Documents

international law vs municipal law

Description
(con speech)
Categories
Published
of 2
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
Share
Transcript
  International law is part of municipal law. This is expressly provided for in the Declaration of Principles in 1935, 1973, and the 1987 Constitutions, in which it states that according to the art 2 sec 3 of the 1935 constitution, the Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the nation. Also the art 2 sec 3 of the 1973 and 1987 constitution states that: the Philippines renounces war as an instrument of national policy, 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, or to simply put, based on the incorporation clause of the constitution, international law is part of the law of the land in so far as the generally accepted principle of international law. this doctrince is the so called restricted automatic doctrine. Automatic, that as long as there is constitutional authority, international law is automatically considered part of our land, regardless of its consistency with municipal legislation or whether or not express to international law is made in specific statutes, BUT restricted in the sense that only GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW have been adopted as part of the law of the nation. Sec 21 of 1987 constitution provides that: no treaty or international agreement shall be valid and effective unless concurred in by atleast 2/3 of all the members of the senate. The president has the sole prerogative to negotiate and enter into treaties and international agreements. However, these treaties and agreements as a product of the president’s negotiation, do not become binding treaty without the the concurrence of at least 2/3 of all the members of the senate. Given now that an international law is incorporated in the law of the land does not make it superior than munipical or state law. as cited in the cases of Lantion,Philip Morris and Mighty Corporation: The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Treaties and other international agreements, like other legislative acts of the congress, are, therefore, also subject to ratification. According to the case of Gozales vs Hechenova: Although the President may . . . enter into executive agreements without previous legislative authority, he may not, by executive agreement, enter into a transaction which is prohibited by statutes enacted prior thereto . . . . He may not defeat legislative enactments that have acquired the status of law, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws. On its rationale based on separation of powers, Gonzales further explains: Under the Constitution, the main function of the Executive is to enforce the law enacted by Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power. stating the provisions 2 of Article VIII of 1935 constitution, the Supreme Court may not be deprived “of its jurisdiction to review, revise, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts in —  (1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in question”.  In other words, 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.33 the primacy of statutory law regarding a treaty is expressed in Ichong vs. Hernandez.26 Having in mind the claim that the National Retail Trade Act was in breach of the Treaty of Amity with China, Ichong has advanced the view, forming part of its ratio decidendi, thus: But even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law . . ., and the same may never curtail or restrict the scope of the police power of the State . . . . the statute as a source of law with its inherent police power stands superior to the treaty. international law deals only with the state and that individuals are not its subject. In conclusion, the case of Gonzales now implies the following: Gonzales retains its significance in terms of the serious implications arising from: (1) It enthrones the supremacy of the legislative enactment over a treaty in a specific constitutional context, i.e., in the interpretation of the judicial review clause of the 1935 Constitution, in which statutory law becomes a standard of validity of a treaty. Gonzales affirms: “*o+ur 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.34 (2) Statutory law as a source of law holds supremacy over a treaty on constitutional ground, not on the temporal sequence of the later-in-time principle. (3) Statutory law does not only “prevail” over a treaty with unspecified legal effect; it renders a violative treaty null and void. (4) Gonzales does away with the doctrine established in Abbas, Lantion, Philip Morris, and Mighty Corporation that a treaty and a statute are in parity. (5) It may imply a new element in the interpretation of the Treaty Clause: a treaty concurred in by the Senate shall be “valid and   effective” as part o f the law of the land, provided it does not run “counter to an act of Congress”.  statutory law has strengthened its juristic status over a treaty but without substantive explication, as shown in Lantion, Philip Morris and Mighty Corporation : “In a situation . . . where the conflict is irreconsilable and a choice  has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal should be upheld by the municipal courts . . . [f]or the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances . . . .”  

Ms-A09-01

Jul 23, 2017
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