BAYAN MUNA VS.

ROMULO
FACTS:

The petitioner Bayan Muna is a duly registered party-list group established to represent the
marginalized sectors of society. The respondents were Blas F. Ople (now deceased), in his capacity as
Secretary of Foreign Affairs, and Alberto Romulo, in his capacity as Executive Secretary.

On December 28, 2000 the Republic of the Philippines (RP), through Charge d’affairesEnrique A.
Manalo, signed the Rome Statutewhich establishes the International Criminal Court with the power
to exercise jurisdiction over persons for the most serious crime of international concern x xx and
shall be complementary to the national criminal jurisdictions. The serious crimes covered are those
considered grave under international law, such as genocide, crimes against humanity, war crimes,
and crimes of aggression. The Rome Statute, by its terms, is subject to ratification, acceptance or
approval by the signatory states. As of the filing of the instant petition, only 92 out of the 139
signatory countries appear to have completed the ratification, approval and concurrence
process. The Philippines is not among the 92.

On May 9, 2003, Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement
(Agreement) between USA and RP. Via the Exchange Notes No. BFO-028-03 dated May 13, 2003, the
RP, through DFA Secretary Ople agreed and accepted the terms of the Agreement.

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, persons are current or former Government officials,
employees (including contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not, absent the express
consent of the first Party,

(a) be surrendered or transferred by any means to any international tribunal for any
purpose, unless such tribunal has been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other entity or third country, or
expelled to a third country, for the purpose of surrender to or transfer to any
international tribunal, unless such tribunal has been established by the UN Security
Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines
to a third country, the [US] will not agree to the surrender or transfer of that person by the third
country to any international tribunal, unless such tribunal has been established by the UN Security
Council, absent the express consent of the Government of the Republic of the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to
a third country, the [GRP] will not agree to the surrender or transfer of that person by the third
country to any international tribunal, unless such tribunal has been established by the UN Security
Council, absent the express consent of the Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one party
notifies the other of its intent to terminate the Agreement. The provisions of this Agreement shall
continue to apply with respect to any act occurring, or any allegation arising, before the effective
date of termination.
ISSUES:

1. Whether or not the agreement was contracted validly, which resolves itself into the
question of whether or not respondents gravely abused their discretion in
concluding it.
2. Whether or not the Agreement, which has not been submitted to the Senate for
concurrence, contravenes and undermines the Rome Statute and other treaties.

RULING:

1.1 Validity of the RP-US Non-Surrender Agreement

Petitioners challenge against Agreement in its form being that E/N BFO-028-03 cannot be a
valid medium. The Court ruled that an exchange of notes falls into the category of inter-
governmental agreements, which is an internationally accepted form of international
agreement.(Sec 2, Art II- Philippines adopts a generally accepted principles of international
law)

1.2 No Grave Abuse of Discretion

The Constitution vests in the President the power to enter into international agreements, subject,
in appropriate cases, to the required concurrence votes of the Senate. But as earlier indicated *see
2.1*, 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.

2.1 Senate Concurrence not required.

The right of Executive to enter into binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage. From the earliest history, we have
entered executive agreements covering such subjects as 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. (Ruling in Eastern Sea Trading)

2.2 The Agreement Not in Contravention of the Rome Statute

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. As aptly pointed out by respondents and
admitted by petitioners, the jurisdiction of the ICC is to be complementary to national criminal
jurisdictions [of the signatory states].