EN BANC
Ruling:
[G.R. No. 159618. February 1, 2011]
BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and
Rep. LIZA L. MAZA , petitioner, vs. ALBERTO ROMULO, in his capacity as Executive
Secretary, and BLAS F. OPLE, in his capacity as Secretary of Foreign Affairs, respondents.
Facts:
The petitioner, Bayan Muna, is a part-list group for the representation of marginalized
sectors of society, and the respondent, Alberto Romulo was then the executive
secretary, impleaded in the capacity due to the death of the supposed respondent,
Blas F. Ople (Ople), then secretary of foreign affairs.
The case is regarding petitions for certoriari, mandamus, and prohibition to nullify the
Non-Surrender Agreement (NSA) by the United States (US) and the Philippine (PH),
under Rule 65, with heavy emphasis due to the establishment of the International
Criminal Court (ICC) through the Rome Statute. The ICC is said to be complementary
to the national criminal jurisdictions and has the power to exercise its jurisdiction over
persons who committed the most serious crimes of international concern.
Pursuant to the Rome Statute, Amb. Francis J. Ricciardone (Ricciardone) sent U.S.
Embassy Note No. 0470 to the Department of Foreign Affairs (DFA), proposing the
Non-Surrender Bilateral Agreement (NSBA) to the US. The US then sent proposals
coming up with the NSA as a security and defense partnership with the aim of
protecting “persons” from both countries against frivolous and harassment suits that
might be filed in international tribunals. Ople then agreed with the proposals via
exchange of notes, as a security and defense partnership
Former Solicitor General Alfredo L. Benipayo (Benipayo) then questioned the status of
the NSBA to which Ricciardone stated that the exchange of diplomatic notes is legally
binding as per international law, as such in the US, it does not require the advice and
consent of its senate. Petitioners then imputed grave abuse of discretion to the
respondents stating that the NSBA is unconstitutional and should be declared as
without force and effect. To which the respondents argued that the NSBA falls under
as an executive agreement, which does not require senate concurrency and
ratification.
Issue/s:
1. Whether or not there was grave abuse of discretion in contracting the NSA
2. Whether or not the NSA is void ab initio for contravening the Rome Statute
3. Whether or not senate concurrency is required for the agreement to be valid
The petition was dismissed for lack of merit.
1. There was NO grave abuse of discretion.
2. The NSA does NOT contravene the Rome Statute.
3. Senate concurrency was not needed as exchange of notes is a form of
executive agreement which does not need senate concurrence.
The NSA agreed upon by the PH and the US was ratified and concurred by means of
exchange of notes, a form of executive agreement. According to PH law, the president,
in the exercise of his executive power, may enter into executive agreements without
the concurrence of the senate. Hence, the respondent was not acting in grave abuse
of discretion as he was performing his duties in accordance with the powers vested in
him by both the president and the constitution.
In the perspective of international law, exchange of notes falls into the category of
inter-governmental agreements – an internationally accepted form of international
agreement, and under international law, there is no such difference between treaties
and international agreements. Further citing the doctrine of incorporation found in
Article II, section 2 of the 1987 PH Constitution which states that the Philippines shall
adopt international laws and jurisprudence as part of the law of the land reaffirms the
validity of the NSA as it is technically equivalent to an international agreement.
With regards to the NSA contravening the Rome Statute on the establishment of the
ICC, the petitioner contended that the agreement restricts the jurisdiction and the
effectivity of the ICC, allowing criminals from the US and the PH to escape international
trial. The SC stated that the NSA is contrary to the petitioners’ contention, and acts as
a supplement to the Rome Statute as the said “persons” who may have committed
crimes penalized under the Rome Statute can be prosecuted and punished either in
the PH or US, with the consent of the PH or the US, before the ICC.