Consti Bayan v Romulo

of 4
All materials on our website are shared by users. If you have any questions about copyright issues, please report us to resolve them. We are always happy to assist you.
Related Documents
  Bayan Muna vs RomuloG. R. No. 159618, February 01, 2011Facts:Peoner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Aairs during the period material to this case. Respondent Alberto Romulo was impleaded in his capacity as then Execuve Secretary.Rome Statute of the Internaonal Criminal CourtHaving a key determinave bearing on this case is the Rome Statute establishing the Internaonal Criminal Court (ICC) with “the power to exercise its jurisdicon over persons for the most serious crimes of internaonal concern x x x and shall be complementary to the naonal criminal jurisdicons.” The serious crimes adverted to cover those considered grave under internaonal law, such as genocide, crimes against humanity, war crimes, and crimes of aggression.On December 28, 2000, the RP, through Charge d’Aaires Enrique A. Manalo, signed the Rome Statute which, by its terms, is “subject to racaon, acceptance or approval” by the signatory states. As of the ling of the instant peon, only 92 out of the 139 signatory countries appear to have completed the racaon, approval and concurrence process. The Philippines is not among the 92.RP-US Non-Surrender AgreementOn May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the Department of Foreign Aairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement, hereinaer) between the USA and the RP.Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinaer), the RP, represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note adverted to and put in eect the Agreement with the US government. In esse, the Agreement aims to protect what it refers to and denes as “persons” of the RP and US from frivolous and harassment suits that might be brought against them in internaonal tribunals.8 It is reecve of the increasing pace of the strategic security and defense partnership between the two countries. As of May 2, 2003, similar bilateral agreements have been eected by and between the US and 33 other countries.The Agreement pernently provides as follows:1. For purposes of this Agreement, “persons” are current or former Government ocials, employees (including contractors), or military personnel or naonals of one Party.2. Persons of one Party present in the territory of the other shall not, absent the express consent of the rst Party,  (a) be surrendered or transferred by any means to any internaonal tribunal for any purpose, unless such tribunal has been established by the UN Security Council, or(b) be surrendered or transferred by any means to any other enty or third country, or expelled to a third country, for the purpose of surrender to or transfer to any internaonal tribunal, unless such tribunal has been established by the UN Security Council.3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third country, the [US] will not agree to the surrender or transfer of that person by the third country to any internaonal tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the Republic of the Philippines [GRP].4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third country,the [GRP] will not agree to the surrender or transfer of that person by the third country to any internaonal tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the [US].5. This Agreement shall remain in force unl one year aer the date on which one party noes the other of its intent to terminate the Agreement. The provisions of this Agreement shall connue to apply with respect to any act occurring, or any allegaon arising, before the eecve date of terminaon.In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender agreement, Ambassador Ricciardone replied in his leer of October 28, 2003 that the exchange of diplomac notes constuted a legally binding agreement under internaonal law; and that, under US law, the said agreement did not require the advice and consent of the US Senate.In this proceeding, peoner imputes grave abuse of discreon to respondents in concluding and rafying the Agreement and prays that it be struck down as unconstuonal, or at least declared as without force and eect.Issue: Whether or not the RP-US NON SURRENDER AGREEMENT is void ab inio for contracng obligaons thatare either immoral or otherwise at variance with universally recognized principles of internaonal law.Ruling: The peon is bere of merit.Validity of the RP-US Non-Surrender AgreementPeoner’s inial challenge against the Agreement relates to form, its threshold posture being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement.  Peoners’ contenon––perhaps taken unaware of certain well-recognized internaonal doctrines, pracces, and jargons––is untenable. One of these is the doctrine of incorporaon, as expressed in Secon 2, Arcle II of the Constuon, wherein the Philippines adopts the generally accepted principles of internaonal law and internaonal jurisprudence as part of the law of the land and adheres to the policy of peace, cooperaon, and amity with all naons. An exchange of notes falls “into the category of inter-governmental agreements,” which is an internaonally accepted form of internaonal agreement. The United Naons Treaty Collecons (Treaty Reference Guide) denes the term as follows:An “exchange of notes” is a record of a roune agreement, that has many similaries with the private law contract. The agreement consists of the exchange of two documents, each of the pares being in thepossession of the one signed by the representave of the other. Under the usual procedure, the accepng State repeats the text of the oering State to record its assent. The signatories of the leers 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, somemes, to avoid the process of legislave approval.In another perspecve, the terms “exchange of notes” and “execuve agreements” have been used interchangeably, exchange of notes being considered a form of execuve agreement that becomes binding through execuve acon. On the other hand, execuve agreements concluded by the President “somemes take the form of exchange of notes and at other mes that of more formal documents denominated ‘agreements’ or ‘protocols.’” As former US High Commissioner to the Philippines Francis B. Sayre observed in his work, The Constuonality of Trade Agreement Acts:The point where ordinary correspondence between this and other governments ends and agreements – whether denominated execuve agreements or exchange of notes or otherwise – begin, may somemesbe dicult of ready ascertainment. x x xIt is fairly clear from the foregoing disquision that E/N BFO-028-03––be it viewed as the Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as consent to be bound––is a recognized mode of concluding a legally binding internaonal wrien contract among naons.Agreement Not Immoral/Not at Variance with Principles of Internaonal LawPeoner urges that the Agreement be struck down as void ab inio for imposing immoral obligaons and/or being at variance with allegedly universally recognized principles of internaonal law. The immoral aspect proceeds from the fact that the Agreement, as peoner would put it, “leaves criminals immune from responsibility for unimaginable atrocies that deeply shock the conscience of humanity; x x x it precludes our country from delivering an American criminal to the [ICC] x x x.”63The above argument is a kind of recycling of peoner’s earlier posion, which, as already discussed, contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the  process undermined its treaty obligaons under the Rome Statute, contrary to internaonal law principles.The Court is not persuaded. Suce it to state in this regard that the non-surrender agreement, as aptly described by the Solicitor General, “is an asseron by the Philippines of its desire to try and punish crimes under its naonal law. x x x The agreement is a recognion of the primacy and competence of thecountry’s judiciary to try oenses under its naonal criminal laws and dispense jusce fairly and  judiciously.”Peoner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos and Americans comming high crimes of internaonal concern to escape criminal trial and punishment. This is manifestly incorrect. Persons who may have commied 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 formalies necessary to bind both countries to the Rome Statute have been met. For perspecve, what the Agreement contextually prohibits is the surrender by either party of individuals to internaonal tribunals, like the ICC, without the consent of theother party, which may desire to prosecute the crime under its exisng laws. With the view we take of things, there is nothing immoral or violave of internaonal law concepts in the act of the Philippines of assuming criminal jurisdicon pursuant to the non-surrender agreement over an oense considered criminal by both Philippine laws and the Rome Statute.

Onda PVP

Oct 7, 2019

CAP- AP 10.docx

Oct 7, 2019
We Need Your Support
Thank you for visiting our website and your interest in our free products and services. We are nonprofit website to share and download documents. To the running of this website, we need your help to support us.

Thanks to everyone for your continued support.

No, Thanks

We need your sign to support Project to invent "SMART AND CONTROLLABLE REFLECTIVE BALLOONS" to cover the Sun and Save Our Earth.

More details...

Sign Now!

We are very appreciated for your Prompt Action!