The materials used for legal research are generally divided into two broad categories: primary sources

and secondary sources. Primary sources are laws, orders, decisions, or regulations issued by a
governmental entity or official, such as a court, legislature, or executive agency; the President; or a state
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TREATY-MAKING IN THE PHILIPPINES

Prepared by: Arnel D. Mateo
What is a treaty?
Under Philippine Laws, Treaties are international agreements entered into by the Philippines which require
legislative concurrence after executive ratification. This term may include compacts like conventions, declarations,
covenants and acts.[1]
Under International Law, Treaty means an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or in two or more related instruments and
whatever its particular designation.[2]
Not all international agreements are governed by international law. The convention applies only to those which are
governed by the domestic law of one of the parties or some other national law chosen by the parties.[3]
What is an executive Agreement?
Executive Agreements similar to treaties except that they do not require legislative concurrence.[4]
What is the distinction between a treaty and an executive agreement?
The difference between the two is sometimes difficult of ready ascertainment.[5] Under international law, there is
no difference between treaties and executive agreements in their binding effect upon states concerned, as long as
the negotiating functionaries have remained within their powers.[6] International law continues to make no
distinction between treaties and executive agreements: they are equally binding obligations upon nations.[7]
In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of
the Senate or Congress. Generally, treaties of any kind, whether bilateral or multilateral, require Senate
concurrence[8] while executive agreements may be validly entered into without such concurrence.[9]
The members of the Constitutional Commission acknowledged the distinction between a treaty and an executive
agreement during their deliberations of Section 21 Article VII. One of the issues in the discussions was trying to
identify the kind of international agreements that require Senate concurrence.
Commissioner Joaquin Bernas made a clarification by quoting from the decision of the Supreme Court in the case of
Commissioner of Customs vs. Eastern Sea Trading:
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 into 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 this has never been seriously questioned by our Courts.
Agreements with respect to the registration of trademarks have been concluded by the executive and various
countries under the Act of Congress of March 3, 1881 (21 Stat. 502) . . . International agreements involving
political issues or changes of national policy and those involving international agreements of a permanent character
usually take the form of treaties. But international agreements embodying adjustments of detail, carrying out well
established national policies and traditions and those involving arrangements of a more or less temporary nature
usually take the form of executive agreements.[10]
Commissioner Bernas further explained that international agreements, which require Senate concurrence, are
those, which are permanent in nature. Also, if it is with prior authorization from Congress, it does not need
subsequent concurrence by Congress.[11]
The Department of Foreign Affairs in its press release[12] said that in executive agreement, there is no
fundamental change in policy, nor will there be need for legislation to fund the agreement. It does not impinge on
any existing international legal obligation.
What is the rationale for distinguishing a treaty form an executive agreement?
The distinction between a treaty or international agreement and an executive agreement is of great significance in
the Philippines because the procedure followed in the process of ratification is different.
If what is involved is a treaty, the concurrence by at least two-thirds of all the Members of the Senate is required.
[13] On the other hand, if what is involved is an executive, there is no such requirement.

What is the procedure for determining whether an agreement is a treaty or an executive agreement?
a. Internal procedure within the Office of the President and the DFA
In 1988, the Office of the President issued Memorandum Circular 89 to set the guidelines in case of conflict as to
whether an agreement is a treaty or an executive agreement. The Legal Adviser of the Department of Foreign
Affairs (DFA) and the Assistant Secretary on Legislative Affairs and the Senate will be given opportunity to
comment on the nature of the agreement. Consultation shall be made with the leadership of the Senate. The
Secretary of Foreign Affairs shall make the proper recommendation to the President.[14]
In 1997, Executive Order 459 was issued and under Sec. 9 thereof, the DFA determines the nature of an
agreement. Said Executive Order is silent if the determination by the DFA of the nature of agreement can be
overturned by the President or not.
If asked which of the two issuances is prevailing, as a rule, being a later act, E.O. 459 is controlling. However,
newly appointed Associate Justice of the Supreme Court Antonio Eduardo Nachura, and prominent authors in
international law Jorge Coquia and Senator Miriam Defensor Santiago (Chairman of the Senate Committee on
Foreign Relations before adjournment of the 13th Congress) are of the opinion that Memorandun Circular 89 is still
binding.[15]
What is the current framework for trade negotiations?
a. Who has the power to negotiate or make treaties?
The President has the power to make treaties implicitly in the general grant of authority in Section 1, Article VII
that The executive power is vested in the President of the Philippines, in particular as this is applied in foreign
relations.[16]
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and
authority in the external affairs of the country.[17] In many ways, the President is the chief architect of the nations
foreign policy; his dominance in the field of foreign relations is (then) conceded.[18] Wielding vast powers an
influence, his conduct in the external affairs of the nation, as Jefferson describes, is executive altogether."[19]
Since the President is the head of state in the system of government of the Philippines, he is the authority in the
countrys external or foreign relations.[20] Being vested with diplomatic powers, the President formulates foreign
policy, deals with international affairs, represents the state with foreign nations, maintains diplomatic relations, and
enters into treaties or international agreements. Likewise, the power granted to the Senate to concur in
treaties[21] is to be interpreted as referring to treaties which the President makes and submits to the Senate for
concurrence.
Normally, it is the Head of State or the Head of the Ministry of Foreign Affairs who binds States in treaties. These
persons do not need to produce evidence of full powers to conclude a treaty. Treaty ratification is one of the
incidents of their position. For purposes of adopting a text to a treaty, the head of the diplomatic mission or
accredited representatives of States to an international conference or one of its organs are empowered to
authenticate or accredit the text of a treaty. If an act was performed without authorization or without the full
powers, a treaty can still be given force and effect provided it is subsequently confirmed by the State.[22]
b. Working procedure
Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise[23]:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the
instruments of ratification. The treaty may then be submitted for registration and publication under the U.N.
Charter, although this step is not essential to the validity of the agreement as between the parties.
1. Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his
authorized representatives. These representatives are provided with credentials known as full powers, which they
exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties
to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the
subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may
even collapse in case the parties are unable to come to an agreement on the points under consideration.
In the Philippines, the negotiation phase of the treaty making process is essentially performed and controlled by
the Executive branch of the government through the Department of Foreign Affairs and the respective government
agencies involved. Once a treaty proposal is received by the Government the Department of Foreign is tasked to
determine whether or not said agreement is a treaty or an executive agreement. It is the Chief Executive, through
the recommendation of the DFA Secretary, who designates the persons who will comprise the Philippine delegation
and the departments, which will be involved and consulted in the negotiation.
Pursuant to Executive Order 459, the lead agency in the negotiation of a treaty or an executive agreement or any
amendment thereto shall convene a meeting of the panel members prior to the commencement of any negotiations
for the purpose of establishing the parameters of the negotiating position of the panel. No deviation from the
agreed parameters shall be made without prior consultation with the members of the negotiating panel.
The panel of negotiators is normally composed of several individuals from the different agencies of government
who are technical experts and resource persons in certain areas of specialization. This group of persons is normally

referred to as technical working groups. A treaty, which has far-reaching effects on the different industries, may
involve several technical working groups. The technical working groups would meet and outline the Philippine
position and embody this position in writing. Ideally, the Philippine position must be in conformity with the outlined
policies, development goals and targets of the government and in general pursue Philippine interest.
During the negotiation process, negotiators of each State party would meet and discuss to arrive at a mutually
beneficial arrangement. Battles over semantics and phrasing are normal in treaty negotiations. This stage is very
tedious and negotiators must be very vigilant in looking at each particular provision. Before concurring to a
particular provision, said negotiator must agree to it only after consultation with other negotiators and evaluate if it
is in conformity with the outlined Philippine position. In issues of primordial importance or high significance, public
consultation must be performed to be able to determine its overall impact on the industries that are affected or
parties who will be prejudiced. Negotiators aside from being experts must be strong, assertive and emphatic in
pursuing the Philippine position. Disagreements among the negotiators over certain provisions is also normal, but
some experienced negotiators have perfected the art of inserting provisions in unexpected sections or rephrasing
rejected provisions to make it appear acceptable. The quote timing is everything finds application in the art
negotiations, some negotiators will invoke provisions of doubtful validity, during such times when negotiators of the
other party are already quite tired or weary from long hours spent on text analysis, interpretation and revision.
Once a final draft of the agreement is reached, it will be sent to the office of the Chief Executive who will signify his
approval. If he approves the agreement, he will forward it to the Office of the Executive Secretary, who in turn, will
attest, to the authenticity and veracity of the text signed or ratified. The Office of the Executive Secretary receives
texts in their final form but can override these agreements on broad grounds of it being against the Constitution,
the law or public policy, in general. [24]
2. If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This
step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good
faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of
the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the
several negotiators is allowed to sign first on the copy which he will bring home to his own state.
3. Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a
treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine
the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to
their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department
of the government other than that which negotiated them. Ratification is generally held to be an executive act,
undertaken by the head of the state or of the government, as the case may be, through which the formal
acceptance of the treaty is proclaimed.[25] A State may provide in its domestic legislation the process of
ratification of a treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the
treaty provides for such ratification, (b) it is otherwise established that the negotiating States agreed that
ratification should be required, (c) the representative of the State has signed the treaty subject to ratification, or
(d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its
representative, or was expressed during the negotiation.[26]
In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature.
The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification.[27]
4. The next step is the exchange of the instruments of ratification, which usually also signifies the effectivity
of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and
no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.
[28] [emphasis supplied]
5. In our jurisdiction, for the treaty to be valid and effective, it must be concurred in by the Senate. The
process of treaty concurrence by the Senate follows the procedure under the 1987 Constitution on the passage of
bills. Such rules are supplemental by the Rules of the Senate. The step-by-step process of treaty concurrence is
discussed below.
Initially, the President, through a letter to the Senate, transmits to the Senate the Instrument of Ratification and
the text of the ratified treaty for concurrence pursuant to Sec. 21, Art. VII of the Constitution. The President
transmits the same by acting through the Executive Secretary, who himself makes a letter of endorsement to the
Senate. [29]
The Senate receives the agreement through its Legislative Bills and Index Services (Bills and Index). The Bills and
Index reproduces the text of the agreement and includes it in the Order of Business. It also indexes and publishes
an abstract of the agreement.
At the beginning of each Senate Session, the Secretary of the Senate reports all bills, proposed Senate resolutions,
and correspondences from the other branches of the government, and such other matters included in the Order of
Business. Like an ordinary bill, the international agreement undergoes three readings.
In the first reading, only the title and number is read. The title usually goes Concurrence in the Ratification of (the
treaty or international agreement) with the corresponding Proposed Senate Resolution Number. [30]
Afterwards, the treaty is referred to the Committee on Foreign Relations. If the treaty concerns other Committees,
it is also referred to such other Committees for their joint consideration and recommendation. As an illustration,
the Visiting Forces Agreement (VFA) was also referred to the Committee on National Defense. If the treaty
concerns almost all or all the Senate Committees, it is referred to what is called the Committee of the Whole. For
instance, the World Trade Organization (WTO) was referred to the Committee of the Whole. The role of the

Committee is to study and analyze the agreement. It makes consultations to studies and position papers. It
conducts public hearings and considers public testimonies. The final output and recommendations are documented
in the committee report. The committee report is filed with the Bills and Index, which then includes it in the
Calendar of Business for second reading. [31]
At the start of the second reading, the Senator-Sponsor/s of the treaty endorses the committee report to the
Chamber through a sponsorship speech. During the second reading, the treaty would be opened to general debate
and to amendments. At the close of the debate, the members of the Senate would vote.
If approved by the Senate, the bill would pass to third reading. The Committee on Foreign Relations will document
any action taken in the form of a Proposed Resolution. The Proposed Resolution shall be engrossed and printed by
the Bills and Index, and distributed to each Senator three (3) days before third reading. [32]
After three days from the distribution of the resolution with the treaty attached thereto, the Proposed Resolution
shall be submitted for nominal voting. The treaty shall be deemed approved if 2/3 of the Senators voted for its
approval. A Senate Resolution concurring in the ratification of the treaty is then adopted. The adopted Senate
Resolution is brought to the Secretary of the Senate, who thereafter transmits a copy thereof to the Secretary of
Foreign Affairs.
c. Opportunities/venues for private sector participation
Although the Chief Executive is the sole authority in treaty-making, it is nonetheless the policy of the State that the
people and their organizations have the right to participate in decision-making processes.[33] Organizations refer
to trade unions, peasant organizations, urban poor, cooperatives, human rights groups, religious groups, and also
associations of landowners and businessmen. The role of the State, by enacting a law, would be mere facilitation
of the consultation mechanisms, and not their creation, for consultation mechanisms were already operating
without the States action by law. Also, people refers to all the people, including minors.[34]
Also, the people shall have the right to access to all transactions of the State that concern public interest, subject
to standards prescribed by law.[35] During the deliberations of the Constitutional Commission, Commissioner Blas
Ople, the sponsor of Sec. 28 Art. II, said that transactions include not just the perfected contract but also the
steps and negotiations taken that led to a contract. Commissioners Ople and Napoleon Rama further explained that
the difference between the provision under State Policies and that under the Bill of Rights is that the latter affords
the right of the people to demand information while the former speaks of the duty of the government to disclose
information even when nobody demands.[36] It necessarily follows that in all negotiations made by the President
as to entering into international agreements, it is the duty of the government to disclose to the people, even
without the latter making a demand, all its acts, but always limited by conditions prescribed by law.
The Supreme Court laid down in Chavez vs. Presidential Commission on Good Government[37] some of the
restrictions to the State policy of public disclosure and to the exercise of the right to information: 1) National
security matters which include State secrets regarding military and intelligence information, diplomatic matters,
and information on inter-government exchanges prior to the conclusion of treaties and executive agreements; 2)
trade secrets pursuant to the Intellectual Property Code; 3) banking transactions as provided by the Secrecy of
Bank Deposits Act; 4) criminal matters or classified law enforcement matters; and 5) other confidential matters
including diplomatic correspondence, closed door Cabinet meetings, executive sessions of Congress, and internal
deliberations of the Supreme Court.
The right guaranteed by Section 7 of the Bill of Rights is the right to information on matters of public concern.
[38] A consequence of this right is the right to access official records and documents. These rights are subject to
such limitations as may be provided by law. It follows that the limitations include regulations on determining what
information are matters of public concern, and the manner of access to such matters of public concern.
In the case of Legaspi vs. Civil Service Commission,[39] the Supreme Court said that public concern has no exact
definition. It encompasses an extensive scope of subjects which the public may want to know, either because it
directly affects their lives or simply because it arouses his interest. Each case must be examined carefully.
It was also held in the above case that the duty to disclose information of public concern and to allow access to
public records is not discretionary on the part of the concerned government agency. If denied of the enjoyment of
the Constitutional right, the remedy of the citizen is to file a petition for mandamus to compel the performance of
the constitutional obligation.
Indeed, under Sec. 1 of Art. II (Declaration of Principles and State Policies) of the 1987 Constitution, The
Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority
emanates from them. Republicanism means all government authority emanates from the people and is exercised
by representatives chosen by the people. Hence, the people are declared supreme.[40]
What is the significant role of the Legislative branch in the treat-making process?
Notwithstanding the sole authority of the President to negotiate and enter into treaties, the 1987 Constitution limits
his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity and effectivity of
the treaty entered into by him.[41] The role of the Senate is confined to simply giving or withholding its consent to
the ratification.[42]
The involvement of the Senate in the treaty-making process manifests the adherence of the Philippine system of
government to the principle of checks and balances. This indispensable participation of the legislative branch by
way of concurrence provides the check to the ratification of the treaty by the executive branch.

What is the effect of Senate Concurrence to a treaty?

A treaty becomes valid and effective if concurred in by two-thirds of all the members of the Senate.[43] This
means it forms part of Philippine law by virtue of transformation. By an act of the legislature, treaty rules may be
transformed into Philippine law, to be applied or enforced as part of Philippine law. [44]
The treaty becomes part of the law of the land and it becomes obligatory and incumbent on our part, under the
principles of international law, to be bound by the terms of the agreement. In Bayan vs. Zamora[45], the Supreme
Court said that with the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of
notes between the Philippines and the United States of America, it now becomes obligatory and incumbent on our
part, under the principles of international law, to be bound by the terms of the agreement. Thus, no less than
Section 2, Article II of the Constitution,[46] declares that the Philippines 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.
As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the
conduct of its international relations. While the international obligation devolves upon the state and not upon any
particular branch, institution, or individual member of its government, the Philippines is nonetheless responsible for
violations committed by any branch or subdivision of its government or any official thereof. As an integral part of
the community of nations, we are responsible to assure that our government, Constitution and laws will carry out
our international obligation.[47]Hence, we cannot readily plead the Constitution as a convenient excuse for noncompliance with our obligations, duties and responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law
Commission in 1949 provides: Every State has the duty to carry out in good faith its obligations arising from
treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an
excuse for failure to perform this duty.[48]
Equally important is Article 26 of the convention which provides that Every treaty in force is binding upon the
parties to it and must be performed by them in good faith. This is known as the principle of pacta sunt servanda
which preserves the sanctity of treaties and have been one of the most fundamental principles of positive
international law, supported by the jurisprudence of international tribunals.[49]
What is the effect if the Senate does not concur to a treaty?
As provided for by the constitution, a treaty not concurred in by the Senate will not be valid and effective.[50]
Under the Philippine Legal System, how does a treaty stand in relation to the Philippine Constitution?
The Constitution is the basis for ascertaining the legality or validity of the treaty. By virtue of Article VIII, Section
5(2)(a) of the Constitution, the Supreme Court may determine the constitutionality of a treaty or declare it as
violative of a statute.[51]
How does a treaty stand in relation to a statute?
Being part of the law of the land and therefore an internal law, a treaty is not superior to an enactment of the
Congress of the Philippines, rather it would be in the same class as the latter.[52]

Equity: An Overview. In law, the term equity refers to a particular set of remedies and associated
procedures. These equitable doctrines and procedures are distinguished from "legal" ones. Equitable
relief is generally available only when a legal remedy is insufficient or inadequate in some way.

obiter dictum

bidr diktm/
noun
LAW

1.

a judge's incidental expression of opinion, not essential to the decision and not
establishing precedent.
o
an incidental remark.

THE NEW occupant of Malacaang wants to accomplish in his first few days in
office something his predecessor failed to deliver in six years.

President Duterte will sign within the next two weeks an executive order allowing
freedom of information (FOI), giving the public an opportunity to access government
records, Communications Secretary Martin Andanar said on Sunday.
The order, however, covers only offices under the executive branch of the government
since it is just a presidential memorandum, Andanar said.
Interviewed over state-owned dzRB radio, Andanar said the Presidents executive
order was consistent with his campaign promise that his administration would be
transparent and open to the public.
This is a commitment of the President to us, Andanar said.
We are rushing the draft of the executive order. We will announce (its signing) within
this week or next week, he added.
Benigno Noynoy Aquino III vowed to enact a freedom of information bill during
his campaign for Malacaang in 2010, a promise he failed to keep despite having full
control of Congress throughout his six-year term.
Many of his party mates in the once-dominant Liberal Party and his political allies
also opposed the idea of providing the press and the public full access to documents
pertaining to government projects and related matters.
Aquinos failure to pass the FOI bill was among the black marks on his
administration, which he anchored on transparency.
Andanar said President Duterte would also approve the creation of a presidential task
force against media killings to deal with unabated violence against journalists.
The formation of the special task force comes weeks after Mr. Dutertes controversial
remarks that seemed to justify the murders of journalists in the Philippines.
Mr. Dutertes statement that corrupt journalists are legitimate targets of assassination
drew global criticism, but instead of apologizing, he banned the press from his events.
Task force on media killings
The creation of a task force on media killings also comes a few days after a radio
commentator, known for his stinging tirades against illegal drugs and gambling,
barely survived an assassination attempt in Surigao City.
The National Union of Journalists of the Philippines said Saturnino Jan Estanio of
Radio Mindanao Network-dxRS and his 12-year-old son were wounded in the June 30
attack.
Jocelyn Ferol, RMN-dxRS program director, said Estanio claimed that personal
grudge might have been behind the attack, but his commentaries on illegal drugs and
gambling also might have invited it.
Andanar said he and Executive Secretary Salvador Medialdea were already working
on a draft of the proposed executive order, which he himself was pushing as chief of
the Presidential Communications Office.
A broadcast journalist before he was appointed by the President last month, Andanar
said he reminded Mr. Duterte about his promise to the media and the people during
the change of command ceremony at the Philippine National Police held at Camp
Crame last week.
We are just fine-tuning the executive order. Maybe next week we can already
announce [the creation of the task force], Andanar said.
This is one of the things were doing to make our colleagues in the media at ease and
stop the extrajudicial killings of members of the media, he added. With a report
from Karlos Manlupig, Inquirer Mindanao

Read more: http://newsinfo.inquirer.net/794099/duterte-to-issue-foi-

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