The Philippine government peace panel and the Moro Islamic Liberation Front (MILF) will preliminary accord granting minority Muslims an expanded homeland as part of a deal to end decades of an Islamic insurgency in Mindanao. This deal will lead to the establishment of a Bangsamoro Juridical Entity (BJE), an entity which would grant sovereign rights to the MILF on “ancestral domain”. The ancestral domain, in this case, covers the eight barangays, which included the villages of Digkilaan, Hindang, Rogongon, Panoroganan, Lanipao, Dulag, and Mainit, covered 65,500 hectares or 82 percent of the total land area of Iligan city. The GRP peace panel agreed to give the Bangsamoro political, economic and even police powers to the MILF under this deal. This is supposed to be signed Tuesday in Malaysia, which has been brokering the negotiations.
Iligan City Mayor Lawrence Cruz said Iligan residents felt "deceived and betrayed" for the failure of the GRP-MILF peace panel to inform them that eight barangays in their city are being included in the expanded Moro territory called the "Bangsamoro Juridical Entity (BJE)."
The protesters held placards reading, "Gloria, Don't Sell Us," appealing to President Gloria Macapagal-Arroyo not to allow the signing of the MOA on ancestral domain.
Some said that this deal will probably end the Moro secessionist struggle in Mindanao. Others, like traditional Moro families and wealthy Christian landowners, have registered their protests. They see the landmark deal as property encroachments which could potentially lead to more violence at the onset.
This is just a start of the Bangsamoro struggle because after this, an escalation of violence between and among groups with various interests in Mindanao. Expect the Mindanaoans to wage war against each other, starting with an interacine conflict between Moros themselves. This is expected since Mindanao has been under the grip of traditional “royal families” and Christian land owners and caciques whose interests will definitely be affected and even end should this deal pushes through.
There will be a period of great instability and turmoil, but this should not hinder nor discourage Arroyo from signing this deal. For the costs of such turmoil rests in the shoulders of the MILF, not the government. The MILF will have a greater struggle ahead of it, owning to the firepower that these groups have ranged against it. The MILF should persevere and should not deter from the reason of its formation—the creation of an Independent Bangsamoro State.
This will benefit the entire nation, not only the Bangsamor Juridical Entity. The potential of foreign investments from both China, the Middle East, India, the United States and Europe is there. Mindanao is underdeveloped. With a new government to be administered by the Bangsamoro themselves, anything is possible there.
A lots of oppurtunities for everyone now like the Bangsamoro can build its own megacities, create jobs. The Bangsamoro can build investment sites. The territory to be given to them has enormous potential for development and growth. The area is rich in mineral and oil resources which, if developed, could potentially increase investment and further grow and modernize the Bangsamoro state.
However, this is just a small step. The growth and development of the BJE will take years before we finally enjoy its fruits. For now, the Bangsamoro People will have to prepare themselves against those who don’t want progress. These groups have enslaved the Bangsamoro people for centuries. The enslavement have kept Mindanao underdeveloped and poor. For the Bangsamoro People to end it, it would need the Help of God to shackle those chains that have impoverished its people.
Thursday, August 28, 2008
Georgia-Russia Conflict
Russia has long viewed itself as protecting South Ossetia and Abkhazia in their drive to separate from Georgia. Both republics have close ties to Moscow, which has been angered by U.S.-backed Georgia's bid to join NATO.
In 1989, South Ossetia declared its autonomy from Georgia, then known as the Georgian Soviet Socialist Republic, setting off three months of fighting. Another conflict began in December 1990 and lasted until 1992, when Georgian, Russian and South Ossetian leaders signed an armistice and Russian troops began patrolling the border. The same year, Abkhazia declared its independence from Georgia, sparking a war that ended in 1994 with a treaty between Russia and Georgia, with Russian troops patrolling that border as
well.
As Russia's flash war with Georgia winds down, two distinct – and contradictory – stories about what happened and why are taking shape.Each side also has some valid points in its defense.
There seems little doubt that the conflict began with a massive military assault, launched overnight by Georgia on Aug. 7-8, apparently aimed at retaking the breakaway republic of South Ossetia before Moscow could react.
Human rights monitors and Western journalists now being admitted to the South Ossetian capital of Tskhinvali can find little evidence to back up Russian claims that the Georgians committed genocide.
But their reports so far implicate the initial Georgian artillery and rocket bombardment of the city of 10,000 people as causing the massive destruction they're finding, including schools, churches, and the main hospital.
Also crucial, from Moscow's point of view, is that the Georgian attack on Aug. 8 killed 15 Russian peacekeeping troops, stationed there under 1992 peace accords, and injured dozens.
But the causes of the conflict run deep and, like the layers of an onion, the conflict has many different levels.
When the USSR broke up in 1991, Georgia won its independence and was admitted to the United Nations as a sovereign state within its Soviet-era borders. Under international law, therefore, the breakaway territories of South Ossetia and Abkhazia belong to Georgia. Tbilisi alleges, with considerable evidence, that Russian meddling during the bitter civil wars that followed helped the two statelets win their de facto independence and that Moscow's support has been crucial to keeping them going ever since.
In 2003, the pro-democracy "Rose Revolution" brought Mr. Saakashvili to power on pledges to reunite the country and lead it into the premier Western military alliance, the North Atlantic Treaty Organization (NATO). Georgia claims that Russia, which brutally suppressed its own separatist uprising in Chechnya, backed the Ossetian and Abkhazian rebels in order to keep Georgia weak and dependent upon Moscow.
After Saakashvili was elected, Russia began upgrading its relations with the two rebel statelets and issued Russian passports to the majority of its citizens – in preparation, Tbilisi says, for a showdown. It contends that this year, as NATO considered Georgia's application for entry, the Russian 58th Army – which roared into South Ossetia 10 days ago to blunt the Georgian assault – massed provocatively near Georgia's border.
In 1989, South Ossetia declared its autonomy from Georgia, then known as the Georgian Soviet Socialist Republic, setting off three months of fighting. Another conflict began in December 1990 and lasted until 1992, when Georgian, Russian and South Ossetian leaders signed an armistice and Russian troops began patrolling the border. The same year, Abkhazia declared its independence from Georgia, sparking a war that ended in 1994 with a treaty between Russia and Georgia, with Russian troops patrolling that border as
well.
As Russia's flash war with Georgia winds down, two distinct – and contradictory – stories about what happened and why are taking shape.Each side also has some valid points in its defense.
There seems little doubt that the conflict began with a massive military assault, launched overnight by Georgia on Aug. 7-8, apparently aimed at retaking the breakaway republic of South Ossetia before Moscow could react.
Human rights monitors and Western journalists now being admitted to the South Ossetian capital of Tskhinvali can find little evidence to back up Russian claims that the Georgians committed genocide.
But their reports so far implicate the initial Georgian artillery and rocket bombardment of the city of 10,000 people as causing the massive destruction they're finding, including schools, churches, and the main hospital.
Also crucial, from Moscow's point of view, is that the Georgian attack on Aug. 8 killed 15 Russian peacekeeping troops, stationed there under 1992 peace accords, and injured dozens.
But the causes of the conflict run deep and, like the layers of an onion, the conflict has many different levels.
When the USSR broke up in 1991, Georgia won its independence and was admitted to the United Nations as a sovereign state within its Soviet-era borders. Under international law, therefore, the breakaway territories of South Ossetia and Abkhazia belong to Georgia. Tbilisi alleges, with considerable evidence, that Russian meddling during the bitter civil wars that followed helped the two statelets win their de facto independence and that Moscow's support has been crucial to keeping them going ever since.
In 2003, the pro-democracy "Rose Revolution" brought Mr. Saakashvili to power on pledges to reunite the country and lead it into the premier Western military alliance, the North Atlantic Treaty Organization (NATO). Georgia claims that Russia, which brutally suppressed its own separatist uprising in Chechnya, backed the Ossetian and Abkhazian rebels in order to keep Georgia weak and dependent upon Moscow.
After Saakashvili was elected, Russia began upgrading its relations with the two rebel statelets and issued Russian passports to the majority of its citizens – in preparation, Tbilisi says, for a showdown. It contends that this year, as NATO considered Georgia's application for entry, the Russian 58th Army – which roared into South Ossetia 10 days ago to blunt the Georgian assault – massed provocatively near Georgia's border.
Sunday, August 17, 2008
PIMENTEL, JR., vs OFFICE OF THE EXECUTIVE SECRETARY, G.R. No. 158088
Facts:
This is a petition for mandamus filed 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 theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty.
The Office of the Solicitor General, commenting for the respondents, questioned the standing of the petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue that the executive department has no duty to transmit the Rome Statute to the Senate for concurrence.
Issue:
Whether or not the executive department has a ministerial duty to transmit the Rome Statute.
Ruling:
The petition was dismissed. 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.[12] 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.[13] 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 xxx.
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.[14] 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.
This is a petition for mandamus filed 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 theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty.
The Office of the Solicitor General, commenting for the respondents, questioned the standing of the petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue that the executive department has no duty to transmit the Rome Statute to the Senate for concurrence.
Issue:
Whether or not the executive department has a ministerial duty to transmit the Rome Statute.
Ruling:
The petition was dismissed. 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.[12] 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.[13] 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 xxx.
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.[14] 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.
Saturday, August 9, 2008
International Criminal Court
http://www.hrw.org/campaigns/icc/whowhat.htm
http://www.globalissues.org/Geopolitics/ICC.asp
http://www.humanrights-geneva.info/ICC-Good-Progress-Amid-Missteps-in,3291
http://www.crimesofwar.org/icc_magazine/icc-intro.html
http://www.international.gc.ca/court-cour/index.aspx?lang=eng
http://www.economist.com/opinion/displaystory.cfm?story_id=11750485
http://www.usembassy.at/en/download/pdf/crs_icc1.pdf
http://en.wikipedia.org/wiki/International_Criminal_Court
http://portal.unesco.org/shs/fr/ev.php-URL_ID=6154&URL_DO=DO_TOPIC&URL_SECTION=201.html
http://www.economist.com/opinion/displaystory.cfm?story_id=11750485
Structure of the Court
Arabic
The Court is an independent institution. The Court is not part of the United Nations, but it maintains a cooperative relationship with the U.N. The Court is based in The Hague , the Netherlands , although it may also sit elsewhere.
The Court is composed of four organs. These are the Presidency, the judicial Divisions, the Office of the Prosecutor and the Registry.
Presidency
Judicial Divisions
Office of the Prosecutor
Registry
Other Offices
--------------------------------------------------------------------------------
Presidency
The Presidency is responsible for the overall administration of the Court, with the exception of the Office of the Prosecutor, and for specific functions assigned to the Presidency in accordance with the Statute. The Presidency is composed of three judges of the Court, elected to the Presidency by their fellow judges, for a term of three years. The President of the Court is Judge Philippe Kirsch ( Canada ). Judge Akua Kuenyehia ( Ghana ) is First Vice-President, and Judge René Blattmann ( Bolivia ) is Second Vice-President.
up
Judicial Divisions
The Judicial Divisions consists of eighteen judges organized into the Pre-Trial Division, the Trial Division and the Appeals Division. The judges of each Division sit in Chambers which are responsible for conducting the proceedings of the Court at different stages. Assignment of judges to Divisions is made on the basis of the nature of the functions each Division performs and the qualifications and experience of the judge. This is done in a manner ensuring that each Division benefits from an appropriate combination of expertise in criminal law and procedure and international law. The judges of the Court are: Philippe Kirsch (Canada), Akua Kuenyehia (Ghana), Judge René Blattmann (Bolivia), Georghios M. Pikis (Cyprus), Elizabeth Odio Benito (Costa Rica), Navanethem Pillay (South Africa), Sang-Hyun Song (Republic of Korea), Hans-Peter Kaul (Germany), Mauro Politi (Italy), Maureen Harding Clark (Ireland), Erkki Kourula (Finland), Fatoumata Dembele Diarra (Mali), Anita Ušacka (Latvia), Adrian Fulford (United Kingdom), Syvia Steiner (Brazil) and Ekaterina Trendafilova (Bulgaria).
up
Office of the Prosecutor
The Office of the Prosecutor is responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court. The Office is headed by the Prosecutor, Luis Moreno Ocampo ( Argentina ), who was elected by the States Parties for a term of nine years. The Prosecutor is assisted by two Deputy Prosecutors, Serge Brammertz ( Belgium ) with responsibility for investigations and Fatou Bensouda (The Gambia) with responsibility for prosecutions.
up
Registry
The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court. The Registry is headed by the Registrar who is the principal administrative officer of the Court. The Registrar exercises his or her functions under the authority of the President of the Court. The current Registrar, elected by the judges for a term of five years, is Bruno Cathala ( France ).
up
Other Offices
The Court also the Court includes a number of semi-autonomous offices such as the Office of Public Counsel for victims and the Office of Public Counsel for Defence. These Offices fall under the Registry for administrative purposes but otherwise function as wholly independent offices. The Assembly of States Parties has also established a Trust Fund for the benefit of victims of crimes within the jurisdiction of the Court and the families of these victims.
http://www.globalissues.org/Geopolitics/ICC.asp
http://www.humanrights-geneva.info/ICC-Good-Progress-Amid-Missteps-in,3291
http://www.crimesofwar.org/icc_magazine/icc-intro.html
http://www.international.gc.ca/court-cour/index.aspx?lang=eng
http://www.economist.com/opinion/displaystory.cfm?story_id=11750485
http://www.usembassy.at/en/download/pdf/crs_icc1.pdf
http://en.wikipedia.org/wiki/International_Criminal_Court
http://portal.unesco.org/shs/fr/ev.php-URL_ID=6154&URL_DO=DO_TOPIC&URL_SECTION=201.html
http://www.economist.com/opinion/displaystory.cfm?story_id=11750485
Structure of the Court
Arabic
The Court is an independent institution. The Court is not part of the United Nations, but it maintains a cooperative relationship with the U.N. The Court is based in The Hague , the Netherlands , although it may also sit elsewhere.
The Court is composed of four organs. These are the Presidency, the judicial Divisions, the Office of the Prosecutor and the Registry.
Presidency
Judicial Divisions
Office of the Prosecutor
Registry
Other Offices
--------------------------------------------------------------------------------
Presidency
The Presidency is responsible for the overall administration of the Court, with the exception of the Office of the Prosecutor, and for specific functions assigned to the Presidency in accordance with the Statute. The Presidency is composed of three judges of the Court, elected to the Presidency by their fellow judges, for a term of three years. The President of the Court is Judge Philippe Kirsch ( Canada ). Judge Akua Kuenyehia ( Ghana ) is First Vice-President, and Judge René Blattmann ( Bolivia ) is Second Vice-President.
up
Judicial Divisions
The Judicial Divisions consists of eighteen judges organized into the Pre-Trial Division, the Trial Division and the Appeals Division. The judges of each Division sit in Chambers which are responsible for conducting the proceedings of the Court at different stages. Assignment of judges to Divisions is made on the basis of the nature of the functions each Division performs and the qualifications and experience of the judge. This is done in a manner ensuring that each Division benefits from an appropriate combination of expertise in criminal law and procedure and international law. The judges of the Court are: Philippe Kirsch (Canada), Akua Kuenyehia (Ghana), Judge René Blattmann (Bolivia), Georghios M. Pikis (Cyprus), Elizabeth Odio Benito (Costa Rica), Navanethem Pillay (South Africa), Sang-Hyun Song (Republic of Korea), Hans-Peter Kaul (Germany), Mauro Politi (Italy), Maureen Harding Clark (Ireland), Erkki Kourula (Finland), Fatoumata Dembele Diarra (Mali), Anita Ušacka (Latvia), Adrian Fulford (United Kingdom), Syvia Steiner (Brazil) and Ekaterina Trendafilova (Bulgaria).
up
Office of the Prosecutor
The Office of the Prosecutor is responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court. The Office is headed by the Prosecutor, Luis Moreno Ocampo ( Argentina ), who was elected by the States Parties for a term of nine years. The Prosecutor is assisted by two Deputy Prosecutors, Serge Brammertz ( Belgium ) with responsibility for investigations and Fatou Bensouda (The Gambia) with responsibility for prosecutions.
up
Registry
The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court. The Registry is headed by the Registrar who is the principal administrative officer of the Court. The Registrar exercises his or her functions under the authority of the President of the Court. The current Registrar, elected by the judges for a term of five years, is Bruno Cathala ( France ).
up
Other Offices
The Court also the Court includes a number of semi-autonomous offices such as the Office of Public Counsel for victims and the Office of Public Counsel for Defence. These Offices fall under the Registry for administrative purposes but otherwise function as wholly independent offices. The Assembly of States Parties has also established a Trust Fund for the benefit of victims of crimes within the jurisdiction of the Court and the families of these victims.
Saturday, August 2, 2008
RECOGNITION of STATES
Wilson Doctrine
From Wikipedia, the free encyclopedia
The Wilson Doctrine is a ban on the tapping of UK MPs' and Peers' (but not members of devolved legislatures) telephones introduced in 1966 and named after Harold Wilson, the Labour Prime Minister who established the rule.
He gave MPs a pledge that their phones would not be tapped and subsequent prime ministers have regularly confirmed it remains in place. However the pledge was qualified in two respects, as the Intelligence and Security Committee made clear in their 2005-06 Annual Report:
'In 1966 the then Prime Minister, Harold Wilson, gave instructions that there was to be no interception of telephones belonging to Members of Parliament, and that if there were a development which required a change of this policy he would, at such a moment as was compatible with the security of the country, make a statement about it in the House of Commons. This approach, known as the Wilson Doctrine, has been maintained under successive administrations.'
This meant that the Prime Minister could reverse the doctrine in the interests of national security, but that he did not need to reveal the fact to the House of Commons until he felt it safe to do so. In theory this means that the Wilson Doctrine could already have been reversed, with the Prime Minister having decided it was premature to disclose the fact.
In January 2006, Interception of communications commissioner Sir Swinton Thomas had asked the government to reconsider the implications of the doctrine on the regulatory framework established under the Regulation of Investigatory Powers Act 2000. Prime Minister Tony Blair confirmed he would be considering whether or not the ban should be lifted, in order to comply with the act.
However, in March 2006 - in a written ministerial statement - Tony Blair said that following a period of fresh consultation, the 'Wilson doctrine' will remain in place.
In February 2007, Sir Swinton Thomas again called for the ban to be removed,saying:
It is fundamental to the constitution of this country that no one is above the law or is seen to be above the law. But in this instance, MPs and peers are anything but equal with the rest of the citizens of this country and are above the law"
In September 2007 Prime Minister Gordon Brown reaffirmed the doctrine as "The Wilson Doctrine applies to all forms of interception that are subject to authorisation by Secretary of State warrant."
In February 2008 an incident was reported where MP Sadiq Khan was allegedly bugged whilst talking to a constituent in Woodhill Prison. This appears to have been a face to face conversation and thus, even if it was bugged, that may not have been a literal breach of the Wilson Doctrine.
References
1.ISC Annual Report 2005-06 Cm 6864 June 2006 Para 26.
2.Richard Norton-Taylor (2007-02-20). "Watchdog urges end to ban on MP phone taps". The Guardian. Retrieved on 2008-02-04.
3.Gordon Brown, Written Answers for 12 September 2007 - Members: Surveillance, Hansard, 12 Sep 2007 : Column 2103W,
Tobar Doctrine
From Wikipedia, the free encyclopedia.
Tobar The doctrine was formulated in 1907 by Carlos Tobar, Minister of Foreign Affairs of the Ecuador who was appointed to the Nobel Peace Prize in 1909.
It relates to the recognition of the State at international level. Recognition of a State is a unilateral act by which a State recognizes as the effective government of another state.
The doctrine Tobar proposed that any government formed after a coup d'état is confirmed by free elections before being recognized internationally.
His goal was to reduce the threat of revolution and civil war, stressing the need for all governments to act for the establishment of democracy and respect for the rule of law.
She enjoyed some success in Central America up to be incorporated in a treaty of December 20, 1907, between Costa Rica, Guatemala, Honduras, Nicaragua, Salvador and Ecuador. But it was never recognised outside of the Americas and is not a principle of international law.
The Tobar doctrine has given way to the doctrine Estrada (1930).
Stimson Doctrine
From Wikipedia, the free encyclopedia
The Stimson Doctrine is a policy of the United States federal government, enunciated in a note of January 7, 1932 to Japan and China, of non-recognition of international territorial changes affected by force.
Named after Henry L. Stimson, United States Secretary of State in the Hoover Administration (1929–1933), the policy followed Japan's unilateral seizure of Manchuria in northeastern China following action by Japanese soldiers at Mukden (now Shenyang), on September 18, 1931.
The principles of this doctrine were also used in the U.S. Under Secretary of State Sumner Welles's declaration of July 23, 1940, on the non-recognition policy of the Soviet annexation and incorporation of three Baltic countries — Estonia, Latvia, and Lithuania. These principles were still applied until the de facto restoration of independence of these three Baltic nations in August 1991.
The Japanese invasion of Manchuria in late 1931 placed U.S. Secretary of State Henry L. Stimson in a difficult position. It was evident that appeals to the spirit of the Kellogg-Briand Pact had no impact on either the Chinese or the Japanese, and the secretary was further hampered by President Hoover’s clear indication that he would not support economic sanctions as a means to bring peace in the Far East.
On January 7, 1932, Secretary Stimson sent identical notes to China and Japan that incorporated a diplomatic approach used by earlier secretaries facing crises in the Far East. Later known as the Stimson Doctrine, or sometimes the Hoover-Stimson Doctrine, the notes read in part as follows:
The American Government deems it to be its duty to notify both the Imperial Japanese Government and the Government of the Chinese Republic that it cannot admit the legality of any situation de facto nor does it intend to recognize any treaty or agreement entered into between those Governments, or agents thereof, which may impair the treaty rights of the United States or its citizens in China, including those which relate to the sovereignty, the independence, or the territorial and administrative integrity of the Republic of China, or to the international policy relative to China, commonly known as the open door policy….
Stimson had stated that the United States would not recognize any changes made in China that would curtail American treaty rights in the area and that the "open door" must be maintained. The Japanese, however, were not dissuaded by non-recognition and continued their aggression, confident that the U.S. would not take stronger action because of the heavy economic restrictions of the Depression.
By early 1932, some American newspapers were critical of the secretary’s tepid response to the Manchurian crisis, but many citizens felt that the doctrine’s idealistic, but non-threatening, tone was exactly right. Most Americans were probably far more sympathetic to China, but did not want to provoke Japan. Memories of American losses in foreign war were still fresh.
References
• The Baltic Issue during the Cold War by Vahur Made
Estrada Doctrine
Recognition of states approach
From Wikipedia, the free encyclopedia
A recognition of states approach, also known as the Estrada doctrine, is a development on the earlier recognition of governments approach whereby a government would recognize another governments. This caused political problems following an unconstitutional change in the government of another state.
It is the policy of recognizing states rather than governments. It is an alternative to the method of express recognition, in which an express statement is made according or withholding recognition after each unconstitutional change of government, and tacit recognition in which, only under exceptional circumstances, is a recognition statement made.
It was first enunciated by Mexico's foreign minister Genaro Estrada, in 1930.
References
• Kindred, Hugh M., and Saunders, Phillip M., International Law Chiefly as Interpreted and Applied in Canada Emond Montgomery Publications Limited, Seventh Edition (2006), "Chapter Two — International Legal Persons".
From Wikipedia, the free encyclopedia
The Wilson Doctrine is a ban on the tapping of UK MPs' and Peers' (but not members of devolved legislatures) telephones introduced in 1966 and named after Harold Wilson, the Labour Prime Minister who established the rule.
He gave MPs a pledge that their phones would not be tapped and subsequent prime ministers have regularly confirmed it remains in place. However the pledge was qualified in two respects, as the Intelligence and Security Committee made clear in their 2005-06 Annual Report:
'In 1966 the then Prime Minister, Harold Wilson, gave instructions that there was to be no interception of telephones belonging to Members of Parliament, and that if there were a development which required a change of this policy he would, at such a moment as was compatible with the security of the country, make a statement about it in the House of Commons. This approach, known as the Wilson Doctrine, has been maintained under successive administrations.'
This meant that the Prime Minister could reverse the doctrine in the interests of national security, but that he did not need to reveal the fact to the House of Commons until he felt it safe to do so. In theory this means that the Wilson Doctrine could already have been reversed, with the Prime Minister having decided it was premature to disclose the fact.
In January 2006, Interception of communications commissioner Sir Swinton Thomas had asked the government to reconsider the implications of the doctrine on the regulatory framework established under the Regulation of Investigatory Powers Act 2000. Prime Minister Tony Blair confirmed he would be considering whether or not the ban should be lifted, in order to comply with the act.
However, in March 2006 - in a written ministerial statement - Tony Blair said that following a period of fresh consultation, the 'Wilson doctrine' will remain in place.
In February 2007, Sir Swinton Thomas again called for the ban to be removed,saying:
It is fundamental to the constitution of this country that no one is above the law or is seen to be above the law. But in this instance, MPs and peers are anything but equal with the rest of the citizens of this country and are above the law"
In September 2007 Prime Minister Gordon Brown reaffirmed the doctrine as "The Wilson Doctrine applies to all forms of interception that are subject to authorisation by Secretary of State warrant."
In February 2008 an incident was reported where MP Sadiq Khan was allegedly bugged whilst talking to a constituent in Woodhill Prison. This appears to have been a face to face conversation and thus, even if it was bugged, that may not have been a literal breach of the Wilson Doctrine.
References
1.ISC Annual Report 2005-06 Cm 6864 June 2006 Para 26.
2.Richard Norton-Taylor (2007-02-20). "Watchdog urges end to ban on MP phone taps". The Guardian. Retrieved on 2008-02-04.
3.Gordon Brown, Written Answers for 12 September 2007 - Members: Surveillance, Hansard, 12 Sep 2007 : Column 2103W,
Tobar Doctrine
From Wikipedia, the free encyclopedia.
Tobar The doctrine was formulated in 1907 by Carlos Tobar, Minister of Foreign Affairs of the Ecuador who was appointed to the Nobel Peace Prize in 1909.
It relates to the recognition of the State at international level. Recognition of a State is a unilateral act by which a State recognizes as the effective government of another state.
The doctrine Tobar proposed that any government formed after a coup d'état is confirmed by free elections before being recognized internationally.
His goal was to reduce the threat of revolution and civil war, stressing the need for all governments to act for the establishment of democracy and respect for the rule of law.
She enjoyed some success in Central America up to be incorporated in a treaty of December 20, 1907, between Costa Rica, Guatemala, Honduras, Nicaragua, Salvador and Ecuador. But it was never recognised outside of the Americas and is not a principle of international law.
The Tobar doctrine has given way to the doctrine Estrada (1930).
Stimson Doctrine
From Wikipedia, the free encyclopedia
The Stimson Doctrine is a policy of the United States federal government, enunciated in a note of January 7, 1932 to Japan and China, of non-recognition of international territorial changes affected by force.
Named after Henry L. Stimson, United States Secretary of State in the Hoover Administration (1929–1933), the policy followed Japan's unilateral seizure of Manchuria in northeastern China following action by Japanese soldiers at Mukden (now Shenyang), on September 18, 1931.
The principles of this doctrine were also used in the U.S. Under Secretary of State Sumner Welles's declaration of July 23, 1940, on the non-recognition policy of the Soviet annexation and incorporation of three Baltic countries — Estonia, Latvia, and Lithuania. These principles were still applied until the de facto restoration of independence of these three Baltic nations in August 1991.
The Japanese invasion of Manchuria in late 1931 placed U.S. Secretary of State Henry L. Stimson in a difficult position. It was evident that appeals to the spirit of the Kellogg-Briand Pact had no impact on either the Chinese or the Japanese, and the secretary was further hampered by President Hoover’s clear indication that he would not support economic sanctions as a means to bring peace in the Far East.
On January 7, 1932, Secretary Stimson sent identical notes to China and Japan that incorporated a diplomatic approach used by earlier secretaries facing crises in the Far East. Later known as the Stimson Doctrine, or sometimes the Hoover-Stimson Doctrine, the notes read in part as follows:
The American Government deems it to be its duty to notify both the Imperial Japanese Government and the Government of the Chinese Republic that it cannot admit the legality of any situation de facto nor does it intend to recognize any treaty or agreement entered into between those Governments, or agents thereof, which may impair the treaty rights of the United States or its citizens in China, including those which relate to the sovereignty, the independence, or the territorial and administrative integrity of the Republic of China, or to the international policy relative to China, commonly known as the open door policy….
Stimson had stated that the United States would not recognize any changes made in China that would curtail American treaty rights in the area and that the "open door" must be maintained. The Japanese, however, were not dissuaded by non-recognition and continued their aggression, confident that the U.S. would not take stronger action because of the heavy economic restrictions of the Depression.
By early 1932, some American newspapers were critical of the secretary’s tepid response to the Manchurian crisis, but many citizens felt that the doctrine’s idealistic, but non-threatening, tone was exactly right. Most Americans were probably far more sympathetic to China, but did not want to provoke Japan. Memories of American losses in foreign war were still fresh.
References
• The Baltic Issue during the Cold War by Vahur Made
Estrada Doctrine
Recognition of states approach
From Wikipedia, the free encyclopedia
A recognition of states approach, also known as the Estrada doctrine, is a development on the earlier recognition of governments approach whereby a government would recognize another governments. This caused political problems following an unconstitutional change in the government of another state.
It is the policy of recognizing states rather than governments. It is an alternative to the method of express recognition, in which an express statement is made according or withholding recognition after each unconstitutional change of government, and tacit recognition in which, only under exceptional circumstances, is a recognition statement made.
It was first enunciated by Mexico's foreign minister Genaro Estrada, in 1930.
References
• Kindred, Hugh M., and Saunders, Phillip M., International Law Chiefly as Interpreted and Applied in Canada Emond Montgomery Publications Limited, Seventh Edition (2006), "Chapter Two — International Legal Persons".
ICMC VS CALLEJA, G.R. No. 85750 September 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.
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.
On appeal by TUPAS, Director Pura Calleja of the Bureau of Labor Relations (BLR), reversed the Med-Arbiter's Decision and ordered the immediate conduct of a certification election. At that time, ICMC's request for recognition as a specialized agency was still pending with the Department of Foreign Affairs (DEFORAF).
Subsequently, however, on 15 July 1988, the Philippine Government, through the DEFORAF, granted ICMC the status of a specialized agency with corresponding diplomatic privileges and immunities, as evidenced by a Memorandum of Agreement between the Government and ICMC.
ICMC then sought the immediate dismissal of the TUPAS Petition for Certification Election invoking the immunity expressly granted but the same was denied by respondent BLR Director who, again, ordered the immediate conduct of a pre-election conference.
Issue:
Whether or not the grant of diplomatic privileges and immunites to ICMC extends to immunity from the application of Philippine labor laws.
Ruling:
Article II of the Memorandum of Agreement between the Philippine Government and ICMC provides that ICMC shall have a status "similar to that of a specialized agency." Article III, Sections 4 and 5 of the Convention on the Privileges and Immunities of Specialized Agencies, adopted by the UN General Assembly on 21 November 1947 and concurred in by the Philippine Senate through Resolution No. 19 on 17 May 1949, explicitly provides:
Art. III, Section 4. The specialized agencies, their property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case they have expressly waived their immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.
Sec. 5. � The premises of the specialized agencies shall be inviolable. The property and assets of the specialized agencies, wherever located and by whomsoever held shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action. (Emphasis supplied).
The foregoing opinions constitute a categorical recognition by the Executive Branch of the Government that ICMC enjoys immunities accorded to international organizations, which determination has been held to be a political question conclusive upon the Courts in order not to embarrass a political department of Government.
It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government . . . or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction . . . as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that in such cases the judicial department of (this) government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction.
ICMC's immunity from local jurisdiction by no means deprives labor of its basic rights, which are guaranteed by Article II, Section 18, 14 Article III, Section 8, 15and Article XIII, Section 3 (supra), of the 1987 Constitution.
For, 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.
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.
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.
On appeal by TUPAS, Director Pura Calleja of the Bureau of Labor Relations (BLR), reversed the Med-Arbiter's Decision and ordered the immediate conduct of a certification election. At that time, ICMC's request for recognition as a specialized agency was still pending with the Department of Foreign Affairs (DEFORAF).
Subsequently, however, on 15 July 1988, the Philippine Government, through the DEFORAF, granted ICMC the status of a specialized agency with corresponding diplomatic privileges and immunities, as evidenced by a Memorandum of Agreement between the Government and ICMC.
ICMC then sought the immediate dismissal of the TUPAS Petition for Certification Election invoking the immunity expressly granted but the same was denied by respondent BLR Director who, again, ordered the immediate conduct of a pre-election conference.
Issue:
Whether or not the grant of diplomatic privileges and immunites to ICMC extends to immunity from the application of Philippine labor laws.
Ruling:
Article II of the Memorandum of Agreement between the Philippine Government and ICMC provides that ICMC shall have a status "similar to that of a specialized agency." Article III, Sections 4 and 5 of the Convention on the Privileges and Immunities of Specialized Agencies, adopted by the UN General Assembly on 21 November 1947 and concurred in by the Philippine Senate through Resolution No. 19 on 17 May 1949, explicitly provides:
Art. III, Section 4. The specialized agencies, their property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case they have expressly waived their immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.
Sec. 5. � The premises of the specialized agencies shall be inviolable. The property and assets of the specialized agencies, wherever located and by whomsoever held shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action. (Emphasis supplied).
The foregoing opinions constitute a categorical recognition by the Executive Branch of the Government that ICMC enjoys immunities accorded to international organizations, which determination has been held to be a political question conclusive upon the Courts in order not to embarrass a political department of Government.
It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government . . . or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction . . . as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that in such cases the judicial department of (this) government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction.
ICMC's immunity from local jurisdiction by no means deprives labor of its basic rights, which are guaranteed by Article II, Section 18, 14 Article III, Section 8, 15and Article XIII, Section 3 (supra), of the 1987 Constitution.
For, 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.
FERDINAND E. MARCOS vs. RAUL MANGLAPUS,G.R. No. 88211 September 15, 1989
Facts:
The ratification of the 1987 Constitution enshrined the victory of "people power". Ferdinand E. Marcos was deposed from the presidency and forced into exile. Corazon C. Aquino was declared President of the Republic under a revolutionary government. This did not, however, stop bloody challenges to the government. Her ascension to and consilidation of power have not been unchallenged.
Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines 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.
This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel documents to Mr. Marcos and the immediate members of his family and to enjoin the implementation of the President's decision to bar their return to the Philippines.
The petitioners invoke the Bill of Rights specifically the right of a person of liberty of abode and the right to travel. It has also mentioned the freedom of movement and the right to leave any country and to return to his country as provided for in the Universal Declaration of Human Rights.
The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to the Philippines is guaranteed.
The respondents, on the other hand argues that the issue in this case involves a political question which is non-justiciable. The President has decided, as an executive act, to bar the return of the Marcoses because such return and residence will endanger national security and public safety. Respondents argue for the primacy of the right of the State to national security over individual rights as provided for in the Constitution.
Issues:
1. Whether or not the President has the power under the Constitution, to bar the Marcoses from returning to the Philippines.
2. Whether or not the President acted arbitrarily or with grave abuse of discretion amounting to lack or excess of jurisdiction when she determined that the return of the Marcose's to the Philippines poses a serious threat to national interest and welfare and decided to bar their return.
Ruling:
1. 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.
It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the President is head of state as well as head of government and whatever powers inhere in such positions pertain to the office unless the Constitution itself withholds it.
Furthermore, the Constitution itself provides that the execution of the laws is only one of the powers of the President. It also grants the President other powers that do not involve the execution of any provision of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated, It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be executive.
2. The Supreme Court find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security Adviser, wherein petitioners and respondents were represented, there exist factual bases for the President's decision.
The Court cannot close its eyes to present realities and pretend that the country is not besieged from within by a well-organized communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunity of military men, police officers and civilian officials, to mention only a few. The documented history of the efforts of the Marcose's and their followers to destabilize the country, as earlier narrated in this ponencia bolsters the conclusion that the return of the Marcoses at this time would only exacerbate and intensify the violence directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The military establishment has given assurances that it could handle the threats posed by particular groups. But it is the catalytic effect of the return of the Marcoses that may prove to be the proverbial final straw that would break the camel's back. With these before her, the President cannot be said to have acted arbitrarily and capriciously and whimsically in determining that the return of the Marcoses poses a serious threat to the national interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of violence against the State, that would be the time for the President to step in and exercise the commander-in-chief powers granted her by the Constitution to suppress or stamp out such violence. The State, acting through the Government, is not precluded from taking pre- emptive action against threats to its existence if, though still nascent they are perceived as apt to become serious and direct. Protection of the people is the essence of the duty of government. The preservation of the State the fruition of the people's sovereignty is an obligation in the highest order. The President, sworn to preserve and defend the Constitution and to see the faithful execution the laws, cannot shirk from that responsibility.
The ratification of the 1987 Constitution enshrined the victory of "people power". Ferdinand E. Marcos was deposed from the presidency and forced into exile. Corazon C. Aquino was declared President of the Republic under a revolutionary government. This did not, however, stop bloody challenges to the government. Her ascension to and consilidation of power have not been unchallenged.
Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines 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.
This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel documents to Mr. Marcos and the immediate members of his family and to enjoin the implementation of the President's decision to bar their return to the Philippines.
The petitioners invoke the Bill of Rights specifically the right of a person of liberty of abode and the right to travel. It has also mentioned the freedom of movement and the right to leave any country and to return to his country as provided for in the Universal Declaration of Human Rights.
The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to the Philippines is guaranteed.
The respondents, on the other hand argues that the issue in this case involves a political question which is non-justiciable. The President has decided, as an executive act, to bar the return of the Marcoses because such return and residence will endanger national security and public safety. Respondents argue for the primacy of the right of the State to national security over individual rights as provided for in the Constitution.
Issues:
1. Whether or not the President has the power under the Constitution, to bar the Marcoses from returning to the Philippines.
2. Whether or not the President acted arbitrarily or with grave abuse of discretion amounting to lack or excess of jurisdiction when she determined that the return of the Marcose's to the Philippines poses a serious threat to national interest and welfare and decided to bar their return.
Ruling:
1. 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.
It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the President is head of state as well as head of government and whatever powers inhere in such positions pertain to the office unless the Constitution itself withholds it.
Furthermore, the Constitution itself provides that the execution of the laws is only one of the powers of the President. It also grants the President other powers that do not involve the execution of any provision of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated, It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be executive.
2. The Supreme Court find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security Adviser, wherein petitioners and respondents were represented, there exist factual bases for the President's decision.
The Court cannot close its eyes to present realities and pretend that the country is not besieged from within by a well-organized communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunity of military men, police officers and civilian officials, to mention only a few. The documented history of the efforts of the Marcose's and their followers to destabilize the country, as earlier narrated in this ponencia bolsters the conclusion that the return of the Marcoses at this time would only exacerbate and intensify the violence directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The military establishment has given assurances that it could handle the threats posed by particular groups. But it is the catalytic effect of the return of the Marcoses that may prove to be the proverbial final straw that would break the camel's back. With these before her, the President cannot be said to have acted arbitrarily and capriciously and whimsically in determining that the return of the Marcoses poses a serious threat to the national interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of violence against the State, that would be the time for the President to step in and exercise the commander-in-chief powers granted her by the Constitution to suppress or stamp out such violence. The State, acting through the Government, is not precluded from taking pre- emptive action against threats to its existence if, though still nascent they are perceived as apt to become serious and direct. Protection of the people is the essence of the duty of government. The preservation of the State the fruition of the people's sovereignty is an obligation in the highest order. The President, sworn to preserve and defend the Constitution and to see the faithful execution the laws, cannot shirk from that responsibility.
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