Public International Law (Digests)

Bayan v. Zamora, G.R. No. 138570, October 10, 2000 2 000 BUENA, J.: THE FACTS 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.” Following the argument of the petitioner, under they provision cited, the “foreign military bases, troops, or facilities” may be allowed in the Philippines unless the following conditio ns are

sufficiently met: a) it must be a treaty, b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by congress, and c) recognized as such by the other contracting state.

Criminal Jurisdiction Waived under VFA (relevant provisions) (c) The authorities of either government may request the authorities of the other government to waive their primary right to exercise jurisdiction in a particular case. (d) Recognizing the responsibility of the United States military authorities to maintain good order and discipline among their forces, Philippine authorities will, upon request by the United States, waive their primary right to exercise jurisdiction except in cases of particular importance to the Philippines. If the Government of the Philippines determines that the case is of particular importance, it shall communicate such determination to the United States authorities within twenty (20) days after the Philippine authorities receive the United States request.

ISSUE:

Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of the Constitution?

ART VII, SECTION 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

ART XVIII, SECTION 25.  After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, 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 the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.

ESCRA TOPIC: Same; Same; International Law; Executive Agreements; Words and Phrases; The phrase “recognized as a treaty” means that the other contracting party accepts or acknowled  ges the agreement as a treaty. —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. Bayan (Bagong Alyansang Makabayan) vs. Zamora, 342 SCRA 449, G.R. No. 138570, G.R. No. 138572, G.R. No. 138587, G.R. No. 138680, G.R. No. 138698 October 10, 2000 International Law; Treaties; Executive Agreements; Visiting Forces Agreement; 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. —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. Bayan (Bagong Alyansang Makabayan) vs. Zamora, 342 SCRA 449, G.R. No. 138570, G.R. No. 138572, G.R. No. 138587, G.R. No. 138680, G.R. No. 138698 October 10, 2000 Same; Same; Same; Words and Phrases; A treaty, as defined by the Vienna Convention on the Law of Treaties, is “an international instrument 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.”— A treaty, as defined by the Vienna Convention on the Law of Treaties, is “an international instrument 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.” There are many other terms used for a treaty or international agreement, some of which are: act, protocol, agreement, compromis d’ arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have

pointed out that the names or titles of international agreements included under the general term treaty have little or no legal significance. Certain terms are useful, but they furnish little more than mere description. Same; Same; Same; In international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers. —Thus, in international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations. Bayan (Bagong Alyansang Makabayan) vs. Zamora, 342 SCRA 449, G.R. No. 138570, G.R. No. 138572, G.R. No. 138587, G.R. No. 138680, G.R. No. 138698 October 10, 2000 Same; Same; Same; Same; With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the United States of  America, it now becomes obligatory and incumbent incumbent on our part, under the principles of international law, to be bound by the terms of the agreement. —With the ratification of the VFA,

which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution, declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and am ity with all nations. Same; Same; Same; Same; Pacta Sunt Servanda; As an integral part of the community of nations, we are responsible to assure that our government, Constitution and laws will carry out our international obligation— obligation —we cannot readily plead the Constitution as a convenient excuse for noncompliance with our obligations, duties and responsibilities under international law. — As

a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct of its international relations. While the international obligation devolves upon the state and not upon any particular branch, institution, or individual member of its government, the Philippines is nonetheless responsible for violations committed by any branch or subdivision of its government or any official thereof. As an integral part of the community of nations, we are responsible to assure that our government, Constitution and laws will carry out our international obligation. Hence, we cannot readily plead the Constitution as a convenient excuse for non-compliance with our obligations, duties and responsibilities under international law. Same; Same; Same; Same; Same; Words and Phrases; Under the principle of pacta sunt servanda, every treaty in force is binding upon the parties to it and must be performed by them in good faith.— faith. —Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 provides: “ Every State has the duty to carry out in

good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty .”

Equally important is Article 26 of the Convention which provides that “Every treaty in force is binding upon the parties to it and must be performed by them in good faith,” This is known as

the principle of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most fundamental principles of positive international law, supported by the jurisprudence of international tribunals.

Lim V. Executive Secretary (2002) G.R. No. 151445 April 11, 2002

FACTS: Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the armed forces of the United States of America started arriving in Mindanao to take partin "Balikatan 021” on January 2002. 2002. The Balikatan 02 -1 exercises involves the simulation of joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines and the United United States in 1951. The exercise is rooted from the international anti-terrorism campaign declared by President George W. Bush in reaction to the 3 commercial aircrafts hijacking that smashed into twin towers of the World Trade Center in New York City and the Pentagon building in Washington, D.C. allegedly by the al-Qaeda headed by the Osama bin Laden that occurred occurred on September 11, 2001. Arthur D. Lim and Paulino Paulino P. Ersando as citizens, lawyers and taxpayers filed a petition for certiorari and prohibition attacking the constitutionality of of the joint joint exercise. Partylists Sanlakas Sanlakas and Partido Partido Ng Manggagawa Manggagawa as residents of Zamboanga and Sulu directly affected by the operations filed a petition-inintervention. The Solicitor General commented the prematurity of the action as it is based only on a fear of future violation of the Terms of Reference and impropriety of availing of certiorari to ascertain a question of fact specifically interpretation of the VFA whether it is covers "Balikatan 02-1” and no question of constitutionality is involved. involved. Moreover, there is lack of locus standi standi since it does not involve tax spending and there is no proof of direct personal injury. ISSUE: W/N the petition and the petition-in-intervention should prosper. HELD: NO. Petition and the petition-in-intervention petition-in-intervention are hereby DISMISSED DISMISSED without prejudice to the filing of a new petition sufficient in form and substance in the proper Regional Trial Court Supreme Court is not a trier of facts Doctrine of Importance to the Public Considering however the importance to the public of the case at bar, and in keeping with the Court's duty, under the 1987 Constitution, to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws that they

have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this petition.  Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers, which enjoins upon the department of the government a becoming respect for each other's act, this Court nevertheless resolves to take cognizance of the instant petition. Interpretation of Treaty The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine government. 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." All other activities, in other words, are fair game. To aid in this, the Vienna Convention on the Law of Treaties Article 31 SECTION 3 and Article 32 contains provisos governing interpretations of international agreements. It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is presumed to verbalize the parties' intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other elements may may be taken into account alongside the aforesaid context. According to Professor Briggs, writer on the Convention, the distinction between the general rule of interpretation and the supplementary means of interpretation is intended rather to ensure that the supplementary means do not constitute an alternative, autonomous method of interpretation divorced from the general rule. The meaning of the word “activities" “activiti es" was was deliberately made that way to give both parties a

certain leeway in negotiation. Thus, the VFA gives legitimacy to the current Balikatan exercises. Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities -as opposed to combat itself -such as the one subject of the instant petition, are indeed authorized. The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not engage in combat combat "except in self-defense." ." The indirect indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1" is actually a war principally conducted by the United States government, and that the provision on self-defense serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes crucial. In our considered opinion, neither the MDT nor the VFA allow foreign troops to engage engage in an offensive war on Philippine territory. Under the salutary salutary proscription stated in Article 2 of the Charter of the United Nations. Both the Mutual Defense Treaty and the Visiting Forces Agreement, 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 especially Sec. 2, 7 and 8 of Article 2: Declaration of Principles and State Policies in this case. The Constitution also regulates the foreign relations powers of the Chief

Executive when it provides that "[n]o treaty or international agreement shall be valid and effective unless concurred concurred in by at least two-thirds of all the members of the Senate." Even more pointedly Sec. 25 on Transitory Provisions which shows antipathy towards foreign military presence in the country, country, or of foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception. International Law vs. Fundamental Law and Municipal Laws Conflict arises then between the fundamental law and our obligations arising from international agreements. Philip Morris, Inc. v. Court of Appeals: “Withal, the fact th at international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international law are given a standing equal, not superior, to national legislation.” From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith." Further, a party to a treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to perform a treaty." Our Constitution espouses the opposing view as stated in section 5 of Article VIII: “The Supreme Court shall have the following powers: xxx (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and order of lower courts in: (A) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.” Ichong v. Hernandez: “provisions of a tr eaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the State” Gonzales v. Hechanova: “our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.” The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an offensive war on Philippine territory

ESCRA TOPICS Lim vs. Executive Secretary Lim vs. Executive Secretary, 380 SCRA 739, G.R. No. 151445 April 11, 2002 Public International Law Topic Same; Same; Same; A Same;  A party to a treaty is not allowed allowed to “invoke “invoke the provisions provisions of its its internal law as justification for its failure to perform a treaty.”— From the perspective of public international

law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. Hence, “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.” Further, a party to a treaty is not allowed to “invoke the provisions of its internal law

as justification for its failure to perform a treaty.” Lim vs. Executive Secretary, 380 SCRA 739,

G.R. No. 151445 April 11, 2002 Constitutional Law Topic Constitutional Law; Treatise; The Terms of Reference rightly fall within the context of the Visiting Forces Agreement (VFA).— (VFA). —The Terms of Reference rightly fall within the context of the VFA.  After studied reflection, it appeared farfetched farfetched that the ambiguity surrounding 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. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the nation’s marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the like. Lim vs. Executive Secretary, 380 SCRA 739, G.R. No. 151445 April 11, 2002 KAPUNAN, J., Dissenting Opinion: Constitutional Law; Treatise; There is no treaty allowing foreign military troops to engage in combat with internal elements.— elements. —The Constitution prohibits foreign military bases, troops or

facilities unless a treaty permits the same. There is no treaty allowing foreign military troops to engage in combat with internal elements. Lim vs. Executive Secretary, 380 SCRA 739, G.R. No. 151445 April 11, 2002

Pimentel v. Executive Secretary Digest G.R. No. 158088 July 6, 2005 Facts: 1. The petitioners filed a petition for mandamus to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence pursuant to Sec. 21, Art VII of the 1987 Constitution. 2. The Rome Statute established the Int'l Criminal Court which will have jurisdiction over the most serious crimes as genocide, crimes against humanity, war crimes and crimes of aggression as defined by the Statute. The Philippines through the Chargie du Affairs in UN. The provisions of the Statute however require that it be subject to ratification, acceptance or approval of the signatory state. 3. Petitioners contend that ratification of a treaty, under both domestic and international law, is a function of the Senate, hence it is the duty of the Executive Department to transmit the signed copy to the senate to allow it to exercise its discretion.

ISSUE: Whether or not the Exec. Secretary and the DFA have the ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine mission to the U.N. even without the signature of the President.

HELD: The Supreme Court held NO. 1. The President as the head of state is the sole organ and authorized in the external relations and he is also the country's sole representative with foreign nations, He is the mouthpiece with respect to the country's foreign affairs. 2. In treaty-making, the President has the sole authority to negotiate with other states and enter into treaties but this power is limited by the Constitution with the 2/3 required vote of all the members of the Senate for the treaty to be valid. (Sec. 21, Art VII). 3. The legislative branch part is essential to provide a check on the executive in the field of foreign relations, to ensure the nation's pursuit of political maturity and growth.

ESCRA TOPIC Pimentel, Jr. vs. Office of the Executive Secretary, 462 SCRA 622, G.R. No. 158088 July 6, 2005 PIL TOPIC: Same; Same; Same; Same; Same; International Law; Rome Statute of the International Criminal Court; Only Senator Pimentel has the legal standing to file the instant suit since the other petitioners, even as they maintain their standing as advocates and defenders of human rights, and as citizens of the country, have not shown that they have sustained or will sustain a direct injury from the non-transmittal of the signed text of the Rome Statute to the Senate —the Rome Statute is intended to complement national criminal laws and courts and sufficient remedies are available under our national laws to protect our citizens against human rights violations and petitioners can always seek redress for any abuse in our domestic courts. —The

question in standing is whether a party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit. The other petitioners maintain their standing as advocates and defenders of human rights, and as citizens of the country. They have not shown, however, that they have sustained or will sustain a direct injury from the non-transmittal of the signed text of the Rome Statute to the

Senate. Their contention that they will be deprived of their remedies for the protection and enforcement of their rights does not persuade. The Rome Statute is intended to complement national criminal laws and courts. Sufficient remedies are available under our national laws to protect our citizens against human rights violations and petitioners can always seek redress for any abuse in our domestic courts. Pimentel, Jr. vs. Office of the Executive Secretary, 462 SCRA 622, G.R. No. 158088 July 6, 2005 International Law; Treaties; Presidency; In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the count ry’s ry’s sole representative with foreign nations.— In our system of government, the President,

being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations. As the chie f architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitutio n provides that “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” Pimentel, Jr. vs. Office of the Executive Secretary, 462 SCRA 622, G.R. No. 158088 July 6, 2005 Same; Same; Same; Petitioners’ submission that the Philippines is bound under treaty law and international law to ratify the treaty which it has signed is without basis —it is the ratification that binds the state to the provisions thereof; There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons; The President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. —Petitioners’ submission that the

Philippines is bound under treaty law and international law to ratify the treaty which it has signed is without basis. The signature does not signify the final consent of the state to the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification, acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the provisions of such treaty. After the treaty is signed by the state’s representative, the President, being accountable to the people, is burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the state and its people. Thus, the President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It has been held that a state has no legal or

even moral duty to ratify a treaty which has been signed by its plenipotentiaries. There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other state would be justified in taking offense. Pimentel, Jr. vs. Office of the Executive Secretary, 462 SCRA 622, G.R. No. 158088 July 6, 2005

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L. MAZA, Petitioner, vs. ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity as Secretary of Foreign Affairs, Respondents. G.R. No. 159618 | February 1, 2011

ESCRA Constitutional Law; Executive Department; Executive Agreements; RP-US Non-Surrender  Agreement;  Agreement; International Law; One State can agree to waive jurisdiction to subjects of another State due to the recognition of the principle of extraterritorial immunity. —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. Same; Same; Same; Same; Same; What the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals, without the consent of the other party, which may desire to prosecute the crime under its existing laws. —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.

Pharmaceutical and Health Care Association of the Philippines v Duque III

Facts: Petition for certiorari seeking to nullify the Revised Implementing Rules and Regulations (RIRR) of E.O. 51 (Milk Code). Petitioner claims that the RIRR is not valid as it contains provisions that are not constitutional and go beyond what it is supposed to implement. Milk Code was issued by President Cory Aquino under the Freedom Constitution on Oct.1986. One of the preambular clauses of the Milk Code states that the law seeks to give effect to Art 11 of the Int’l Code of Marketing and Breastmilk Substitutes(ICBMS), a code adopted by the World Health  Assembly(WHA). From 1982-2006, The WHA also adopted severe resolutions to the effect that breastfeeding should be supported, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes. In 2006, the DOH issued the assailed RIRR.

Issue: Sub-Issue: W/N the pertinent int’l agreements entered into by the Phil are part of the law o f the land and may be b e implemented by DOH through the RIRR. If yes, W/N the RIRR is in accord with int’l agreements

MAIN: W/N the DOH acted w/o or in excess of their jurisdiction, or with grave abuse of discretion amounting to lack of excess of jurisdiction and in violation of the Constitution by promulgating the RIRR.

Held: Sub-issue: Yes for ICBMS. Under 1987 Consti, int’l law can become domestic law by transformation (thru constitutional mechanism such as local legislation) or incorporation (mere constitutional declaration i.e treaties) The ICBMS and WHA resolutions were not treaties as they have not been concurred by 2/3 of all members of the Senate as required under Sec, 21, Art 8. However, the ICBMS had been transformed into domestic law through a local legislation such as the Milk Code. The Milk Code is almost a verbatim reproduction of ICBMS. No for WHA Resolutions. The Court ruled that DOH failed to establish that the provisions pertinent WHA resolutions are customary int’l law that may be deemed   part of the law of the land. For an int’l rule to be considered as customary law, it must be established that such rule is being followed by states because they consider it as obligatory to comply with such rules (opinion juris). The WHO resolutions, although signed by most of the member states, were enforced or practiced by at least a majority of member states. Unlike the ICBMS whereby legislature enacted most of the provisions into the law via the Milk Code, the WHA Resolutions (specifically providing for exclusive breastfeeding from 0-6 months, breastfeeding up to 24 Months and absolutely prohibiting ads for breastmilk substitutes) have not been adopted as domestic law nor are they followed in our country as well. The Filipinos have the option of how to take care of their babies as they see fit. WHA Resolutions may be classified as SOFT LAW  – non-binding norms, principles and practices that influence state behavior. Soft law is not part of int’l law.Pharmaceutical and Health Care Association of the Philip pines v Duque III

Facts: Petition for certiorari seeking to nullify the Revised Implementing Rules and Regulations (RIRR) of E.O. 51 (Milk Code). Petitioner claims that the RIRR is not valid as it contains provisions that are not constitutional and go beyond what it is supposed to implement. Milk Code was issued by President Cory Aquino under the Freedom Constitution on Oct.1986. One of the preambular clauses of the Milk Code states that the law seeks to give effect to Art 11 of the Int’l Code of Marketing and Breastmilk Substitutes(ICBMS), a code adopted by the World Health  Assembly(WHA). From 1982-2006, The WHA also adopted severe resolutions to the effect that breastfeeding should be supported, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes. In 2006, the DOH issued the assailed RIRR. Issue: Sub-Issue: W/N the pertinent int’l agreements entered into by the Phil are part of the law of the land and may be b e implemented by DOH through the RIRR. If yes, W/N the RIRR is in accord a ccord with int’l agreements

MAIN: W/N the DOH acted w/o or in excess of their jurisdiction, or with grave abuse of discretion amounting to lack of excess of jurisdiction and in violation of the Constitution by promulgating the RIRR. Held: Sub-issue: Yes for ICBMS. Under 1987 Consti, int’l law can become domestic law by transformation (thru constitutional mechanism such as local legislation) or incorporation (mere constitutional declaration i.e treaties) The ICBMS and WHA resolutions were not treaties as they have not been concurred by 2/3 of all members of the Senate as required under Sec, 21, Art 8. However, the ICBMS had been transformed into domestic law through a local legislation such as the Milk Code. The Milk Code is almost a verbatim reproduction of ICBMS. No for WHA Resolutions. The Court ruled that DOH failed to establish that the provisions pertinent WHA resolutions are customary int’l law that may be deemed part of the law of the land. For an int’l rule to be consider ed as customary law, it must be established that such rule is being followed by states because they consider it as obligatory to comply with such rules (opinion juris). The WHO resolutions, although signed by most of the member states, were enforced or practiced by at least a majority of member states. Unlike the ICBMS whereby legislature enacted most of the provisions into the law via the Milk Code, the WHA Resolutions (specifically providing for exclusive breastfeeding from 0-6 months, breastfeeding up to 24 Months and absolutely prohibiting ads for breastmilk substitutes) have not been adopted as domestic law nor are they followed in our country as well. The Filipinos have the option of how to take care of their babies as they see fit. WHA Resolutions may be classified as SOFT LAW  – non-binding norms, principles and practices that influence state behavior. Soft law is not part of int’l law.

ESCRA TOPIC PIL TOPIC International Law; Treaties; Doctrine of Incorporation and Doctrine of Transformation; Words and Phrases; Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation; Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the Constitution. —Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law. Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the Constitution which provides that “[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two thirds of all the members of the Senate.” Thus, treaties or conventiona l international law must go through a process prescribed by the Constitution for it to be transformed into municipal law that can be applied to domestic conflicts. Pharmaceutical and Health Care Association of the Philippines vs. Duque III, 535 SCRA 265, G.R. No. 173034 October 9, 2007 Same; Same; Same; Generally Accepted Principles of Law; Section 2, Article II of the 1987 Constitution, whereby the Philippines adopts the generally accepted principles of international law as part of the law of the land, embodies the incorporation method. —Section 2, Article II of the 1987 Constitution, to wit: “SECTION 2. The Phil -ippines renounces war as an instrument of

national policy, adopts the generally ge nerally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations (Emphasis supplied),” embodies the incorporation method. Same; Same; Same; Same; Words and Phrases; Generally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations; “Generally accepted principles of international law” refers to norms of general or customary internationa l law which are binding on all states, i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity, a person’s right to life, liberty and due process, and pacta sunt servanda, among others.— In

Mijares v. Ranada, 455 SCRA 399 (2005) the Court held thus: [G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those customary rules accepted as binding result from the combination [of] two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. (Emphasis supplied) “Generally accepted principles of international law” refers to norms of general or customary international law which are binding on all states, i.e., renunciation of war as an instrument of national policy, the

principle of sovereign immunity, a person’s right to life, liberty and due process, and pa cta sunt servanda, among others. The concept of “generally accepted principles of law” has also been depicted in this wise: Some legal scholars and judges look upon certain “general principles of law” as a primary source of international law because they have the “character of jus rationale” and are “valid through all kinds of human societies.” (Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J. 296). O’Connell holds that certain priniciples are part of international law because they are “basic to legal systems generally” and hence part of

the jus gentium. These principles, he believes, are established by a process of reasoning based on the common identity of all legal systems. If there should be doubt or disagreement, one must look to state practice and determine whether the municipal law principle provides a just and acceptable solution. x x x (Emphasis supplied) Same; Same; Same; Same; Same; Customary International Law; Custom or customary international law means “a gen eral and consistent practice of states followed by them from a sense of legal obligation [opinio juris],” which statement contains the two basic elements of custom: the material factor, that is, how states behave, and, the psychological or subjective factor, that is, why they behave the way they do; Customary international law is deemed incorporated into our domestic system. —Fr. Joaquin G. Bernas defines customary international law as follows: Custom or customary international law means “a general and consi stent practice of states followed by them from a sense of legal obligation [opinio juris].” (Restatement) This

statement contains the two basic elements of custom: the material factor, that is, how states behave, and the psychological or o r 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. (Italics and Emphasis supplied) Clearly customary international law is deemed incorporated into our domestic system. Pharmaceutical and Health Care Association of the Philippines vs. Duque III, 535 SCRA 265, G.R. No. 173034 October 9, 2007 Same; Same; Same; Same; Same; Same; Same; Soft Law; Words and Phrases; While “soft law” does not fall into any of the categories of international law set forth in Article 38, Chapter   III of the 1946 Statute of the International Court of Justice, it is, however, an expression of nonbinding norms, principles, and practices that influence state behavior. —It is propounded that WHA Resolutions may constitute “soft law” or non -binding norms, principles and practices that influence state behavior. “Soft law” does not fall into any of the categories of international law

set forth in Article 38, Chapter III of the 1946 Statute of the International Court of Justice. It is, however, an expression of non-binding norms, principles, and practices that influence state behavior. Certain declarations and resolutions of the UN General Assembly fall under this

category. The most notable is the UN Declaration of Human Rights, which this Court has enforced in various cases, specifically, Government of Hongkong Special Administrative Region v. Olalia, 521 SCRA 470 (2007); Mejoff v. Director of Prisons, 90 Phil. 70, Mijares v. Rañada, 455 SCRA 397 (2005), and Shangri-la International Hotel Management, Ltd. v. Developers Group of Companies, Inc., 486 SCRA 405 (2006). Same; Same; Same; Same; Same; Same; Same; Administrative Law; The provisions of the World Health Assembly (WHA) Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a law enacted by the legislature.— legislature.—Respondents failed to establish that the provisions of pertinent WHA Resolutions

are customary international law that may be deemed part of the law of the land. Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of the WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without the nee d of a law enacted e nacted by the legislature. Pharmaceutical and Health Care Association of the Philippines vs. Duque III, 535 SCRA 265, G.R. No. 173034 October 9, 2007 *No Consti topic found

Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr.G. R. No. 167919 February 14, 2007 G. R. No. 167919

FACTS: On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public Works and Highways (DPWH) issued a Resolution No. PJHL-A-04-012. It was approved by DPWH Acting Secretary Florante Soriquez. This resolution recommended the award to China Road & Bridge Corporation of the contract for the implementation of civil works for Contract Package No. I (CP I), which consists of the improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga road, with the lengt of 79.818 kilometers, in the island province of Catanduanes. This Loan Agreement No. PH-204 was executed by and between the JBIC and the Philippine Government pursuant to the exchange of Notes executed by and between Mr. Yoshihisa Ara,  Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and then Foreign  Affairs Secretary Siazon, in behalf of their respective governments. ISSUE: Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine Government is a kind of a treaty. HELD: The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes dated December 27, 1999 between the Japanese Government and the Philippine Government is an executive agreement.

 An “exchange “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. …treaties, agreements, convention s, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes all are refer to international instruments binding at international law.  Although these instruments differ from each other by title, they th ey all have common features and international law has applied basically the same rules to all these instruments. These rules are the result of long practice among the States, which have accepted them as binding norms in their mutual relations. Therefore, they are regarded as international customary law. That case was dismissed by the SCORP last Feb. 14 2007. What the petitioners wanted was that Foreign funded projects also undergo the procurement process. The dismissal of the case somehow gave justification for the delay of the implementing rules for foreign funded projects (IRR-B) of the procurement law If we recall the decision of the Abaya vs Ebdane was used by the DOJ when the DOTC Secretary was asking for an opinion from the former, during the ZTE controversy.as ruled by the Supreme Court in Abaya v. Ebdane, an exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without need of a vote by the Senate and that (like treaties and conventions, it is an international instrument binding at international law, The second issue involves an examination of the coverage of Republic Act No. 9184, otherwise known as the “Government Procurement Reform Act”. Section 4 of the said Act provides that it shall apply to: … the Procure ment of infrastructure Projects, Goods and Consulting Services, regardless of source of funds, whether local or foreign, by all branches and instrumentalities of government, its departments, offices and agencies, including government-owned and/or controlled corporations and local government units, subject to the provisions of Commonwealth  Act No. 138. 1 38. Any treaty or international or executive agreement ag reement affecting the subject matter of this Act to which the Philippine government government is a signatory shall be observed.

ESCRA TOPIC PIL TOPIC Same; Same; International Law; The government is obliged to observe and enforce the terms and conditions which are made part of a Loan Agreement in the procurement of goods and services for the project subject of the Agreement. —In accordance with applicable laws, the procurement of goods and services for the CP I project is governed by the corresponding loan agreement entered into by the government and the JBIC, i.e., Loan Agreement No. PH-P204. The said loan agreement stipulated that the procurement of goods and services for the Arterial Road Links Development Project (Phase IV), of which CP I is a component, is to be governed by the JBIC Procurement Guidelines. Section 5.06, Part II (International Competitive Bidding) thereof quoted earlier reads: Section 5.06.Evaluation and Comparison of Bids x x x (e) Any

procedure under which bids above or below a predetermined bid value assessment are automatically disqualified is not permitted. It is clear that the JBIC Procurement Guidelines proscribe the imposition of ceilings on bid prices. On the other hand, it enjoins the award of the contract to the bidder whose bid has been determined to be the lowest evaluated bid. The pertinent provision, quoted earlier, is reiterated, thus: Section5.09. Award of Contract The contract is to be awarded to the bidder whose bid has been determined to be the lowest evaluated bid and who meets the appropriate standards of capability and financial resources. A bidder shall not be required as a condition of award to undertake responsibilities or work not stipulated in the specifications or to modify the bid. Since these terms and conditions are made part of Loan Agreement No. PH-P204, the government is obliged to observe and enforce the same in the procurement of goods and services for the CP I project. As shown earlier, private respondent China Road & Bridge Corporation’s bid was the lowest evaluated bid, albeit 28.95% higher than the ABC. In accordance with the JBIC Procurement Guidelines, therefore, it was correctly awarded the contract for the CP I project. Abaya vs. Ebdane, Jr., 515 SCRA 720, G.R. No. 167919 February 14, 2007 Same; Same; Same; Same; Exchange of Notes; Words and Phrases; An “exchange of notes” is a record of a routine agreement that has many similarities with the private law contract. —In this connection, it is well to understand the definition of an “exchange of notes” under international law . The term is defined in the United Nations Treaty Collection in this wise: 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. It is stated that “treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes” all refer to “international instruments binding at international law.” It is further explained that— Although these instruments differ from each other by title, they all have common features and international law has applied basically the same rules to all these instruments. These rules are the result of long practice among the States, which have accepted them as binding norms in their mutual relations. Therefore, they are regarded as international customary law. Since there was a general desire to codify these customary rules, two international conventions were negotiated. The 1969 Vienna Convention on the Law of Treaties (“1969 Vienna Convention”), which entered into force on 27 January 1980, contains rules for treaties concluded between States. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations (“1986 Vienna Convention”), which has still not entered into force, added rules for treaties with international organizations as parties. Both the 1969 Vienna Convention and the 1986 Vienna Convention do not distinguish between the different designations of these instruments. Instead, their rules apply to all of those instruments as long as they meet the common requirements. Abaya vs. Ebdane, Jr., 515 SCRA 720, G.R. No. 167919 February 14, 2007

CHINA NATIONAL NATIONAL MACHINERY MACHINERY & EQUIPMENT EQUIPMENT CORP. (GROUP), Petitioner, Petitioner, vs. HON. CESAR D. SANTAMARIA, in his official capacity as Presiding Judge of Branch 145, Regional Trial Court of Makati City, et al., Respondents 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 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. 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 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). 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 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 Executive Order No. 292, otherwise otherwise known as the  Administrative Code.

ISSUE: Whether or not the Northrail contracts are products of an executive agreement between two sovereign states.

ESCRA International Law; Vienna Convention; Treaties; Executive Agreements; Words and Phrases;  Article 2(1) of the Vienna Convention Convention on the Law of Treaties (Vienna Convention) Convention) defines a treaty as follows: [A]n 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; 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. — Article 2(1) of the Vienna

Convention on the Law of Treaties (Vienna Convention) defines a treaty as follows: [A]n 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. In Bayan Muna v. Romulo, 641 SCRA 244 (2011), this Court held that 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. The first and the third requisites do not obtain in the case at bar. Constitutional Law; Immunity from Suit; International Law; Since the Contract Agreement explicitly provides that Philippine law shall be applicable, the parties have effectively conceded that their rights and obligations thereunder are not governed by international law. — Article 2 of

the Conditions of Contract, which under Article 1.1 of the Contract Agreement is an integral part of the latter, states: APPLICABLE LAW AND GOVERNING LANGUAGE The contract shall in all respects be read and construed in accordance with the laws of the Philippines. The contract shall be written in English language. All correspondence and other documents pertaining to the Contract which are exchanged by the parties shall be written in English language. Since the Contract Agreement explicitly provides that Philippine law shall be applicable, the parties have effectively conceded that their rights and obligations thereunder are not governed by international law. It is therefore clear from the foregoing reasons that the Contract Agreement does not partake of the nature of an executive agreement. It is merely an ordinary commercial contract that can be questioned before the local courts.

DEUTSCHE BANK AG MANILA BRANCH, petitioner, vs. COMMISSIONER OF INTERNAL REVENUE, respondent. G.R. No. 188550 | August 19, 2013 ESCRA International Law; Treaties; Pacta Sunt Servanda; The time-honored international principle of  pacta sunt servanda demands the performance performance in good faith of treaty obligations obligations on the part of the states that enter into the agreement. ―Our Constitution provides for adherence to the

general principles of international law as part of the law of the land. The time-honored international principle of pacta sunt servanda demands the performance in good faith of treaty obligations on the part of the states that enter into the agreement. Every treaty in force is binding upon the parties, and obligations under the treaty must be performed by them in good faith. More importantly, treaties have the force and a nd effect of law in this jurisdiction. Same; Same; Taxation; Tax treaties are entered into to minimize, if not eliminate the harshness of international juridical double taxation, which is why they are also known as double tax treaty or double tax agreements. ―Tax treaties are entered into “to reconcile the national fiscal

legislations of the contracting parties and, in turn, help the taxpayer avoid simultaneous taxations in two different jurisdictions.” CIR v. S.C. Johnson and Son, Inc., 309 SCRA 37 (1999),

further clarifies that “tax conventions are drafted with a view towards the elimination of

international juridical double taxation, which is defined as the imposition of comparable taxes in two or more states on the same taxpayer in respect of the same subject matter and for identical periods. The apparent rationale for doing away with double taxation is to encourage the free flow of goods and services and the movement of capital, technology and persons between countries, conditions deemed vital in creating robust and dynamic economies. Foreign investments will only thrive in a fairly predictable and reasonable international investment climate and the protection against double taxation is crucial in creating such a climate.” Simply put, tax treaties are entered into to minimize, if not eliminate the harshness of international  juridical double taxation, which is why they are also known as double tax treaty or double tax agreements. Same; Same; Same; A state that has contracted valid international obligations is bound to make in its legislations those modifications that may be necessary to ensure the fulfillment of the obligations undertaken.―“A undertaken. ―“A state that has contracted valid inter national obligations is bound to

make in its legislations those modifications that may be necessary to ensure the fulfillment of the obligations undertaken.” Thus, laws and issuances must ensure that the reliefs granted under tax treaties are accorded to the parties entitled thereto. The BIR must not impose additional requirements that would negate the availment of the reliefs provided for under international agreements. More so, when the RP-Germany Tax Treaty does not provide for any pre-requisite for the availment of the benefits under said agreement. Same; Same; Same; Bearing in mind the rationale of tax treaties, the period of application for the availment of tax treaty relief as required by RMO No. 1-2000 should not operate to divest entitlement to the relief as it would constitute a violation of the duty required by good faith in complying with a tax treaty.―Bearing treaty. ―Bearing in mind the rationale of tax treaties, the period of

application for the availment of tax treaty relief as required by RMO No. 1-2000 should not operate to divest entitlement to the relief as it would constitute a violation of the duty required by good faith in complying with a tax treaty. The denial of the availment of tax relief for the failure of a taxpayer to apply within the prescribed period under the administrative issuance would impair the value of the tax treaty. At most, the application for a tax treaty relief from the BIR should merely operate to confirm the entitlement of the taxpayer to the relief. Same; Tax Refunds; National Internal Revenue Code; Section 229 of the National Internal Revenue Code (NIRC) provides the taxpayer a remedy for tax recovery when there has been an erroneous payment of tax. ―Section 229 of the NIRC provides the taxpayer a remedy for tax recovery when ther e has been an erroneous payment of tax. The outright denial of petitioner’s

claim for a refund, on the sole ground of failure to apply for a tax treaty relief prior to the payment of the BPRT, would defeat the purpose of Section 229.

RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO "DODONG" NEMENZO, JR., SR. MARY JOHN MANANZAN, PACIFICO A. AGABIN, ESTEBAN "STEVE" SALONGA, H. HARRY L. ROQUE, JR., EVALYN G. URSUA, EDRE U. OLALIA, DR. CAROL PAGADUANARAULLO, DR. ROLAND SIMBULAN, AND TEDDY CASIÑO, Petitioners, vs. EXECUTIVE

SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT OF NATIONAL DEFENSE SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, JR., DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO ABAD, AND ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, Respondents. G.R. No. 212426 | January 12, 2016 FACTS: This is a Resolution on the Motion for Reconsideration seeking to reverse the Decision of this Court in Saguisag et. al., v. Executive Secretary dated 12 January 2016. Petitioners claim this Court erred when it ruled that the Enhanced Defense Cooperation  Agreement (EDCA) between the Philippines and the US was not a treaty. In connection to this, th is, petitioners move that EDCA must be in the form of a treaty in order to comply with the constitutional restriction under Section 25, Article· XVIII of the 1987 Constitution on foreign military bases, troops, and facilities. Additionally, they reiterate their arguments on the issues of telecommunications, taxation, and nuclear weapons. The principal reason for the Motion for Reconsideration is evidently petitioners’ disagreement

with the Decision that EDCA implements the VFA and Mutual Defense Treaty (MDT). Petitioners argue that EDCA’s provisions fall out side the allegedly limited scope of the VFA and

MDT because it provides a wider arrangement than the VFA for military bases, troops, and facilities, and it allows the establishment of U.S. military bases.

ISSUE: Whether or not EDCA is a treaty.

RULING: Petitioners detail their objections to EDCA in a similar way to their original petition, claiming that the VFA and MDT did not allow EDCA to contain the following provisions: 1. Agreed Locations 2. Rotational presence of personnel 3. U.S. contractors 4. Activities of U.S. contractors

We ruled in Saguisag, et. al. that the EDCA is not a treaty despite the presence of these provisions. The very nature of EDCA, its provisions and subject matter, indubitably categorize it as an executive agreement  –  a class of agreement that is not covered by the Article XVIII Section 25 restriction – in painstaking detail. To partially quote q uote the Decision: Executive agreements may dispense with the requirement of Senate concurrence because of the legal mandate with which they are concluded.  As culled from the deliberations of the Constitutional Commission, past Supreme Court Decisions, and works of noted scholars, executive agreements merely involve arrangements on the implementation of existing policies, rules, laws, or agreements. They are concluded (1) to adjust the details of a treaty; (2) pursuant to or upon confirmation by an act of the Legislature; or (3) in the exercise of the President’s independent powers under the Constitution.

The raison d’etre of executive agreements hinges on  prior constitutional or legislative authorizations. The special nature of an executive agreement is not just a domestic variation in international agreements. International practice has accepted the use of various forms and designations of international agreements, ranging from the traditional notion of a treaty  – which connotes a formal, solemn instrument  – to engagements concluded in modern, simplified forms that no longer necessitate ratification.  An international agreement may take different forms: treaty, act, protocol, agreement, concordat, compromis d’arbitrage, convention, covenant, declaration, exchange of notes, statute, pact, charter, agreed minute, memorandum of agreement, modus vivendi, or some other form. Consequently, under international law, the distinction between a treaty and an international agreement or even an executive agreement is irrelevant for purposes of determining international rights and obligations.

However, this principle does not mean that the domestic law distinguishing treaties, international agreements, and executive agreements is relegated to a mere variation in form, or that the constitutional requirement of Senate concurrence is demoted to an optional constitutional directive. There remain two very important features that distinguish treaties from executive agreements and translate them into terms of art in the domestic setting. First, executive agreements must remain traceable to an express or implied authorization under

the Constitution, statutes, or treaties. The absence of these precedents puts the validity and effectivity of executive agreements under serious question for the main function of the Executive is to enforce the Constitution and the laws enacted by the Legislature, not to defeat or interfere in the performance of these rules. In turn, executive agreements cannot create new international obligations that are not expressly allowed or reasonably implied in the law they purport to implement. Second, treaties are, by their very nature, considered superior to executive agreements.

Treaties are products of the acts of the Executive and the Senate unlike executive agreements, which are solely executive actions. Because of legislative participation through the Senate, a treaty is regarded as being on the same level as a statute. If there is an irreconcilable conflict, a later law or treaty takes precedence over one that is prior. An executive agreement is treated differently. Executive agreements that are inconsistent with either a law or a treaty are considered ineffective. Both types of international agreement are nevertheless subject to the supremacy of the Constitution. Subsequently, the Decision goes to great lengths to illustrate the source of EDCA’s validity, in

that as an executive agreement it fell within the parameters of the VFA and MDT, and seamlessly merged with the whole web of Philippine law. We need not restate the arguments here. It suffices to state that this Court remains unconvinced that EDCA deserves treaty status under the law. We find no reason for EDCA to be declared unconstitutional. It fully conforms to the Philippines’ legal regime through the MDT and VFA. It also fully conforms to the government’s continued

policy to enhance our military capability in the face of various military and humanitarian issues that may arise

ESCRA Constitutional Law; Treaties; Power to Concur in a Treaty; The power to concur in a treaty or an international agreement is an institutional prerogative granted by the Constitution to the Senate, not to the entire Legislature. — As correctly argued by respondent, the power to concur in a treaty or an international agreement is an institutional prerogative granted by the Constitution to the Senate, not to the entire Legislature. In Pimentel, Jr. v. Office of the Executive Secretary, 462 SCRA 622 (2005), this Court did not recognize the standing of one of the petitioners therein who was a member of the House of Representatives. The petition in that case sought to compel the transmission to the Senate for concurrence of the signed text of the Statute of the International Criminal Court. Since that petition invoked the power of the Senate to grant or

withhold its concurrence in a treaty entered into by the Executive Department, only then incumbent Senator Pimentel was allowed to assert that authority of the Senate of which he was a member. Same; Judicial Review; When those who challenge the official act are able to craft an issue of transcendental significance to the people, the Supreme Court (SC) may exercise its sound discretion and take cognizance of the suit.—In a number of cases, this Court has indeed taken a liberal stance towards the requirement of legal standing, especially when paramount interest is involved. Indeed, when those who challenge the official act are able to craft an issue of transcendental significance to the people, the Court may exercise its sound discretion and take cognizance of the suit. It may do so in spite of the inability of the petitioners to show that they have been personally injured by the operation of a law or any other government act. Executive Power; The duty to faithfully execute the laws of the land is inherent in executive power and is intimately related to the other executive functions. —The duty to faithfully execute the laws of the land is inherent in executive power and is intimately related to the other executive functions. These functions include the faithful execution of the law in autonomous regions; the right to prosecute crimes; the implementation of transportation projects; the duty to ensure compliance with treaties, executive agreements and executive orders; the authority to deport undesirable aliens; the conferment of national awards under the President’s jurisdiction; and the overall administration and control of the executive department. Same; Presidency; Foreign Military Bases; Despite the President’s roles as defender of the

State and sole authority in foreign relations, the 1987 Constitution expressly limits his ability in instances when it involves the entry of foreign military bases, troops or facilities. —Despite the President’s roles as defender of the State and sole authority in foreign relations, the 1987 Constitution expressly limits his ability in instances when it involves the entry of foreign military bases, troops or facilities. The initial limitation is found in Section 21 of the provisions on the Executive Department: “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” The specific limitation is given by Section 25 of the Transitory Provisions, the full text of which reads as follows: SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, 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 the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. Same; Same; Same; The President is not authorized by law to allow foreign military bases, troops, or facilities to enter the Philippines, except under a treaty concurred in by the Senate. — To this Court, a plain textual reading of Article XIII, Section 25, inevitably leads to the conclusion that it applies only to a proposed agreement between our government and a foreign government, whereby military bases, troops, or facilities of such foreign government would be “allowed” or would “gain entry” Philippine territory. Note that the provision “shall not be allowed” is a negative injunction. This wording signifies that the President is not authorized by law to allow foreign military bases, troops, or facilities to enter the Philippines, except under a treaty concurred in by the Senate. Hence, the constitutionally restricted authority pertains to the entry of the bases, troops, or facilities, and not to the activities to be done after entry. Presidency; The President has the inherent power to enter into agreements with other states, including the prerogative to conclude binding executive agreements that do not require further

Senate concurrence.— As the sole organ of our foreign relations and the constitutionally assigned chief architect of our foreign policy, the President is vested with the exclusive power to conduct and manage the country’s interface with other states and governments. Bei ng the principal representative of the Philippines, the Chief Executive speaks and listens for the nation; initiates, maintains, and develops diplomatic relations with other states and governments; negotiates and enters into international agreements; promotes trade, investments, tourism and other economic relations; and settles international disputes with other states. As previously discussed, this constitutional mandate emanates from the inherent power of the President to enter into agreements with other states, including the prerogative to conclude binding executive agreements that do not require further Senate concurrence. The existence of this presidential power is so well-entrenched that Section 5(2)(a), Article VIII of the Constitution, even provides for a check on its exercise. As expressed below, executive agreements are among those official governmental acts that can be the subject of this Court’s power power of judicial review: (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. Executive Agreements; Words and Phrases; In Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351 (1961), executive agreements are defined as “international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature.”— In Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351 (1961), executive agreements are defined as “international agreement s embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature.” In Bayan Muna v. Romulo, 641 SCRA 244 (2011), this Court further clarified that executive agreements can cover a wide array of subjects that have various scopes and purposes. They are no longer limited to the traditional subjects that are usually covered by executive agreements as identified in Eastern Sea Trading. Same; International Agreements; After noted constitutionalist Fr. Joaquin Bernas quoted the Supreme Court’s (SC’s) ruling in Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351 (1961), the Constitutional Commission members ultimately decided that the term “international agreements” as contemplated in Section 21, Article VII, does not include executive agreements, and that a proviso is no longer needed.—One of the distinguishing features of executive agreements is that their validity and effectivity are not affected by a lack of Senate concurrence. This distinctive feature was recognized as early as in Eastern Sea Trading (1961), viz.: Treaties are formal documents which require ratification with the approval of two-thirds of the Senate. Executive agreements become binding through executive action without the need of a vote by the Senate or by Congress. x 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 e arliest days of our history h istory we have entered into 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. (Emphases supplied) That notion was carried over to the present Constitution. In fact, the framers specifically deliberated on whether the general term “international agreement” included executive agreements, and whether it was necessary to include an express proviso that would exclude executive agreements from the requirement of Senate concurrence. After noted constitutionalist Fr. Joaquin Bernas quoted the Court’s r  uling in Eastern Sea Trading, the Constitutional Commission members ultimately decided that the term “international agreements”

as contemplated in Section 21, Article VII, does not include executive agreements, and that a proviso is no longer needed. Same; Same; International practice has accepted the use of various forms and designations of international agreements, ranging from the traditional notion of a treaty —  which connotes a formal, solemn instrument —  to engagements concluded in modern, simplified forms that no longer necessitate ratification.—The special nature of an executive agreement is not just a domestic variation in international agreements. International practice has accepted the use of various forms and designations of international agreements, ranging from the traditional notion of a treaty —  which connotes a formal, solemn instrument —  to engagements concluded in modern, simplified forms that no longer necessitate ratification. An international agreement may take different forms: treaty, act, protocol, agreement, concordat, compromis d’arbitrage, convention, covenant, declaration, exchange of notes, statute, pact, charter, agreed minute, memorandum of agreement, modus vivendi, or some other form. Consequently, under international law, the distinction between a treaty and an international agreement or even an executive agreement is irrelevant for purposes of determining international rights and obligations. Same; Section 9 of Executive Order (EO) No. 459, or the Guidelines in the Negotiation of International Agreements and its Ratification, thus, correctly reflected the inher ent powers of the when it stated that the Department of Foreign Affairs (DFA) “shall determine whether an agreement is an executive agreement or a treaty.”— Indeed, in the field of external affairs, the President must be given a larger measure of authority and wider discretion, subject only to the least amount of checks and restrictions under the Constitution. The rationale behind this power and discretion was recognized by the Court in Vinuya v. Romulo, 619 SCRA 533 (2010), cited earlier. Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of International Agreements and its Ratification, thus, correctly reflected the inher ent powers of the President when it stated that the DFA “shall determine whether an agreement is an executive agreement or a treaty.” Accordingly, in the exercise of its power of judicial review, the Court does not look into whether an international agreement should be in the form of a treaty or an executive agreement, save in cases in which the Constitution or a statute requires otherwise. Rather, in view of the vast constitutional powers and prerogatives granted to the President in the field of foreign affairs, the task of the Court is to determine whether the international agreement is consistent with the applicable limitations.

LAND BANK OF THE PHILIPPINES, Petitioner, vs. ATLANTA INDUSTRIES, INC., Respondent. G.R. No. 193796 | July 2, 2014 | PERLAS-BERNABE, J.: FACTS: The terms and conditions of Loan Agreement were incorporated and made part of the Subsidiary Loan Agreement (SLA) that was subsequently entered into by Land Bank with the City Government of Iligan. This means that the SLA cannot be treated as an independent and unrelated contract but as a conjunct of, or having a joint and simultaneous occurrence with the Loan Agreement. Its nature and consideration, being a mere accessory contract of Loan

 Agreement, are the same as that of its principal contract. The accessory follows the principal; and, concomitantly, accessory contracts should not be read independently of the main contract. Land Bank of the Philippines (Land Bank) and International Bank for Reconstruction and Development (IBRD) entered into a Loan Agreement for the implementation of the IBRD's "Support for Strategic Local Development and Investment Project". The loan facility was fully guaranteed by the Government of the Philippines and conditioned upon the participation of at least two Local Government Units by way of a Subsidiary Loan Agreement (SLA) with Land Bank. Land Bank entered into a SLA with the City Government of Iligan to finance the development and expansion of the city's water supply system. Accordingly, the City Government of Iligan, through its Bids and Awards Committee (BAC), conducted a public bidding for the supply and delivery of various sizes of pipes and fittings using the IBRD Procurement Guidelines. Atlanta Industries, Inc. (Atlanta) participated in the said bidding and came up with the second to the lowest bid. BAC informed Atlanta that the bidding was declared a failure upon the recommendation of Land Bank due to the IBRD's non-concurrence with the Bid Evaluation Report. Moreover, BAC informed Atlanta of its disqualification from the bidding because it lacked several documentary requirements.BAC conducted a re-bidding of the project, this notwithstanding, Atlanta in a letter called the BAC's attention to its use of Bidding Documents, which, as it purported, not only failed to conform with the Third Edition of the Philippine Bidding Documents for the Procurement of Goods (PBDs) prescribed by the Government Procurement Policy Board (GPPB) but also contained numerous provisions that were not in accordance with RA 9184 and its Implementing Rules and Regulations (IRR). Atlanta filed a Petition for Prohibition and Mandamus to enjoin the rebidding .of the project against the City Government of Iligan, the BAC, and Land Bank before the Regional Trial Court (RTC). The RTC declared the subject bidding null and void on the ground that it was done contrary to the rules and procedure prescribed in RA 9184 and its IRR. ISSUE: Is the SLA between the Land Bank and the City Government of Iligan an executive agreement similar to Loan Agreement such that the procurement of water UST Law Review, Vol. LIX, No. 1, May 2015 pipes by the BAC of the City Government of Iligan should be deemed exempt from the application of RA 9184? RULING: Yes. RA 9184 recognizes the country's commitment to abide by its obligations under any treaty or international or executive agreement. As the parties have correctly discerned, Loan Agreement is in the nature of an executive agreement, thus governed by international law. Examining its features, Loan Agreement between the IBRD and the Land Bank is an integral component of the Guarantee Agreement executed by the Government of the Philippines as a subject of international law possessed of a treaty-making capacity, and the IBRD, which, as an international lending institution organized by world governments to provide loans conditioned upon the guarantee of repayment by the borrowing sovereign state, is likewise regarded a subject of international law and possessed of the capacity to enter into executive agreements with sovereign states. The terms and conditions of Loan Agreement No. 4833-PH, being a project-based and government-guaranteed loan facility, were incorporated and made part of the SLA that was subsequently entered into by Land Bank with the City Government of Iligan. Considering that Loan Agreement expressly provides that the procurement of the goods to be

financed from the loan proceeds shall be in accordance with the IBRD Guidelines, and that the accessory SLA contract merely follows its principal's terms and conditions. The Court held that the procurement of water pipes by the BAC of the City Government of Iligan is beyond the purview of RA 9184.

ESCRA International Law; International Agreements; In Bayan Muna v. Romulo (Bayan Muna), 641 SCRA 244 (2011), the Supreme Court (SC) defined an international agreement as one 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,” and further expounded that it may be in the form of either (a) treaties that require legislative concurrence after executive ratification; or (b) 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. —In Bayan Muna v. Romulo,

641 SCRA 244 (2011), (Bayan Muna) the Court defined an international agreement as one concluded between states in written form and governed by internatio nal law, “whether embodied in a single instrument or in two or more related instruments and whatever its particular designation,” and further expounded that it may be in the form of either (a) treaties that require legislative concurrence after executive ratification; or (b) 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. Examining its features, Loan  Agreement No. 4833-PH 4833- PH between the IBRD and the Land Bank is an integral component of the Guarantee Agreement executed by the Government of the Philippines as a subject of international law possessed of a treaty-making capacity, and the IBRD, which, as an international lending institution organized by world governments to provide loans conditioned upon the guarantee of repayment by the borrowing sovereign state, is likewise regarded a subject of international law and possessed of the capacity to enter into executive agreements with sovereign states. Being similar to a treaty but without requiring legislative concurrence, Loan Agreement No. 4833-PH — following the definition given in the Bayan Muna case — is an executive agreement and is, thus, governed by international law. Same; Pacta Sunt Servanda; Words and Phrases; Pacta sunt servanda is a fundamental maxim of international law that requires the parties to keep their agreement in good faith. —The

Government of the Philippines is therefore obligated to observe its terms and conditions under the rule of pacta sunt servanda, a fundamental maxim of international law that requires the parties to keep their agreement in good faith. It bears pointing out that the pacta sunt servanda rule has become part of the law of the land through the incorporation clause found under Section 2, Article II of the 1987 Philippine Constitution, which states that the Philippines “adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.” nations.” Land Bank of the Philippines vs. Atlanta Industries, Inc., 729 SCRA 12, G.R. No. 193796 July 2, 2014

MITSUBISHI CORPORATION - MANILA BRANCH, Petitioner, vs. COMMISSIONER OF INTERNAL REVENUE, Respondent. G.R. No. 175772 | June 5, 2017 | PERLAS-BERNABE, J.: Facts: On June 11, 1987, the governments of Japan and the Philippines executed an Exchange of Notes, whereby the former agreed to extend a loan amounting to Forty Billion Four Hundred Million Japanese Yen (¥40,400,000,000) to the latter through the then Overseas Economic Cooperation Fund (OECF, now Japan Bank for International Cooperation) for the implementation of the Calaca II Coal-Fired Thermal Power Plant Project (Project). In Paragraph 5 (2) of the Exchange of Notes, the Philippine Government, by itself or through its executing agency, undertook to assume all taxes imposed by the Philippines on Japanese contractors engaged in the Project. Consequently, the OECF and the Philippine Government entered into Loan Agreement No. PHP768 dated September 25, 1987 for Forty Billion Four Hundred Million Japanese Yen (¥40,400,000,000). Due to the need for additional funding for the Project, they also executed Loan Agreement No. PH-P1419 dated December 20, 1994 for Five Billion Five Hundred Thirteen Million Japanese Yen (¥5,513,000,000). Meanwhile, on June 21, 1991, the National Power Corporation (NPC), as the executing government agency, entered into a contract with Mitsubishi Corporation (i.e., petitioner's head office in Japan) for the engineering, supply, construction, installation, testing, and commissioning of a steam generator, auxiliaries, and associated civil works for the Project (Contract). The Contract's foreign currency portion was funded by the OECF loans. In line with the Exchange of Notes, Article VIII (B) (1) of the Contract indicated NPC's undertaking to pay any and all forms of taxes that are directly imposable under the Contract. Petitioner completed the project on December 2, 1995, but it was only accepted by NPC on January 31, 1998 through a Certificate of Completion and Final Acceptance. On July 15, 1998, petitioner filed its Income Tax Return for the fiscal year that ended on March 31, 1998 with the Bureau of Internal Revenue (BIR). Petitioner included in its income tax due the amount of P 44,288,712.00, representing income from the OECF-funded portion of the Project. On the same day, petitioner also filed its Monthly Remittance Return of Income Taxes Withheld and remitted P 8,324,100.00 as BPRT for branch profits remitted to its head office in Japan out of its income for the fiscal year that ended on March 31, 1998. In a Decision dated December 17, 2003, the CTA Division granted the petition and ordered the CIR to refund to petitioner the amounts it erroneously paid as income tax and BPRT. It held that based on the Exchange of Notes, the Philippine Government, through the NPC as its executing agency, bound itself to assume or shoulder petitioner's tax obligations. Therefore, petitioner's payments of income tax and BPRT to the CIR, when such payments should have been made by the NPC, undoubtedly constitute erroneous payments under Section 229 of the NIRC.

The CIR moved for reconsideration but was denied in a Resolution dated April 23, 2004; thus, the CIR elevated the matter to the CTA En Banc. In a Decision dated May 24, 2006, the CTA En Banc reversed the CTA Division's rulings and declared that petitioner is not entitled to a refund of the taxes it paid to the CIR. Petitioner sought reconsideration, but the CTA En Banc denied the motion in a Resolution dated December 4, 2006.

Issues: Whether or not Mitsubishi Corporation  – Manila Branch is entitled to a refund. Whether or not the Bureau of Internal Revenue should be the authorized government agency where the tax refund be claimed.

Held: Yes, the petitioner is entitled to a refund. The CIR subsequently affirmed petitioner's non-liability for taxes and entitlement to tax refunds by issuing Revenue Memorandum Order (RMO) No. 24200547 addressed to specified BIR offices. The RMO provides: Pursuant to the provisions of RMC No. 32-99 as amended by RMC No. 42-99, Japanese contractors and nationals engaged in OECF funded projects in the Philippines shall not be required to shoulder the fiscal levies or taxes associated with the project. Therefore, the concerned Japanese contractors are e ntitled to claim for the refund of all taxes paid and shouldered by them relative to the conduct of the Project. Also, considering that petitioner paid the subject taxes in the aggregate amount of P 52,612,812.00, which it was not required to pay, the BIR erroneously collected such amount. On another issue, yes, the Bureau of Internal Revenue should be the authorized government agency where the tax refund be claimed. The Supreme Court held that in Sections 204 (C) of the NIRC grants the CIR the authority to credit or refund taxes which are erroneously collected by the government. The authority of the CIR to refund erroneously collected taxes is likewise reflected in Section 229 of the NIRC. In this case, it is fairly apparent that the subject taxes in the amount of P 52,612,812.00 was erroneously collected from petitioner, considering that the obligation to pay the same had already been assumed by the Philippine Government by virtue of its Exchange of Notes with the Japanese Government. Case law explains that an exchange of notes is considered as an executive agreement, which is binding on the State even without Senate concurrence. Hence, the petition is GRANTED. The Decision dated May 24, 2006 and the Resolution dated December 4, 2006 of the Court of Tax Appeals (CTA) En Banc are REVERSED and SET  ASIDE. The Decision dated December December 17, 2003 of the CTA is REINSTATED. REINSTATED.

ESCRA

Political Law; Executive Agreements; Exchange of Notes; Case law explains that an exchange of notes is considered as an executive agreement, which is binding on the State even without Senate concurrence .—In this case, it is fairly apparent that the subject taxes in the amount of

P52,612,812.00 was erroneously collected from petitioner, considering that the obligation to pay the same had already been assumed by the Philippine Government by virtue of its Exchange of Notes with the Japanese Government. Case law explains that an exchange of notes is considered as an executive agreement, which is binding on the State even without Senate concurrence. In Abaya v. Ebdane, 515 SCRA 720 (2007): 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. It is stated that “treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes” all refer to “international instruments binding at international law.” x x x x Significantly, an exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without the need of a vote by the Senate or Congress. Taxation; Exchange of Notes; Tax Assumption Provision; Paragraph 5(2) of the Exchange of Notes provides for a tax assumption provision whereby the Government of the Republic of the Philippines will, itself or through its executing agencies or instrumentalities, assume all fiscal levies or taxes imposed in the Republic of the Philippines on Japanese firms and nationals operating as suppliers, contractors or consultants on and/or in connection with any income that may accrue from the supply of products of Japan and services of Japanese nationals to be  provided under the Loan.— Loan. —Paragraph 5(2) of the Exchange of Notes provides for a tax

assumption provision whereby: (2) The Government of the Republic of the Philippines will, itself or through its executing agencies or instrumentalities, assume all fiscal levies or taxes imposed in the Republic of the Philippines on Japanese firms and nationals operating as suppliers, contractors or consultants on and/or in connection with any income that may accrue from the supply of products of Japan and services of Japanese nationals to be provided under the Loan. (Emphases and underscoring supplied) To “assume” means “[t]o take on, become bound as another is bound, or put oneself in place of another as to an obligation or liability.” This means that the obligation or liability remains, although the same is merely passed on to a different person. In this light, the concept of an assumption is therefore different from an exemption, the latter being the “[f]reedom from a duty, liability or other requirement” or “[a] privilege  given to a  judgment debtor debtor by law, allowing the debtor to retain [a] certain property without liability.” liability.” Thus, contrary to the CTA En Banc’s opinion, the constitutional provisions on tax exemptions would not apply. Same; Same; Same; The Philippine Gover nment’s Gover nment’s assumption of “all fiscal levies and taxes,” which includes the subject taxes, is clearly a form of concession given to Japanese suppliers, contractors or consultants in consideration of the Overseas Economic Cooperation Fund

(OECF) Loan, which proceeds were used for the implementation of the Project. — As explicitly

worded, the Philippine Government, through its executing agencies (i.e., NPC in this case) particularly assumed “all fiscal levies or taxes imposed in the Republic of the Philippines on Japanese firms and nationals operating as suppliers, contractors or consultants on and/or in connection with any income that may accrue from the supply of products of Japan and services of Japanese nationals to be provided under the [OECF] Loan.” The Philippine Government’s assumption of “all fiscal levies and taxes,” which includes the subject taxes, is clearly a form of concession given to Japanese suppliers, contractors or consultants in consideration of the OECF Loan, which proceeds were used for the implementation of the Project. As part of this, NPC entered into the June 21, 1991 Contract with Mitsubishi Corporation (i.e., petitioner’s head office in Japan) for the engineering, supply, construction, installation, testing, and commissioning of a steam generator, auxiliaries, and associated civil works for the Project, which foreign currency portion was funded by the OECF loans. Thus, in line with the tax assumption provision under the Exchange of Notes, Article VIII(B)(1) of the Contract states that NPC shall pay any and all forms of taxes that are directly imposable under the Contract: Article VIII(B)(1) B. FOR ONSHORE PORTION. 1.) [The] CORPORATION (NPC) shall, subject to the provisions under the Contract [Document] on Taxes, pay any and all forms of taxes which are directly imposable under the Contract including VAT, that may be imposed by the Philippine Government, or any of its agencies and political subdivisions. Same; Tax Refund; Considering that petitioner paid the subject taxes in the aggregate amount of P52,612,812.00, which it was not required to pay, the Bureau of Internal Revenue (BIR) erroneously collected such amount. Accordingly, petitioner is entitled to its refund. —It bears

stressing that the CIR had already acknowledged, through its administrative issuances, that Japanese contractors involved in the Project are not liable for the subject taxes. In RMC No. 4299, the CIR interpreted the effect of the tax assumption clause in the Exchange of Notes on petitioner’s tax liability, to wit: The f oregoing provisions of the Exchange of Notes mean that the Japanese contractors or nationals engaged in EOCF-funded projects in the Philippines shall not be required to shoulder all fiscal levies or taxes taxes associated associated with with the project. x x x x x x x x x Since the executing government agencies are mandated to assume the payment of [income taxes] under the Exchange of Notes, the said Japanese firms or nationals need not pay taxes due thereunder. (Emphases and underscoring supplied) The CIR subsequently affirmed petitioner’s non -liability for taxes and entitlement to tax refunds by issuing Revenue Memorandum Order (RMO) No. 24-2005 addressed to specified BIR offices. The RMO provides: Pursuant to the provisions of [RMC] No. 32-99 as amended by RMC No. 42-99, Japanese contractors and nationals engaged in OECF-funded projects in the Philippines shall not be required to shoulder the fiscal levies or taxes associated with the project. Thus, the concerned Japanese contractors are entitled to claim for the refund of all taxes paid and shouldered by them relative to the conduct of the Project. You are, therefore, directed to expedite/prioritize the processing of the claims for refund of Japanese contractors and nationals so [as] not to delay and jeopardize the release of the funds for OECF-funded projects. (Emphases and underscoring supplied) Therefore, considering that petitioner paid the subject taxes in the aggregate amount of P52,612,812.00, which it was not required to pay, the BIR erroneously collected such amount. Accordingly, petitioner is entitled to its refund.

Same; Same; The National Internal Revenue Code (NIRC) vests upon the Commissioner of Internal Revenue (CIR), being the head of the Bureau of Internal Revenue (BIR), the authority to credit or refund taxes which are erroneously collected by the government. —The NIRC vests

upon the CIR, being the head of the BIR, the authority to credit or refund taxes which are erroneously collected by the government. This specific statutory mandate cannot be overridden by averse interpretations made through mere administrative issuances, such as RMC No. 4299, which — as argued by the CIR  –– shifts to the executing agencies (particularly, NPC in this case) the power to refund the subject taxes: 3. In cases where income taxes were previously paid directly by the Japanese contractors or nationals, the corresponding cash refund shall be recovered from the government executing agencies upon the presentation of proof of payment by the Japanese contractors or nationals.

DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, CMC/MONARK/PACIFIC/HI-TRI CMC/MONARK/PACIFIC/HI-TRI JOINT VENTURE, Respondent. G.R. No. 179732 | September 13, 2017 | LEONEN, J.,

Petitioner,

vs.

FACTS: On April 29, 1999, Republic of the Philippines, through the Department of Public Works and Highways (DPWH), and CMC/Monark/Pacific/Hi-Tri J.V. (the Joint Venture) executed “Contract  Agreement for the Construction of Contract Package 6MI-9, Pagadian-Buug Section, Zamboanga del Sur, Sixth Road Project, Road Improvement Component Loan No. 1473-PHI”3 (Contract) for a total contract amount of P713,330,885.28.4 Parts I (General Conditions with forms of tender + agreement) and II (Conditions of Particular  Application  Application + Guide-lines Guide-lines for Preparation Preparation of Part II Clauses) of the “Conditions “Conditions of Contract for Works of Civil Engineering Construction of the Federation International Des Ingenieurs — Conseils” (Con-ditions of Contract) formed part of the Contract.5 DPWH hired BCEOM French Engineering Consultants to oversee the project.6 On October 23, 2002, or while the project was ongoing, the Joint Venture’s truck and equipment were set on fire. On March 11, 2003, a bomb exploded at Joint Venture’s hatching plant located at Brgy. West Boyogan, Kumalarang, Zamboanga del Sur. According to reports, the bombing incident was caused by members of the Moro Islamic Liberation Front.7 The Joint Venture made several written demands for extension and payment of the foreign component of the Contract. There were efforts between the parties to settle the unpaid Payment Certificates amounting to P26,737,029.49. Thus, only the foreign component of US$358,227.95 was up for negotiations subject to further reduction of the amount on account of payments subsequently received by the Joint Venture from DPWH.8

In a letter dated September 18, 2003, BCEOM French Engineering Consultants recommended that DPWH promptly pay the outstanding monies due the Joint Venture.9 The letter also stated that the actual volume of the Joint Venture’s accomplishment was “2,732m2 of hardrock and 4,444m3 of r ippable ippable rock,” making the project 80% complete when it was halted. CLAIMANT’S CLAIM Meanwhile, on July 8, 2004, the Joint Venture sent a “Notice of Mutual Termination of Contract”13 to DPWH requesting for a mutual termination of the contract subject of t he arbitration case. This is due to its diminished financial capability due to DPWH’s late payments,

changes in the project involving payment terms, peace and order problems, and previous agreement by the parties. On July 16, 2004, then DPWH Acting Secret ary Florante Soriquez accepted the Joint Venture’s request for mutual termination of the contract.

CLAIMANT’S CLAIM Meanwhile, on July 8, 2004, the Joint Venture sent a “Notice of Mutual Termination of Contract”13 to DPWH requesting for a mutual termina tion of the contract subject of the arbitration case. This is due to its diminished financial capability due to DPWH’s late payments,

changes in the project involving payment terms, peace and order problems, and previous agreement by the parties. On July 16, 2004, then DPWH Acting Secretary Florante Soriquez accepted the Joint Venture’s request for mutual termination of the contract.14 DPWH and the Joint Venture filed their respective petitions for review before the Court of  Appeals.19 The Court of Appeals in its Decision20 dated September 20, 2007, sustained CIAC’s Award with certain modifications and remanded the case to CIAC for the determination of the number of days’ extension that the Joint Venture is entitled to and “the conversion rate in pesos of the awarded foreign exchange payments stated.”21 The Court of Appeals held that CIAC did not commit reversible error in not awarding the price adjustment sought by the Joint Venture under Presidential Decree No. 1594 since it was the  Asian Development Bank’s Guidelines on procurement that was applicable and not Presidential Decree No. 1594.22 The Court of Appeals also held that CIAC did not err in not awarding actual damages in the form of interest at the rate of 24% since there was no provision for such interest payment in the Contract. However, the Court of Appeals ruled that CIAC was correct when it awarded legal interest.23

The Court of Appeals sustained the Joint Venture’s argument on the noninclusion of a clear

finding of its entitlement to time extensions in the dispositive portion of the CIAC Award.24 The Court of Appeals held that CIAC did not clearly dispose of the matter: Yet, a close scrutiny of the foregoing disposition shows that it does not refer to the 133 days as per Variation Order No. 2 since CIAC made mention that the project is already terminated and the entire volume under said Order “will not be consumed.” Whether or not the Claimant then deserves to get the full 133 calendar days is a matter that has to be clearly resolved. On this, We hold that this Court is not prepared to engage into a technical bout that only the expertise of the CIAC can pass upon.25

On the other hand, the Court of Appeals did not accept DPWH’s argument that the case was

already moot and academic. According to the Court of Appeals, when the Joint Venture requested for the mutual termination of the Contract on July 8, 2004, it did not waive its right to be paid the amounts due to it.26 The Court of Appeals, however, raised a concern with regard to CIAC’s or  der for DPWH to pay its liabilities in US dollars. It held that the parties have agreed that “all payments for works

carried out after 31 May 2003 and related price escalation claims and retention releases in the contract will be in pesos only, therefore no foreign exchange payments.” This was never contested by the Joint Venture; hence, it may be presumed that it acquiesced to the request of the DPWH.27

ESCRA Executive Agreements; Foreign Loan Agreements; A foreign loan agreement with international financial institutions, such as a multilateral lending agency organized by governments like the  Asian Development Development Bank, is an executive or international international agreement agreement contemplated contemplated by our government procurement system.— system. —This Court has held that a foreign loan agreement with

international financial institutions, such as a multilateral lending agency organized by governments like the Asian Development Bank, is an executive or international agreement contemplated by our government procurement system.

Escra topics without facts yet: Province of North Cotabato vs. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), 568 SCRA 402, G.R. No. 183591 October 14, 2008

FACTS: On 8 August 2008, the Government of the Republic of the Philippines (GRP), represented by the GRP Peace Panel and the Presidential Adviser on the Peace Process (PAPP), and the Moro Islamic Liberation Front (MILF) were scheduled to sign the Memorandum of Agreement on the Ancestral Domain (MOA-AD)Aspect of the previous GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.The MOA-AD included, among others, a stipulation that creates the Bangsamoro Juridical Entity (BJE), to which the GRP grants the authority and  jurisdiction over the ancestral domain and ancestral lands of the Bangsamoro—defined as the present geographic area of the ARMM constituted by Lanao del Sur,Maguindanao, Sulu, TawiTawi, Basilan, and Marawi City, as well as the municipalities of Lanao del Norte which voted for inclusion inthe ARMM in the 2001 plebiscite. The BJE is then granted the power to build, develop, and maintain its own institutions. The MOA-AD also described the relationship of the GRP and the BJE as“associative,” characterized by shared authority and responsibility. It further provides that its provisions requiring “amendments to the existing legal framework” shall take effect upon signing of a Comprehensive Compact.Before the signing, however, the Province of North Cotabato sought to compel the respondents to disclose and furnish it with complete and official copies of the MOA-AD, as well as to hold a public consultation thereon, invoking its right to information on matters of public concern. A subsequent petition sought to have the City of Zamboanga excluded from the BJE. The Court then issued a Temporary Restraining Order (TRO) on 4 August 2008, directing the public respondents and their agents to cease and desist from formally signing the MOA-AD

ESCRA PIL topic International Law; “Associated State”; The Memorandum of Agreement on Ancestral Domain (MOA-AD) contains many provisions which are consistent with the international legal concept of association. —In international practice, the “associated state” arrangement has usually been used as a transitional device of former colonies on their way to full independence. Examples of states that have passed through the status of associated states as a transitional phase are  Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and a nd Grenada. All have since become independent states. Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of association, specifically the following: the BJE’s capacity to enter into economic and a nd trade relations with foreign countries, the commitment of the Central Government to ensure the BJE’s participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Central Government over external defense. Moreover, the BJE’s right to participate in Philippine official missions bearing on negotiation of border agreements, environmental protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming part of the ancestral domain, resembles the right of the governments of FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter affecting them. These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status closely approximating it. Province of North Cotabato vs. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), 568 SCRA 402, G.R. No. 183591 October 14, 2008 Same; Same; That the Memorandum of Agreement on Ancestral Domain (MOA-AD) would have been signed by representatives of States and international organizations not parties to the  Agreement  Agreement would not have sufficed to vest in it a binding character under internatio i nternational nal law. —

That the MOA-AD would have been signed by representatives of States and international organizations not parties to the Agreement would not have sufficed to vest in it a binding character under international law. Same; Same; The mere fact that in addition to the parties to the conflict, the peace settlement is signed by representatives of states and international organizations does not mean that the agreement is internationalized so as to create obligations in international law. — Assessing the

MOA-AD in light of the above criteria, it would not have amounted to a unilateral declaration on the part of the Philippine State to the international community. The Philippine panel did not draft the same with the clear intention of being bound thereby to the international community as a whole or to any State, but only to the MILF. While there were States and international organizations involved, one way or another, in the negotiation and projected signing of the MOA-AD, they participated merely as witnesses or, in the case of Malaysia, as facilitator. As held in the Lomé Accord case, the mere fact that in addition to the parties to the conflict, the peace settlement is signed by representatives re presentatives of states and international organizations does not mean that the agreement is internationalized so as to create obligations in international law.

Same; Same; The Memorandum of Agreement on Ancestral Domain (MOA-AD) may not be considered a unilateral declaration under international law. —In one important respect, the

circumstances surrounding the MOA-AD are closer to that of Burkina Faso wherein, as already discussed, the Mali President’s statement was not held to be a binding unilateral declaration by the ICJ. As in that case, there was also nothing to hinder the Philippine panel, had it really been its intention to be bound to other States, to manifest that intention by formal agreement. Here, that formal agreement would have come about by the inclusion in the MOA-AD of a clear commitment to be legally bound to the international community, not just the MILF, and by an equally clear indication that the signatures of the participating states-representatives would constitute an acceptance of that commitment. Entering into such a formal agreement would not have resulted in a loss of face for the Philippine government before the international community, which was one of the difficulties that prevented the French Government from entering into a formal agreement with other countries. That the Philippine panel did not enter into such a formal agreement suggests that it had no intention to be bound to the international community. On that ground, the MOA-AD may not be considered a unilateral declaration under international law. Province of North Cotabato vs. Government of the Republic of the Philippines Peace Panel on  Ancestral Domain (GRP), 568 SCRA 402, G.R. No. 183591 October 14, 2008 PUNO, C.J., Separate Concurring Opinion: Constitutional Law; Certiorari; International Law; If the Memorandum of Agreement on Ancestral Domain (MOA-AD) is constitutionally infirm, it is because the conduct of the peace process itself is flawed; Court should not restrict its review on the validity of the Memorandum of Agreement on Ancestral Domain (MOA-AD) which is but the end pr oduct of the flawed conduct of the peace negotiation with the Moro Islamic Liberation Front (MILF). —It is crystal clear that the initialing of the MOA- AD  AD is but the evidence of the government government peace negotiating negotiating panel’s assent to the terms contained therein. If the MOA-AD is constitutionally infirm, it is because the conduct of the peace process itself is flawed. It is the constitutional duty of the Court is to determine whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the government peace negotiating panel in the conduct of the peace negotiations with the MILF. The Court should not restrict its review on the validity of the MOA-AD which is but the end product of the flawed conduct of the peace negotiation with the MILF. Same; Same; Actions; Judicial Review; Where a controversy concerns fundamental constitutional questions, the threshold must be adjusted to allow judicial scrutiny, in order that the issues may be resolved at the earliest stage before anything irreversible is undertaken under cover of an unconstitutional act. —In contending that this Court should refrain from

resolving the merits of the petitions at bar, two principal defenses were deployed by b y the Solicitor General: the issues raised for resolution are not ripe for adjudication and regardless of their ripeness, are moot. With due respect, the defenses cannot be sustained. To contend that an issue is not ripe for adjudication is to invoke prematurity; that the issue has not reached a state where judicial intervention is necessary, hence, there is in reality no actual controversy. On the other hand, to urge that an issue has become moot concedes that judicial intervention was once proper but subsequent developments make further judicial action unnecessary. Together, mootness and ripeness act as a two-pronged pincer, squeezing the resolution of controversies within a narrow timeframe. First, the issues at bar are ripe for resolution. In Ohio Forestry

 Ass’n., Inc. v. Sierra Club, 523 U.S. 726 (1998), the foll owing factors were identified as

indicative of the ripeness of a controversy: 1. Whether delayed review would cause hardship to the plaintiffs; 2. Whether judicial intervention would inappropriately interfere with further administrative action; 3. Whether the Court would benefit from further factual development of the issues presented; Underlying the use of the foregoing factors is first, the setting of a threshold for review and second, judicial application of the threshold to the facts extant in a controversy. I respectfully submit that where a controversy concerns fundamental constitutional questions, the threshold must be adjusted to allow judicial scrutiny, in order that the issues may be resolved at the earliest stage before anything irreversible is undertaken under cover of an unconstitutional act. Schwartz cites one vital consideration in determining ripeness, viz.: In dealing with ripeness, one must distinguish between statutes and other acts that are selfexecuting and those that are not. If a statute is self executing, it is ripe for challenge as soon as it is enacted. For such a statute to be subject to judicial review, it is not necessary that it be applied by an administrator, a prosecutor, or some other enforcement officer in a concrete case.  Although Schwartz employs the term “statute,” he qualifies that the principle enunciated applies to other governmental acts as well. Same; Same; Same; An actual controversy must be extant at all stages of judicial review, not merely at the time the complaint is filed. —We now come to respondents’ argument on mootness. In determining whether a case has been rendered moot, courts look at the development of events to ascertain whether the petitioner making the constitutional challenge is confronted with a continuing harm or a substantial potential of harm. Mootness is sometimes viewed as “the doctrine of standing set in a time frame: The requisite personal interest must exist at the commencement of the litigation and must continue throughout its existence.” Stated otherwise, an actual controversy must be extant at all stages of judicial review, not merely at the time the complaint is filed. Same; Same; Same; Moot and Academic; The petitions at bar fall within that exceptional class of cases which ought to be decided despite their mootness because the complained unconstitutional acts are “capable of repetition yet evading review.”— Respondents insist that the petitions at bar are moot for three reasons: (1) the petitioners North Cotabato and Zamboanga have already been furnished copies of the MOA-AD; (2) the Executive Secretary has issued a Memorandum that the government will not sign the MOA-AD and, (3) the GRP Peace Panel has been dissolved by the President. These grounds are barren grounds. For one, the press statements of the Presidential Adviser on the Peace Process, Gen. Hermogenes Esperon, Jr., are clear that the MOA-AD will still be used as a major reference in future negotiations. For another, the MILF considers the MOA- AD  AD a “done deal,” hence, ready for implementation. On the other hand, the peace panel may have been temporarily dismantled but the structures set up by the Executive and their guidelines which gave rise to the present controversy remain intact. With all these realities, the petitions at bar fall within that exceptional class of cases which ought to be decided despite their mootness because the complained unconstitutional acts are “capable of repetition yet evading review.” Same; Same; The President as Chief Executive can negotiate peace with the Moro Islamic Liberation Front (MILF) but it is peace that will insure that our laws are faithfully executed; The  power of the President to negotiate peace with the Moro Islamic Liberation Liberation Front (MILF) is not

 plenary.—  plenary.—The President as Chief Executive can negotiate peace with the MILF but it is peace

that will insure that our laws are faithfully executed. The President can seek peace with the MILF but without crossing the parameters of powers marked in the Constitution to separate the other branches of government to preserve our democracy. For even in times of war, our system of checks and balances cannot be infringed. More so in times where the only danger that faces the State is the lesser danger of rebellion. Needless to stress, the power of the President to negotiate peace with the MILF is not plenary. While a considerable degree of flexibility and breadth is accorded to the peace negotiating panel, the latitude has its limits —the Constitution. The Constitution was ordained by the sovereign people and its postulates may not be employed as bargaining chips without their prior consent. Same; Same; There is no power nor is there any right to violate the Constitution on the part of any official of government.— government. —There is no power nor is there any right to violate the Constitution on the part of any official of government. No one can claim he has a blank check to violate the Constitution in advance and the privilege to cure the violation later through amendment of its provisions. Respondents’ thesis of violate now, validate later makes a burlesque of the Constitution. Province of North Cotabato vs. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), 568 SCRA 402, G.R. No. 183591 October 14, 2008 Same; Same; International Law; Under domestic law, the Memorandum of Agreement on  Ancestral Domain (MOA-AD) cannot receive recognition r ecognition as a legally binding agreement due to the absence of the indispensable requisite of consent to be bound. —Consent is indubitably manifested through the signature of the parties. That the Philippine government has not yet consented to be bound by the MOA-AD is indubitable. The parties had agreed to a formal signature ceremony in the presence of the Secretary of Foreign Affairs, the alter ego of the President of the Philippines. The ceremony never took place. The MOA-AD itself expresses that consent was to manifested by the affixation of signatures, not the affixation of initials. In addition, the subsequent announcement by the President that the Philippine Government will not sign the MOA-AD further establishes the absence of consent on the part of the Philippines to the MOA-AD. Under domestic law, the MOA-AD cannot receive recognition as a legally binding agreement due to the absence of the indispensable requisite of consent to be bound. Province of North Cotabato vs. Government of the Republic of the Philippines Peace Panel on  Ancestral Domain (GRP), 568 SCRA 402, G.R. No. 183591 October 14, 2008 Same; Same; Grave Abuse of Discretion; Grave abuse of discretion can characterize only consummated acts (or omissions), not an “almost (but not quite) consummated act.”— The ponencia would wish to get around this inescapable truth by saying: “The MOA -AD not being a document that can bind the Philippines under international law notwithstanding, respondents’ almost consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion.” With due respect, I beg to disagree. Grave abuse of discretion can characterize onl y consummated acts (or omissions), not an “almost (but not quite) consummated act.” Province of North Cotabato vs. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), 568 SCRA 402, G.R. No. 183591 October 14, 2008

Constantino, Jr. vs. Cuisia, 472 SCRA 505, G.R. No. 106064 October 13, 2005 (RE NATO V ROSAR IO UNG SA SYLLAB US) FACTS: Petition for certiorari, prohibition and mandamus of the Philippine Comprehensive Program for 1992. Petitioners are members of the non-government organization, Freedom from Debt Coalition, which advocates a “pro -people and just Philippine debt policy.” They question the Financing Program started by then President Corazon Aquino, characterized as a “multi -option financing package”, wherein t he President entered into three restructuring agreements with foreign creditor governments. Petitioners stress that unlike other powers which may be validly delegated by the President, the power to incur foreign debts is expressly reserved by the Constitution in the person of the President.

ISSUE: 1. WON the President can borrow to meet meet publice expenditures expenditures in the form of bond. 2. WON the President can delegate the power to incur foreign debts to other executive executive agencies.

ESCRA *no specific international law topic t opic found Same; Same; Same; Obligations; It may not be amiss to recognize that there are many advocates of the position that the Republic should renege on obligations that are considered as “illegitimate.”—It may not be amiss to recognize that there are many advocates of the position that the Republic should renege on obligations that are considered as “illegitimate.” However, should the executive branch unilaterally, and possibly even without prior court determination of the validity or invalidity of these contracts, repudiate or otherwise declare to the international community its resolve not to recognize a certain set of “illegitimate” loans, adverse repercussions would come into play. Constantino, Jr. vs. Cuisia, 472 SCRA 505, G.R. No. 106064 October 13, 2005

Consti Topic Constitutional Law; Executive Department; Qualified Political Agency; Each head of a department is, and must be, the President’s alter ego in the matters of that department where the President is required by law to exercise authority. —Necessity thus gave birth to the doctrine of qualified political agency, later adopted in Villena v. Secretary of the Interior from American  jurisprudence, viz.: With reference to the Executive Department of the government, there is one purpose which is crystal-clear and is readily visible without the projection of judicial searchlight, and that is the establishment of a single, not plural, Executive. The first section of Article VII of the Constitution, dealing with the Executive Department, begins with the enunciation of the principle that “The executive power shall be vested in a President of the Philippines.” This means that the President of the Philippines is the Executive of the Government of the Philippines, and no other. The heads of the executive departments occupy political positions and hold office in an advisory capacity, and, in the language of Thomas Jefferson, “should be of the President's bosom confidence” (7 Writings, Ford ed., 498), and, in the language of Attorney General Cushing (7 Op., Attorney-General, 453), “are subject to the direction of the President.”

Without minimizing the importance of the heads of the various departments, their personality is in reality but the projection of that of the President. Stated otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme Court of the United States, “each head of a department is, and must be, the President’s alter ego in the matters of that department where the President is required by law to exercise authority” (Myers vs.   United States, 47 Sup. Ct. Rep., 21 at 30; 272 U.S., 52 at 133; 71 Law. ed., 160). Constantino, Jr. vs. Cuisia, 472 SCRA 505, G.R. No. 106064 October 13, 2005

PA NG A NIB A N, J.: S ep epa arat rate Opinion Opinion:: Constitutional Law; Executive Department; Indubitably, forme r President Corazon C. Aquino’s decision to honor the outstanding debts of the Republic at the time she assumed the presidency was a policy matter well within her prerogative.—Former President Corazon C. Aquino’s decision to honor the outstanding debts of the Republic at the time she assumed the presidency was a policy matter well within her prerogative. It was purely an executive call; hence, beyond  judicial scrutiny. The Petition has failed to show grave abuse of discretion that would warrant  judicial intervention. I agree with the ponencia of the distinguished Mr. Justice Dante O. Tinga: not only was the act of President Aquino impliedly granted via her vast executive powers; it was also explicitly authorized under Section 20 of Article VII of the Constitution. Constantino, Jr. vs. Cuisia, 472 SCRA 505, G.R. No. 106064 October 13, 2005.