Bayan Muna v. Sec. Romulo

BAYAN MUNA V.
ROMULO
G.R. 159618 Date Velasco, JR
Article VII - Section 21
Petitioners Respondents
Bayan Muna as represented by Rep. Saturo Alberto Romulo in his capacity as Executive
Ocampo, et al. Secretary, & Blas Ople in his capacity as
Secretary of Foreign Affairs.
Recit Ready Summary

The case at bar assails and seeks to nullify the Non-Surrender Agreement concluded between the
Philippines (PH) and the US. Central to this controversy is the Rome Statute establishing the Int’l
Criminal Court (ICC). The PH signed the said Rome Statute, which by its terms, is subject to
ratification and approval by the signatory states. However, the PH is not among those countries who
completed the ratification process. Moreover, the PH and the US both entered into the so-called
Non-Surrender Agreement concluded by their respective representatives.
Petitioner here questions the constitutionality and validity of the Agreement and imputes grave
abuse of discretion on the respondents for concluding said Agreement on the ground that it requires
the concurrence of Senate for its efficacy.
The pertinent issue then is W/N the Agreement was contracted validly, which also resolves the
question W/N the respondents gravely abused their discretion in concluding it.
The Court ruled that the Agreement was validly contracted since Exchange of Notes No. BFO-028-
03 is considered a recognized mode of concluding a legally binding int’l contract among nations.
Moreover, the Agreement, being in the nature of an executive agreement, does not require the two-
thirds concurrence of all members of the Senate. The Court also ruled that respondents did not
gravely abuse their discretion in concluding the said Agreement since they merely represented
Pres. GMA, who acted w/in the scope of authority & discretion vested in her by the Constitution, to
ratify the Agreement.
Facts of the Case
 This petition assails and seeks to nullify the Non-Surrender Agreement (hereinafter, the
Agreement) concluded between the Philippines (PH) and the US.
 Central to this controversy is the Rome Statute establishing the Int’l Criminal Court (ICC)
“with the power to exercise its (referring to the ICC) jurisdiction over persons for the most
serious crimes of int’l concern xxx and shall be complementary to the national criminal
jurisdictions.”
 The PH signed the Rome Statute, which by its terms, is subject to ratification and approval
by the signatory states. The PH is not among those countries who completed the ratification
process.
 Ambassador Ricciardone sent US Embassy Note No. 0470 to the Dept. of Foreign Affairs
(DFA) proposing the terms of the Agreement between the US and the PH. Thru Exchange
of Notes No. BFO-028-03, the PH, as represented by DFA Sec. Ople, agreed and accepted
the US proposals and put in effect the Agreement w/ the US gov’t.
 Petitioner imputes grave abuse of discretion to respondents for concluding the Agreement
and seeks to have it struck down as unconstitutional, or at least declared w/out force &
effect.
 Respondents counter argue that the Agreement, being in the nature of an executive
agreement, does not require Senate concurrence for its efficacy, and they also assert its
constitutionality.
Issues Ruling
1. (Pertinent issue) W/N the Agreement was contracted validly, Yes, the Agreement
which also resolves the question W/N the respondents was validly contracted.
gravely abused their discretion in concluding it No, the respondents
did not gravely abuse
their discretion.
Rationale/Analysis/Legal Basis
1. Validity of the Non-Surrender Agreement
o Petitioners contend that Exchange of Notes No. BFO-028-03 cannot be a valid
medium for concluding the Agreement.
o The Court ruled that thru the doctrine of incorporation, as expressed in Art. II, Sec.
2 of the Constitution, the PH adopts the generally accepted principles of int’l law
and int’l jurisprudence as part of the law of the land. An exchange of notes falls into
the category of inter-governmental agreements, which is an internationally
accepted form of int’l agreement.
o Moreover, the terms ‘exchange of notes’ and ‘executive agreements’ are used
interchangeably – exchange of notes being considered as a form of executive
agreement that becomes binding thru executive action. On the other hand,
executive agreements concluded by the Pres. sometimes take the form of
exchange of notes and at other times of more formal documents denominated by
agreements or protocols.
o It is clear from the foregoing that Exchange of Notes No. BFO-028-03 is a
recognized mode of concluding a legally binding int’l contract among nations.
2. Senate concurrence not required
o Int’l agreements may be in the form of: (1) treaties that require legislative
concurrence after executive ratification, or (2) executive agreements that are similar
to treaties, except that they do not require legislative concurrence & are usually less
formal & deal w/ a narrower range of subject matters than treaties. The Agreement
falls under the 2nd type, and hence, it does not require concurrence of the Senate
to take effect.
o Petitioner contends that the Agreement is of questionable validity since it partakes
of the nature of a treaty, and hence, it must be concurred in by the Senate. They
cite Commissioner of Customs v. Eastern Sea Trading and posit that the subject of
the Agreement doesn’t fall under any of the subject-categories enumerated in the
said jurisprudence, such as commercial/consular relations, most-favored nation
rights, patent rights, trademark & copyright protection, etc. that may be covered by
an executive agreement. The Court is not persuaded. The enumerated subject-
matters mentioned by Eastern Sea Trading are not cast in stone and cannot restrict
the option of each state on the matter of which the int’l agreement format would be
convenient to serve its best interest.
o The Court also ruled in Eastern Sea Trading that it recognizes the obligatory effect
of executive agreements w/out the concurrence of the Senate: “xxx The right of the
Executive to enter into binding agreements w/out the necessity of subsequent
Congressional approval has been confirmed by long usage. xxx The validity of
these has never been seriously questioned by our courts.”
3. No grave abuse of discretion
o W/out specifically saying so, petitioner argues that the Agreement was executed by
the Pres., thru DFA Sec. Ople, in grave abuse of discretion.
o The Pres., as head of state & gov’t, is the sole organ & authority in the external
affairs of the country. The Constitution vests in the Pres. the power to enter into
int’l agreements, subject in appropriate cases, to the required concurrence of the
Senate. But as earlier mentioned, executive agreements may be validly entered
into w/out such concurrence. The Pres.’ conduct in the external affairs of the
country is executive altogether, and his right to enter or ratify binding executive
agreements has been confirmed by long practice.
o In thus agreeing to conclude the Agreement thru Exchange of Notes No. BFO-028-
03, as represented by the Sec. of Foreign affairs, the Pres. acted w/in the scope of
authority & discretion vested in her by the Constitution. The Pres.’ act of ratifying
the Agreement, thru her deputies, did nothing more than discharge a constitutional
duty and exercise a prerogative that pertains to her office.
Disposition
DISMISSED for lack of merit.
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