BANKING LAWS…

ESTRADA vs. DESIERTO

Facts:

Petition for review on certiorari filed by former President Joseph Ejercito Estrada on 20 December 2002 from the 20 November 2002 resolution of the Court of Appeals dismissing his motion for reconsideration of the resolution of the appellate court dated 29 July 2002.

On 23 January 2001, the Bureau of Internal Revenue (BIR) placed petitioner’s foreign currency deposit account at Citibank Greenhills Branch under constructive distraint.

Contending that the BIR action was unlawful, petitioner filed on 31 January 2001 complaint against respondent BIR officials and respondent Citibank officers before the Office of the Ombudsman for allegedly violating Section 8 of the Foreign Currency Deposits Act (Republic Act No. 6426).

Respondent Lilian B. Hefti, BIR Deputy Commissioner, Officer-In-Charge, issued a notice of distraint to the petitioner in accordance with her function. It further appears that respondent was guided not by her own unilateral and whimsical act and as to her observation regarding the huge disparity of petitioner’s income as declared by him in his Annual Income Tax Return, and the amount of his income as established in the impeachment trial.

Issues:

Whether the Court of Appeals has jurisdiction to entertain original petitions for certiorari from decisions of the Office of the Ombudsman in criminal cases.

Whether respondent Hefti being the Deputy Commissioner of BIR had indeed usurped her duty as she issued the notice of distraint.

Ruling:

Section 8 of R.A. 6426 does not apply to the foreign currency deposit accounts of herein petitioner since the protection under the said law is intended only for depositors who are non-residents (foreign lenders and investors), and are not engaged in trade and business in the Philippines.

Petition is dismissed.

LEGAL & JUDICIAL ETHICS…

In Re: Disbarment Proceedings Against
Atty. Diosdado Q. Gutierrez, respondent.

Facts:

Respondent Diosdado Q. Gutierrez is a member of the Philippine Bar, admitted to it on October 5, 1945. In criminal case of the Court of First Instance of Oriental Mindoro, he was convicted of murder of Filemon Samaco, former municipal mayor of Calapan, and together with his co-conspirators was sentenced to the penalty of death. Upon review by the Court the judgment of conviction was affirmed on June 30, 1956, but the penalty was changed to reclusion perpetua. After serving a portion of the sentence respondent was granted a conditional pardon by the President on August 19, 1958. The unexecuted portion of the prison term was remitted “on condition that he shall not again violate any of the penal laws of the Philippines.”

On October 9, 1958 the widow of the deceased Filemon Samaco filed a verified complaint before this Court praying that respondent be removed from the roll of lawyers pursuant to Rule 127, section 5.

Issues:

Whether the respondent be removed from the roll of lawyers pursuant to Rule 127, section 5.

Whether the conditional pardon extended to respondent places him beyond the scope of the rule on disbarment aforecited.

Ruling:

The pardon granted to respondent is not absolute but conditional, and merely remitted the unexecuted portion of his term. It does not reach the offense itself.
Pursuant to Rule 127, Section 5, and considering the nature of the crime for which respondent Diosdado Q. Gutierrez has been convicted, he is ordered disbarred and his name stricken from the roll of lawyers.

W A R . . .

I. INTRODUCTION

Throughout history war has been the source of serious moral questions. Although many ancient nations and some modern ones have viewed war as noble, over the sweep of history, concerns about the morality of war have gradually increased.

Today, war is seen by some as undesirable and morally problematic. At the same time, many view war, or at least the preparation and readiness and willingness to engage in, as necessary for the defense of their country and therefore a just war. Pacifists believe that war is inherently immoral and that no war should ever be fought.

II. WAR DEFINED

Viewed in the former sense, WAR may be defined as an armed contention between the public of states or other belligerent communities, implying the employment of violence among the parties as a means of enforcing their respective demands upon each other (Cruz, Isagani A. 2003).

WAR was originally accepted as a legitimate means of compulsion, provided, according to some writers, that it was a creation to an international delict.

WAR is a reciprocated, armed conflict, between two or more non-congruous entities, aimed at reorganizing a subjectively designed, geo-politically desired result (http://en.wikipedia.org/wiki/war).

III. LAWS OF WAR

The important laws of war that are supposed to be observed in the conduct of armed hostilities. Among these are the following:

1. The Declaration of Paris of 1856, concerning warfare at sea.
2. The Hague Conventions of 1899, concerning the use of expanding bullets and asphyxiating gases.
3. The Hague Conventions of 1907, concerning the opening of hostilities.
4. The Geneva Convention of 1925, concerning the use of asphyxiating, poisonous and other gases and of bacteriological methods of warfare.
5. The Geneva Convention of 1929, concerning the treatment of the sick and wounded and of prisoners of war.
6. The Declaration of London of 1936, concerning the use of submarines against merchant vessels.
7. The Geneva Convention of 1949, concerning the amelioration of the sick and wounded on land.
8. The Nuclear Nonproliferation Treaty. The commonly accepted sanction is to protest lodged by one belligerent, usually accompanied or followed by an appeal to world opinion against the unlawful acts of warfare committed by the other belligerent.

IV. BASIC PRINCIPLES OF WAR

1. Principle of Military Necessity - belligerents may employ any amount and kind of force to compel the complete submission of the enemy with the least possible loss of lives, time and money;
2. Principle of Humanity - prohibits the use of any measure that is not absolutely necessary for purposes of war; and
3. Principle of Chivalry - basis of such rules as those that require belligerents to give proper warning before launching a bombardment or prohibit the use of perfidy (treachery) in the conduct of hostilities.

V. RIGHTS OF A PRISONER OF WAR

1. To be treated humanely;
2. Not subject to torture;
3. Allowed to communicate with his family;
4. Receive food, clothing, religious articles, medicine;
5. Bare minimum of information;
6. Keep personal belongings;
7. Proper burial;
8. Group according to nationality;
9. Establishment of an information bureau;
10. Repatriation for the sick and wounded (1949 Geneva Convention).

VI. TERMINATION OF WAR

1. Simple cessation of hostilities;
2. Conclusion of a negotiated treaty of peace; and
3. Defeat of one of the belligerents.

VII. EFFECTS OF WAR

On soldiers. Psychiatric disturbances in varying degrees.
On civilians. Many wars have been accompanied by significant depopulations.
On the economy. Once a war has ended, losing nations are sometimes required to pay repartition to the victorious nations. In certain cases, land is ceded to the victorious nations. For example, the territory of Alsace-Lorraine has been traded between France and Germany on three different occasions.

VIII. UTI POSSIDETIS

Allows retention of property or territory in the belligerent’s actual possession at the time of the cessation of hostilities.

International law recognizes only two cases for a legitimate war:

1. Wars of defense: when one nation is attacked by an aggressor, it is considered legitimate for a nation along with its allies to defend itself against the aggressor.
2. Wars sanctioned by the UN Security Council: when the United Nations as a whole acts as a body against a certain nation. Examples include various peacekeeping operations around the world.

ABAYA vs. EBDANE

Facts:

The Government of Japan and the Philippines, through their respective representatives, namely, Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Republic of the Philippines, and Secretary of Foreign Affairs, Domingo L. Siazon, had reached an understanding concerning Japanese loans to be extended to the Philippines. These loans were aimed to promote our country’s economic stabilization and development efforts.

The assailed resolution recommended the award to private respondent China Road & Bridge Corporation of the contract for the implementation of civil works for Contract Package No. I (CP I), which consists of the improvement/rehabilitation of the San Andres (Codon)-Virac-Jct. Bago-Viga road, with the length of 79.818 kilometers, in the island province of Catanduanes.The DPWH caused the publication of the “Invitation to Prequalify and to Bid” for the implementation of the CP I project, in two leading national newspapers, namely, the Manila Times and Manila Standard on November 22 and 29, and December 5, 2002.

The bid goes to private respondent China Road & Bridge Corporation was corrected from the original P993,183,904.98 (with variance of 34.45% from the ABC) to P952,564,821.71 (with variance of 28.95% from the ABC) based on their letter clarification dated April 21, 2004.

The petitioners anchor the instant petition on the contention that the award of the contract to private respondent China Road & Bridge Corporation violates RA 9184, particularly Section 31.

The petitioners insist that Loan Agreement is neither an international nor an executive agreement that would bar the application of RA 9184. They point out that to be considered a treaty, an international or an executive agreement, the parties must be two sovereigns or States whereas in the case of Loan Agreement No. PH-P204, the parties are 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 the loan agreement violates RA 9184.

Ruling:

The court ruled in favor of the respondents.

Significantly, an exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without the need of a vote by the Senate or Congress. executive agreements, They sometimes take the form of exchange of notes and at other times that of more formal documents denominated “agreements” or “protocols”.

LIM vs. EXECUTIVE SECRETARY

Facts:

Personnel from the Armed Forces of the United States of America started arriving in Mindanao to take part, in conjunction with the Philippine military, in “Balikatan 02-1.” It is a simulation of military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines and the United States since 1951. Its aim is to enhance the strategic and technological capabilities of our armed forces through joint training with its American counterparts. The “Balikatan” is the largest training exercise directly supporting the MDT’s objectives. It is this treaty in which the VFA adverts and the obligations thereunder seeks to reaffirm.

On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari and prohibition, attacking the constitutionality of the joint exercise.

Issue:

Whether “Balikatan 02-1” activities covered by the Visiting Forces Agreement?

Ruling:

The VFA permits United States personnel to engage on an impermanent basis, in “activities.” The sole encumbrance placed on its definition is couched in the negative, in that United States personnel must “abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity.

Vienna Convention on the Law of Treaties, Articles 31 and 32 contains provisos governing interpretations of international agreements. It clearly provides that the cardinal rule of interpretation must involve an examination of the text, which is presumed to verbalize the parties’ intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into account alongside the context.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that .’Balikatan 02-1,” a “mutual anti- terrorism advising, assisting and training exercise,” falls under the umbrella of sanctioned or allowable activities in the context of the agreement.

BAYAN vs. ZAMORA

Facts:

On August 30, 1951, the Philippines and the United States entered into a Mutual Defense Treaty to further strengthen their defense and security relationship. Under the said treaty, the parties agreed to respond to any external armed attack on their territory, armed forces, public vessels, and aircraft.

On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and Security which, in effect, would have extended the presence of US military bases in the Philippines.

On July 18, 1997 RP and US exchanged notes and discussed, among other things, the possible elements of the Visiting Forces Agreement (VFA).This resulted to a series of conferences and negotiations which culminated on January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively signed by Secretary Siazon and United States Ambassador Thomas Hubbard.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA. On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially transmitted to the Senate of the Philippines,the Instrument of Ratification, the letter of the President and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution.

Petitions for certiorari and prohibition, petitioners – as legislators, non-governmental organizations, citizens and taxpayers – assail the constitutionality of the VFA and impute to herein respondents grave abuse of discretion in ratifying the agreement.

Petitioner contends, under they provision cited, the “foreign military bases, troops, or facilities” may be allowed in the Philippines unless the following conditions are sufficiently met: a) it must be a treaty,b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by congress, and c) recognized as such by the other contracting state.

Issue:

Whether or not VFA governed by provisions of Section 21 of Article VII or Section 25 of Article XVIII of the Constitution.

Ruling:

The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on treaties or international agreements. Sec. 21 Art. VII, which respondent invokes, reads: “No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all the Members of the Senate. Sec. 25 Art. XVIII provides : “After the expiration in 1991 of the Agreement between the RP and the US concerning Military Bases, foreign military bases, troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in and when the Congress so requires, ratified by a majority of votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the Senate by the other contracting state”.

The first cited provision applies to any form of treaties and international agreements in general with a wide variety of subject matter. All treaties and international agreements entered into by the Philippines, regardless of subject matter, coverage or particular designation requires the concurrence of the Senate to be valid and effective.In contrast, the second cited provision applies to treaties which involve presence of foreign military bases, troops and facilities in the Philippines. Both constitutional provisions share some common ground. The fact that the President referred the VFA to the Senate under Sec. 21 Art. VII, and that Senate extended its concurrence under the same provision is immaterial.

WIGBERTO E. TAÑADA, ET AL.
vs.
EDGARDO ANGARA, ET AL.

Facts:

As the WTO opens its access to foreign markets, major trading partners, experienced through reduction of tariffs on its exports specifically on agricultural and industrial products. It further associates with exporting and more investment in the country. The signatory Senators viewed this agreement as a “free market” system since there would be more investment and exporting activities with in the member countries. The “Filipino First Policy” of the Constitution was set aside as it gives way to foreign trading. Thus, this petition.


Issue:

Whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Senate in giving its concurrence of the WTO agreement.

Ruling:

By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered automatically part of our own laws. In its Declaration of Principles and state policies, the Constitution “adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all nations.

With WTO, the sovereignty of the state cannot in fact and reality be considered as absolute because it is a regulation of commercial relations among nations. The Senate only did their part in the valid exercise of authority. It remains as the only viable structure for multilateral trading and the veritable forum for the development of international trade law. Its alternative is isolation, stagnation if not economic self-destruction. Thus, the people are allowed, through their duly elected officers to make their free choice.

Petition is DISMISSED for lack of merit.