Bangsamoro Juridical Entity (BJE)

Bangsamoro Juridical Entity (BJE)

Supreme Court justices have floated the possibility of renegotiating the ancestral domain agreement between the government and the Moro Islamic Liberation Front (MILF), which has been assailed as unconstitutional.
The government and the MILF go back to the negotiating table since granting a "state within a state" in the Memorandum of Agreement on Ancestral Domain (MOA-AD) may not be possible under the Constitution.
The MOA-AD does not even recognize the 1987 Constitution other than a reference to a "legal framework."
Bangsamoro Juridical Entity (BJE), which will govern the new Moro ancestral domain, is entitled to have its own judiciary and police. It can also enter into economic agreements and establish trade relations with other countries.
The Philippines’ territorial integrity will be compromised by the MOA-AD since it gives the BJE control over the development and utilization of natural resources within its land, territorial waters, and air space. Given such authority, the BJE could even enter into an agreement allowing US military bases. The MOA-AD gives wide powers to the BJE over its territory. However, the MOA-AD failed to delineate the scope and kinds of agreements that the BJE could enter into.
The MOA-AD would affect the Lumads’ ancestral domain rights because it describes the Bangsamoro people as "natives" or original inhabitants of the Mindanao-Sulu-Palawan area.
"The Lumads and even the Christians who reside in the ancestral domain would be deprived of their freedom of choice , The MOA-AD would bestow the BJE authority to establish its own central bank, and to automatically include private and government properties under its jurisdiction.
The changes envisioned in the MOA-AD are only proposals. It is still up to Congress to pass the enabling law that would eventually grant the Moros wider economic and political powers.
The provisions are just proposed it is part of the freedom of speech to make proposals to Congress.

The problem of the MOA-AD lies with the lack of commitment from the executive branch to secure favorable action from the Congress.
Notwithstanding the MOA has no legal effect until Congress acts on it.
The agreement could not be implemented unless a plebiscite on the 712 barangays is undertaken and an enabling law allowing the expansion of the Autonomous Region in Muslim Mindanao is approved by Congress.
The agreement gives Muslims the power to set up their own systems of education, courts, civil service and control of mineral and energy resources, under the expanded ARMM which will be called the Bangsamoro Juridical Entity.
It is being noted that the agreement between the government and the Moro National Liberation Front which was signed in 1996 was implemented only after R.A. 9054 was passed by Congress.
The ARMM was carved out of the peace agreement with the MNLF. The MOA would have to be tackled first in the formal peace talks. It's not yet a done deal. It was just initialed to make sure that what was agreed upon stays there.
The MOA clearly violates the 1987 Charter because it grants the BJE a status of belligerency, which is a step closer to granting it international recognition as a separate and independent state.
He explained that the proposed agreement unconstitutionally surrenders Philippine government authority over exploitation of natural resources, such as oil exploration, as the Bangsamoro territory no longer forms part of the national public domain
Sovereignty cannot be divided, which the MoA provides for when it allows BJE to exercise shared authority and responsibility with the Philippine government over the Bangsamoro homeland.
Associate Justices Renato Corona and Ruben Reyes agreed. They said that it is premature to judicially review the MOA-AD since it hasn’t even been signed in the first place. Justice Corona said that the petitioners have a "fear of the unknown."
Justice Reyes, on the other hand, stressed that the power to approve constitutional amendments belongs to Congress, not the executive branch.
Associate Justice Adolfo Azcuna said even a simple change, such as adding a crescent moon on the Philippine flag, can only be could done if there is an enabling law.
"Fr. Joaquin Bernas may be right. The MOA is just a scrap of paper,".
As the powers of the Congress were laid out, Associate Justice Morales said the government has the right to renegotiate.
The MOA-AD should conform to the Constitution.
The Arroyo government may have to go back to the negotiating table to ensure that the provisions in the MOA-AD are consistent with the supreme law of the land.
If the MILF refuses to renegotiate, that is when the MOA-AD can be considered void.
The root cause of the misunderstanding over the provisions of the MOA-AD is the lack of consultation with affected government bodies and other stakeholders.
The Constitution only allows autonomy, not secession. It is the same Constitution also that gives the president the power to review the MOA-AD.

Petitions on MOA-AD
The BJE, which will cover the original territory of the Autonomous Region of Muslim Mindanao, will also include at least 8 barangays in Zamboanga City—Zone III, Zone IV, Busay, Landang Gua, Landang Laum, Manalipa, Pasilmanta and Tigtabon—and around 700 more other barangays from North Cotabato, Basilan and Palawan.
Local officials from North Cotabato and Zamboanga City, however, decried their inclusion in the BJE. They alleged lack of consultation even if the government’s peace panel has recorded more than 100 instances of consultations on the accord with the MILF.
Gov. Jesus Sacdalan and Vice Gov. Emmanuel Piñol of North Cotabato asked the Supreme Court to require the disclosure of the unsigned MOA on ancestral domain in their July 23 petition. Zamboanga City Mayor Celso Lobregat followed suit by also filing a petition for mandamus and prohibition with an urgent prayer for preliminary injunction.
On July 27, GRP peace panel chair Rodolfo Garcia initialed the MOA-AD with MILF counterpart Mohagher Iqbal. The preliminary signing between the two was witnessed by Datuk Othman Abdul Raza, special adviser to the Prime Minister of Malaysia.
The final signing of the MOA-AD was scheduled on August 5. On August 4 however, the MOA-AD was stopped after the SC issued a TRO enjoining the GRP and MILF from inking the deal.
With the disclosure of the MOA-AD, however, the government has called for the lifting of the TRO.



Disclaimer: The views expressed are for academic purposes
Source :Philippine star,Malaya,www.inq7.net, abs-cbn newsbreak

SENATOR AQUILINO PIMENTEL, JR vs OFFICE OF THE EXECUTIVE
SECRETARY

G.R. No. 158088
July 6, 2005

Facts: This is a petition for mandamus filed by petitioners to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in accordance with Section 21, Article VII of the 1987 Constitution.

The Rome Statute established the International Criminal Court which “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary to the national criminal jurisdictions.” Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the Statute. The Statute was opened for signature by all states in Rome on July 17, 1998 and had remained open for signature until December 31, 2000 at the United Nations Headquarters in New York. The Philippines signed the Statute on December 28, 2000 through Charge d’ Affairs Enrique A. Manalo of the Philippine Mission to the United Nations. Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states.

Issue:Whether or not the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the signature of the President?

HELD: NO.In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations In the realm of treaty-making, the President has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” The 1935 and the 1973 Constitution also required the concurrence by the legislature to the treaties entered into by the executive. Section 10 (7), Article VII of the 1935 Constitution provided:
Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the Members of the Senate, to make treaties .

Section 14 (1) Article VIII of the 1973 Constitution stated:
Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective unless concurred in by a majority of all the Members of the Batasang Pambansa.

The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations. By requiring the concurrence of the legislature in the treaties entered into by the President, the Constitution ensures a healthy system of checks and balance necessary in the nation’s pursuit of political maturity and growth. In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean that the power to ratify treaties belongs to the Senate.

Petition Dismissed

International Criminal Court

The International Criminal Court (ICC or ICCt) was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression, although it cannot currently exercise jurisdiction over the crime of aggression. The Court came into being on 1 July 2002 — the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force — and it can only prosecute crimes committed on or after that date.

As of July 2008, 106 states are members of the Court;Suriname and Cook Islands will become states parties on 1 October 2008, bringing the total to 108. A further 40 countries have signed but not ratified the Rome Statute. However, a number of states, including China, India and the United States, are critical of the Court and have not joined.[citation needed]
The Court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council. The Court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore left to individual states.

To date, the Court has opened investigations into four situations: Northern Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur. The Court has issued public arrest warrants for twelve people; six of them remain free, two have died, and four are in custody. The Court's first trial, of Congolese militia leader Thomas Lubanga, was due to begin on 23 June 2008 but it was halted on 13 June when judges ruled that the Prosecutor's refusal to disclose potentially exculpatory material had breached Lubanga's right to a fair trial.
The official seat of the Court is in The Hague, Netherlands, but its proceedings may take place anywhere. The ICC is sometimes referred to as a "world court"; it should not be confused with the International Court of Justice, also known as the World Court, which is the United Nations organisation that settles disputes between nations.

Territorial jurisdiction

During the negotiations that led to the Rome Statute, a large number of states argued that the Court should be allowed to exercise universal jurisdiction. However, this proposal was defeated due in large part to opposition from the United States. A compromise was reached, allowing the Court to exercise jurisdiction only under the following limited circumstances:
where the person accused of committing a crime is a national of a state party (or where the person's state has accepted the jurisdiction of the Court);
where the alleged crime was committed on the territory of a state party (or where the state on whose territory the crime was committed has accepted the jurisdiction of the Court); or
where a situation is referred to the Court by the UN Security Council

Temporal jurisdiction
The Court's jurisdiction does not apply retroactively: it can only prosecute crimes committed on or after 1 July 2002 (the date on which the Rome Statute entered into force). Where a state becomes party to the Rome Statute after that date, the Court can exercise jurisdiction automatically with respect to crimes committed after the statute enters into force for that state

The ICC's temporary headquarters in The Hague

Complementarity

The Court is intended as a court of last resort, investigating and prosecuting only where national courts have failed. Article 17 of the Statute provides that a case is inadmissible if:
"(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court."Article 20, paragraph 3, specifies that, if a person has already been tried by another court, the ICC cannot try them again for the same conduct unless the proceedings in the other court:
"(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognised by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice."

Structure

The Court is governed by an Assembly of States Parties.[38] The Court consists of four organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.[39]

Assembly of States Parties
The Court's management oversight and legislative body, the Assembly of States Parties, consists of one representative from each state party.[40] Each state party has one vote and every effort has to be made to reach decisions by consensus.[40] If consensus cannot be reached, decisions are made by vote.[40]
The Assembly meets in full session once a year in New York or The Hague, and may also hold special sessions where circumstances require.[40] Sessions are open to observer states and non-governmental organisations.[41]
The Assembly elects the judges and prosecutors, decides the Court's budget, adopts important texts (such as the Rules of Procedure and Evidence), and provides management oversight to the other organs of the Court.[40][38] Article 46 of the Rome Statute allows the Assembly to remove from office a judge or prosecutor who "is found to have committed serious misconduct or a serious breach of his or her duties" or "is unable to exercise the functions required by this Statute".[42]
The states parties cannot interfere with the judicial functions of the Court.[43] Disputes concerning individual cases are settled by the Judicial Divisions.[43]

Presidency

Philippe Kirsch, President of the Court
The Presidency is responsible for the proper administration of the Court (apart from the Office of the Prosecutor).[44] It comprises the President and the First and Second Vice-Presidents — three judges of the Court who are elected to the Presidency by their fellow judges for a maximum of two three-year terms.[45] As of July 2008, the President is Philippe Kirsch,[39] who was elected to a second term on 11 March 2006.[44]

Judicial Divisions

Main article: Judges of the International Criminal Court
The Judicial Divisions consist of the 18 judges of the Court, organized into three divisions — the Pre-Trial Division, Trial Division and Appeals Division — which carry out the judicial functions of the Court.[46] The Pre-Trial Division (which comprises the First Vice President and six other judges)[46] confirms indictments and issues international arrest warrants. The Trial Division (the Second Vice President and five other judges) presides over trials. Decisions of the Pre-Trial and Trial Divisions may be appealed to the Appeals Division (the President and four other judges). Judges are assigned to divisions according to their qualifications and experience.[39]
Judges are elected to the Court by the Assembly of States Parties.[46] They serve nine-year terms and are not generally eligible for re-election.[46] All judges must be nationals of states parties to the Rome Statute, and no two judges may be nationals of the same state.[47] They must be “persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices”.[47]
The Prosecutor or any person being investigated or prosecuted may request the disqualification of a judge from "any case in which his or her impartiality might reasonably be doubted on any ground".[48] Any request for the disqualification of a judge from a particular case is decided by an absolute majority of the other judges.[48] A judge may be removed from office if he or she "is found to have committed serious misconduct or a serious breach of his or her duties" or is unable to exercise his or her functions.[42] The removal of a judge requires both a two-thirds majority of the other judges and a two-thirds majority of the states parties.[42]

Office of the Prosecutor
The Office of the Prosecutor is responsible for conducting investigations and prosecutions.[12] It is headed by the Prosecutor, who is assisted by two Deputy Prosecutors.[39] The Rome Statute provides that the Office of the Prosecutor shall act independently;[49] as such, no member of the Office may seek or act on instructions from any external source, such as states, international organisations, non-governmental organisations or individuals.[12]
The Prosecutor may open an investigation under three circumstances:[12]
when a situation is referred to him by a state party;
when a situation is referred to him by the United Nations Security Council, acting to address a threat to international peace and security; or
when the Pre-Trial Chamber authorises him to open an investigation on the basis of information received from other sources, such as individuals or non-governmental organisations.
Any person being investigated or prosecuted may request the disqualification of a prosecutor from any case "in which their impartiality might reasonably be doubted on any ground".[49] Requests for the disqualification of prosecutors are decided by the Appeals Division.[49] A prosecutor may be removed from office by an absolute majority of the states parties if he or she "is found to have committed serious misconduct or a serious breach of his or her duties" or is unable to exercise his or her functions.[42] However, critics of the Court argue that there are “insufficient checks and balances on the authority of the ICC prosecutor and judges” and “insufficient protection against politicized prosecutions or other abuses”.[50] Henry Kissinger says the checks and balances are so weak that the prosecutor “has virtually unlimited discretion in practice”.[51]
As of July 2008, the Prosecutor is Luis Moreno-Ocampo of Argentina, who was elected by the Assembly of States Parties on 21 April 2003[52] for a term of nine years.[12]

[edit] Registry
The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court.[53] This includes, among other things, “the administration of legal aid matters, court management, victims and witnesses matters, defence counsel, detention unit, and the traditional services provided by administrations in international organisations, such as finance, translation, building management, procurement and personnel”.[53] The Registry is headed by the Registrar, who is elected by the judges to a five-year term.[39]

Rights of the accused
The Rome Statute provides that all persons are presumed innocent until proven guilty beyond reasonable doubt,[54] and establishes certain rights of the accused and persons during investigations.[55] These include the right to be fully informed of the charges against him or her; the right to have a lawyer appointed, free of charge; the right to a speedy trial; and the right to examine the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf.
Some argue that the protections offered by the ICC are insufficient. According to the Heritage Foundation, “Americans who appear before the court would be denied such basic constitutional rights as trial by a jury of one's peers, protection from double jeopardy, and the right to confront one's accusers.”[30] However, Human Rights Watch argues that “the ICC has one of the most extensive lists of due process guarantees ever written”, including “presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; right to be present at trial; right to have charges proved beyond a reasonable doubt; and protection against double jeopardy”.[56] According to David Scheffer, who led the US delegation to the Rome Conference (and who voted against adoption of the treaty), “when we were negotiating the Rome treaty, we always kept very close tabs on, ‘Does this meet U.S. constitutional tests, the formation of this court and the due process rights that are accorded defendants?’ And we were very confident at the end of Rome that those due process rights, in fact, are protected, and that this treaty does meet a constitutional test.”[57]
In order to ensure “equality of arms” between defence and prosecution teams, the ICC has established an independent Office of Public Counsel for the Defence (OPCD) to provide logistical support, advice and information to defendants and their counsel.[58][59] The OPCD also helps to safeguard the rights of the accused during the initial stages of an investigation.[60] However, Thomas Lubanga's defence team say they have been given a smaller budget than the Prosecutor and that evidence and witness statements have been slow to arrive.[61]

Victim participation and reparations
The Rome Statute provides for victim participation in the Court's proceedings.[62][63] Article 43(6) establishes a Victims and Witnesses Unit to provide "protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses."[64] Article 68 sets out procedures for the "Protection of the victims and witnesses and their participation in the proceedings."[65] The Court has also established an Office of Public Counsel for Victims, to provide support and assistance to victims and their legal representatives.[66] Article 78 of the Rome Statute establishes a Trust Fund to make financial reparations to victims and their families.[67]

Relationship with the United Nations

The UN Security Council has referred the situation in Darfur to the ICC
Unlike the International Court of Justice, the ICC is legally and functionally independent from the United Nations. However, the Rome Statute grants certain powers to the United Nations Security Council. Article 13 allows the Security Council to refer to the Court situations that would not otherwise fall under the Court's jurisdiction (as it did in relation to the situation in Darfur, which the Court could not otherwise have prosecuted as Sudan is not a state party). Article 16 allows the Security Council to require the Court to defer from investigating a case for a period of 12 months.[68] Such a deferral may be renewed indefinitely by the Security Council.
The Court cooperates with the UN in many different areas, including the exchange of information and logistical support.[69] The Court reports to the UN each year on its activities,[69][70] and some meetings of the Assembly of States Parties are held at UN facilities. The relationship between the Court and the UN is governed by a “Relationship Agreement between the International Criminal Court and the United Nations”.[71][72]

[edit] Amnesties and national reconciliation processes
It is unclear to what extent the Court is compatible with reconciliation processes that grant amnesty to human rights abusers as part of agreements to end conflict.[73] Article 16 of the Rome Statute allows the Security Council to prevent the Court from investigating or prosecuting a case,[68] and Article 53 allows the Prosecutor the discretion not to initiate an investigation if he or she believes that “an investigation would not serve the interests of justice”.[74] The President of the ICC, Philippe Kirsch, has said that "some limited amnesties may be compatible" with a country's obligations genuinely to investigate or prosecute under the statute.[73]
It is sometimes argued that amnesties are necessary to allow the peaceful transfer of power from abusive regimes. By denying states the right to offer amnesty to human rights abusers, the International Criminal Court may make it more difficult to negotiate an end to conflict and a transition to democracy. For example, the outstanding arrest warrants for four leaders of the Lord's Resistance Army are regarded by some as an obstacle to ending the insurgency in Uganda.[75][76] Czech politician Marek Benda argues that “the ICC as a deterrent will in our view only mean the worst dictators will try to retain power at all costs”.[77] However, the United Nations[78] and the International Committee of the Red Cross[79] maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law.

ICMC vs. Calleja

ICMC vs. Calleja
GR 85750, Sept.28 1990

FACTS:

As an aftermath of the Vietnam War, the plight of Vietnamese refugees fleeing from South Vietnam's communist rule confronted the international community.

In response to this crisis, on 23 February 1981, an Agreement was forged between the Philippine Government and the United Nations High Commissioner for Refugees whereby an operating center for processing Indo-Chinese refugees for eventual resettlement to other countries was to be established in Bataan .

ICMC was one of those accredited by the Philippine Government to operate the refugee processing center in Morong, Bataan. It was incorporated in New York, USA, at the request of the Holy See, as a non-profit agency involved in international humanitarian and voluntary work. It is duly registered with the United Nations Economic and Social Council (ECOSOC) and enjoys Consultative Status, Category II. As an international organization rendering voluntary and humanitarian services in the Philippines, its activities are parallel to those of the International Committee for Migration (ICM) and the International Committee of the Red Cross

On 14 July 1986, Trade Unions of the Philippines and Allied Services (TUPAS) filed with the then Ministry of Labor and Employment a Petition for Certification Election among the rank and file members employed by ICMC The latter opposed the petition on the ground that it is an international organization registered with the United Nations and, hence, enjoys diplomatic immunity.

ISSUE: Whether or not the grant of diplomatic privileges and immunites to ICMC extends to immunity from the application of Philippine labor laws?

HELD:

The grant of immunity from local jurisdiction to ICMC is clearly necessitated by their international character and respective purposes. The objective is to avoid the danger of partiality and interference by the host country in their internal workings. The exercise of jurisdiction by the Department of Labor in these instances would defeat the very purpose of immunity, which is to shield the affairs of international organizations, in accordance with international practice, from political pressure or control by the host country to the prejudice of member States of the organization, and to ensure the unhampered performance of their functions

ICMC employees are not without recourse whenever there are disputes to be settled. Section 31 of the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations 17 provides that "each specialized agency shall make provision for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of private character to which the specialized agency is a party." Moreover, pursuant to Article IV of the Memorandum of Agreement between ICMC the the Philippine Government, whenever there is any abuse of privilege by ICMC, the Government is free to withdraw the privileges and immunities accorded.

Clauses on jurisdictional immunity are said to be standard provisions in the constitutions of international Organizations. "The immunity covers the organization concerned, its property and its assets. It is equally applicable to proceedings in personam and proceedings in rem.

ICMC did not invoke its immunity and, therefore, may be deemed to have waived it, assuming that during that period (1983-1985) it was tacitly recognized as enjoying such immunity.

Petition is GRANTED, the Order of the Bureau of Labor Relations for certification election is SET ASIDE, and the Temporary Restraining Order earlier issued is made

Case Digest

G.R. No. 88211 September 15, 1989

Marcos v. Manglapus

FACTS:

It is a case of a dictator President Ferdinand Marcos of the Philippines forced out of office and into exile after causing twenty years of political, economic and social havoc in the country and who within the short space of three years seeks to return to the Philippines to die.

But Mrs. Aquino, considering the dire consequences to the nation of his return at a time when the stability of government is threatened from various directions and the economy is just beginning to rise and move forward, has stood firmly on the decision to bar the return of Mr. Marcos and his family.

Issue: 1 .Whether or not the ban of Mr. Marcos and family from returning to the Philippines has international precedents?

2. Whether or not the President acted in grave abuse of discretion in determining the return of the Marcoses?



HELD:

NO, The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our well-considered view that the right to return may be considered, as a generally accepted principle of international law and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.]

However, it is distinct and separate from the right to travel and enjoys a different protection under the International Covenant of Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]

The Declaration speaks of the "right to freedom of movement and residence within the borders of each state" [Art. 13(l)] separately from the "right to leave any country, including his own, and to return to his country." [Art. 13(2).]

On the other hand, the Covenant guarantees the "right to liberty of movement and freedom to choose his residence" [Art. 12(l)] and the right to "be free to leave any country, including his own."

[Art. 12(2)] which rights may be restricted by such laws as "are necessary to protect national security, public order, public health or morals or enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).]

It would therefore be inappropriate to construe the limitations to the right to return to one's country in the same context as those pertaining to the liberty of abode and the right to travel.

2.NO.The President did not act arbitrarily or with grave abuse of discretion in determining that the return of former President Marcos and his family at the present time and under present circumstances poses a serious threat to national interest and welfare and in prohibiting their return to the Philippines.

The power involved is the President's residual power to protect the general welfare of the people. It is founded on the duty of the President, as steward of the people.

Petition is Dismissed

Estrada Doctrine

Estrada Doctrine-

Since reognition has been construed as approval (and non-recognition,disapproval) of a govt established through political upheaval, a state may not issue a declaration giving recognition to such govt, but merely accept whatever govt is in effective control without raising the issue of recognition. Dealing or not dealing with the govt is not a judgement on the legitimacy of the said govt.

Stimson doctrine

Stimson doctrine - No recognition of a govt established through external aggression.

Example : Members of the League of Nations not to recognize any situation, treaty or agreement which may be brought about by means of contrary to the Convention of the League of Nations or to Pact of Paris.