VIENNA CONVENTION

ABAYA V. SEC. EBDANE

DBM v. KOLONWEL TRADING; VIBAL v. KOLONWEL; DEPED v. KOLONWEL (8 June 2007) [3 consolidated cases]Petitioners: Dept. of Budget and Management Procurement Service (DBM-PS) and the Inter-Agency Bids and Awards Committee (IABAC)Petitioners: Vibal Publishing House, Inc., LG & M Corp., and SD Publications, Inc. Petitioner: Department of EducationRespondent: Kolonwel TradingNature: Petitions for review with a prayer for a temporary restraining orderPonente: Garcia, J.

SUBJECT OF THE CONTROVERSY: the bidding and eventual contract awards for the supply and delivery of some 17.5 million copies of Makabayan (social studies) textbooks and teacher’s manuals, a DepEd project which was to be jointly funded by the World Bank (WB)1 and the Asian Development Bank (ADB)2. In the middle of 2005, the DepEd requested the DBM-PS to undertake this project. According to the Exec. Director of the Government Procurement Policy Board (GPPB), “the procurement(s) for MAKABAYAN… textbooks were funds therefore (sic) are sourced from WB Loan shall be governed by the applicable procurement guidelines for the foreign lending institution. The 2005 Call for Submission of Textbooks and Teacher’s Manuals shall be viewed vis-à-vis relevant WB guidelines.”

CALL FOR BIDS. On Oct. 27, 2005, the DBM-PS IABAC called for a bidding for the supply of the Makabayan textbooks and manuals, divided into 3 lots3. 11 bidders submitted proposals for the different lots: Watana Phanit Printing & Publishing Co., Ltd., (Thailand); Vibal Publishing House, Inc.; Daewoo International Corporation (South Korea); and Kolonwel.

IABAS’S RES. NO. 001-20064 recommended to the WB and ADB the failure of bids for all the lots due to disqualifications, non-compliance, and DepEd’s reservations. The reasons stated: conflict of interest with respect to Watana and Vibal; failure in cover stock testing for Kolonwel; and DepEd’s reservation.

WB5 LETTER TO THE DEPED, DBM-PS, & IABAC: (1) disagreed with the finding of conflict of interest (Vibal and Watana); (2) upheld the other disqualifications; and (3) asked the IABAC to review its evaluation and to provide the WB with the revised Bid Evaluation Report, taking into account the Dec. 31, 2006 RP-IBRD Loan closing date.

1 Through the Second Social Expenditure Management Program (SEMP2) of the

Philippines – International Bank for Reconstruction and Development (IBRD) Loan Agreement No. 7118-PH (Loan No. 7118-PH) dated Sept. 12, 2002. 2 Through the SEDIP Loan No. 1654-PHI. 3 Lot 1, for Sibika Grades 1-3. Lot 2, for HeKaSi Grades 4-6. Lot 3, for Araling Panlipunan Years

I-IV. 4 Submitted to the WB on March 15, 2006. 5 Through its Regional Senior Economist, Ms. Rekha Menon.

MAY 11, 2006, KOLONWEL WAS INFORMED OF ITS BID’S FAILURE TO QUALIFY. KOLONWEL ASKED THAT ITS DISQUALIFICATION BE RECONSIDERED AND SET ASIDE VIA LETTERS6. This, and a second request for reconsideration,were denied.

IABAC’S RES. NO. 001-2006-A was issued, recommending to the WV the contract award to Vibal7, Watana8, and Daewoo9. The notices of award were issued and the Purchaser-Supplier contracts were executed on Sept. 12, 2006.

KOLONWEL FILED WITH THE RTC OF MANILA A SPECIAL CIVIL ACTION FOR CERTIORARI AND PROHIBITION, with a prayer for a temporary restraining order and/or a writ of preliminary injunction, on Oct. 12, 2006, in order to nullify the 2 IABAC resolutions and to set aside the contract awards in favor of Vibal and Watana. To support the TRO application, Kolonwel alleged that the supply-awardees were rushing with the implementation of the void contracts to beat the loan closing-date deadline. A 20-day TRO was granted.

MOTIONS TO DISMISS FILED BY VIBAL, DEPED: want of jurisdiction and lack of cause of action for failure to comply with the protest procedure prescribed by RA 9184, the “Government Procurement Reform Act.”

RTC FOUND FOR KOLONWEL: “…the court grants the petition for certiorari and prohibition. The IABAC Res. No. 001-2006-A… is annulled and set aside. IABAC Res. No. 001-2006 is declared validly and regularly issued… All subsequent actions of the respondents resulting from the issuance of IABAC Res. 001-2006-A are consequently nullified and set aside. This court grants a final injunction….”

FOR THE PETITIONERS: RTC erred in assuming jurisdiction despite the failure to observe the protest mechanism under Sec. 5510 in relation to Secs. 5711 and 5812 of RA 9184.

FOR KOLONWEL: (1) the judicial window was already opened under the exhaustion of available administrative remedies principle, considering that its request for reconsideration was denied twice; and (2) it was prevented from filing a protest as the

6 Dated May 18 and June 28. 7 Of Sibika 1 & 3.8 Sibika 2 and HeKaSi 4 & 5. 9 Sibika 3.

10          Sec. 55. Protest on Decision of the BAC.-  Decisions of the BAC [Bids and Awards Committee] in all stages of procurement may be protested to the head of the procuring entity…. Decisions of the BAC may be protested by filing a verified position paper and paying a non-refundable protest fee. The amount of the protest fee and the periods during which the protest may be filed and resolved shall be specific in the IRR.11            Sec. 57. Non-interruption of the Bidding Process. In no case shall any process taken from any decision treated in this Article stay or delay the bidding process. Protests must first be resolved before any award is made. 12            Sec. 58. Report to Regular Courts; Certiorari.- Court action may be resorted to only after the protests contemplated in this Article shall have been completed. Cases that are filed in violation of the process specified in this article shall be dismissed for lack of jurisdiction. The [RTC] shall have jurisdiction over final decisions of the head of the procuring entity. (Emphasis and words in bracket added.)

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government hadn’t yet issued the IRR of RA 9184, to render its protest mechanism operative for foreign-funded projects.

ISSUE: WON the RTC lacked jurisdiction due to the failure to comply with the protest mechanism.HELD: YES.

3 PROTEST REQUIREMENTS UNDER SEC. 55: 1) the protest must be in writing, in the form of a verified position paper; 2) the protest must be submitted to the head of the procuring entity; and 3) the payment of a non-refundable protest fee. Under Sec. 58, courts would have jurisdiction only if the protest procedure has already been completed.

KOLONWEL’S LETTERS FOR RECONSIDERATION FAILED TO COMPLY WITH SEC. 55: (1) letters weren’t addressed to the head of the procuring entity (the DepEd Sec. or the DBM-PS head), as required by law; (2) these were unverified; and (3) no payment of protest fee. Thus it cannot really be said that Kolonwel availed of the protest procedure prescribed under Sec. 55 before going to the RTC, and its filing of a case was precipitate and should’ve been dismissed for lack of jurisdiction. The protest mechanism is a built-in administrative remedy embodied in the law itself. It was not prescribed by an administrative agency tasked with implementing a statute through the medium of interpretative circulars or bulletins. Ignoring this administrative remedy would be to defy the law itself.

LACK OF IRR, MAKING THE PROTEST MECHANISM OPERATIVE FOR FOREIGN-FUNDED PROJECTS, WOULDN’T EXCUSE KOLONWEL. As provided by Sec. 55 itself, the IRR (for the protest for foreign-funded projects) was limited to the fixing of the amount of the protest fee and the periods during which the protest may be filed and resolved. The absence of provisions on protest fee and reglementary period wouldn’t lead to the deferment of the implementation of the protest mechanism as a condition sine qua non to resort to judicial relief. There was no need to wait for the prescription of the specific filing period as protest, as a matter of necessity, has to be lodged before court action. With respect to the protest fee, Kolonwel could’ve proceeded with its protest without paying the fee, remitting the proper amount once the proper amount was fixed by the IRR.

“IRR-A” AND ABAYA v. EBDANE. At any rate, there is in fact a set of implementing rules and regulations, the “IRR-A13,” Sec. 55.1 of which provides that prior to a resort to protest, the aggrieved party must first file a motion for reconsideration of the decision of the BAC. It is only after the BAC itself denies reconsideration that the protest, accompanied by a fixed protest fee, shall be filed within the period defined in the IRR. While this applies to “all fully domestically-funded procurement activities,” and that “foreign-funded procurement activities shall be the subject of a subsequent issuance,” ABAYA14 should be considered:                Admittedly, IRR-A…expressly stated that IRR-B for foreign-funded

procurement activities shall be subject of a subsequent issuance.

13 Issued on July 11, 2003 by the GPPB and the Joint Congressional Oversight Committee.

14 Which involved Loan Agreement No. PH-P204 between the Phil. and the Japan Bank for

International Cooperation for the implementation of DPWH Contract Package No. 1.

Nonetheless, there is no reason why the policy behind Sec. 77…cannot be applied to foreign-funded procurement projects…the policy on the prospective or non-retroactive application of RA 9184 with respect to domestically-funded procurement projects cannot be any different with respect to foreign-funded procurement projects…It would be incongruous, even absurd, to provide for the prospective application of RA 9184 with respect to domestically-funded procurement projects and…apply RA 9184 retroactively with respect to foreign-funded procurement projects. To be sure, the lawmakers could not have intended such an absurdity.

  There is no reason why the policy behind Section 55.l on the procedure for protest cannot be applied to foreign-funded procurement projects and RA 9184 doesn’t show that Congress intended such a variance in the protest procedure.   NO SUBSTANTIAL COMPLIANCE OF PROTEST REQUIREMENTS as it wasn’t even clear that Kolonwel was aware of these. What is beyond dispute is that courts are precluded by express legislative command from entertaining protests from decisions of the BAC. What Congress intended was that not only would there be a distinct administrative grievance mechanism to be observed in assailing these decisions, but that courts would be without jurisdiction over actions impugning these unless the protest procedure mandated under Sec. 55 is brought to its logical completion. It is Congress by law, not the courts by discretion, which defines the court’s jurisdiction not otherwise conferred by the Constitution. Sec. 55 could not be any clearer when it mandates the manner of protest. Similarly, it is clear under Sec. 58 that courts do not have jurisdiction over decisions of the BACs unless the appropriate protest has been made and completed. Despite the lack of an IRR, RA 9184 still requires a protest to be filed. Thus the RTC lacked jurisdiction over Kolonwel’s petition.           ANOTHER RTC ERROR: NO JURISDICTION OVER WATANA which wasn’t served with summons. Watana is an indispensable party15 to Kolonwel’s petition, which assailed and sought to nullify the contract-award made in Watana’s and Vibal’s favor.

WRT THE SUPERIORITY OF WB GUIDELINES ON PROCUREMENT UNDER IBRD LOANS OVER LOCAL LAWS: recall that all interested bidders were notified that the DepEd’s procurement project was financed by the proceeds of the RP-IBRD Loan No. 7118-PH, Sec. 1, Schedule 416. The bidding was conducted by IABAC based on the WB Guidelines, particularly the provisions on International Competitive Bidding (ICB). Sec. 417 of RA 9184 expressly recognized this process. The question as to whether or not foreign loan agreements with international financial institutions

15 Indispensable parties are those with such an interest in the controversy that a final decree

would necessarily affect their rights so that courts can’t proceed without their presence. All of them must be included in a suit for an action to prosper or for a final determination to be had. 16

This stipulates that “Goods… shall be procured in accordance with the provisions of Sec. 1 of the Guidelines for Procurement under IBRD Loans.”17

Sec. 4. Scope and application. – This Act shall apply to the Procurement of… Goods and Consulting Services, regardless of source of funds, whether local or foreign by all branches and instrumentalities of government… Any treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed. (Emphasis added.)

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(Loan No. 7118-PH) partake of an executive or international agreement within the purview of the Sec. 4 has been answered in the affirmative  in Abaya, which declared that the RP-JBIC loan agreement was to be of governing application over the project and that the JBIC Procurement Guidelines, as stipulated in the loan agreement, shall primarily govern  the procurement of goods necessary to implement the main project. Under the fundamental international law principle of pacta sunt servanda, embodied in Sec. 4 of R.A. No. 9184, the Philippines, as borrower, bound itself to perform in good faith its duties and obligation under Loan No. 7118- PH. Thus the   IABAC was legally obliged to comply with, or accord primacy to, the WB Guidelines on the conduct and implementation of the bidding/procurement process in question.

Lim vs. Executive Secretary

DE LEON, JR., J.:

This case involves a petition for certiorari and prohibition as well as a petition-in-intervention, praying that respondents be restrained from proceeding with the so-called "Balikatan 02-1" and that after due notice and hearing, that judgment be rendered issuing a permanent writ of injunction and/or prohibition against the deployment of U.S. troops in Basilan and Mindanao for being illegal and in violation of the Constitution.

BASIC FACTSGI JOE ARRIVES TO KILL TERRORISTS2002: personnel from the armed forces of the USA started arriving in Mindanao to take part, in conjunction with the Philippine military, in "Balikatan 02-1”; said exercises are the largest combined training operations involving Filipino and American troops. In theory, they are a simulation of joint military maneuvers pursuant to the Mutual Defense Treaty (a bilateral defense agreement entered into by the Philippines and the United States in 1951).

The last "Balikatan" was held in 1995. This was due to the paucity of any formal agreement relative to the treatment of United States personnel visiting the Philippines. In the meantime, the respective governments of the two countries agreed to hold joint exercises on a reduced scale. The lack of consensus was eventually cured when the two nations concluded the Visiting Forces Agreement (VFA) in 1999.

The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism campaign declared by President George W. Bush in reaction to the tragic events that occurred on September 11, 2001.

PETITION FOR CERTIORATI AND PROHIBITIONFebruary 1: petitioners Arthur D. Lim and Paulino P. Ersando filed a petition for certiorari and prohibition, attacking the constitutionality of the joint exercise. They were joined subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA.

Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO, on the other hand, aver that certain members of their organization are residents of Zamboanga and Sulu, and hence will be directly

affected by the operations being conducted in Mindanao. They likewise pray for a relaxation on the rules relative to locus standi citing the unprecedented importance of the issue involved.

SENATE Terms of Reference (TOR)The Senate conducted a hearing on the "Balikatan" exercise wherein Vice-President Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign. Affairs, released the following TOR:

I. POLICY LEVEL

1. The Exercise shall be consistent with the Philippine Constitution and all its activities shall be in consonance with the laws of the land and the provisions of the RP-US Visiting Forces Agreement (VFA).2. The conduct of this training Exercise is in accordance with pertinent United Nations resolutions against global terrorism as understood by the respective parties. 3. No permanent US basing and support facilities shall be established. Temporary structures such as those for troop billeting, classroom instruction and messing may be set up for use by RP and US Forces during the Exercise. 4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of the Chief of Staff, AFP. In no instance will US Forces operate independently during field training exercises (FTX). AFP and US Unit Commanders will retain command over their respective forces under the overall authority of the Exercise Co-Directors. RP and US participants shall comply with operational instructions of the AFP during the FTX. 5. The exercise shall be conducted and completed within a period of not more than six months, with the projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six month Exercise period. 6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further advising, assisting and training exercises shall be conducted in Malagutay and the Zamboanga area. Related activities in Cebu will be for support of the Exercise. 7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP field, commanders. The US teams shall remain at the Battalion Headquarters and, when approved, Company Tactical headquarters where they can observe and assess the performance of the AFP Forces. 8. US exercise participants shall not engage in combat, without prejudice to their right of self-defense. 9. These terms of Reference are for purposes of this Exercise only and do not create additional legal obligations between the US Government and the Republic of the Philippines. II. EXERCISE LEVEL1. TRAININGa. The Exercise shall involve the conduct of mutual military assisting, advising and training of RP and US Forces with the primary objective of enhancing the operational capabilities of both forces to combat terrorism. b. At no time shall US Forces operate independently within RP territory.c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations.

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2. ADMINISTRATION & LOGISTICSa. RP and US participants shall be given a country and area briefing at the start of the Exercise. This briefing shall acquaint US Forces on the culture and sensitivities of the Filipinos and the provisions of the VF A. The briefing shall also promote the full cooperation on the part of the RP and US participants for the successful conduct of the Exercise. b. RP and US participating forces may share, in accordance with their respective laws and regulations, in the use of their resources, equipment and other assets. They will use their respective logistics channels. c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and resources. d. Legal liaison officers from each respective party shall be appointed by the Exercise Directors. 3. PUBLIC AFFAIRSa. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon City. b. Local media relations will be the concern of the AFP and all public affairs guidelines shall be jointly developed by RP and US Forces. c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US Forces in accordance with their respective laws and regulations, and in consultation with community and local government officials.Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and United States Charge d' Affaires Robert Fitts signed the Agreed Minutes of the discussion between the Vice-President and Assistant Secretary Kelly.4

ARGUMENTS OF PETITIONERS1) The Phil and US signed the Mutual Defense Treaty in 1951 to provide mutual military assistance in accordance with the constitutional processes of each country ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR. The Abu Sayyaf bandits ARE NOT an external armed force to warrant the US military assistance.

2) The VFA does NOT authorize American soldiers to engage in combat operations in Philippine territory (cannot even fire back if fired upon).

SOLGEN DEFENDS BALIKATAN1) SOLGEN questions petitioners standing, prematurity of the action as well as the impropriety of availing of certiorari to ascertain a question of fact.

LOCUS STANDI:First, they may not file suit in their capacities as, taxpayers inasmuch as it has not been shown that "Balikatan 02-1 " involves the exercise of Congress' taxing or spending powers. Second, their being lawyers does not invest them with sufficient personality to initiate the case, citing the ruling in Integrated Bar of the Philippines v. Zamora. Third, Lim and Ersando have failed to demonstrate the requisite showing of direct personal injury.

NOTE: THE COURT AGREED WITH THE SOLGEN ON THIS PROCEDURAL MATTER. (But still allowed petition on the merits).

PREMATURITY: SOLGEN is of the view that since the Terms of Reference are clear as to the extent and duration of "Balikatan 02-1," the issues raised by petitioners are

premature, as they are based only on a fear of future violation of the Terms of Reference. Even petitioners' resort to a special civil action for certiorari is assailed on the ground that the writ may only issue on the basis of established facts.

MAIN DEFENSESOLGEN claims that there is actually no question of constitutionality involved. The true object of the instant suit, it is said, is to obtain an interpretation of the V FA. The Solicitor General asks that the SC accord due deference to the executive determination that "Balikatan 02-1" is covered by the VFA, considering the President's monopoly in the field of foreign relations and her role as commander-in-chief of the Philippine armed forces.

PROCEDURAL PARTCOURT: USED TRANSCENDENTAL IMPORTANCE DOCTRINE AND GRANTED STANDING TO PETITIONERSIn view of the paramount importance and the constitutional significance of the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases (where the SC “brushed away rules on technicality” and had occasion to rule:

'x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were involving only an indirect and general interest shared in common with the public. The Court dismissed the objection that they were not proper parties and ruled that 'transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.' We have since then applied the exception in many other cases. [citation omitted]

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of transcendental importance, the Court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review.

Hence, we treat with similar dispatch the general objection to the supposed prematurity of the action. At any rate, petitioners' concerns on the lack of any specific regulation on the latitude of activity US personnel may undertake and the duration of their stay has been addressed in the Terms of Reference.

COURT: BALIKATAN MUST BE VIEWED IN THE FRAMEWORK OF THE TREATY THAT PERMITTED SUCH TO OCCUR

1. MUTUAL DEFENSE TREATYThe holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has been described as the "core" of the defense relationship between the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and technological capabilities of our armed forces through joint training with its American counterparts; the "Balikatan" is the largest

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such training exercise directly supporting the MDT's objectives. It is this treaty to which the V FA adverts and the obligations thereunder which it seeks to reaffirm.

2. VISITING FORCES AGREEMENTThe lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in US-Philippine defense relations; until it was replaced by the Visiting Forces Agreement. I

note that October 10, 2000, by a vote of eleven to three, the SC upheld the validity of the VFA.

The VFA provides the "regulatory mechanism" by which "United States military and civilian personnel [may visit] temporarily in the Philippines in connection with activities approved by the Philippine Government." It contains provisions relative to entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. It is the VFA which gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate the promotion of optimal cooperation between American and Philippine military forces in the event of an attack by a common foe.

MAIN PART OF THE DECISION

ISSUE NUMBER 1: WON Balikatan is covered by the VFA-Why yes it is.

COURT: Don’t look at the VFA since the terminology itself is the problem. Look at Vienna Convention on the Law of Treaties in order to know HOW TO INTERPRET THE DAMN VFA.To resolve this, it is necessary to refer to the V FA itself: Not much help can be had therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact meaning of which was left undefined. The 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.

The Vienna Convention on the Law of Treaties, which contains provisos governing interpretations of international agreements, state:

SECTION 3. INTERPRETATION OF TREATIES

Article 31General rule of interpretation1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given to the tenus of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the party . 3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32Supplementary means of interpretationRecourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31 :

(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd unreasonable.

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 be taken into account alongside the aforesaid context. As explained by a writer on the Convention ,

“[t]he Commission's proposals (which were adopted virtually without change by the conference and are now reflected in Articles 31 and 32 of the Convention) were clearly based on the view that the text of a treaty must be presumed to be the authentic expression of the intentions of the parties; the Commission accordingly came down firmly in favour of the view that 'the starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties'. This is not to say that the travauxpreparatoires of a treaty , or the circumstances of its conclusion, are relegated to a subordinate, and wholly ineffective, role. As Professor Briggs points out, no rigid temporal prohibition on resort to travaux preparatoires of a treaty was intended by the use of the phrase 'supplementary means of interpretation' in what is now Article 32 of the Vienna 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.

COURT: THE TERMS OF REFERENCE RIGHTLY FALL WITHIN THE CONTEXT OF THE VFA; DELIBERATE AMBIGUITY

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After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word 'activities" arose from accident. SC has the view that 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.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense Treaty and the V FA support the conclusion that combat-related activities -as opposed to combat itself -such as the one subject of the instant petition are indeed authorized.

ISSUE NUMBER 2: MAY US TROOPS ENGAGE IN COMBAT?-Nah. (remember: ligaw tingin kantot hangin lang sila.) Unless the bandits draw first blood (remember rules of engagement?)

COURT: DIFFICULT TO IMPLEMENT “SELF-DEFENSE” RULEThe Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not engage in combat "except in self-defense." SC notes that this sentiment is admirable in the abstract but difficult in implementation. The target of "Balikatan 02-1 I" the Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to their very doorstep. They cannot be expected to pick and choose their targets for they will not have the luxury of doing so. SC points out that the parties straddle a fine line, observing the honored legal maxim "Nemo potest facere per alium quod non potest facere per directum." The 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.

COURT: MDT/VFA DO NOT ALLOW FOREIGN TROOPS TO ENGAGE IN AN OFFENSIVE WAR ON PHILIPPINE TERRITORY (cf UN Charter)

Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

xxx xxx xxx xxx

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

xxx xxx xxx xxx

COURT: READ BOTH TREATIES IN THE CONTEXT OF THE 1987 CONSITUTIONBoth 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. In particular, the Mutual Defense Treaty was concluded way before the present Charter, though it nevertheless remains in effect as a valid source of international obligation. The present Constitution contains key provisions useful in determining the extent to which foreign military troops are allowed in Philippine territory. Thus, in the Declaration of Principles and State Policies, it is provided that:

xxx xxx xxx xxx

SEC. 2. 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.

xxx xxx xxx xxx

SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self- determination.

SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in the country.

xxx xxx xxx xxx

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 in by at least two-thirds of all the members of the Senate."12 Even more pointedly, the Transitory Provisions state:

Sec. 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.

The aforequoted provisions betray a marked antipathy towards foreign military presence in the country, or of foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception. Conflict arises then between the fundamental law and our obligations arising from international agreements.

COURT: NO PRIMACY OF LAW BETWEEL PIL AND MUNICIPAL LAWIn Philip Morris, Inc. v. Court of Appeals it was stated that “the fact that international law has been made part of the law of the land does not by any means imply the

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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. “

[This is not exactly helpful in solving the problem at hand since in trying to find a middle ground, it favors neither one law nor the other, which only leaves the hapless seeker with an unsolved dilemma. Other more traditional approaches may offer valuable insights.]

COURT: CONSTI VS PILPerspective 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."

Phil Constitution (stated in section 5 of Article VIII)

“The Supreme Court shall have the following powers:

xxx xxx xxx 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.

xxx xxx xxx xxx

In Ichong v. Hernandez, SC ruled that the provisions of a treaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the State.

The foregoing premises leave no doubt that US forces are prohibited / from engaging in an offensive war on Philippine territory.

ISSUE NUMBER 3: Are American troops actively engaged in combat alongside Filipino soldiers under the guise of an alleged training and assistance exercise?

COURT: CANNOT TAKE JUDICIAL NOTICE OF THE EVENTS IN THE SOUTHSC cannot take judicial notice of the events transpiring down south, as reported from the saturation coverage of the media. As a rule, SC does not take cognizance of newspaper or electronic reports per se, not because of any issue as to their truth, accuracy, or impartiality, but for the simple reason that facts must be established in accordance with the rules of evidence.

SC cannot accept, in the absence of concrete proof, petitioners' allegation that the Arroyo government is engaged in "doublespeak" in trying to pass off as a mere

training exercise an offensive effort by foreign troops on native soil. The petitions invites the SC to speculate on what is really happening in Mindanao, to issue I make factual findings on matters well beyond the SC’s immediate perception, and this they are understandably loath to do.

COURT: THE PROBLEM IS AN ISSUE OF FACT (SC is not a trier of facts); Certiorary is to correct errors of jurisdiction/grave abuse of discretion.It is all too apparent that the determination thereof involves basically a question of fact. On this point, SC must concur with the Solicitor General that the present subject matter is not a fit topic for a special civil action for certiorari. Jurisprudence has show in too many instances that questions of fact are not entertained in such a remedy. The sole object of the writ is to correct errors of jurisdiction or grave abuse of discretion: The phrase "grave abuse of discretion" has a precise meaning in law, denoting abuse of discretion "too patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act in contemplation of law, or where the power is exercised in an arbitrary and despotic manner by reason of passion and personal hostility." In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts.

Under the expanded concept of judicial power under the Constitution, courts are charged with the duty "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government."21 From the facts obtaining, the court finds that the holding of "Balikatan 02-1" joint military exercise has not intruded into that penumbra of error that would otherwise call for correction on the SC’s part. In other words, respondents in the case at bar have not committed grave abuse of discretion amounting to lack or excess of jurisdiction.

WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without prejudice to the filing of a new petition sufficient in form and substance in the proper Regional Trial Court.

Salonga PetitionPetitioners: Jovito R. Salonga, Wigberto E. Tanada, Jose de la Rama, Emilio C. Capulong, H. Harry L. Roque, Jr., Florin Hilbay and Benjamin PozonRespondents: Daniel Smith, Sec. Raul Gonzalez, Presidential Legal Counsel Sergio Apostol. Secretary Ronaldo Puno, Secretary Alberto Romulo, Justice Apolinario Bruselas, Jr., Former Special 16th Division of the CA and all persons acting in their behalf,Amended Petition; Petition for Certiorari under Rule 65January 22, 2007

Prefatory Statement VFA preamble (par. 3 and 4)

“Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;

“Noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines;”

Two questions from these paragraphs:

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(1) WON the Mutual Defense Treaty (MDT) applies to the VFA; (2) whether the word visit means what it says, as applied in light of the understanding and the assurances made during the ratification by the Senate of the VFA and, more importantly, in the context of current practices of the US armed forces.

As to 1st question: Petitioners maintain that MDT does not apply: Par. 3 of the MDT preamble speaks of an “external armed attack, so that no

potential aggressor could be under the illusion that either of them stands alone in the Pacific Area.”

Art. I provides that the parties undertake (as set forth in UN Charter) to settle any international dispute by peaceful means and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the UN. (Judicial notice that the US, under President George W. Bush, has openly denied and ignored the UN in its actions against Iraq—to the dismay and consternation of then UN Secretary General Kofi Annan and many other notable personalities in the US, Europe, Africa and Asia.)

Art. II speaks of developing their individual and collective capacity to resist armed attack.

Art. III provides for mutual consultation through their Foreign Ministers or their deputies whenever in the opinion of either of them the territorial integrity, political independence or security of either of the parties is threatened by external attack in the Pacific.

Art. IV (unlike in the NATO which provides that an armed attack on one is considered automatically an armed attack on the others who are parties) declares that either of the Parties “would act to meet common dangers in accordance with its constitutional processes.” (The US used this escape clause when the Philippines asked the former to come to its aid in case of imminent attack by mainland China on Kalayaan Island in the Spratlys.)

Art. V says that for the purpose of Art. IV, an armed attack on either of the parties is deemed to include “an attack on the metropolitan territory of either of the parties, or on the island territories under its jurisdiction in the Pacific.” (Again, the US made use of this provision to justify its refusal to come to the aid of the Philippines in the Kalayaan Island in the Spratlys, despite the imminent attack of China on the armed forces and public vessels of the Philippines.)

Art. VI provides that “this Treaty does not affect and shall not be interpreted as affecting in any way the rights and obligations of the Parties under the UN Charter or responsibility of the UN for the maintenance of international peace and security.”

Clearly, there is no room for application of the MDT in the VFA as there is no external armed attack on the Philippines to speak of.

As to 2 nd question: US armed forces’ stay, not temporary visits: In the context of the current practices of the US armed forces in the Philippines, it

is incumbent upon this Court to inquire as to the actual length of time US military personnel stay in the Philippines, especially those in Mindanao, under the guise of a visit pursuant to the VFA.

It appears that US military personnel are in the Philippines the whole year round, without any geographical and time limitations. Such presence could not, by any stretch of imagination, be considered as temporary visits.

Antecedent Proceedings

1. October 2000. “Bayan et. al. v. Executive Secretary, et. al.—declaring the VFA as not unconstitutional. Puno dissented in favor of granting the petition.

2. June 2006. Petition for certiorari filed with the SC by Suzette S. Nicolas (“Nicole”) against Judge Benjamin Pozon and Daniel Smith, et. al. (hrough Attys. Evalyn Ursua, Teofisto Guingona, Jr., Rene AV Saguisag, and former UP Law Dean Magallona)

3. December 2006. Makati RTC found private respondent guilty beyond reasonable doubt of the crime of rape and sentenced him to 40 years imprisonment. Trial court “temporarily committed” private respondent to the Makati City jail pending further negotiations between the governments of the Philippines and the US regarding custody.

4. December 5, 2006. Private respondent filed an Urgent Motion for Reconsideration with Prayer for Issuance of Stay Order.

5. December 8, 2006. Public prosecutor filed a Manifestation submitting therewith an “agreement” signed by US Ambassador Kristie Kenney and Chief State Prosecutor (CSP) Jovencito Zuño. The agreement stated that: the Philippine Government and the US Government agree that, in accordance with the VFA Smith, should be returned to US military custody at the US Embassy.

6. Trial Court received letter from DOJ Secretary with the agreement attached.

7. December 12, 2006.Trial court denied Smith’s motion for reconsideration. The decision stated that Smith shall continue to be committed in Makati City Jail until the appropriate Philippine and US authorities shall have come to a binding agreement as to the proper facilities where said shall carry out his confinement or detention during his appeal.

8. December 14, 2006. Smith filed a Petition for Certiorari before the CA praying for the annulment of the order denying his Urgent Motion for Reconsideration.

9. December 18, 2006. Special 16th Division of CA issued resolution denying private respondent’s prayer for TRO.

10. Petitioners Jovito R. Salonga, Wigberto Tañada, et. al. filed a special appearance petition with the CAto transmit the case to the SC in view of the June 2006 (#2) case pending in the latter. At that time, no agreement had yet been reached between US Ambassador and Secretary Romulo and no resolution had yet been promulgated by Justice Bruselas, Jr. of the CA.

11. December 20, 2006, the DFA, through the Sol. Gen., filed a Very Urgent Manifestation and Motion, submitting an Agreement entered into by U.S. Ambassador and respondent Secretary Romulo.

12. December 22, 2006, the DFA, through the Sol. Gen., filed a Very Urgent Supplemental Manifestation and Motion submitting an Agreement dated 22 December 2006 between U.S. Ambassador and respondent Secretary

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Romulo which stated that the DFA of the Philippines and the US Embassy agree that, in accordance with the VFA signed upon transfer of Smith from the Makati City Jail to US military authorities at the US Embassy in Manila, he will be detained at the 1st Floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded round-the-clock by US military personnel. The Philippine police and jail authorities, under direct supervision of the DILG, will have access to the place of detention to ensure the US is in compliance with the terms of the VFA.

13. December 27, 2006. Respondent Apostol, despite his knowledge of the pendency of Smith’s Petition for Certiorari before the CA, publicly expressed the view that “we (the executive) are the jailers of Smith, we can decide where to detain a convicted criminal. If the President ordered the transfer, then the courts would not be able to do anything except to cite the executive department for contempt.”

14. December 29, 2006 11 pm. Smith was released from the Makati City Jail by Philippine officials and turned over to US authorities.

15. The next day, respondent Puno admitted that it was he and his Department that transferred custody of respondent Smith to US authorities, explaining that the transfer was effected in the late evening to “avoid traffic.”

16. Respondent Gonzalez publicly admitted that he gave a written legal opinion to the DILG on the legality of the release of Smith from the Makati City Jail to the custody of US officials even without a court order and that this opinion became the basis of the transfer of Smith.

17. January 1, 2007. Respondent Ermita admitted that he and the President “supported” the transfer of Smith.

18. January 2, 2007. Suzette Nicolas, Zenaida Quezon Avancena, Atty. Wigberto Tanada, Dr. Quintin Doromal, Atty. Emilio capulong, Jr., Atty. Jovito Salonga, and Prof. Harry L. Roque, Jr. filed a Petition for Contempt with Motion to Consolidate with CA against Daniel Smith, Secretary Puno, Presidential Legal Counsel Sergio Apostol, executive Secretary Ermita, Secretary Gonzalez and the Makati City Jail Warden.

19. January2, 2007. President issued a statement asking the Filipino people to understand and support the “difficult” decision that she and her officials made regarding the transfer of respondent Smith to the U.S. Embassy.

20. January 3, 2007. CA released its Decision upholding the interpretation of Judge Pozon in his 12 December 2006 Order (#7) that “judicial proceedings” under the VFA refer only to the proceedings at the court a quo and that custody of respondent Smith must be with the Philippine authorities. However, it dismissed the Petition of respondent Smith for having become moot because of the agreement between the US Ambassador and Secretary Romulo. Part of the decision reads:

“All the foregoing discussions notwithstanding, we are confronted with the latest agreement executed between Secretary of Foreign Affairs Alberto G. Romulo and Ambassador Kristie Kenney who are the authorized signatories to bind state parties to an agreement. Conformably with the wise observation – wrongly attributed to Justice Holmes by Justice Bruselas -- that the other branches of government are equally the ultimate guardians of the liberties and welfare of the people, we resolve to consider the matter treated in the petition MOOT.”

21. Petitioner Salonga immediately pointed out, as published by the Philippine Daily Inquirer that “the basis for the appellate court’s January 3 decision declaring “moot” Smith’s appeal to be returned to US custody had been “falsified and altered.” Petitioner Salonga pointed out that “a portion of the quote attributed to the eminent magistrate read: “[The] other branches of the government are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.”

Petitioner Salonga said that the correct quote is: “Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine and it must be remembered that legislatures are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.”

It must be noted that, in declaring the Smith petition moot, Justice Bruselas relied on the above-cited premise which is a misquotation of the original text.

Hence, it is evident that there is no legal or factual basis for declaring Smith’s petition as moot.

22. In view of the question of unconstitutionality of CERTAIN PROVISIONS THE VFA, its international law implications and the question of jurisdiction and custody as applied to the specific case of rape adjudged to have been committed by Smith against Suzette Nicolas, IT IS APPROPRIATE AND NECESSARY THAT ALL THESE MATTERS BE RESOLVED BY THE SUPREME COURT.

Standing of PetitionersPetitioners have personal standing to file the instant Petition, considering the direct injury to their fundamental rights caused by the enforcement of the patently unconstitutional VFA and patently unconstitutional and illegal agreements entered into by Secretary Romulo, Secretary Gonzalez and CSP Zuño and the US Government.

It has been held that legal standing means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the act being challenged.18 For a party to have personal standing, he need only prove, first, injury to his right or interest19, and second, a "fairly traceable" causal connection between the claimed injury and the challenged conduct.20

As to the first requisite, which requires injury in fact,21 there is no rigid rule as to what may constitute such injury. As for the second requisite, it is complied with when the

18 Tankiko v. Cezar, G.R. No. 131277, February 2, 1999.

19 Tankiko v. Cezar, G.R. No. 131277, February 2, 1999; CRUZ, Id.,at 25; Duke Power Co. v. Carolina

Environmental Study Group, 438 US 59 (1978), quoted in ROTUNDA, infra n.64, at 1050, and cited in NOWAK AND ROTUNDA, infra n.65 at 7620

Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978).

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Petitioners show that there is a substantial likelihood that the relief requested will redress the claimed injury.22 Even if the line of causation between the injury and the conduct is attenuated, even the existence of "an identifiable trifle" is sufficient for meeting this requisite.23

Petitioners have the right to ensure that there is an orderly dispensation of justice before the courts.

It was grave abuse of discretion amounting to lack or excess of jurisdiction for Justice Bruselas, Jr. to dismiss private respondent’s petition for certiorari for being moot, on the premise that the agreement executed between DFA Secretary Romulo and Ambassador Kenney validly and legally bound the state parties thereto.

The provisions of the VFA on detention and confinement, on which the agreements between Secretary Romulo, Secretary Gonzales, CSP Zuño, on one hand, and Ambassador Kenney, on the other, work to amend the rules on criminal procedure pertaining to the arrest of an accused, detention of a convict and the right to post bail, among others. As a consequence, this “amendment” constitutes a violation of Petitioners’ right to ample remedies for the protection of their rights, and of their other fundamental rights, especially the right to due process and equal protection of the laws. The denial of the instant Petition will redress the impending injury that will be inflicted upon Petitioners, especially Nicole, by allowing the furtherance of a process aimed at affirming their rights and entitlements as citizens.

As citizens, Petitioners have standing to file the instant Petition, as it involves the enforcement of a public right and raises questions of transcendental importance to the citizenry.

Moreover, it was held in Kilosbayan vs. Guingona,24 and reiterated in Tatad v. Secretary,25 that procedural technicalities may be set aside by the Court in cases of transcendental importance in view of the importance of the issues involved.

The petition involves matters of public interest and transcendental importance that would justify a relaxation of procedural requirements for constitutional adjudication.

Grounds1. MDT does not apply to the VFA/ contrary to the clear intent of the VFA, US

military forces do not merely visit the Philippines but stay on indefinitely.2. Respondents committed GADALEJ in entering into patently unconstitutional

agreements with US Ambassador and transferring custody over Smith the US Authorities, considering that:

21 Association of Data Processing Service Organizations v. Comp., 397 US 150 (1970) in RONALD ROTUNDA,

MODERN CONSTITUTIONAL LAW: CASES AND NOTES 1054 (3rd ed., 1989) 22

NOWAK & ROTUNDA, supra note 11, at 76, Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978).23

ROTUNDA, supra note 10, at 1055, citing U.S. v. SCRAP, 412 U.S. 669 (1973).24

232 SCRA 110.25

G.R. No. 124360, November 5, 1997.

a. VFA derogates and infringes on the exclusive power of the SC to promulgate rules of procedure (Art. VIII Sec. 5 par. 5 1987 Constitution)

b. VFA violates petitioners’ rights to due process and equal protection.3. VFA is unconstitutional as it violates Sec. 25 Art. XVIII of the Constitution. It

cannot be used to justify the transfer of custody of Smith.4. CA gravely abused its discretion amount to lack or excess of jurisdiction in

recognizing the agreement between US Ambassador and Sec. Romulo as binding on the Philippines and declaring the Smith petition moot.

5. Public respondents gravely absued their discretion when they transferred custody of Smith to US authorities without court authority.

Discussion

1st GROUND.(in addition to what was stated in the prefatory statement)

It seems that the fears expressed by those who opposed the ratification of the VFA are real, after all.

In light of the above discussion, it becomes the solemn duty of this Honorable Court to look into the constitutionality of the VFA based on the grounds raised herein.

2nd GROUND (A)In re Garcia, 26 :“The aforementioned Treaty (Treaty on Academic Degrees and the Exercise of Professions between the Republic of the Philippines and the Spanish State), could not have been intended to modify the laws and regulations governing admission to the practice of law in the Philippines, for the reason that the Executive Department may not encroach upon the constitutional prerogative of the Supreme Court to promulgate rules for admission to the practice of law in the Philippines, the power to repeal, alter or supplement such rules being reserved only to the Congress of the Philippines.”(Also cited In re Cunanan, 27 )

That the SC has the exclusive power under the 1987 Constitution to promulgate rules and procedure in all courts is beyond dispute. Hence, no other governmental entity may usurp this exclusive power of the Supreme Court without running afoul OF the Constitution.

The issue on the custody of an accused and/or convict is a matter of procedure, which under the constitution is exclusively within the realm of judicial power.

Jurisdiction in criminal law necessarily includes “custody.” Criminal jurisdiction means jurisdiction means jurisdiction over the place of commission of the offense, jurisdiction over the offense itself, and jurisdiction over the person who commits the offense. Xxx As criminal law concepts, “custody” and “jurisdiction” go hand-in-hand. Where there is “jurisdiction,” there is also “custody;” “custody inheres in “jurisdiction.”

26 2 SCRA 984

27 94 Phil. 534

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However, a close perusal of Section 6, Article 5 of the VFA reveals that it in effect amends the Philippines’ rules on criminal procedure pertaining to arrest, bail, arraignment and plea, among others.

Said provision of the VFA, in immediately vesting custody of any United States personnel over whom the Philippines is to exercise jurisdiction, to the United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings, effectively violates and impinges on the power of Philippine courts to acquire custody (read: jurisdiction) over the United States personnel.

Under Section 1, Rule 113 of the Rules of Court (ROC), arrest is defined as the taking of a person into custody in order that he may be bound to answer for the commission of the offense.

Hence, in cases where Section 6, Article 5 of the VFA is invoked by the United States, Philippine courts are effectively precluded from gaining custody of US personnel in order that the latter may be bound to answer for the commission of an offense.

Without acquiring physical jurisdiction over the US personnel, Philippine courts will have no jurisdiction to continue with the proceedings of the case.

Needless to say, in the instant controversy, US officials once again use the same provision to thwart the ends of Philippine justice enshrined in the 1987 Charter.

Having established that the VFA is in conflict with the Constitution insofar as it infringes on the exclusive power of the Supreme Court to promulgate rules and procedure in all courts, it is inevitable that the VFA must be struck down as being unconstitutional.

2nd GROUND (B)Due process requires that custody over private respondent should be turned over to Philippine courts in order that the he may be bound to answer for the commission of the offense, or that justice may be served against him.This view is supported by the Senate deliberations on the ratification of the VFA

Similarly, DOJ Opinion No. 094, s. 199828 says that “the Philippines, in extraordinary cases, may present its position regarding custody to US authorities, which means that the Philippines may deny the US request for custody in some cases and demand to retain custody of the US offender.”

The VFA’s denial of such custody to Philippine courts ultimately results in the violation of Petitioners’ right to due process.

Under the VFA, Petitioners’ right to the equal protection of the laws is violated when it prescribes a different procedure for the custody of US personnel of a crime properly

28 Legal opinion penned by then Secretary of Justice Serafin Cuevas on the constitutionality and criminal jurisdiction provisions of the VFA in response to the request of Senator Rodolfo G. Biazon.

cognizable by Philippine courts as compared to Filipino citizens similarly situated, who must undergo the procedure prescribed in the Rules of Court.

Even granting for the sake of argument that Philippine courts can somehow obtain jurisdiction over concerned US personnel by their voluntary appearance in court for the purpose of arraignment, such does not detract from the fact that the said provision of the VFA creates a privileged class among the criminally on the mere basis that they are “United States military personnel.”

Such provision in the VFA creates a privileged class among criminals under the country’s criminal justice system that smacks of unwarranted partiality or undue favoritism, not in favor of Filipinos, but of United States military personnel only.

Whatever maybe the reason for creating such a privileged class, there is no denying the fact that there is no substantial distinction between Filipino and U.S. military personnel charged of a crime in the Philippines. Moreover, there is no reason to extend such privilege to U.S. military personnel only when there are military personnel from other countries aside from the United States that participate in military exercises in the Philippines.

Furthermore, the classification is not germane to the purpose of the treaty which governs the conduct of military exercise between the Philippines and the United States of America. Such a privileged treatment of U.S. military personnel does not in anyway promote or facilitate the conduct of military exercises as much as it shields U.S. soldiers from the reach of the Philippines’ criminal justice system.

While it is true that the equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification, the groupings must be characterized by substantial distinctions that make real differences, so that one class may be treated and regulated differently from the other.29

In the instant case, there is clearly no substantial distinction between the US personnel and other persons of crimes, as to warrant a different treatment between the two groups.

There being no substantial distinction between the two groups as to warrant a different treatment, the VFA must be struck down as unconstitutional for violating petitioners’ right to the equal protection of the laws.

3rd GROUNDAs correctly held by now Chief Justice Reynato Puno in his dissenting opinion in the above-cited consolidated VFA cases,“This provision lays down three constitutional requisites that must be complied with before foreign military bases, troops, or facilities can be allowed in Philippine territory, namely: (1) their presence should be allowed by a treaty duly concurred in by the Philippine Senate; (2) when Congress so requires, such treaty should be ratified by a majority of the votes cast by the Filipino people in a national referendum held for that

29 Tiu v. Court of Appeals, 301 SCRA 278 (1999).

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purpose; and (3) such treaty should be recognized as a treaty by the other contracting party.”30

Chief Justice Puno further held that the above provision of the Constitution applies to the VFA inasmuch as the “views on the temporary nature of visits of U.S. troops cannot stand for, clearly, the VFA does not provide for a specific and limited period of effectivity. It instead provides an open-ended term in Art. IX, viz: “. . . (t)his agreement shall remain in force until the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement.” No magic of semantics will blur the truth that the VFA could be in force indefinitely.”31

In the context of current practices of the ARMED FORCES of the United States in the Philippines, Chief Justice Puno HAS BEEN right all along.

US military forces are in the Philippines all-year round, “visiting” without any geographical or time limitations. Having established that Section 25, Article XVIII of the Constitution applies to the VFA, it is incumbent upon this Honorable Court to determine whether or not said VFA conforms to the constitutional requirements for its validity.

On this issue, Chief Justice Puno had this to say in his dissenting opinion in the above-cited VFA cases, “In ascertaining the VFA’s compliance with the constitutional requirement that it be “recognized as a treaty by the other contracting state,” it is crystal clear from the above exchanges of the Constitutional Commissioners that the yardstick should be U.S. constitutional law. It is therefore apropos to make a more in depth study of the U.S. President’s power to enter into executive agreements under U.S. constitutional law.

xxxI respectfully submit that, using these three types of executive agreements as bases for classification, the VFA would not fall under the category of an executive agreement made by the president pursuant to authority conferred in a prior treaty because although the VFA makes reference to the Mutual Defense Treaty in its Preamble, the Mutual Defense Treaty itself does not confer authority upon the U.S. President to enter into executive agreements in implementation of the Treaty. Issues have occasionally arisen about whether an executive agreement was entered into pursuant to a treaty. These issues, however, involved mere treaty interpretation. Xxx

In conclusion, after a macro view of the landscape of U.S. foreign relations vis-a-vis U.S. constitutional law, with special attention on the legal status of sole executive agreements, I respectfully submit that the Court will be standing on unstable ground if it places a sole executive agreement like the VFA on the same

30Bayan, et. al. vs. Executive Secretary, et. al., G.R. No. 138572, 10 October 2000 Philippine Constitution

Association, Inc., et. al. vs. Executive Secretary, et. al., G.R. No. 138587, 10 October 2000Giungona, et. al. vs. Estrada, et. al., G.R. No. 138680, 10 October 2000Integrated Bar of the Philippines, et. al. vs. Estrada, et. al., G.R. No. 138698, 10 October 2000and Salonga, et. al. vs. Executive Secretary, et. al., G.R. No. 138570, 10 October 2000 31

Ibid.

constitutional plateau as a treaty. Questions remain and the debate continues on the constitutional basis as well as the legal effects of sole executive agreements under U.S. law. The observation of Louis Henkin, a noted international and U.S. constitutional law scholar, captures the sentiments of the framers of the Philippine Constitution and of the Filipinos in crafting Sec. 25, Art. XVIII of the 1987 Constitution -- “(o)ften the treaty process will be used at the insistence of other parties to an agreement because they believe that a treaty has greater ‘dignity’ than an executive agreement, because its constitutional effectiveness is beyond doubt, because a treaty will ‘commit’ the Senate and the people of the United States and make its subsequent abrogation or violation less likely.”

“With the cloud of uncertainty still hanging on the exact legal force of sole executive agreements under U.S. constitutional law, this Court must strike a blow for the sovereignty of our country by drawing a bright line between the dignity and status of a treaty in contrast with a sole executive agreement. However we may wish it, the VFA, as a sole executive agreement, cannot climb to the same lofty height that the dignity of a treaty can reach. Consequently, it falls short of the requirement set by Sec. 25, Art. XVIII of the 1987 Constitution that the agreement allowing the presence of foreign military troops on Philippine soil must be “recognized as a treaty by the other contracting state.”

It is undeniable that the VFA grants no authority to public respondents Romulo and Gonzalez to enter into the assailed agreements with Ambassador Kenney.

The assailed agreements, being treaties themselves, were not sent to the Philippine Senate for deliberation and ratification, in accordance with Section 25, Article XVIII and Section 21, Article VII of the Constitution, which provides as follows:

Hence, the assailed agreements are not binding and enforceable.

4th GROUNDHaving established that the Romulo-Kenney agreement was not ratified by the Philippine Senate, hence, invalid and ineffective, it follows that the Special 16th Division of the Court of Appeals gravely abused its discretion amounting to lack or excess of jurisdiction in recognizing said agreement as binding on the Philippines and declaring the petition moot on the basis of such agreement.

Moreover, attention must be given to the fact that the assailed January 3, 2007 decision of public respondent Special 16th Division of the Court of Appeals that “the basis for the appellate court’s January 3 decision declaring “moot” Smith’s appeal to be returned to US custody had been “falsified and altered,” as pointed out by Petitioner Salonga, through an article in the Philippine Daily Inquirer (“Salonga raps CA justice over misquote,” Norman Bordadora, 12 January 2007, p.1). Petitioner Salonga pointed out that “a portion of the quote attributed to the eminent magistrate read: “[The] other branches of the government are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.”

Further, Petitioner Salonga said that the correct quote is: “Great constitutional provisions must be administered with caution. Some play must be allowed for the

12

joints of the machine and it must be remembered that legislatures are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.”

IT MUST BE NOTED THAT JUSTICE BRUSELAS PREMISED HIS DECISION TO DECLARE SMITH’S OWN PETITION WITH THE SPECIAL 16 TH DIVISION OF THE COURT OF APPEALS MOOT ON SAID MISQUOTED TEXT. LIKEWISE, SAID JUSTICE ADMITTED HIS ERROR IN MISQUOTING JUSTICE HOLMES, CLAIMING HE DID IT IN “PLAIN GOOD FAITH.” (Philippine Daily Inquirer, 14 January 2007, p. 9)

Hence, it is evident that there is no legal or factual basis for declaring Smith’s petition as moot.

5th GROUND

In clear disregard of Honorable Judge Benjamin Pozon’s express directive in his 12 December 2006 Order that Smith shall continue to be temporarily committed at the Makati City Jail “until the appropriate Philippine and United States authorities shall have come to a binding agreement as to the proper facilities where said shall carry out his confinement or detention during his appeal and until further orders from this Court,” public respondents nevertheless transferred the custody over Smith to the US military authorities sans a court order. This, despite public respondents’ knowledge of the pendency of the petition for certiorari pending filed before the Court of Appeals questioning Judge Pozon’s 12 December 2006 Order.

This, despite the fact that the DFA submitted several urgent manifestations before the Court of Appeals praying for the transfer of custody over Smith to US authorities by virtue of the Kenney-Romulo Agreement.

As a matter of due process and in deference to the judiciary, public respondents should not have transferred custody over Smith to US military authorities without a court order.

Clearly, it was grave abuse of discretion amounting to lack or excess jurisdiction for public respondents to have transferred custody over Smith without the proper court authority.

PrayerWHEREFORE, premises considered, it is most respectfully prayed that this

Honorable Court: DECLARE THE MUTUAL DEFENSE TREATY OF 1951 AS INAPPLICABLE TO THE VFA;

DECLARE THE VFA AS UNCONSTITUTIONAL FOR VIOLATING SECTION 25, ARTICLE XVIII OF THE CONSTITUTION; DEROGATING ON THE EXCLUSIVE POWER OF THE SUPREME COURT TO PROMULGATE RULES OF PROCEDURE IN ALL COURTS; AND FOR VIOLATING PETITIONERS’ RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAWS;

NULLIFY THE ASSAILED AGREEMENTS ENTERED INTO BY PUBLIC RESPONDENTS ROMULO AND GONZALEZ WITH AMBASSADOR KENNEY FOR BEING UNCONSTITUTIONAL; AND

REVERSE AND SET ASIDE THE 3 JANUARY 2007 DECISION OF THE FORMER SPECIAL 16 TH DIVISION OF THE COURT OF APPEALS INSOFAR AS IT RECOGNIZED AS VALID AND BINDING THE ASSAILED ROMULO-KENNEY TREATY, WHICH IT ULTIMATELY USED AS BASIS TO DECLARE SMITH’S PETITION MOOT.

Other just and equitable relief under the premises are prayed for.

Parties Jovito R. Salonga is a former Senator of the Republic of the Philippines and is the founder of Kilosbayan, a people’s organization established in August 1993 in accordance with the 1987 Constitution and its sister organization, Bantay Katarungan, an NGO established on Recto Day, February 8, 2000. He may be served with notices, pleadings and other processes of this Honorable Court through his counsel, Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City.

Wigberto E. Tañada is a former Senator of the Republic of the Philippines who led in the rejection by the Senate on 16 September 1991 of the Treaty of Friendship, Cooperation and Security, thus ending the more than 470 years of foreign military presence in the Philippines. He may be served with notices, pleadings and other processes of this Honorable Court through his counsel, Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City.

Jose de la Rama is a retired Justice of the Court of Appeals. He may be served with notices, pleadings and other processes of this Honorable Court through Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City.

Emilio C. Capulong, a law practitioner, is the Executive Director of Bantay Katarungan and one of the founders of Kilosbayan. He may be served with notices, pleadings and other processes of this Honorable Court through Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City.

H. Harry L. Roque, Jr. is an international law professor at, and Director of the Institute of International Legal Studies (IILS) of the University of the Philippines College of Law. He may be served with notices, pleadings and other processes of this Honorable Court through his counsel, Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City.

Florin Hilbay is a law professor at the University of the Philippines College of Law. He may be served with notices, pleadings and other processes of this Honorable Court through Roque & Butuyan Law Offices, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village Makati City.

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Benjamin E. Pozon is the Presiding Judge of Makati City RTC Branch 139, who convicted the accused Daniel Smith guilty beyond reasonable doubt of the crime of rape in a decision promulgated on 4 December 2006, which also temporarily committed said accused to the Makati City Jail. He may be served with notices, pleadings and other processes of this Honorable Court at the Makati City RTC, Branch 139.

Public respondent JUSTICE APOLINARIO BRUSELAS, JR. OF THE FORMER Special 16th Division of the Court of Appeals rendered the assailed Decision, dated 2 January 2007. It may be served with notices, pleadings and other processes of this Honorable Court at the Court of Appeals, Manila.

Private respondent Lance Corporal Daniel Smith has been convicted by the Regional Trial Court of Makati City, Branch 139, of the crime of rape. He may be served with summons, notices, pleadings and other processes of this Honorable Court c/o the DFA 2330 Roxas Boulevard, Pasay City.Respondent Secretary Raul Gonzalez is a Filipino, of legal age and may be served with summons, notices, pleadings and other processes of this Honorable Court at the Department of Justice, Manila.

Respondent Presidential Legal Counsel Sergio Apostol is a Filipino, of legal age and may be served with summons, notices, pleadings and other processes of this Honorable Court at Malacañan Palace, Manila.

BAYAN v. ZAMORA (October 10, 2000) Buena, J.

FACTS. In 1947, the Military Bases Agreement (MBA)was forged, and in 1951, the Mutual Defense Treaty was entered into providing that the Philippines and the US shall respond to any external armed attack on their territory, armed forces, public vessels, and aircraft. In 1991, the MBA expired so the military exercises were held in abeyance. The US and Philippines represented by the US Defense Deputy Assistant Secretary for Asia Pacific and Philippines Foreign Affairs Undersecretary discussed the Visiting Forces Agreement (VFA). A draft text was consolidated and thereafter approved by President Ramos. In 1998, Erap ratified the VFA. The Instrument of Ratification, the letter of the President and the VFA were transmitted to the Senate for concurrence pursuant to Section 21, Article VII of the 1987 Constitution (not Section 25, Article XVII).

HELD: Court dismissed the petitions because there was no grave abuse of discretion.

THE VISITNG FORCES AGREEMENT. The VFA provides for the mechanism for regulating the circumstances and conditions under which US Armed Forces and defense personnel my be present in the Philippines.

It is an agreement which defines the treatment of US troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the US and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies.

1ST ISSUE: LOCUS STANDI. Petitioners had no legal standing. First, they failed to show that they have sustained, or are in danger of sustaining any direct injury as a result of the enforcement of the VFA. Second, no public funds raised by taxation are involved in this case. Third, Representatives Wigberto Tañada, Agapito Aquino and Joker Arroyo, in the absence of a clear showing of any direct injury to their person or to the institution to which they belong, have no standing. Fourth, the allegations of impairment of legislative power are more apparent than real.

NONETHELESS, THE COURT TAKES COGNIZANCE OF THE CASE. This is in view of the paramount importance and the constitutional significance of the issues raised.

2ND ISSUE: WHICH CONSTITUTIONAL PROVISION APPLIES. Both provisions shall apply because far from contradicting each other, actually share some common ground. In any case, the concurrence of the Senate is mandatory to comply with the strict constitutional requirements.

The 1987 Philippine Constitution contains 2 provisions requiring the concurrence of the Senate on treaties or international agreements.

Section 21, Article VII reads: “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."

Section 25, Article XVIII reads: "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."

REQUIREMENTS UNDER SECTION 25. This section disallows foreign military bases, troops, or facilities in the country, unless the following conditions are met:

[1] must be under a treaty[2] duly concurred in by the Senate [3] recognized as a treaty by the other contracting state.

3RD ISSUE: WON THE US RECOGNIZED VFA AS A TREATY. Practically, yes. First of all, the phrase "recognized as a treaty" means that the other contracting party accepts or acknowledges the agreement as a treaty. US need not submit the VFA to the US Senate for concurrence pursuant to its Constitution, because this is to accord too strict a meaning to the phrase.

Secondly, it is inconsequential whether the US treats the VFA merely as an executive agreement (EO) because, under international law, an executive agreement is as binding as a treaty. In international law, there is no difference between treaties and EOs in their binding effect upon states, as long as the negotiating functionaries have remained within their powers.

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Third, in any case, the records reveal that the US Government, through Ambassador Hubbard, has stated that the US government has fully committed to living up to the terms of the VFA. For as long as the US acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is a compliance with the mandate of the Constitution.

TREATY; DEFINED. Article 2 of the Vienna Convention on the Law of Treaties, states that it is "an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in 2 or more related instruments, and whatever its particular designation."

4TH ISSUE: WON AN EO IS BINDING. Yes, it is binding. Commissioner of Customs vs. Eastern Sea Trading states that EOs are binding even without concurrence of the Senate or Congress because “the right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage…The validity of these has never been seriously questioned by our courts.”

5TH ISSUE; WON PHILIPPINES IS BOUND BY THE TREATY. Yes. Firstly, and addition to meeting all the constitutional requirements, the Philippines is bound by the treaty because ratification, by the President and the concurrence of the Senate should be taken as a clear and unequivocal expression of our nation's consent to be bound

Second, 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. Therefore, Filipinos are responsible to assure that its government, Constitution and laws will carry out the country’s international obligation. The Philippines cannot plead the Constitution as a convenient excuse for non-compliance with its obligations, duties and responsibilities under international law.

Third, 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."

Fourth, the principle of pacta sunt servanda preserves the sanctity of treaties. Article 26 of the Convention provides that "Every treaty in force is binding upon the parties to it and must be performed by them in good faith."

RATIFICATION; DEFINED. It is an executive act, undertaken by the head of the state or of the government, as the case may be, through which the formal acceptance of the treaty is proclaimed. It is equivalent to final acceptance.

THE CONSENT TO BE BOUND IS EXPRESSED BY RATIFICATION WHEN: [1] the treaty provides for such ratification, [2] it is otherwise established that the negotiating States agreed that ratification should be required[3] the representative of the State has signed the treaty subject to ratification, or

[4] the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative, or was expressed during the negotiation.

PRESIDENT IS THE ONE WHO CONSENTS. The power to ratify is vested in the President and not in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification.

SENATE IS THE ONE THAT CONCURS. The role of the Senate in relation to treaties is essentially legislative in character. The Constitution animates, through this treaty-concurring power of the Senate, a healthy system of checks and balances indispensable toward the nation's pursuit of political maturity and growth

6TH ISSUE: WON THERE WAS GRAVE ABUSE OF DISCRETION. No. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of law.

The President, as head of State, is the sole organ and authority in the external affairs of the country. The Constitution vests the power to enter into treaties or international agreements with the President. Hence, the negotiation of the VFA is an exclusive act which pertain solely to the President. The Senate and Congress cannot intrude into the field of negotiation.

The President acted within the confines and limits of the powers vested in him by the Constitution. Even if he erred in submitting the VFA to the Senate for concurrence under Section 21, instead of Section 25, still, the President may not be faulted or scarred, much less be adjudged guilty of committing an abuse of discretion in some patent, gross, and capricious manner.

Matters pertaining to the wisdom of a legislative act are beyond the ambit and province of the courts to inquire.

PIMENTEL V. EXEC. SEC.

SENATOR AQUILINO PIMENTEL, JR., REP. ETTA ROSALES, PHILIPPINECOALITION FOR THE ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL COURT, TASK FORCE DETAINEES OF THE PHILIPPINES, FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCES, BIANCA HACINTHA R. ROQUE, HARRISON JACOB R. ROQUE, AHMED PAGLINAWAN, RON P. SALO, LEAVIDES G. DOMINGO, EDGARDO CARLO VISTAN, NOEL VILLAROMAN, CELESTE CEMBRANO, LIZA ABIERA, JAIME ARROYO, MARWIL LLASOS, CRISTINA ATENDIDO, ISRAFEL FAGELA, and ROMEL BAGARES,

Petitioners, - versus -

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OFFICE OF THE EXECUTIVE SECRETARY, represented by HON. ALBERTO ROMULO, and the DEPARTMENT OF FOREIGN AFFAIRS, represented by HON. BLAS OPLE, Respondents

*case concerns a petition for mandamus to compel the respondents to transmit to the Senate the signed copy of the Rome Statute of the Int’l Criminal Court (being held by the executive branch – Dept. of Foreign Affairs) for ratification. Petitioners allege that the executive has a duty to transmit the signed copy upon the theory that Senate has the power to ratify. Furthermore they insist that the Philippines has a ministerial duty to ratify the treaty since we signed it already.Court disagrees on both levels.

PUNO J.:

1. Purpose of the Rome Statute The Rome Statute established the International Criminal Court which “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary to the national criminal jurisdictions.”[1] Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the Statute.[2] The Statute was opened for signature by all states in Rome on July 17, 1998 and had remained open for signature until December 31, 2000 at the United Nations Headquarters in New York.2. The Philippines signed the Statute on December 28, 2000 through Charge d’ Affairs Enrique A. Manalo of the Philippine Mission to the United Nations.[ that it be subject to ratification, acceptance or approval of the signatory states.

3. Petitioners filed the instant petition to compel the respondents — the Office of the Executive Secretary and the Department of Foreign Affairs — to transmit the signed text of the treaty to the Senate of the Philippines for ratification.

4. Petitioner’s 2 Theories: Senate has the power to ratify & a pre-emptive notion of pacta sunt servanda A. Ratification of a treaty, under both domestic law and international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate. B. The Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law such as the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty

5. Standing Issue - only those aggrieved by the inaction of the executive has standing - “Legal standing” means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the government act that is being challenged.

- “Interest” is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest

6. Parties and their basis for Standing Senator Aquilino Pimentel, Jr. member of the Senate

Congresswoman Loretta Ann Rosales

member of the House of Representatives and Chairperson of its Committee on Human Rights

The Philippine Coalition for the Establishment of the International Criminal Court

composed of individuals and corporate entities dedicated to the Philippine ratification of the Rome Statute

the Task Force Detainees of the Philippines

a juridical entity with the avowed purpose of promoting the cause of human rights and human rights victims in the country

the Families of Victims of Involuntary Disappearances

, a juridical entity duly organized and existing pursuant to Philippine Laws with the avowed purpose of promoting the cause of families and victims of human rights violations in the country

Bianca Hacintha Roque and Harrison Jacob Roque aged two (2) and one (1), (THESE ARE ROQUE’S KIDS!!!)

suing under the doctrine of inter-generational rights enunciated in the case of Oposa vs. Factoran, Jr

group of fifth year working law students from the University of the Philippines College of Law

Taxpayers (mga sipsip)

7. Only Senator Pimentel has standing !!! “to the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution.”

8. Other petitioner’s contention – Rome Statute protects their right 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.

9. SUBSTANTIVE ISSUE whether the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the signature of the President.

10. COURT HOLDS – no duty on the executive. Petition for mandamus dismissed

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11. Role of the President with regard to foreign affairs - the sole organ and authority in external relations and is the country’s sole representative with foreign nations.- the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. - 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.

12. What about the Concurrence of Senate requirement? Only serve as a check! Section 21, Article VII of the 1987 Constitution “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 participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations. By requiring the concurrence of the legislature in the treaties entered into by the President, the Constitution ensures a healthy system of checks and balance necessary in the nation’s pursuit of political maturity and growth.[

13. The power to ratify does not belong to the Senate!!! 14. Justice Isagani Cruz, in his book on International Law describes the treaty-making process in this wise: Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations.

Signing is the step primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state.

Ratification which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests

Exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.

15. Error of petitioner – DFA signing is not equal to ratification Thus, Executive Order No. 459 issued by President Fidel V. Ramos on November 25, 1997 provides the guidelines in the negotiation of international agreements and its ratification. It mandates that after the treaty has been signed by the Philippine representative, the same shall be transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare the ratification papers and forward the signed copy of the treaty to the President for ratification. After the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for concurrence.

16. Executive Order No. 459 reads:

Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. — The domestic requirements for the entry into force of a treaty or an executive agreement, or any amendment thereto, shall be as follows:A. Executive Agreements. (same as treaties)B. Treaties. i. All treaties, regardless of their designation, shall comply with the requirements provided in sub-paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the ratification by the President. A certified true copy of the treaties, in such numbers as may be required by the Senate, together with a certified true copy of the ratification instrument, shall accompany the submission of the treaties to the Senate.ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with the provision of the treaties in effecting their entry into force.

17. Ministerial duty to ratify a treaty after signing has no 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 treatyThus, 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.[18] 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.

18. Power to ratify is vested in the President alone!!! He can refuse to ratify! It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which cannot be encroached by this Court via a

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writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.

IN VIEW WHEREOF, the petition is DISMISSED.

SALONGA PETITION ON VFARESERVATIONS TO THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE

NICARAGUA V. US

VIENNA CONVENTION ON DIPLOMATIC RELATIONS

US V. IRAN, supra

Case Concerning Avena and Other Mexican Nationals (Mexico v. USA) (March 31, 2004)

(Note: The paragraph numbers here are not reflective of the paragraph numbers in the original decision)

1. MEXICO’S CLAIM. Mexico claims that the US has committed breaches of the Vienna Convention in relation to the treatment of a number of Mexican nationals who have been tried, convicted, and sentenced to death in criminal proceedings in the US. These criminal proceedings have been taking place in 9 different States of the US, namely California (28 cases), Texas (15 cases), Illinois (3 cases), and one case each for Arizona, Arkansas, Nevada, Ohio, Oklahoma, and Oregon between 1979 and the present. There are 52 individuals in all (see paragraph 16 of the original for all the names).

2. BASIS OF MEXICO’S CLAIM. Mexico relies on te Vienna Convention and of the Optional Protocol providing for jurisdiction of the ICJ over “disputes arising out of the interpretation or application” of the Convention. Mexico and the US are, and were at all relevant times, parties to the Vienna Convention and to the Optional Protocol.

3. WHY MEXICO WANTS TO SUE. The US authorities arrested and interrogated these individuals had sufficient information at their disposal to be aware of the foreign nationality of those individuals. According to Mexico, in 50 of the specified cases, Mexican nationals were never informed by the competent US authorities of their rights under Art. 36 (1b) of the Vienna Convention, and in the 2 remaining cases, such information was provided “without delay”, as required by that provision. Mexico has indicated that in 29 of the 52 cases, its consular authorities learned of the detention of the Mexican nationals only after death sentences had been handed down. In the 23 remaining cases, Mexico contends that it learned of the cases through means other than notification to the consular post as required by the same article.

4. MEXICO INSTITUTES PROCEEDINGS. Mexico instituted proceedings against the US for “violations of the Vienna Convention on Consular Relations”. Mexico based the jurisdiction of the Court on Article 36 (1) of the Statute of the Court and on Article 1 of the Optional Protocol Concerning the

Compulsory Settlement of Disputes, which accompanies the Vienna Convention.

5. PROVISIONAL MEASURES; GRANTED. Mexico also filed a request for the indication of provisional measures which the Court granted: (1) that the US shall take all necessary measures to ensure that Cesar Roberto Fierro Reyna, Roberto Moreno Ramos, Osvaldo Torres Aguilera are not to be executed pending final judgment; (2) that the US shall inform the ICJ of all measures taken in implementation of the provisional measures ordered.

6. MEXICO SOUGHT TO INCLUDE 2 ADDT’L NATIONALS; DENIED. To ensure the procedural equality of the parties, the ICJ decided not to authorize a requested amendment by Mexico of its submissions so as to include 2 addt’l Mexican nationals, while taking note that the US had made no objection to the withdrawal of Mexico of its request for relief in 2 other cases.

7. MEXICO’S MEMORIAL, ORAL ARGUMENTS. The Government of Mexico respectfully requests the Court to adjudge and declare:

a. That the United States of America, in arresting, detaining, trying, convicting, and sentencing the 52 Mexican nationals on death row described in Mexico’s Memorial, violated its international legal obligations to Mexico, in its own right and in the exercise of its right to diplomatic protection of its nationals, by failing to inform, without delay, the 52 Mexican nationals after their arrest of their right to consular notification and access under Article 36 (1) (b) of the Vienna Convention on Consular Relations, and by depriving Mexico of its right to provide consular protection and the 52 nationals’ right to receive such protection as Mexico would provide under Article 36 (1) (a) and (c) of the Convention;

b. That the obligation in Article 36 (1) of the Vienna Convention requires notification of consular rights and a reasonable opportunity for consular access before the competent authorities of the receiving State take any action potentially detrimental to the foreign national’s rights;

c. That the United States of America violated its obligations under Article 36 (2) of the Vienna Convention by failing to provide meaningful and effective review and reconsideration of convictions and sentences impaired by a violation of Article 36 (1); by substituting for such review and reconsideration clemency proceedings; and by applying the “procedural default” doctrine and other municipal law doctrines that fail to attach legal significance to an Article 36 (1) violation on its own terms;

d. That pursuant to the injuries suffered by Mexico in its own right and in the exercise of diplomatic protection of its nationals, Mexico is entitled to full reparation for those injuries in the form of restitutio in integrum;

e. That this restitution consists of the obligation to restore the status quo ante by annulling or otherwise depriving of full force or effect the convictions and sentences of all 52 Mexican nationals;

f. That this restitution also includes the obligation to take all measures necessary to ensure that a prior violation of Article 36 shall not affect the subsequent proceedings;

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g. That to the extent that any of the 52 convictions or sentences are not annulled, the United States shall provide, by means of its own choosing, meaningful and effective review and reconsideration of the convictions and sentences of the 52 nationals, and that this obligation cannot be satisfied by means of clemency proceedings or if any municipal law rule or doctrine inconsistent with paragraph (3) above is applied; and

h. That the United States of America shall cease its violations of Article 36 of the Vienna Convention with regard to Mexico and its 52 nationals and shall provide appropriate guarantees and assurances that it shall take measures sufficient to achieve increased compliance with Article 36 (1) and to ensure compliance with Article 36 (2).

8. US’ COUNTER-MEMORIAL, ORAL ARGUMENT. On the basis of the facts and arguments made by the US in its Counter-Memorial and in these proceedings, the Government of the USA requests that the Court, taking into account that the United States has conformed its conduct to this Court’s Judgment in the LaGrand Case (Germany v. United States of America), not only with respect to German nationals but, consistent with the Declaration of the President of the Court in that case, to all detained foreign nationals, adjudge and declare that the claims of the United Mexican States are dismissed.

9. MEXICO’S ANSWER TO US OBJECTION ON JURISDICTION (See #11). The objections of the US are inadmissible as having been raised after the expiration of the time-limit laid down by Art. 79 (1) of the Rules of Court as amended in 2000.

10. ICJ, US OBJECTIONS SHOULD NOT BE EXLUCDED. However, the Court notes that there are circumstances where the party failing to avail itself of the Article 79 procedure on preliminary objections may forfeit the right to bring a suspension of the proceedings on the merits, but can still argue the objection along merits. This is what the US has done in this case, since many of its objections are of such a nature that they would in any event probably have had to be heard along with the merits. The Court concludes that it should not exclude from consideration the objections of the US to jurisdiction and admissibility by reason of the fact that they were not presented within 3 months from the date of filing of the Memorial.

11. US OBJECTIONS TO ICJ JURISDICTION.a. Mexican Memorial is fundamentally addressed to the treatment of

Mexican nationals in the US, and to the operation of the US criminal justice system as a whole, and for the ICJ to address such issues would be an abuse of its jurisdiction – OBJECTION CANNOT BE UPHELD – The jurisdiction of the ICJ in this case has been invoked under the Vienna Convention and Optional Protocol to determine the nature and extent of the obligations undertaken by the US and Mexico by becoming party to that Convention. The Vienna Convention included commitments as to the conduct of their municipal courts in relation to the nationals of other parties. To determine if there has been a breach of the Convention, the ICJ must be able to examine the actions of those courts in light of international law.

b. Article 36 of the Vienna Convention “creates no obligations constraining the rights of the US to arrest a foreign national”; and that, similarly, the “detaining, trying, convicting, and sentencing” of Mexican nationals could not constitute breaches of Article 36, which merely lays down obligations of notification. – OBJECTION CANNOT BE UPHELD – It calls for interpretation which may or may not be confirmed on the merits.

c. Mexico is not entitled to restitution in integrum and the US is under no obligation to restore the status quo ante because this would intrude deeply into the independence of its courts, and that for the ICJ to declare that the US is under a specific obligation to vacate convictions and sentences would be beyond its jurisdiction – OBJECTION CANNOT BE UPHELD – In the LaGrand case (Germany v. US), where jurisdiction exists over a dispute on a particular matter, no separate basis for jurisdiction is required by the ICJ in order to consider the remedies a party has required for the breach of the obligation.

d. The ICJ lacks jurisdiction to determine WON consular notification is a human right, or to declare fundamental requirements of substantive or procedural due process – OBJECTION CANNOT BE UPHELD – This questions involves interpretation of the Vienna Convention, for which it has jurisdiction.

12. US OBJECTIONS TO ADMISSIBILITY.a. Mexico’s submissions are inadmissible because they seek to have

the ICJ function as a court of criminal appeal – OBJECTION CANNOT BE UPHELD – This contention is addressed solely to the question of remedies and is a matter of merits.

b. Mexico’s submissions are inadmissible because Mexico did not exhaust local remedies – OBJECTION CANNOT BE UPHELD – Mexico does not claim to be acting solely for its nationals but also asserts its own claims, basing them on the injury which it allegedly suffered, directly and through its nationals, as a result of the violation of the US of the obligations incumbent upon it under Art. 36 (1abc). The ICJ finds that, in these special circumstances, Mexico may in submitting a claim in its own name, request the ICJ to rule on the violation of rights which it claims to have suffered both directly and through the violation of individual rights conferred on Mexican nationals under Art. 36 (1b).

c. Mexico’s submissions are inadmissible because of the dual nationality of some of the Mexican nationals who the US alleges are also US nationals – OBJECTION CANNOT BE UPHELD – Mexico, in addition to seeking to exercise diplomatic protection of its nationals, is making a claim in its own right on the basis of the alleged breaches by the US of the Vienna Convention.

d. Mexico’s submissions are inadmissible because Mexico was in considerable delay – OBJECTION CANNOT BE UPHELD – In the case of Certain Phosphate Lands in Nauru (Nauru v. Australia), the ICJ observed that “delay on the part of a claimant State may render an application inadmissible”, but that international law does not lay down any specific time-limit in that regard. So far as inadmissibility might be based on an implied waiver of rights, the ICJ considers

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that only a much more prolonged and consistent inaction of Mexico than any that the US has alleged might be interpreted as implying such a waiver. The ICJ also notes that Mexico has indicated a number of ways in which it brought to the attention of the US the breaches the latter made.

e. Mexico’s submissions are inadmissible because Mexico should not be allowed to invoke against the US standards that Mexico itself does not follow in its own practice – OBJECTION CANNOT BE UPHELD – Even if it were shown that Mexico’s practice as regards the application of Art. 36 was not beyond reproach, this would not constitute a ground of objection to the admissibility of Mexico’s claim.

MERITS OF THE CASE

First off, here’s the Article in the Vienna Convention on Consular Relations that figures in this case:

Article 36Communication and contact with nationals of the sending State

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) Consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) If he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;

(c) Consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.

1. FIRST ISSUE: AS TO NATIONALITY. The US claims that the duty under Article 36 of the Vienna Convention on Consular Relations applies only to Mexican nationals and not to those of dual Mexican/American nationality. The Court held that as regards the 52 persons affected in this case, the US had obligations under Article 36 as to all of them. This is because Mexico has proven that these 52 people are Mexican nationals by producing birth certificates and declarations of nationality while on the other hand, the US was not able to demonstrate that some of them were citizens of both the US and Mexico. The US has not met its burden of proof.

2. SECOND ISSUE: AS TO DELAY. Mexico claims that the US failed to provide the arrested persons with information as to their rights under Art. 36 (1b). The ICJ stated that Art. 36 (1b) contains three separate but interrelated elements: (1) the right of the individual concerned to be informed without delay of his rights under Article 36 (1b); (2) the right of the consular post to be notified without delay of the individual’s detention, if he so requests; and (3) the obligation of the receiving State to forward without delay any communication addressed to the consular by the detained person.

Both Mexico and the US have very different interpretations on the phrase “without delay”. Mexico: “without delay” = requires “unqualified immediacy”. In view of the object and purpose of Art. 36, which is to enable “meaningful consular assistance” and the safeguarding of the vulnerability of foreign nationals in custody, “consular notification must occur immediately upon detention and prior to any interrogation of the foreign detainee, so that the consul may offer useful advise about the foreign legal system and provide assistance in obtaining counsel before the foreign national makes any ill-informed decisions or the State takes any action potentially prejudicial to his rights.”

US: “without delay” does not mean “immediately, and before interrogation”. The purpose of Art. 36 was to facilitate the exercise of consular functions by a consular officer. “The significance of giving consular information to a national is thus limited. It is a procedural advise that allows the foreign national to trigger the related process of notification. It cannot possibly be fundamental to the criminal justice process”.

Court: “without delay” is not necessarily to be interpreted as “immediately” upon arrest, nor can it be interpreted to signify that the provision of the notice must necessarily precede any interrogation, so that the commencement of interrogation before the notification would be a breach of Art. 36. The Court observes, however, that there is nonetheless a duty upon the arresting authorities to give the information to an arrested person as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national. Applying this interpretation of “without delay”, the Court finds that the US was in breach of its obligations to all but one of the 52 individuals concerned.

3. INTERRELATIONSHIP BETWEEN SUBPARAGRAPHS OF ART. 36 (1). As stated above, there are 3 elements in Art. 36 (1b). If a State breaches its obligation under Art. 36 (1b) in not notifying the Consular Post of the other

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state of the detention of the latter’s nationals, it also breaches Art. 36 (1a) because it precluded the consular officers of the other State to communicate with and have access to their nationals, as well as Art. 36 (1c) because it precluded the consular officers of the other State from visiting their detained nationals and from arranging for legal representation of their nationals.

4. US VIOLATION OF ART. 36 (2). Mexico claims that US violated Art. 36 (2) by failing to provide meaningful and effective review and reconsideration of convictions and sentences. Basically, the US applied the “procedural default” rule which led to the default of some of the 52 Mexican nationals. This rule has previously been considered by the court in the LaGrands case and as in this case, the rule prevented counsel for the Mexicans (and for the LaGrands) to effectively challenge their convictions and sentences. The Court therefore concludes that the US is in violation of its obligations under Art. 36 (2).

5. WHAT WOULD BE ADEQUATE REPARATION FOR THE VIOLATIONS OF ARTICLE 36? The remedy to make good these violations of its obligations should consist in an requirement for the US to permit review and reconsideration of these nationals’ cases by the US courts, with a view to ascertaining whether in each case the violation of Art. 36 committed by the competent authorities caused actual prejudice to the defendant in the process of administration of criminal justice.

Partial or total annulment of conviction or sentence, as Mexico asserts, should not be presumed as the necessary and sole remedy. In this case, it is not the convictions and sentences of the Mexican nationals which are regarded to be the violation of international law, but solely certain breaches of treaty obligations.

6. VIENNA CONVENTIONS = HUMAN RIGHTS ??????? Mexico contends that the right to consular notification and consular communication under the Vienna Convention is a human right of such a fundamental nature that its infringement will ipso facto produce the effect of vitiating the entire process of the criminal proceedings conducted in violation of this fundamental right. The ICJ observes that the question on WON the Vienna Convention rights are human rights is not a matter that it need not decide. The ICJ points out however that neither the text nor the object and purpose of the Convention, nor any indication in the travaux préparatoires support the Mexico’s conclusion. Thus, Mexico’s claim for restitution in integrum and the claim for the restoration of the status quo ante by annulling or otherwise depriving of full force or effect the conviction and sentences of all 52 Mexican nationals cannot be upheld.

7. EXCLUSION IN SUBSEQUENT CRIMINAL PROCEEDINGS OBTAINED PRIOR TO NOTIFICATION DENIED. Mexico claims that as an aspect of restitution in integrum, it is entitled to an order that in any subsequent criminal proceedings against the Mexican nationals, statements and confessions obtained prior to the notification to the national of his right to consular assistance be excluded. The ICJ denied this claim because it is of the view that this questions is one which has to be examined under the concrete circumstance of each case by the US courts concerned in the process of their review and reconsideration.

8. MEXICO’S 7th SUBMISSION (REVIEW AND RECONSIDEARATION IF CONVICTIONS ARE NOT ANNULLED). Mexico claims that if the

convictions or sentences are not annulled, the US shall provide, by means of its own choosing, meaningful and effective review and reconsideration of the convictions and sentences of the 52 nationals and that this obligation cannot be satisfied by means of clemency proceeding or if any municipal law rule or doctrine that fails to attach legal significance to an Art. 36 (1) violation is applied.

The Court observes that in the current situation in US criminal procedure, the application of the procedural default rule effectively limits the Mexican nationals from seeking vindication of his rights except under the US Constitution. Also, the US uses clemency proceedings which Mexico argues is ineffective because clemency review is “standardless, secretive, and immune from judicial oversight”.

The Court emphasizes that “review and reconsideration” prescribed by it originally in the LaGrand case should be effective. Thus, it should take account of the violation of the rights set forth in the Vienna Convention and guarantee that the violation and the possible prejudice caused by the violation will be fully examined and taken into account in the review and reconsideration process. Lastly, review and reconsideration should be both of the sentence and of the conviction. The ICJ agrees with Mexico that the clemency process is not sufficient to serve as an appropriate means of “review and reconsideration”.

9. MEXICO’S LAST SUBMISSION (FOR US TO ASSURE THAT IT SHALL TAKE MEASURES SUFFICIENT TO ACHIEVE INCREASED COMPLIANCE WITH ART. 36 (1) and ENSURE COMPLIANCE WIT ART. 36 (2). Mexico states that the US has failed to prevent the continuing violation by its authorities of the consular notification and assistance rights. The ICJ notes that the US has been making considerable efforts to ensure that its law enforcement authorities provide consular information to every arrested person they know or have reason to believe is a foreign national.

JUDGMENT OF THE COURT

14 – 1 votes: The US breached its obligations under Art. 36 (1b) by not informing the detained Mexican nationals of their rights under 36 (1b).

14 – 1 votes: The US breached its obligations under Art. 36 (1b) by not notifying the appropriate Mexican consular post without delay of the detention of the Mexican nationals and thereby depriving Mexico of the right to render assistance to the individuals concerned.

14 – 1 votes: The US breached its obligations under Art. 36 (1a) and (1c) by precluding Mexico of the right to communicate with and have access to its nationals and to visit them in detention.

14 – 1 votes: The US breached its obligations under Art. 36 (1c) by precluding Mexico of the right to arrange for legal representation of its national.

14 – 1 votes: The US breached its obligations under Art. 36 (2) by not permitting the review and reconsideration of the conviction and sentences of Reyna, Ramos, and Aguilera.

14 – 1 votes: That the appropriate reparation in this case consists in the obligation of the US to provide, by means of its own choosing, review and reconsideration o the convictions and sentences of the Mexican nationals, by

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taking account both of the violation of the rights set forth in Art. 36 of the Vienna Convention.

15 – 0 votes: Takes note of the commitment undertaken by the US to ensure implementation of the specific measures adopted in performance of its obligations under Art. 36 (1b) of the Vienna Convention and finds that this commitment must be regarded as meeting the request by Mexico for guarantees and assurances of non-repetition.

15 – 0 votes: Finds that should Mexican nationals nonetheless be sentenced to severe penalties, without their rights under Art. 36 (1b) having been respected, the US shall provide, by means of its own choosing, review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the Convention.

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