Encina, Jarian Jay D

Bayan Muna vs Romulo

This case is a petition for certiorari, mandamus and prohibition under Rule 65 assails and seeks to nullify the Non-
Surrender Agreement concluded by and between the Republic of the Philippines (RP) and the United States of America
(USA).

Facts:
Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society.
Respondent Blas F. Ople, was the Secretary of Foreign Affairs during the period material to this case (now deceased )
Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary.
Enrique A. Manalo from Charge d’Affaires, signed the Rome Statute in behalf of the Republic of the Philippines, which,
by its terms, is “subject to ratification, acceptance or approval” by the signatory states.
However, The Philippines did not complete the ratification, only 92 out of the 139 signatory countries have completed
the ratification, approval and concurrence process.
Via Exchange of Notes, then Ambassador Francis J. Ricciardone sent US Embassy Note E/N BFO-028-03 to the
Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement,
hereinafter) between the USA and the RP.
Wherein the Philippines accepted the US proposals and put in effect the Agreement with the US government.
The purpose of the agreement aims to protect the“persons” (former Government officials, employees (including
contractors), or military personnel or nationals of one Party) of the RP and US from frivolous and harassment suits that might
be brought against them in international tribunals. It is reflective of the increasing pace of the strategic security and defense
partnership between the two countries.
The similar bilateral agreements have been effected by and between the US and 33 other countries.
Ambassador Ricciardone replied to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-
surrender agreement that the exchange of diplomatic notes constituted a legally binding agreement under international law;
and that, under US law, the said agreement did not require the advice and consent of the US Senate.
Bayan Muna averred that respondent Alberto Romulo committed grave abuse of discretion in concluding and ratifying
the Agreement and prays to declare the agreement as unconstitutional, or at least declared as without force and effect.
Issue:
Whether or not the RP-US NON-SURRENDER AGREEMENT is void ab initio for contracting obligations that are either immoral
or otherwise at variance with universally recognized principles of international law.

Ruling: No .The petition has no merit. Petitioner’s first contention is the exchange of (E/N BFO-028-03) cannot be a valid
medium for concluding the Agreement.
The contention of Petitioner perhaps taken unaware of certain well-recognized international doctrines, practices, and
jargon is untenable. One of these is the doctrine of incorporation, as expressed in Section 2, Article II of the Constitution,
wherein the Philippines adopts the generally accepted principles of international law and international jurisprudence
as part of the law of the land and adheres to the policy of peace, cooperation, and amity with all nations. An exchange of notes
falls “into the category of inter-governmental agreements,” which is an internationally accepted form of international agreement.
The United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows:
An “exchange of notes” is a record of a routine agreement, that has many similarities with the private law contract. The
agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the
representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its
assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of
exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of
legislative approval.
In another perspective, the terms “exchange of notes” and “executive agreements” have been used interchangeably,
exchange of notes being considered a form of executive agreement that becomes binding through executive action. On the
other hand, executive agreements concluded by the President “sometimes take the form of exchange of notes and at other
times that of more formal documents denominated ‘agreements’ or ‘protocols.’” As former US High Commissioner to the
Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts:
 The point where ordinary correspondence between this and other governments ends and agreements – whether
denominated executive agreements or exchange of notes or otherwise – begin, may sometimes be difficult of ready
ascertainment. x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-Surrender Agreement
itself, or as an integral instrument of acceptance thereof or as consent to be bound––is a recognized mode of concluding a
legally binding international written contract among nations.
Petitioner urges that the Agreement be declared as void ab initio for imposing immoral obligations and/or being at
variance with allegedly universally recognized principles of international law. The immoral aspect proceeds from the fact that
the Agreement, as petitioner would put it, “leaves criminals immune from responsibility for unimaginable atrocities that deeply
shock the conscience of humanity; x x x it precludes our country from delivering an American criminal to the [ICC].
The above argument is a kind of recycling of petitioner’s earlier position, which, as already discussed, contends that
the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the process undermined its treaty obligations
under the Rome Statute, contrary to international law principles. But the court did not agree and stated that a non-surrender
agreement “is an assertion by the Philippines of its desire to try and punish crimes under its national law. The agreement is a
recognition of the primacy and competence of the country’s judiciary to try offenses under its national criminal laws and dispense
justice fairly and judiciously.”
Last on the petitioner’s impression that the Agreement would allow Filipinos and Americans committing high crimes of
international concern to escape criminal trial and punishment was manifestly incorrect. Because the Persons (former
Government officials, employees (including contractors), or military personnel or nationals of one Party) who may have
committed acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the
consent of the RP or the US, before the ICC when all the formalities necessary to bind both countries to the Rome Statute have
been met.
For perspective, what the Agreement contextually prohibits is the surrender by either party of individuals to international
tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the crime under its existing laws.
Therefore, there is nothing immoral or violative of international law concepts in the act of the Philippines of assuming
criminal jurisdiction pursuant to the nonsurrender agreement over an offense considered criminal by both Philippine laws and
the Rome Statute.

My Opinion : I think t the US-RP agreement should be declared unconstitutional, or at least declared as without force
and effect, because it violates Section 2, Article II of the Philippine Constitution that the State is required to surrender to the
proper international tribunal persons accused of grave international crimes, if the State itself does not exercise its primary
jurisdiction to prosecute such persons, therefore it must be declared unconstitutional.
But the most surprising in this decision of the SC was disregarding the Republic Act No. 9851 (RA 9851) or the Philippine Act
on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity , which is in derogation of
the duty of the Philippines to prosecute those accused of grave international crimes, should be ratified as a treaty by the Senate
before the Agreement can take effect. Specifically Section 2 of RA 9851 provided that the most serious crimes of concern to
the international community as a whole must not go unpunished and their effective prosecution must be ensured by taking
measures at the national level, in order to put an end to impunity for the perpetrators of these crimes and thus contribute to the
prevention of such crimes, it being the duty of every State to exercise its criminal jurisdiction over those responsible
for international crimes. Therefore, the agreement of US and RP should be declared unconstitutional or atleast unenforceable
for disregarding municipal laws.