G.R. NO. 175888 - SUZETTE NICOLAS Y SOMBILON v. ALBERTO ROMULO, ET AL.
G.R. NO. 176051 - JOVITO R. SALONGA ET AL. v. DANIEL SMITH, ET AL.
G.R. NO. 176222 - BAGONG ALYANSANG MAKABAYAN (BAYAN), ET AL. v. PRESIDENT GLORIA MACAPAGAL-ARROYO, ET AL.
Promulgated: February 11, 2009
question of the constitutionality of the Visiting Forces Agreement (VFA) comes back
to this Court as the custody over Lance Corporal Daniel J. Smith, a member of
the US Armed Forces found guilty of rape by the Regional Trial Court (RTC) of
I strongly dissented in the case of Bayan v. Zamora
proffering the view that the VFA falls short of the requirement set by Section
25, Article XVIII of the 1987 Constitution stating that the agreement allowing
the presence of foreign military troops in the
The present petitions challenge the
transfer of custody of Daniel Smith from the Philippine government (under the
Bureau of Jail Management and Penology) to the
4, 2006, Respondent Daniel Smith was convicted of rape by RTC Makati Branch
Smiths temporary confinement at the Makati City Jail was subsequently ordered
by the trial court pending negotiations between the
On December 8, 2006, the public prosecutor filed a manifestation before the trial court submitting an agreement signed on the same day by Ambassador Kristie Kenney and Chief State Prosecutor Jovencito Zuno. The agreement provided for the transfer of custody over Smith from the Philippine government to the U.S. Embassy. A similar agreement was later submitted, but this time executed between the U.S. Ambassador and Secretary of Justice Raul Gonzalez and Secretary of Foreign Affairs Alberto Romulo.
On December 12, 2006, the trial court denied Respondent Smiths motion for reconsideration. He filed a petition for certiorari with prayer for Temporary Restraining Order before the Court of Appeals on December 14, 2006.
in intervention and a series of manifestations
were filed by the Department of Foreign Affairs, all appending copies of the
Romulo-Kenney agreement. The Solicitor General adopted the position of the
Department of Foreign Affairs in a manifestation filed on December 28, 2006.
The next day, Smiths custody was turned over to the
present petitions, which assail anew the non-recognition by the
Respondent Sergio Apostol and the Solicitor General raise the defense of stare decisis and res judicata as against the petitioners attempt to assail the validity of the VFA, citing Bayan v. Zamora and Lim v. Executive Secretary.
An examination of Bayan
v. Zamora, which upheld the validity of the VFA, is necessary in light of a
recent change in
In Medellin v. Texas, Jose Ernesto Medellin (
court, as affirmed by the Texas Court of Criminal Appeals, rejected the Vienna
Convention claim. It was ruled that
In Sanchez-Llamas v. Oregon
-- issued after Avena but involving
individuals who were not named in the Avena
judgment, contrary to the ICJs determination -- the U.S. Federal Supreme Court
held that the Vienna Convention did not preclude the application of state
default rules. The U.S. President, George W. Bush, then issued a Memorandum
(Presidents Memorandum) stating that the
Relying on Avena and the Presidents
Court of the
Requirements for Domestic Enforceability of Treaties in the
The new ruling is clear-cut: while a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be self-executing and is ratified on that basis.
The Avena judgment creates an international law obligation on the part of
The Court adopted a textual approach in determining whether the relevant treaty sources are self-executory. The obligation to comply with ICJ judgments is derived from Article 94 of the U.N. Charter, which provides that each x x x Member x x x undertakes to comply with the [ICJs decision x x x in any case to which it is a party. The phrase undertakes to comply is simply a commitment by member states to take future action through their political branches. The language does not indicate that the Senate, in ratifying the Optional Protocol, intended to vest ICJ decisions with immediate effect in domestic courts.
This is buttressed by Article 94(2) of the U.N. Charter, which provides that:
If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.
Article 94 confirms that the U.N. Charter does not contemplate the automatic enforceability of ICJ decisions in domestic courts. The sole remedy for non-compliance is referral to the U.N. Security Council by an aggrieved state. Since the remedy was non-judicial, but diplomatic, the U.S. Supreme Court concluded that ICJ judgments were not meant to be enforceable in domestic courts. The reasons were, first, the Security Council deems as necessary the issuance of a recommendation or measure to effectuate the judgment; and second, the President and the Senate were undoubtedly aware that the U.S. retained the unqualified right to veto any Security Council resolution.
The interpretative or textual approach in determining whether a treaty is self-executory has previously been used by the U.S. Supreme Court. The Court cites Foster v. Neilson, where the treaty in question was first determined by the Court to be non-self-executing; after four years, another claim was made based on the same treaty and the Supreme Court concluded that it was self-executory, based on the wording of a Spanish translation, which was for the first time brought to the attention of the Court. The self-executory nature was reflected in the words: by force of the instrument itself. General principles of interpretation would confirm that any intent of the ratifying parties to the relevant treaties to give ICJ judgments binding effect in their domestic courts should be clearly stated in the treaty.
In fine, the U.S. Presidents authority to enter into
treaties that are enforceable within its domestic sphere was severely limited
The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation into domestic law falls to Congress. x x x As this court has explained, when treaty stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect. x x x Moreover, [u]ntil such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject. x x x
The requirement that Congress, rather than the President, implement a non-self executing treaty derives from the text of the Constitution, which divides the treaty-making power between the President and the Senate. The Constitution vests the President with the authority to make a treaty. x x x If the Executive determines that a treaty should have domestic effect of its own force, the determination may be implemented in [m]aking the treaty, by ensuring that it contains language plainly providing for domestic enforceability. If the treaty is to be self-executing in this respect, the Senate must consent to the treaty by the requisite two-thirds vote, consistent with all other constitutional restraints.
Presidents Memorandum was not enough reason to support the enforcement of any treaty
In sum, the non-self-executing character of the relevant treaties not only refutes the notion that the ratifying parties vest the President with authority to unilaterally make treaty obligations binding on domestic courts, but also prohibits him from doing so. The responsibility to transform an international obligation arising from a non-self-executing treaty into domestic law falls on Congress, not the Executive.
With Medellin, the
case law is now settled that acknowledgement by the U.S. President that an
agreement is a treaty, even with the concurrence of the U.S. Senate, is not
sufficient to make a treaty enforceable in its domestic sphere, unless the
words of the treaty itself clearly express the intention to make the treaty
self-executory, or unless there is corresponding legislative enactment
providing for its domestic enforceability. The
VFA does not satisfy either of these requirements and cannot thus be enforced
I reiterate my dissent in Bayan v. Zamora that the VFA failed to
meet the constitutional requirement of recognition by the
The 1987 Constitution provides in Sec. 25, Art. XVIII, viz.:
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. (Emphasis supplied)
Among the three constitutional requisites that must be complied with before foreign military bases, troops, or facilities can be allowed in Philippine territory, the third requirement, that any such agreement should be recognized as a treaty by the other contracting party, lies at the very heart of this case.
In Bayan v. Zamora, the majority of the Court anchored the
validity of the VFA on the flabby conclusion that it was recognized as a treaty
its tortuous conclusion, the majority of the Court in Bayan v.
In obvious error, the majority of
the Court gave undue deference to the statement of the former Ambassador of the
United States to the Philippines, Thomas C. Hubbard, that Senate advice and
consent was not needed to consider a treaty binding on the U.S., on the premise
that the President alone had the power to conclude the VFA, deriving from his
responsibilities for the conduct of foreign relations and his constitutional
powers as the Commanderin-Chief of the Armed Forces, to conclude that the U.S.
accepted or acknowledged the agreement as a treaty. The majority then jumped to the conclusion
can be deduced from the posture of the former
Prescinding from these premises, the following are the implications of the ruling in
(1) It must be clear from the text of the VFA itself that the VFA is self-executory in order that it may be reciprocally enforced.
An examination of the text of the VFA does not show any provision that
would satisfy the clear statement requirement within the text of the treaty
to show that the
(2) The recognition of the President through the former U.S. Ambassador that the VFA is a treaty is insufficient to make this international obligation executory in the domestic sphere.
a multi-factor, context-specific approach could be employed in judging the
reciprocal enforceability of treaties.
This gave the
In Bayan, the majority of this Court held that the phrase recognized as a treaty means that the other contracting party accepts or acknowledges the agreement as a treaty. The salient question is: who has the authority to acknowledge it as a treaty? Previously, it could have been argued that the Presidents recognition alone is sufficient; but all that is now changed with the categorical pronouncement in Medellin that Congress must enact statutes implementing the treaty, or the treaty itself must convey an intention that it be self-executing and is ratified on that basis, in order for the treaty to be enforced in the domestic sphere.
It must be
noted that Article II, Section 2, Clause 2 of the U.S. Constitution provides
that the President
shall have Power, by and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur.
First, [w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. Second, [w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. In this circumstance, Presidential authority can derive support from congressional inertia, indifference or acquiescence. Finally, [w]hen the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, and the Court can sustain his actions only by disabling the Congress from acting upon the subject.
The VFA is an executive agreement that
does not derive any support from a treaty, or prior Congressional authorization
or enactment. The VFA falls within the
third category of the
(3) Congressional act is necessary to transform the international obligations brought about by the VFA.
At best, the VFA can be considered as an international
commitment by the
Though the VFA attaches international obligations to the
parties to the agreement, it is irrelevant in the enforcement of a
non-self-executory treaty in the domestic courts of the
(4) There is an asymmetry in the legal treatment of the VFA.
The Philippine Senate has concurred in the ratification of the VFA by a two-thirds vote of its members. The Romulo-Kenny Agreement was entered into in implementation of Article V(6) of the VFA, and the custody over Daniel Smith was transferred from the Philippine Government to the U.S. Embassy.
The ruling in
I reiterate my dissent in Bayan v. Zamora, about the clear intention of the framers of the Constitution in imposing the requirement that the agreement must be recognized by the other state as a treaty. Recognition as a treaty by the other contracting state does not merely concern the procedure by which it is ratified, or whether or not it is concurred in by the Senate. The decisive mark to show that the agreement is considered as a treaty by the other contracting state is whether the agreement or treaty has obligatory effects and may be used as a source of rights enforceable in the domestic sphere of the other contracting party.
of whether there is concurrence by the U.S. Senate in the RP-U.S. Mutual
Defense Treaty, the disparity in the legal treatment of the VFA by the
It bears stressing that the RP government has already enforced the
provisions of the VFA and has transferred custody of Lance Corporal Daniel
I vote to grant the petitions. Let
the custody over Lance Corporal Daniel Smith be transferred from the U.S.
REYNATO S. PUNO
 See G.R. No. 138570, October 10, 2000, 342 SCRA 449, 497-521.
 CONSTITUTION, Sec. 25, Art. XVIII.
 Presided over by Petitioner Benjamin Pozon; rollo, p. 10, 53.
 Rollo, p. 10.
 Rollo, p. 11.
 Rollo, pp. 11, 54.
 Rollo, pp. 12, 54.
 Dated respectively, December 18, 2006 and December 20, 2006.
 Rollo, p. 56.
 Rollo, pp. 14, 56.
 Through its Special 16th Division.
 Rollo, p. 14, 56. The Decision is dated January 2, 2007.
 Rollo, p. 238. Relying on Bayan
 Rollo, pp. 64-6.
label self-executing pertains to the automatic domestic effect of a treaty as
federal law upon ratification. Conversely, a non-self-executing treaty does
not by itself give rise to domestically enforceable federal law. Whether such a
treaty has domestic effect depends upon implementing legislation passed by
 59 Stat. 1051.
 2 Pet. 253, 314.
 In Youngstown Sheet & Tube Company v.
Sawyer [343 U.S. 579 (1952)] a tripartite scheme was used as a framework for
evaluating executive action. First, when
the President acts pursuant to an express or implied authorization of Congress,
his authority is at its maximum. Second, when the President acts in absence of
either congressional grant or denial of authority, he can only rely upon his
own independent powers, but there is a zone of twilight in which he and
congress have concurrent authority, or which its distribution is uncertain. In
such a circumstance, Presidential authority can derive support from congressional
inertia, indifference or quiescence. Finally, when the President takes measures
incompatible with the express or implied will of Congress, his power is at its
lowest ebb. [343
 Bayan v. Zamora, G.R. No. 138570, October 10, 2000, 342 SCRA 449, 488.
 CONSTITUTION, Art. XVIII, Sec. 25.
 Supra, note 26 at 509.
 CONSTITUTION, Art. XVIII, Sec. 25.
 CONSTITUTION, Article XVIII, Section 25.