Whether or not the foreign loan agreements (Loan No. 7118-PH) with international financial institutions, partake of an executive or international agreement and shall govern the procurement of goods necessary to implement the project. HELD: This issue has been affirmatively answered in the case of Abaya. In that case, the court declared that the RP-JBIC loan agreement was to be of governing application over the CP I project and that the JBIC Procurement Guidelines, as stipulated in the loan agreement. Under the fundamental international law principle of pacta sunt servanda, the RP, as borrower, bound itself to perform in good faith its duties and obligation under Loan No. 7118-PH. Applying this postulate, the IABAC was legally obliged to comply with, or accord primacy to, the WB Guidelines on the conduct and implementation of the bidding/procurement process in question. #11 AKBAYAN vs AQUINO G.R. No. 170516, July 16, 2008 JPEPA Diplomatic Negotiations are Privileged Executive Privilege, an Exception to Congress' Power of Inquiry Treaty-making Power Executive Privilege vs. People's Right to Information FACTS: This is regarding the JPEPA, the bilateral free trade agreement ratified by the President with Japan, concerning trade in goods, rules of origin, customs procedures, paperless trading, trade in services, investment, etc. Prior to President’s signing of JPEPA in Sept. 2006, petitioners – non-government organizations, Congresspersons, citizens and taxpayers – sought via petition for mandamus and prohibition to obtain from respondents the full text of the JPEPA, including the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes thereto. Particularly, Congress through the House Committee are calling for an inquiry into the JPEPA, but at the same time, the Executive is refusing to give them the said copies until the negotiation is completed. ISSUES: Whether or not petitioners have legal standing Whether or not the Philippine and Japanese offers during the negotiation process are privileged Whether or not the President can validly exclude Congress, exercising its power of inquiry and power to concur in treaties, from the negotiation process RULING: Standing In a petition anchored upon the right of the people to information on matters of public concern, which is a public right by its very nature, petitioners need not show that they have any legal or special interest in the result, it being sufficient to show that they are citizens and, therefore, part of the general public which possesses the right. As the present petition is anchored on the right to information and petitioners are all suing in their capacity as citizens and groups of citizens including petitioners-members of the House of Representatives who additionally are suing in their capacity as such, the standing of petitioners to file the present suit is grounded in jurisprudence. JPEPA, A Matter of Public Concern

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To be covered by the right to information, the information sought must meet the threshold requirement that it be a matter of public concern xxx From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese offers submitted during the negotiations towards its execution are matters of public concern. This, respondents do not dispute. They only claim that diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an exception to the right to information and the policy of full public disclosure. Privileged Character of Diplomatic Negotiations Recognized The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that “information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest.” Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidential – since there should be “ample opportunity for discussion before *a treaty+ is approved” – the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that “historic confidentiality” would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. A ruling that Philippine offers in treaty negotiations should not be open to public scrutiny would discourage future Philippine representatives from frankly expressing their views during negotiations. While, on first impression, it appears wise to deter Philippine representatives from entering into compromises, it bears noting that treaty negotiations, or any negotiation for that matter, normally involve a process of quid pro quo, and oftentimes negotiators have to be willing to grant concessions in an area of lesser importance in order to obtain more favorable terms in an area of greater national interest. Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status. Does the exception apply even though JPEPA is primarily economic and does not involve national security? While there are certainly privileges grounded on the necessity of safeguarding national security such as those involving military secrets, not all are founded thereon. One example is the “informer’s privilege,” or the privilege of the Government not to disclose the identity of a person or persons who furnish information of violations of law to officers charged with the enforcement of that law. The suspect involved need not be so notorious as to be a threat to national security for this privilege to apply in any given instance. Otherwise, the privilege would be inapplicable in all but the most high-profile cases, in which case not only would this be contrary to long-standing practice. It would also be highly prejudicial to law enforcement efforts in general.

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Also illustrative is the privileged accorded to presidential communications, which are presumed privileged without distinguishing between those which involve matters of national security and those which do not, the rationale for the privilege being that a frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. In the same way that the privilege for judicial deliberations does not depend on the nature of the case deliberated upon, so presidential communications are privileged whether they involve matters of national security. It bears emphasis, however, that the privilege accorded to presidential communications is not absolute, one significant qualification being that “the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing.” This qualification applies whether the privilege is being invoked in the context of a judicial trial or a congressional investigation conducted in aid of legislation. Closely related to the “presidential communications” privilege is the deliberative process privilege recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co, deliberative process covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. Notably, the privileged status of such documents rests, not on the need to protect national security but, on the “obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news,” the objective of the privilege being to enhance the quality of agency decisions. The diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential communications privilege. It may be readily perceived that the rationale for the confidential character of diplomatic negotiations, deliberative process, and presidential communications is similar, if not identical. The earlier discussion on PMPF v. Manglapus shows that the privilege for diplomatic negotiations is meant to encourage a frank exchange of exploratory ideas between the negotiating parties by shielding such negotiations from public view. Similar to the privilege for presidential communications, the diplomatic negotiations privilege seeks, through the same means, to protect the independence in decision-making of the President, particularly in its capacity as “the sole organ of the nation in its external relations, and its sole representative with foreign nations.” And, as with the deliberative process privilege, the privilege accorded to diplomatic negotiations arises, not on account of the content of the information per se, but because the information is part of a process of deliberation which, in pursuit of the public interest, must be presumed confidential. Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged character of the deliberative process. Does diplomatic privilege only apply to certain stages of the negotiation process? In Chavez v. PEA and Chavez v. PCGG, the Court held that with regard to the duty to disclose “definite propositions of the government,” such duty does not include recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order. Treaty-making power of the President xxx they (petitioners) argue that the President cannot exclude Congress from the JPEPA negotiations since whatever power and authority the President has to negotiate international trade agreements is derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of Presidential Decree No. 1464.

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The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and international agreements, but the power to fix tariff rates, import and export quotas, and other taxes xxx. As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII – the article on the Executive Department. xxx While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the President only be delegation of that body, it has long been recognized that the power to enter into treaties is vested directly and exclusively in the President, subject only to the concurrence of at least two-thirds of all the Members of the Senate for the validity of the treaty. In this light, the authority of the President to enter into trade agreements with foreign nations provided under P.D. 1464 may be interpreted as an acknowledgment of a power already inherent in its office. It may not be used as basis to hold the President or its representatives accountable to Congress for the conduct of treaty negotiations. This is not to say, of course, that the President’s power to enter into treaties is unlimited but for the requirement of Senate concurrence, since the President must still enure that all treaties will substantively conform to all the relevant provisions of the Constitution. It follows from the above discussion that Congress, while possessing vast legislative powers, may not interfere in the field of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence, such pertains only to the validity of the treaty under consideration, not to the conduct of negotiations attendant to its conclusion. Moreover, it is not even Congress as a while that has been given the authority to concur as a means of checking the treaty-making power of the President, but only the Senate. Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members of the House of Representatives fail to present a “sufficient showing of need” that the information sought is critical to the performance of the functions of Congress, functions that do not include treaty-negotiation. Did the respondent’s alleged failure to timely claim executive privilege constitute waiver of such privilege? That respondent invoked the privilege for the first time only in their Comment to the present petition does not mean that the claim of privilege should not be credited. Petitioner’s position presupposes that an assertion of the privilege should have been made during the House Committee investigations, failing which respondents are deemed to have waived it. xxx (but) Respondent’s failure to claim the privilege during the House Committee hearings may not, however, be construed as a waiver thereof by the Executive branch. xxx what respondents received from the House Committee and petitioner-Congressman Aguja were mere requests for information. And as priorly stated, the House Committee itself refrained from pursuing its earlier resolution to issue a subpoena duces tecum on account of then Speaker Jose de Venecia’s alleged request to Committee Chairperson Congressman Teves to hold the same in abeyance. The privilege is an exemption to Congress’ power of inquiry. So long as Congress itself finds no cause to enforce such power, there is no strict necessity to assert the privilege. In this light, respondent’s failure to invoke the privilege during the House Committee investigations did not amount to waiver thereof. “Showing of Need” Test In executive privilege controversies, the requirement that parties present a “sufficient showing of need” only means, in substance, that they should show a public interest in favor of disclosure sufficient in degree to overcome the claim of privilege. Verily, the Court in such cases engages in a balancing of interests. Such a balancing of interests is certainly not new in constitutional adjudication involving fundamental rights. xxx However, when the Executive has – as in this case – invoked the privilege, and it has been established that the subject information is indeed covered by the privilege being claimed, can a party overcome the same by merely asserting that the information being demanded is a matter of public concern, without any further showing

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required? Certainly not, for that would render the doctrine of executive privilege of no force and effect whatsoever as a limitation on the right to information, because then the sole test in such controversies would be whether an information is a matter of public concern. Right to information vis-a-vis Executive Privilege xxx the Court holds that, in determining whether an information is covered by the right to information, a specific “showing of need” for such information is not a relevant consideration, but only whether the same is a matter of public concern. When, however, the government has claimed executive privilege, and it has established that the information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege, must show that that information is vital, not simply for the satisfaction of its curiosity, but for its ability to effectively and reasonably participate in social, political, and economic decision-making. #12 SANTOS III vs Northwest Orient Airlines 210 SCRA 256 – Political Law – Constitutional Law – The Judicial Department – Judicial Review – Constitutionality of a Treaty – Warsaw Convention Augusto Benedicto Santos III is a minor represented by his dad. In October 1986, he bought a round trip ticket from Northwest Orient Airlines (NOA) in San Francisco. His flight would be from San Francisco to Manila via Tokyo and back to San Francisco. His scheduled flight was in December. A day before his departure he checked with NOA and NOA said he made no reservation and that he bought no ticket. The next year, due to the incident, he sued NOA for damages. He sued NOA in Manila. NOA argued that Philippine courts have no jurisdiction over the matter pursuant to Article 28(1) of the Warsaw Convention, which provides that complaints against international carriers can only be instituted in: 1. the court of the domicile of the carrier (NOA’s domicile is in the USA); 2. the court of its principal place of business (which is San Francisco, USA); 3. the court where it has a place of business through which the contract had been made (ticket was purchased in San Francisco so that’s where the contract was made); 4. the court of the place of destination (Santos bought a round trip ticket which final destination is San Francisco). The lower court ruled in favor of NOA. Santos III averred that Philippine courts have jurisdiction over the case and he questioned the constitutionality of Article 28 (1) of the Warsaw Convention. ISSUE: Whether or not Philippine courts have jurisdiction over the matter to conduct judicial review. HELD: No. The Supreme Court ruled that they cannot rule over the matter for the SC is bound by the provisions of the Warsaw Convention which was ratified by the Senate. Until & unless there would be amendment to the Warsaw Convention, the only remedy for Santos III is to sue in any of the place indicated in the Convention such as in San Francisco, USA. The SC cannot rule upon the constitutionality of Article 28(1) of the Warsaw Convention. In the first place, it is a treaty which was a joint act by the legislative and the executive. The presumption is that it was first carefully studied and determined to be constitutional before it was adopted and given the force of law in this country. In this case, Santos was not able to offer any compelling argument to overcome the presumption. #13Lim vs. GMA GR 151445, 11 April 2002 Facts: On 1 February 2002, petitioners Arturo D. Lim and Paulino Ersando filed this petition for certiorari and prohibition attacking the constitutionality of the so-called “Balikatan 01-1.” The “Balikatan” exercises are the largest combined training operations involving Filipino and American troops. It is pursuant to the Mutual Defense

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Treaty, a bilateral defense agreement entered into by the Philippines and the US in 1951 and an effect of the Visiting Forces Agreement between the two nations of 1999. Issues: Whether “Balikatan 02-1” is covered by the Visiting Forces Agreement (VFA). Whether the VFA authorized American soldiers to engage in combat operations in Philippine territory. Held: In resolving the first issue, it is necessary to refer to the VFA itself. However, not much help can be had therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA permits United States personnel to engage on an impermanent basis in “activities”, the exact meaning of which was left undefined. The sole encumbrance placed on its definition is couched in the negative, in that United States personnel must “abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity.” The Supreme Court, after studied reflection of Articles 31 and 32 of Section 3 of the Vienna Convention on the Law of Treaties, concluded that the ambiguity sorrounding the meaning of the word “activities” arose from accident. In our view, it was deliberately made that way to give both parties a certain leeway in negotiation. Under these auspices, the VFA if given legitimacy to the current Balikatan exercise. It is only logical to assume that “Balikatan 02-1” a mutual anti-terrorism advising, assisting and training exercise,” falls under the umbrella of sanctioned or allowable activities in the context of the agreement. In connection with the second issue, both the history and intent of the MDT and the VFA support conclusion that combat-related activities, as opposed to combat itself are indeed authorized. More so, the Terms of Reference are explicit enough. Paragraph 8 of Section I stipulates that US exercise participants may not engage in combat “except in self-defense.” It is the opinion of the Court that neither the MDT nor the DFA allow foreign troops to engage in an offensive war in Philippine territory bearing in mind the salutory prescription stated in the Charter of the United Nations. In the same manner, both the MDT and the VFA, as in all other treaties and international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution. Although the Constitution present a conflict between the fundamental law and our obligations from international agreements, it however resolves it in section 2 of Article VIII of the Constitution. The foregoing premises leave us no doubt that US forces are prohibited from engaging in an offensive war on the Philippine territory.