BAYAN MUNA VS. ROMULO DIGESTG.R. NO. 159618: Feruary 1, 2011BAYAN MUNA, Represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep. LIZA L. MAZA, Petitioner

v.

ALBERTO ROMULO, in his capacity as Executive Secretary , and BLAS F. OPLE, in his capacity as Secretary of Foreign Affairs, Respondents.

FACTS:

In 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome Statute which, by its terms, is “subject to ratification, acceptance or approval” by the signatory states.

In 2003, via Exchange of Notes with the US government, the RP, represented by then DFA Secretary Ople, finalized a non-surrender agreement which aimed to protect certain persons of the RP and US from frivolous and harassment suits that might be brought against them in international tribunals.

Petitioner imputes grave abuse of discretion to respondents in concluding and ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared as without force and effect.

ISSUE:Whether the Respondents abused their discretion amounting to lack or excess of jurisdiction for concluding the RP-US Non Surrender Agreement in contravention of the Rome Statute.

Whether the agreement is valid, binding and effective without the concurrence by at least 2/3 of all the members of the Senate.

HELD: The petition is bereft of merit.

INTERNATIONAL LAW: Rome Statute

First issue

The Agreement does not contravene or undermine, nor does it differ from, the Rome Statute. Far from going against each other, one complements the other. As a matter of fact, the principle of complementarity underpins the creation of the ICC. According to Art. 1 of the Statute, the jurisdiction of the ICC is to “be complementary to national criminal jurisdictions [of the signatory states].” the Rome Statute expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes committed within their respective borders, the complementary jurisdiction of the ICC coming into play only when the signatory states are unwilling or unable to prosecute.

Also, under international law, there is a considerable difference between a State-Party and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only obliged to refrain from acts which would defeat the object and purpose of a treaty. The Philippines is only a signatory to the Rome Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts which would defeat the object and purpose of the Rome Statute. Any argument obliging the Philippines to follow any provision in the treaty would be premature. And even assuming that the Philippines is a State-Party, the Rome Statute still recognizes the primacy of international agreements entered into between States, even when one of the States is not a State-Party to the Rome Statute.

CONSTITUTIONAL LAW: 2/3 concurrence

Second issue

The right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history, we have entered executive agreements covering such subjects as commercial and consular relations, most favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts.

Executive agreements may be validly entered into without such concurrence. As the President wields vast powers and influence, her conduct in the external affairs of the nation is, as Bayan would put it, “executive altogether.” The right of the President to enter into or ratify binding executive agreements has been confirmed by long practice.

Abaya vs. Ebdane G.R. No. 167919 Feb. 14, 2007July 25, 2009 at 11:12 am (1)

FACTS :This a petition for certiorari and prohibition to set aside and nullify Res. No. PJHL-A-04-012 dated May 27, 2004 issued by the Bids and Action Committee (BAC) of the DPWH. This resolution recommended the award to private respondent China Road and Bridge Corporation of the contract which consist of the improvement and rehabilitation of a 79.818-km road in the island of Catanduanes.Based on an Exchange of Notes, Japan and the Philippines have reached an understanding that Japanese loans are to be extended to the country with the aim of promoting economic stabilization and development efforts.In accordance with the established prequalification criteria, eight contractors were evaluated or considered eligible to bid as concurred by the JBIC. Prior to the opening of the respective bid proposals, it was announced that the Approved Budget for the Contract (ABC) was in the amount of P738,710,563.67. Consequently, the bid goes to private respondent in the amount of P952,564,821.71 (with a variance of 25.98% from the ABC). Hence this petition on the contention that it violates Sec. 31 of RA 9184 which provides that :Sec. 31 – Ceiling for Bid Prices. – The ABC shall be the upper limit or ceiling for the bid prices. Bid prices that exceed this ceiling shall be disqualified outright from further participating in the proceeding. There shall be no lower limit to the amount of the award.The petitioners further contends that the Loan Agreement between Japan and the Philippines is neither an international nor an executive agreement that would bar the application of RA9184. They pointed out that to be considered as such, the parties must be two (2) sovereigns or states whereas in this loan agreement, the parties were the Philippine government and the JBIC, a banking agency of Japan, which has a separate juridical personality from the Japanese government.ISSUE :Whether or not the assailed resolution violates RA 9184.RULING :The petition is dismissed. Under the fundamental principle of international law of pacta sunt servanda, which is in fact, embodied is Section 4 of RA9184, “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”. The DPWH, as the executing agency of the project financed by the Loan Agreement rightfully awarded the contract to private respondent China Road and Bridge Corporation.The Loan Agreement was executed and declared that it was so entered by the parties “in the light of the contents of the Exchange of Notes between the government of Japan and the government of the Philippines dated Dec. 27, 1999.” Under the circumstances, the JBIC may well be considered an adjunct of the Japanese government. The JBIC procurement guidelines absolutely prohibits the imposition of ceilings and bids.

Commissioner of Customs & Collector of Customs vs Eastern Sea Trading

3 SCRA 351 – Political Law – Constitutional Law – Treaties vs Executive Agreements

Eastern Sea Trading (EST) was a shipping company which imports from Japan onion and garlic into the Philippines. In 1956, the Commissioner of Customs ordered the seizure and forfeiture of the import goods because EST was not able to comply with Central Bank Circulars 44 and 45. The said circulars were pursuant to Executive Order 328. On the other hand, EO 328 was the implementing law of the Trades and Financial Agreements, an executive agreement, entered into between the Philippines and Japan. The said executive agreement states, among others, that all import transactions between Japan and the Philippines should be invoiced in dollar. In this case, the said items imported by EST from Japan were not invoiced in dollar.EST questioned the validity of the said EO averring that the executive agreement that the EO was implementing was never concurred upon by the

Senate. The issue was elevated to the Court of Tax Appeals and the latter ruled in favor of EST. The Commissioner appealed.ISSUE: Whether or not the Executive Agreement is subject to the concurrence by the Senate.HELD: No, Executive Agreements are not like treaties which are subject to the concurrence of at least 2/3 of the members of the Senate. Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments — treaties and conventions. They sometimes take the form of exchanges of notes and at other times that of more formal documents denominated ‘agreements’ or ‘protocols’.The point where ordinary correspondence between this and other governments ends and agreements — whether denominated executive agreements or exchanges of notes or otherwise — begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the large variety of executive agreements as such, concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade- agreements act, have been negotiated with foreign governments. . . . It would seem to be sufficient, in order to show that the trade agreements under the act of 1934 are not anomalous in character, that they are not treaties, and that they have abundant precedent in our history, to refer to certain classes of agreements heretofore entered into by the Executive without the approval of the Senate.They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil aircraft, customs matters, and commercial relations generally, international claims, postal matters, the registration of trade-marks and copyrights, etc. Some of them were concluded not by specific congressional authorization but in conformity with policies declared in acts of Congress with respect to the general subject matter, such as tariff acts; while still others, particularly those with respect to the settlement of claims against foreign governments, were concluded independently of any legislation.

Secretary of Justice vs Judge Lantion GR 139465 Jan 18 2000

Facts

On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs of the United States requesting for the extradition of Mark Jimenez for various crimes in violation of US laws. In compliance with the related municipal law, specifically Presidential Decree No. 1069 “Prescribing the Procedure for Extradition of Persons Who Have committed Crimes in a Foreign Country” and the established “Extradition Treaty Between the Government of the Philippines and the Government of the United States of America”, the department proceeded with proceeded with the designation of a panel of attorneys to conduct a technical evaluation and assessment as provided for in the presidential decree and the treaty. The respondent requested for a copy of the official extradition request as well as the documents and papers submitted therein. The petitioner denied the request as it alleges that such information is confidential in nature and that it is premature to provide such document as the process is not a preliminary investigation but a mere evaluation. Therefore, the constitutional rights of the accused are not yet available.

Issue

1.Whether or not private respondent, Mark B. Jimenez, be granted access to the official extradition request and documents with an opportunity to file a comment on or opposition thereto2.Whether or not private respondent’s entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RP-US Extradition Treaty

Ruling

The Supreme Court ruled that the private respondent be furnished a copy of the extradition request and its supporting papers and to give him a reasonable period of time within which to file his comment with supporting evidence. In this case, there exists a clear conflict between the obligation of the Philippine Government to comply with the provisions of the treaty and its equally significant role of protection of its citizens of its right of due process.

The processes outlined in the treaty and in the presidential decree already pose an impending threat to a prospective extraditee’s liberty as early as the evaluation stage. It is not an imagined threat to his liberty, but a very imminent one. On the other hand, granting due process to the extradition case causes delay in the process.The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to keep their agreement therein in good faith. The doctrine of incorporation is applied whenever municipal tribunals are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of a local state. Efforts should be done to harmonize them. In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts. The doctrine of incorporation decrees that rules of international law are given equal standing, but are not superior to, national legislative enactments.In this case, there is no conflict between international law and municipal law. The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective jurisdictions. At the same time, both States accord common due process protection to their respective citizens. In fact, neither the Treaty nor the Extradition Law precludes the rights of due process from a prospective extradite.Pharmaceutical and Health Care Association of the Philippines v Duque IIIFacts:Petition for certiorari seeking to nullify the Revised Implementing Rules and Regulations (RIRR) of E.O. 51 (Milk Code). Petitioner claims that the RIRR is not valid as it contains provisions that are not constitutional and go beyond what it is supposed to implement. Milk Code was issued by President Cory Aquino under the Freedom Constitution on Oct.1986. One of the preambular clauses of the Milk Code states that the law seeks to give effect to Art 11 of the Int’l Code of Marketing and Breastmilk Substitutes(ICBMS), a code adopted by the World Health Assembly(WHA). From 1982-2006, The WHA also adopted severe resolutions to the effect that breastfeeding should be supported, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes. In 2006, the DOH issued the assailed RIRR.

Issue:Sub-Issue: W/N the pertinent int’l agreements entered into by the Phil are part of the law of the land and may be implemented by DOH through the RIRR. If yes, W/N the RIRR is in accord with int’l agreements

MAIN: W/N the DOH acted w/o or in excess of their jurisdiction, or with grave abuse of discretion amounting to lack of excess of jurisdiction and in violation of the Constitution by promulgating the RIRR.

Held:Sub-issue:Yes for ICBMS. Under 1987 Consti, int’l law can become domestic law by transformation (thru constitutional mechanism such as local legislation) or incorporation (mere constitutional declaration i.e treaties) The ICBMS and WHA resolutions were not treaties as they have not been concurred by 2/3 of all members of the Senate as required under Sec, 21, Art 8. However, the ICBMS had been transformed into domestic law through a local legislation such as the Milk Code. The Milk Code is almost a verbatim reproduction of ICBMS.

No for WHA Resolutions. The Court ruled that DOH failed to establish that the provisions pertinent WHA resolutions are customary int’l law that may be deemed part of the law of the land. For an int’l rule to be considered as customary law, it must be established that such rule is being followed by states because they consider it as obligatory to comply with such rules (opinion juris). The WHO resolutions, although signed by most of the member states, were enforced or practiced by at least a majority of member states. Unlike the ICBMS whereby legislature enacted most of the provisions into the law via the Milk Code, the WHA Resolutions (specifically providing for exclusive breastfeeding from 0-6 months, breastfeeding up to 24 Months and absolutely prohibiting ads for breastmilk substitutes) have not been adopted as domestic law nor are they followed in our country as well. The Filipinos have the option of how to take care of their babies as they see fit. WHA Resolutions may be classified as SOFT LAW – non-binding norms,

principles and practices that influence state behavior. Soft law is not part of int’l law.

Main issue:Yes. Some parts of the RIRR were not in consonance with the Milk Code such as Sec. 4(f) ->advertising, promotions of formula are prohibited,Sec 11 -> prohibitions for advertising breastmilk substitutes intended for infants and young children uo to 24 monthsAnd Sec 46 -> sanctions for advertising .These provisions are declared null and void. The DOH and respondents are prohibited from implementing said provisions.

MIJARES V. RANADA (2005)SECOND DIVISION

[ G.R. NO. 139325, April 12, 2005 ]PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B. NARCISO, SR.

MARIANI DIMARANAN, SFIC, AND JOEL C. LAMANGAN IN THEIR BEHALF AND ON BEHALF OF THE CLASS PLAINTIFFS IN CLASS ACTION NO. MDL 840, UNITED STATES DISTRICT COURT OF HAWAII, PETITIONERS, VS. HON. SANTIAGO JAVIER RANADA, IN HIS CAPACITY AS PRESIDING JUDGE OF

BRANCH 137, REGIONAL TRIAL COURT, MAKATI CITY, AND THE ESTATE OF FERDINAND E. MARCOS, THROUGH ITS COURT APPOINTED LEGAL

REPRESENTATIVES IN CLASS ACTION MDL 840, UNITED STATES DISTRICT COURT OF HAWAII, NAMELY: IMELDA R. MARCOS AND FERDINAND MARCOS,

JR., RESPONDENTS.

Facts:

Invoking the Alien Tort Act, petitioners Mijares, et al.*, all of whom suffered human rights violations during the Marcos era, obtained a Final Judgment in their favor against the Estate of the late Ferdinand Marcos amounting to roughly $1.9B in compensatory and exemplary damages for tortuous violations of international law in the US District Court of Hawaii. This Final Judgment was affirmed by the US Court of Appeals.

As a consequence, Petitioners filed a Complaint with the RTC Makati for the enforcement of the Final Judgment, paying P410 as docket and filing fees based on Rule 141, §7(b) where the value of the subject matter is incapable of pecuniary estimation. The Estate of Marcos however, filed a MTD alleging the non-payment of the correct filing fees. RTC Makati dismissed the Complaint stating that the subject matter was capable of pecuniary estimation as it involved a judgment rendered by a foreign court ordering the payment of a definite sum of money allowing for the easy determination of the value of the foreign judgment. As such, the proper filing fee was P472M, which Petitioners had not paid.

Issue: Whether or not the amount paid by the Petitioners is the proper filing fee. Ruling:

Yes, but on a different basis—amount merely corresponds to the same amount required for “other actions not involving property”. RTC Makati erred in concluding that the filing fee should be computed on the basis of the total sum claimed or the stated value of the property in litigation. The Petitioner’s Complaint was lodged against the Estate of Marcos but it is clearly based on a judgment, the Final Judgment of the US District Court. However, the Petitioners err in stating that the Final Judgment is incapable of pecuniary estimation because it is so capable. On this point, Petitioners state that this might lead to an instance wherein a first level court (MTC, MeTC, etc.) would have jurisdiction to enforce a foreign judgment. Under the B.P.129, such courts are not vested with such jurisdiction. §33 of B.P.129 refers to instances wherein the cause of action or subject matter pertains to an assertion of rights over property or a sum of money. But here, the subject matter is the foreign judgment itself. §16 of B.P.129 reveals that the complaint for enforcement of judgment even if capable of pecuniary estimation would fall under the jurisdiction of the RTCs. Thus, the Complaint to enforce the US District Court judgment is one capable of pecuniary estimations but at the same time, it is also an action based on judgment against an estate, thus placing it beyond the ambit of §7(a) of Rule 141. What governs the proper computation of the filing fees over Complaints for the

enforcement of foreign judgments is §7(b)(3), involving “other actions not involving property.”Razon v. TagitisG.R. No. 18249803 December 2009PONENTE: Brion, J.PARTIES:1. PETITIONERS: GEN. AVELINO I. RAZON, JR., Chief, Philippine National

Police (PNP); Police Chief Superintendent RAUL CASTANEDA, Chief, Criminal Investigation and Detection Group (CIDG); Police Senior Superintendent LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response (PACER); and GEN. JOEL R. GOLTIAO, Regional Director of ARMM, PNP

2. RESPONDENT: MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P. ARCILLA, JR., Attorney-in-Fact

NATURE: Petition for Review on CertiorariPROCEDURAL BACKGROUND:Court of Appeals: Petition for the Writ of AmparoFACTS:Engineer Morced N. Tagitis (Tagitis), a consultant for the World Bank and the Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship Programme, together with Arsimin Kunnong (Kunnong), an IDB scholar, arrived in Jolo by boat in the early morning of October 31, 2007 from a seminar in Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis asked Kunnong to buy him a boat ticket for his return trip the following day to Zamboanga. When Kunnong returned from this errand, Tagitis was no longer around. Kunnong looked for Tagitis and even sent a text message to the latter’s Manila-based secretary, who advised Kunnong to simply wait for Tagitis’ return.On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor of Muslim studies and Tagitis’ fellow student counselor at the IDB, reported Tagitis’ disappearance to the Jolo Police Station. More than a month later, or on December 28, 2007, the respondent, May Jean Tagitis, through her attorney-in-fact, filed a Petition for the Writ of Amparo (petition) directed against Lt. Gen. Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet (collectively referred to as “petitioners”), with the Court of Appeals (CA). On the same day, the CA immediately issued the Writ of Amparo and set the case for hearing on January 7, 2008.On March 7, 2008, the CA issued its decision confirming that the disappearance of Tagitis was an “enforced disappearance” under the United Nations (UN) Declaration on the Protection of All Persons from Enforced Disappearances. The CA ruled that when military intelligence pinpointed the investigative arm of the PNP (CIDG) to be involved in the abduction, the missing-person case qualified as an enforced disappearance. Hence, the CA extended the privilege of the writ to Tagitis and his family, and directed the petitioners to exert extraordinary diligence and efforts to protect the life, liberty and security of Tagitis, with the obligation to provide monthly reports of their actions to the CA. At the same time, the CA dismissed the petition against the then respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the finding that it was PNP-CIDG, not the military, that was involved.On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA denied the motion in its Resolution dated April 9, 2008. Aggrieved, the petitioners filed a petition for review with the Supreme Court.PERTINENT ISSUES:1. Whether or not the requirement that the pleader must state the

ultimate facts, i.e. complete in every detail in stating the threatened or actual violation of a victim’s rights, is indispensable in an amparo petition.

2. Whether or not the presentation of substantial evidence by the petitioner to prove her allegations is sufficient for the court to grant the privilege of the writ.

3. Whether or not the writ of amparo determines guilt nor pinpoint criminal culpability for the alleged enforced disappearance of the subject of the petition for the writ.

ANSWERS:1. No. However, it must contain details available to the petitioner under

the circumstances, while presenting a cause of action showing a

violation of the victim’s rights to life, liberty and security through State or private party action.

2. Yes.3. No.SUPREME COURT RULINGS:1. REQUIREMENTS IN AN AMPARO PETITIONThe requirement that the pleader must state the ultimate facts must be read in light of the nature and purpose of the proceeding, which addresses a situation of uncertainty – The framers of the Amparo Rule never intended Section 5(c) to be complete in every detail in stating the threatened or actual violation of a victim’s rights. As in any other initiatory pleading, the pleader must of course state the ultimate facts constituting the cause of action, omitting the evidentiary details. In an Amparo petition, however, this requirement must be read in light of the nature and purpose of the proceeding, which addresses a situation of uncertainty; the petitioner may not be able to describe with certainty how the victim exactly disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where the victim is detained, because these information may purposely be hidden or covered up by those who caused the disappearance. In this type of situation, to require the level of specificity, detail and precision that the petitioners apparently want to read into the Amparo Rule is to make this Rule a token gesture of judicial concern for violations of the constitutional rights to life, liberty and security. To read the Rules of Court requirement on pleadings while addressing the unique Amparo situation, the test in reading the petition should be to determine whether it contains the details available to the petitioner under the circumstances, while presenting a cause of action showing a violation of the victim’s rights to life, liberty and security through State or private party action. The petition should likewise be read in its totality, rather than in terms of its isolated component parts, to determine if the required elements – namely, of the disappearance, the State or private action, and the actual or threatened violations of the rights to life, liberty or security – are present.2. EVIDENCE REQUIRED IN AN AMPARO PETITIONBurden of proof of Amparo petitioner – [T]he Amparo petitioner needs only to properly comply with the substance and form requirements of a Writ of Amparo petition, as discussed above, and prove the allegations by substantial evidence. Once a rebuttable case has been proven, the respondents must then respond and prove their defenses based on the standard of diligence required. The rebuttable case, of course, must show that an enforced disappearance took place under circumstances showing a violation of the victim’s constitutional rights to life, liberty or security, and the failure on the part of the investigating authorities to appropriately respond.Substantial evidence required in amparo proceedings – The [characteristics of amparo proceedings] – namely, of being summary and the use of substantial evidence as the required level of proof (in contrast to the usual preponderance of evidence or proof beyond reasonable doubt in court proceedings) – reveal the clear intent of the framers of the Amparo Rule to have the equivalent of an administrative proceeding, albeit judicially conducted, in addressing Amparo situations. The standard of diligence required – the duty of public officials and employees to observe extraordinary diligence – point, too, to the extraordinary measures expected in the protection of constitutional rights and in the consequent handling and investigation of extra- judicial killings and enforced disappearance cases. Thus, in these proceedings, the Amparo petitioner needs only to properly comply with the substance and form requirements of a Writ of Amparo petition, as discussed above, and prove the allegations by substantial evidence. Once a rebuttable case has been proven, the respondents must then respond and prove their defenses based on the standard of diligence required. The rebuttable case, of course, must show that an enforced disappearance took place under circumstances showing a violation of the victim’s constitutional rights to life, liberty or security, and the failure on the part of the investigating authorities to appropriately respond. The landmark case of Ang Tibay v. Court of Industrial Relations provided the Court its first opportunity to define the substantial evidence required to arrive at a valid decision in administrative proceedings. To directly quote Ang Tibay: Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The statute provides that ‘the rules of evidence prevailing in courts of law and equity shall not be controlling.’ The obvious purpose of this and similar provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate the administrative order. But this assurance of a desirable flexibility in

administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force.Minor inconsistencies in the testimony should not affect the credibility of the witness – As a rule, minor inconsistencies such as these indicate truthfulness rather than prevarication and only tend to strengthen their probative value, in contrast to testimonies from various witnesses dovetailing on every detail; the latter cannot but generate suspicion that the material circumstances they testified to were integral parts of a well thought of and prefabricated story.3. ENFORCED DISAPPEARANCES in relation to THE WRIT OF AMPAROThe writ of amparo does not determine guilt nor pinpoint criminal culpability for the disappearance, rather, it determines responsibility, or at least accountability , for the enforced disappearance for purposes of imposing the appropriate remedies to address the disappearance – [The writ of amparo is] a protective remedy against violations or threats of violation against the rights to life, liberty and security. It embodies, as a remedy, the court’s directive to police agencies to undertake specified courses of action to address the disappearance of an individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines responsibility, or at least accountability, for the enforced disappearance for purposes of imposing the appropriate remedies to address the disappearance. Responsibility refers to the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases against the responsible parties in the proper courts. Accountability, on the other hand, refers to the measure of remedies that should be addressed to those who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance. In all these cases, the issuance of the Writ of Amparo is justified by our primary goal of addressing the disappearance, so that the life of the victim is preserved and his liberty and security are restored.The Amparo Rule should be read, too, as a work in progress, as its directions and finer points remain to evolve through time and jurisprudence and through the substantive laws that Congress may promulgate – [T]he unique situations that call for the issuance of the writ, as well as the considerations and measures necessary to address these situations, may not at all be the same as the standard measures and procedures in ordinary court actions and proceedings. In this sense, the Rule on the Writ of Amparo (Amparo Rule) issued by this Court is unique. The Amparo Rule should be read, too, as a work in progress, as its directions and finer points remain to evolve through time and jurisprudence and through the substantive laws that Congress may promulgate.The concept of “enforced disappearances” is neither defined nor penalized in this jurisdiction – The Amparo Rule expressly provides that the “writ shall cover extralegal killings and enforced disappearances or threats thereof.” We note that although the writ specifically covers “enforced disappearances,” this concept is neither defined nor penalized in this jurisdiction. The records of the Supreme Court Committee on the Revision of Rules (Committee) reveal that the drafters of the Amparo Rule initially considered providing an elemental definition of the concept of enforced disappearance: x x x In the end, the Committee took cognizance of several bills filed in the House of Representatives and in the Senate on extrajudicial killings and enforced disappearances, and resolved to do away with a clear textual definition of these terms in the Rule. The Committee instead focused on the nature and scope of the concerns within its power to address and provided the appropriate remedy therefor, mindful that an elemental definition may intrude into the ongoing legislative efforts. As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are not crimes penalized separately from the component criminal acts undertaken to carry out these killings and enforced disappearances and are now penalized under the Revised Penal Code and special laws. The simple reason is that the Legislature has not spoken on the matter; the determination of what acts are criminal and what the corresponding penalty these criminal acts should carry are matters of substantive law that only the Legislature has the power to enact under the country’s constitutional scheme and power structure. Source of the power of the Supreme Court to act on extrajudicial killings and enforced disappearances – Even without the benefit of directly applicable

substantive laws on extra-judicial killings and enforced disappearances, however, the Supreme Court is not powerless to act under its own constitutional mandate to promulgate “rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts,” since extrajudicial killings and enforced disappearances, by their nature and purpose, constitute State or private party violation of the constitutional rights of individuals to life, liberty and security. Although the Court’s power is strictly procedural and as such does not diminish, increase or modify substantive rights, the legal protection that the Court can provide can be very meaningful through the procedures it sets in addressing extrajudicial killings and enforced disappearances. The Court, through its procedural rules, can set the procedural standards and thereby directly compel the public authorities to act on actual or threatened violations of constitutional rights. To state the obvious, judicial intervention can make a difference – even if only procedurally – in a situation when the very same investigating public authorities may have had a hand in the threatened or actual violations of constitutional rights.DISPOSITIVE: The Supreme Court affirmed the decision of the Court of Appeals dated March 7, 2008 under the following terms:1. Recognition that the disappearance of Engineer Morced N. Tagitis is an

enforced disappearance covered by the Rule on the Writ of Amparo;2. Without any specific pronouncement on exact authorship and

responsibility, declaring the government (through the PNP and the PNP-CIDG) and Colonel Julasirim Ahadin Kasim accountable for the enforced disappearance of Engineer Morced N. Tagitis;

3. Confirmation of the validity of the Writ of Amparo the Court of Appeals issued;

4. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its Chief, directly responsible for the disclosure of material facts known to the government and to their offices regarding the disappearance of Engineer Morced N. Tagitis, and for the conduct of proper investigations using extraordinary diligence, with the obligation to show investigation results acceptable to this Court;

5. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and holding him accountable with the obligation to disclose information known to him and to his “assets” in relation with the enforced disappearance of Engineer Morced N. Tagitis;

6. Referring this case back to the Court of Appeals for appropriate proceedings directed at the monitoring of the PNP and PNP-CIDG investigations, actions and the validation of their results; the PNP and the PNP-CIDG shall initially present to the Court of Appeals a plan of action for further investigation, periodically reporting their results to the Court of Appeals for consideration and action;

7. Requiring the Court of Appeals to submit to this Court a quarterly report with its recommendations, copy furnished the incumbent PNP and PNP-CIDG Chiefs as petitioners and the respondent, with the first report due at the end of the first quarter counted from the finality of this Decision;

8. The PNP and the PNP-CIDG shall have one (1) full year to undertake their investigations; the Court of Appeals shall submit its full report for the consideration of this Court at the end of the 4th quarter counted from the finality of this Decision;

The abovementioned directives and those of the Court of Appeals’ made pursuant to this Decision were given to, and were directly enforceable against, whoever may be the incumbent Chiefs of the Philippine National Police and its Criminal Investigation and Detection Group, under pain of contempt from the Supreme Court when the initiatives and efforts at disclosure and investigation constitute less than the extraordinary diligence that the Rule on the Writ of Amparo and the circumstances of this case demand.Given the unique nature of Amparo cases and their varying attendant circumstances, the aforementioned directives – particularly, the referral back to and monitoring by the CA – are specific to this case and are not standard remedies that can be applied to every Amparo situation.The Supreme Court likewise affirmed the dismissal of the Amparo petition with respect to General Alexander Yano, Commanding General, Philippine Army, and General Ruben Rafael, Chief, Anti-Terrorism Task Force Comet, Zamboanga City.

China National Machinery v. SantamariaFacts: On 14 September 2002, petitioner China National Machinery & Equipment Corp. (Group) (CNMEG), represented by its chairperson, RenHongbin, entered into a Memorandum of Understanding with the North

Luzon Railways Corporation (Northrail), represented by its president, Jose L. Cortes, Jr. for the conduct of a feasibility study on a possible railway line from Manila to San Fernando, La Union (the Northrail Project).On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the Department of Finance of the Philippines (DOF) entered into a Memorandum of Understanding (Aug 30 MOU), wherein China agreed to extend Preferential Buyer’s Credit to the Philippine government to finance the Northrail Project.3 The Chinese government designated EXIM Bank as the lender, while the Philippine government named the DOF as the borrower. Under the Aug 30 MOU, EXIM Bank agreed to extend an amount not exceeding USD 400,000,000 in favor of the DOF, payable in 20 years, with a 5-year grace period, and at the rate of 3% per annum.On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui (Amb. Wang), wrote a letter to DOF Secretary Jose Isidro Camacho (Sec. Camacho) informing him of CNMEG’s designation as the Prime Contractor for the Northrail Project.On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for the construction of Section I, Phase I of the North Luzon Railway System from Caloocan to Malolos on a turnkey basis (the Contract Agreement).7 The contract price for the Northrail Project was pegged at USD 421,050,000.On 26 February 2004, the Philippine government and EXIM Bank entered into a counterpart financial agreement – Buyer Credit Loan Agreement No. BLA 04055 (the Loan Agreement).In the Loan Agreement, EXIM Bank agreed to extend Preferential Buyer’s Credit in the amount of USD 400,000,000 in favor of the Philippine government in order to finance the construction of Phase I of the Northrail Project.On 13 February 2006, respondents filed a Complaint for Annulment of Contract and Injunction with Urgent Motion for Summary Hearing to Determine the Existence of Facts and Circumstances Justifying the Issuance of Writs of Preliminary Prohibitory and Mandatory Injunction and/or TRO against CNMEG, the Office of the Executive Secretary, the DOF, the Department of Budget and Management, the National Economic Development Authority and Northrail.The case was filed before the Regional Trial Court, National Capital Judicial Region, Makati City, Branch 145 (RTC Br. 145). In the Complaint, respondents alleged that the Contract Agreement and the Loan Agreement were void for being contrary to (a) the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184), otherwise known as the Government Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise known as the Government Auditing Code; and (d) Executive Order No. 292, otherwise known as the Administrative Code.On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEG’s Motion to Dismiss and setting the case for summary hearing to determine whether the injunctive reliefs prayed for should be issued.CNMEG then filed a Motion for Reconsideration,which was denied by the trial court in an Order dated 10 March 2008.Thus, CNMEG filed before the CA a Petition for Certiorari with Prayer for the Issuance of TRO and/or Writ of Preliminary Injunction dated 4 April 2008. the appellate court dismissed the Petition for Certiorari.Subsequently, CNMEG filed a Motion for Reconsideration,which was denied by the CA in a Resolution dated 5 December 2008.Petitioners Argument: Petitionerclaims that the EXIM Bank extended financial assistance to Northrail because the bank was mandated by the Chinese government, and not because of any motivation to do business in the Philippines, it is clear from the foregoing provisions that the Northrail Project was a purely commercial transaction.Respondents Argument: respondents alleged that the Contract Agreement and the Loan Agreement were void for being contrary to (a) the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184), otherwise known as the Government Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise known as the Government Auditing Code; and (d) Executive Order No. 292, otherwise known as the Administrative Code.Issues: Whether or not petitioner CNMEG is an agent of the sovereign People’s Republic of China.Whether or not the Northrail contracts are products of an executive agreement between two sovereign states.Ruling: The instant Petition is DENIED. Petitioner China National Machinery & Equipment Corp. (Group) is not entitled to immunity from suit, and the Contract Agreement is not an executive agreement. CNMEG’s prayer for the issuance of a TRO and/or Writ of Preliminary Injunction is DENIED for being moot and academic.

The Court explained the doctrine of sovereign immunity in Holy See v. Rosario,to wit:

There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis.(Emphasis supplied; citations omitted.)As it stands now, the application of the doctrine of immunity from suit has been restricted to sovereign or governmental activities (jure imperii).The mantle of state immunity cannot be extended to commercial, private and proprietary acts (jure gestionis).

Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature of the act involved – whether the entity claiming immunity performs governmental, as opposed to proprietary, functions. As held in United States of America v. Ruiz

Admittedly, the Loan Agreement was entered into between EXIM Bank and the Philippine government, while the Contract Agreement was between Northrail and CNMEG. Although the Contract Agreement is silent on the classification of the legal nature of the transaction, the foregoing provisions of the Loan Agreement, which is an inextricable part of the entire undertaking, nonetheless reveal the intention of the parties to the Northrail Project to classify the whole venture as commercial or proprietary in character.

Thus, piecing together the content and tenor of the Contract Agreement, the Memorandum of Understanding dated 14 September 2002, Amb. Wang’s letter dated 1 October 2003, and the Loan Agreement would reveal the desire of CNMEG to construct the Luzon Railways in pursuit of a purely commercial activity performed in the ordinary course of its business.

CHAPTER 2PCGG VS SB

On 7 April 1986, in connection with criminal proceedings initiated in the Philippines to locate, sequester and seek restitution of alleged ill-gotten wealth amassed by the Marcoses and other accused from the Philippine Government, the Office of the Solicitor General (OSG) wrote the Federal Office for Police Matters in Berne, Switzerland, requesting assistance for the latter office to: (a) ascertain and provide the OSG with information as to where and in which cantons the ill-gotten fortune of the Marcoses and other accused are located, the names of the depositors and the banks and the amounts involved; and (b) take necessary precautionary measures, such as sequestration, to freeze the assets in order to preserve their existing value and prevent any further transfer thereof (herein referred as the IMAC request).

On 29 May 1986, the Office of the District Attorney in Zurich, pursuant to the OSG’s request, issued an Order directing the Swiss Banks in Zurich to freeze the accounts of the accused in PCGG I.S. No. 1 and in the “List of Companies and Foundations”. In compliance with said Order, Bankers Trust A.G. (BTAG) of Zurich froze the accounts of Officeco Holdings, N.V. (Officeco).

Officeco appealed the Order of the District Attorney to the Attorney General of the Canton of Zurich. The Attorney General affirmed the Order of the District Attorney. Officeco further appealed to the Swiss Federal Court which likewise dismissed the appeal on 31 May 1989.

Officeco made representations with the OSG and the PCGG for them to officially advise the Swiss Federal Office for Police Matters to unfreeze Officeco’s assets. The PCGG required Officeco to present countervailing evidence to support its request, but instead of complying with the PCGG requirement for it to submit countervailing evidence, Officeco filed the complaint with the SB praying for the PCGG and the OSG to officially advise the Swiss government to exclude from the freeze or sequestration order the account of Officeco with BTAG and to unconditionally release the said account to Officeco.

A motion to dismiss was filed but it was denied hence, a petition was brought to the SC claiming that the civil action in effect seeks a judicial review of the legality or illegality of the acts of the Swiss government since the Sandiganbayan would inevitably examine and review the freeze orders of Swiss officials in resolving the case. This would be in violation of the “act of state” doctrine which states that courts of one country will not sit in

judgment on the acts of the government of another in due deference to the independence of sovereignty of every sovereign state.

Furthermore, if the Sandiganbayan allowed the complaint to prosper, this would place the Philippine government in an uncompromising position as it would be constrained to take a position contrary to that contained in the IMAC request. Is the contention correct?

No. The parameters of the use of the act of state doctrine were clarified in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398; 84 S. Ct. 923 (1964). There, the U.S. Supreme Court held that international law does not require the application of this doctrine nor does it forbid the application of the rule even if it is claimed that the act of state in question violated international law. moreover, due to the doctrine’s peculiar nation-to-nation character, in practice the usual method for an individual to seek relief is to exhaust local remedies and then repair to the executive authorities of his own state to persuade them to champion his claim in diplomacy or before an international tribunal.

Even assuming that international law requires the application of the act of state doctrine, it bears stressing that the Sandiganbayan will not examine and review the freeze orders of the concerned Swiss officials in Civil Case No. 0164. The Sandiganbayan will not require the Swiss officials to submit to its adjudication nor will it settle a dispute involving said officials. In fact, as prayed for in the complaint, the Sandiganbayan will only review and examine the propriety of maintaining PCGG’s position with respect to Officeco’s accounts with BTAG for the purpose of further determining the propriety of issuing a writ against the PCGG and the OSG. Everything considered, the act of state doctrine finds no application in this case and petitioners’ resort to it is utterly mislaid. (PCGG, et al. v. SB, et al., G.R. No. 124772, August 14, 2007, Tinga, J).

The classic American statement of the act of state doctrine, which appears to have taken root in England as early as 1674 (Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S. Ct. 923 (1964), citing Blad v. Bamfield, 3 Swans. 604, 36 Eng. Rep. 992), and began to emerge in American jurisprudence in the late eighteenth and early nineteenth centuries, is found in Underhill v. Hernandez, 168 U.S. 250, 18 S. Ct. 83, 42 L. Ed. 456 (1897), where Chief Justice Fuller said for a unanimous Court:

Every sovereign state is bound to respect the independence of every other state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its territory, redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves. (Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S. Ct. 923 (1964), citing Underhill v. Hernandez, 168 U.S. 250, 18 S. Ct. 83, 42 L. Ed. 456 (1897)).

The act of state doctrine is one of the methods by which States prevent their national courts from deciding disputes which relate to the internal affairs of another State, the other two being immunity and non-justiciability. (EVANS, M.D. (ED.), International Law (First Edition), Oxford University Press, p. 357). It is an avoidance technique that is directly related to a State’s obligation to respect the independence and equality of other States by not requiring them to submit to adjudication in a national court or to settlement of their disputes without their consent. It requires the forum court to exercise restraint in the adjudication of disputes relating to legislative or other governmental acts which a foreign State has performed within its territorial limits.

VINUYA VS. SEC. ROMULO

MARCH 28, 2013 ~ VBDIAZ

ISABELITA C. VINUYA, VICTORIA C. DELA PEÑA, HERMINIHILDA, MANIMBO, LEONOR H. SUMAWANG, CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO, LOURDES M. NAVARO, FRANCISCA M. ATENCIO, ERLINDA MANALASTAS, TARCILA M. SAMPANG, ESTER M. PALACIO MAXIMA R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA, FLORENCIA M. DELA PEÑA, FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA M. DELA CRUZ, PETRONILA O. DELA CRUZ, ZENAIDA P. DELA CRUZ, CORAZON M. SUBA, EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ, ROSALINA M.BUCO, PATRICIA A. ERNARDO, LUCILA H. PAYAWAL, MAGDALENA LIWAG, ESTER C. BALINGIT, JOVITA A. DAVID,

EMILIA C. MANGILIT, VERGINIA M. BANGIT, GUILLERMA S. BALINGIT, TERECITA PANGILINAN, MAMERTA C. PUNO, CRISENCIANA C. GULAPA, SEFERINA S. TURLA, MAXIMA B. TURLA, LEONICIA G. GUEVARRA, ROSALINA M. CULALA, CATALINA Y. MANIO, MAMERTA T. SAGUM, CARIDAD L. TURLA, et al.In their capacity and as members of the “Malaya Lolas Organization”,– versus –THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE HONORABLE SECRETARY OF FOREIGNAFFAIRS DELIA DOMINGO-ALBERT, THE HONORABLE SECRETARY OF JUSTICE MERCEDITAS N. GUTIERREZ, and THE HONORABLE SOLICITOR GENERAL ALFREDO L. BENIPAYOG.R. No. 162230, April 28, 2010FACTS:This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the issuance of a writ of preliminary mandatory injunction against the Office of the Executive Secretary, the Secretary of the DFA, the Secretary of the DOJ, and the OSG.Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the SEC, established for the purpose of providing aid to the victims of rape by Japanese military forces in the Philippines during the Second World War.Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the Japanese officials and military officers who ordered the establishment of the “comfort women” stations in the Philippines. But officials of the Executive Department declined to assist the petitioners, and took the position that the individual claims of the comfort women for compensation had already been fully satisfied by Japan’s compliance with the Peace Treaty between the Philippines and Japan.Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave abuse of discretion amounting to lack or excess of discretion in refusing to espouse their claims for the crimes against humanity and war crimes committed against them; and (b) compel the respondents to espouse their claims for official apology and other forms of reparations against Japan before the International Court of Justice (ICJ) and other international tribunals.Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956.On January 15, 1997, the Asian Women’s Fund and the Philippine government signed a Memorandum of Understanding for medical and welfare support programs for former comfort women. Over the next five years, these were implemented by the Department of Social Welfare and Development.ISSUE:WON the Executive Department committed grave abuse of discretion in not espousing petitioners’ claims for official apology and other forms of reparations against Japan.RULING:Petition lacks merit. From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to determine whether to espouse petitioners’ claims against Japan.Political questions refer “to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure.”One type of case of political questions involves questions of foreign relations. It is well-established that “the conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative–‘the political’–departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.” are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil.But not all cases implicating foreign relations present political questions, and courts certainly possess the authority to construe or invalidate treaties and executive agreements. However, the question whether the Philippine government should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political branches. In this case, the Executive Department has already decided that it is to the best interest of the country to waive all claims of its

nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question.The President, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials.The Executive Department has determined that taking up petitioners’ cause would be inimical to our country’s foreign policy interests, and could disrupt our relations with Japan, thereby creating serious implications for stability in this region. For the to overturn the Executive Department’s determination would mean an assessment of the foreign policy judgments by a coordinate political branch to which authority to make that judgment has been constitutionally committed.From a municipal law perspective, certiorari will not lie. As a general principle, where such an extraordinary length of time has lapsed between the treaty’s conclusion and our consideration – the Executive must be given ample discretion to assess the foreign policy considerations of espousing a claim against Japan, from the standpoint of both the interests of the petitioners and those of the Republic, and decide on that basis if apologies are sufficient, and whether further steps are appropriate or necessary.In the international sphere, traditionally, the only means available for individuals to bring a claim within the international legal system has been when the individual is able to persuade a government to bring a claim on the individual’s behalf. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects, respect for the rules of international law.Within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal person on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they can do is resort to national law, if means are available, with a view to furthering their cause or obtaining redress. All these questions remain within the province of municipal law and do not affect the position internationally.Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Petitioners have not shown that the crimes committed by the Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute perpetrators of international crimes is an erga omnes obligation or has attained the status of jus cogens.The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term describing obligations owed by States towards the community of states as a whole. Essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.The term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authorityWHEREFORE, the Petition is hereby DISMISSED.