EN BANC
G.R. No. 204605, July 19, 2016
INTELLECTUAL PROPERTY ASSOCIATION OF THE PHILIPPINES, Petitioner, v. HON. PAQUITO OCHOA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERT DEL ROSARIO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, AND HON. RICARDO BLANCAFLOR, IN HIS CAPACITY AS THE DIRECTOR GENERAL OF THE INTELLECTUAL PROPERTY OFFICE OF THE PHILIPPINES, Respondents.
D E C I S I O N
BERSAMIN, J.:
In this special civil action for certiorari and prohibition, the Intellectual Property Association of the Philippines (IPAP) seeks to declare the accession of the Philippines to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (Madrid Protocol) unconstitutional on the ground of the lack of concurrence by the Senate, and in the alternative, to declare the implementation thereof as unconstitutional because it conflicts with Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines (IP Code).1
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.12
Sec. 125. Representation; Address for Service. - If the applicant is not domiciled or has no real and effective commercial establishment in the Philippines, he shall designate by a written document filed in the office, the name and address of a Philippine resident who may be served notices or process in proceedings affecting the mark. Such notices or services may be served upon the person so designated by leaving a copy thereof at the address specified in the last designation filed. If the person so designated cannot be found at the address given in the last designation, such notice or process may be served upon the Director. (Sec. 3, R.A. No. 166 a)
Article 2
Securing Protection through International Registration
(1) Where an application for the registration of a mark has been filed with the Office of a Contracting Party, or where a mark has been registered in the register of the Office of a Contracting Party, the person in whose name that application (hereinafter referred to as "the basic application") or that registration (hereinafter referred to as "the basic registration") stands may, subject to the provisions of this Protocol secure protection for his mark in the territory of the Contracting Parties, by obtaining the registration of that mark in the register of the International Bureau of the World Intellectual Property Organization (hereinafter referred to as "the international registration," "the International Register," "the International Bureau" and "the Organization", respectively), provided that,(i) where the basic application has been filed with the Office of a Contracting State or where the basic registration has been made by such an Office, the person in whose name that application or registration stands is a national of that Contracting State, or is domiciled, or has a real and effective industrial or commercial establishment, in the said Contracting State,
(ii) where the basic application has been filed with the Office of a Contracting Organization or where the basic registration has been made by such an Office, the person in whose name that application or registration stands is a national of a State member of that Contracting Organization, or is domiciled, or has a real and effective industrial or commercial establishment, in the territory of the said Contracting Organization.
(2) The application for international registration (hereinafter referred to as "the international application") shall be filed with the International Bureau through the intermediary of the Office with which the basic application was filed or by which the basic registration was made (hereinafter referred to as "the Office of origin"), as the case may be.
(3) Any reference in this Protocol to an "Office" or an "Office of a Contracting Party" shall be construed as a reference to the office that is in charge, on behalf of a Contracting Party, of the registration of marks, and any reference in this Protocol to "marks" shall be construed as a reference to trademarks and service marks.
(4) For the purposes of this Protocol, "territory of a Contracting Party" means, where the Contracting Party is a State, the territory of that State and, where the Contracting Party is an intergovernmental organization, the territory in which the constituting treaty of that intergovernmental organization applied.
Rule 3(1)(a) 09.02 References in the Regulations, Administrative Instructions or in this Guide to representation relate only to representation before the International Bureau. The questions of the need for a representative before the Office of origin or the Office of a designated Contracting Party (for example, in the event of a refusal of protection issued by such an Office), who may act as a representative in such cases and the method of appointment, are outside the scope of the Agreement, Protocol and Regulations and are governed by the law and practice of the Contracting Party concerned.
- Whether or not the IPAP has locus standi to challenge the President's ratification of the Madrid Protocol;
- Whether or not the President's ratification of the Madrid Protocol is valid and constitutional; and cralawlawlibrary
- Whether or not the Madrid Protocol is in conflict with the IP Code.
In public or constitutional litigations, the Court is often burdened with the determination of the locus standi of the petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to correct any official action or policy in order to avoid obstructing the efficient functioning of public officials and offices involved in public service. It is required, therefore, that the petitioner must have a personal stake in the outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.;The question on legal standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Accordingly, it has been held that the interest of a person assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.It is true that as early as in 1937, in People v. Vera, the Court adopted the direct injury test for determining whether a petitioner in a public action had locus standi. There, the Court held that the person who would assail the validity of a statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result." Vera was followed in Custodio v. President of the Senate, Manila Race Horse Trainers' Association v. De la Fuente, Anti-Chinese League of the Philippines v. Felix, and Pascual v. Secretary of Public Works.
Yet, the Court has also held that the requirement of locus standi, being a mere procedural technicality, can be waived by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan, the Court liberalized the approach when the cases had "transcendental importance." Some notable controversies whose petitioners did not pass the direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this Court decided to resolve the issues raised by the petition due to their "far-reaching implications," even if the petitioner had no personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been adopted in several notable cases, permitting ordinary citizens, legislators, and civic organizations to bring their suits involving the constitutionality or validity of laws, regulations, and rulings.
However, the assertion of a public right as a predicate for challenging a supposedly illegal or unconstitutional executive or legislative action rests on the theory that the petitioner represents the public in general. Although such petitioner may not be as adversely affected by the action complained against as are others, it is enough that he sufficiently demonstrates in his petition that he is entitled to protection or relief from the Court in the vindication of a public right.25cralawred
Sec. 2. Definition of Terms.
a. International agreement - shall refer to a contract or understanding, regardless of nomenclature, entered into between the Philippines and another government in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments.
b. Treaties - international agreements entered into by the Philippines which require legislative concurrence after executive ratification. This term may include compacts like conventions, declarations, covenants and acts.
c. Executive Agreements - similar to treaties except that they do not require legislative concurrence.
x x x The concurrence of said House of Congress is required by our fundamental law in the making of "treaties" (Constitution of the Philippines, Article VII, Section 10[7]), which are, however, distinct and different from "executive agreements," which may be validly entered into without such concurrence."Treaties are formal documents which require ratification with the approval of two thirds of the Senate. Executive agreements become binding through executive action without the need of a vote by the Senate or by Congress.In this connection, Francis B. Sayre, former U.S. High Commissioner to the Philippines, said in his work on "The Constitutionality of Trade Agreement Acts":ChanRoblesVirtualawlibrary
x x x x
"x x x the right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims, The validity of these has never been seriously questioned by our courts.
x x x x
Agreements with respect to the registration of trademarks have been concluded by the Executive with various countries under the Act of Congress of March 3, 1881 (21 Stat. 502). x x x
x x x xAgreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments - treaties and conventions. They sometimes take the form of exchanges of notes and at other times that or more formal documents denominated 'agreements' or 'protocols'. The point where ordinary correspondence between this and other governments ends and agreements - whether denominated executive agreements or exchanges of notes or otherwise - begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the large variety of executive agreements as such, concluded from time to time, Hundreds of executive agreements, other than those entered into under the trade-agreements act, have been negotiated with foreign governments, x x x It would seem to be sufficient, in order to show that the trade agreements under the act of 1934 are not anomalous in character, that they are not treaties, and that they have abundant precedent in our history, to refer to certain classes of agreements heretofore entered into by the Executive without the approval of the Senate. They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil aircraft, customs matters, and commercial relations generally, international claims, postal matters, the registration of trademarks and copyrights, etcetera. Some of them were concluded not by specific congressional authorization but in conformity with policies declared in acts of Congress with respect to the general subject matter, such as tariff acts; while still others, particularly those with respect of the settlement of claims against foreign governments, were concluded independently of any legislation. (Emphasis ours)
Section 2. Declaration of State Policy. - The State recognizes that an effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensures market access for our products. It shall protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such periods as provided in this Act.
The use of intellectual property bears a social function. To this end, the State shall promote the diffusion of knowledge and information for the promotion of national development and progress and the common good.
It is also the policy of the State to streamline administrative procedures of registering patents, trademarks and copyright, to liberalize the registration on the transfer of technology, and to enhance the enforcement of intellectual property rights in the Philippines.
Endnotes:
1Rollo, p. 4.
2 Madrid - The International Trademark System, http://www.wipo.int/madrid/en/ (last visited March 31 2016).
3 Madrid Agreement Concerning the International Registration of Marks, http://www.wipo.int/treaties/en/registration/madrid/ (last visited March 31, 2016).
4 Benefits of the Madrid System, http://www.wipo.int/madrid/en/madrid_benefits.html (last visited March 31,2016).
5Rollo, pp. 170-171.
6 Id. at 172-175.
7 Id. at 175-176.
8 http://www.wipo.int/ti-eaties/en/notifications/tnadridp-gp/treaty_madridp_gp_194.html
9Rollo, pp. 57-58.
10 Id. at 5.
11 Id. at 1-30.
12 G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632-633.
13Rollo, pp. 16-21.
14 Id. at 21.
15 Id. at 21-22.
16 Id. at 22-24.
17 Id. at 24-28.
18 Id. at 177-178.
19 Id. at 283-307.
20 Id. at 284-286.
21 Id. at 23.
22 Black's Law Dictionary, 941 (6th Ed. 1991).
23 G.R. Nos. 155001, 155547, and 155661, May 5, 2003,402 SCRA 612, 645.
24 G.R. Nos. 191002, 191032, 191057, 191149, and A.M. No. 10-2-5-SC, March 17, 2010, 615 SCRA 666.
25cralawred Id. at 722-726 (bold emphasis is part of the original text).
26Rollo, p. 183.
27 Id. at 286-289.
28Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Filipino, Inc., G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, 160310 J 60318, 160342, 160343, 160360, 160365, 160370, 160376, 160392, 160397, 160403, and 160405, November 10, 2003, 415 SCRA 44, 139.
29Rollo, pp. 16-21.
30Providing for the Guidelines in the Negotiation of International Agreements and its Ratification (issued November 25, 1997 by President Ramos).
31 No. L-14279, October 31, 1961, 3 SCRA 351, 356.
32SEC. 9. Determination of the Nature of the Agreement. - The Department of Foreign Affairs shall determine whether an agreement is an executive agreement or a treaty.
33 Supra note 31, at 355-357.
34Rollo, p. 19.
35Bayan Mima v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA 244, 261.
36 Vienna Convention on the Law on Treaties (1969), Art. 26.
37Rollo, p. 23.
37Rollo, p. 23.
38 http://www.wipo.int/madrid/en/mernbers/profiles/ph.html?part=misc (last visited March 31, 2016)
BRION, J,:
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.
SECTION 21. 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.
Article 2. Section 1 (a) "Treaty" means an international agreement concluded between States in written form and governed by International Law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;
Treaties are formal documents which require ratification with the approval of two-thirds of the Senate. Executive agreements become binding through executive action without the need of a vote by the Senate or by Congress.x x x x
xxx the right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts.x x xx
SEC. 2. xxx
(1) All cases involving the constitutionality of a treaty, executive agreement, or law shall be heard and decided by the Supreme Court en bane, and no treaty, executive agreement, or law may be declared unconstitutional without the concurrence of at least ten Members. All other cases, which under its rules are required to be heard en bane, shall be decided with the concurrence of at least eight Members.
x x x x
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:ChanRoblesVirtualawlibrary(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.x x x x
MS. AQUINO: Madam President, first I would like a clarification from the Committee. We have retained the words "international agreement" which I think is the correct judgment on the matter because an international agreement is different from a treaty, A treaty is a contract between parties which is in the nature of international agreement and also a municipal law in the sense that the people are bound. So there is a conceptual difference. However, I would like to be clarified if the international agreements include executive agreements.
MR. CONCEPCION: That depends upon the parties. All parties to these international negotiations stipulate the conditions which are necessary for the agreement or whatever it may be to become valid or effective as regards the parties.
MS, AQUINO: Would that depend on the parties or would that depend on the nature of the executive agreement? According to common usage, there are two types of executive agreement; one is purely proceeding from an executive act which affects external relations independent of the legislative and the other is an executive act in pursuance of legislative authorization. The first kind might take the form of just conventions or exchanges of notes or protocol while the other, which would be pursuant to the legislative authorization, may be in the nature of commercial agreements,
MR. CONCEPCION: Executive agreements are generally made to implement a treaty already enforced or to determine the details for the implementation of the treaty. We are speaking of executive agreements, not international agreements.
MS. AQUINO: I am in full agreement with that, except that it does not cover the first kind of executive agreement which is just protocol or an exchange of notes and this would be in the nature of reinforcement of claims of a citizen against a country, for example.
MR. CONCEPCION: The Commissioner is free to require ratification for validity insofar as the Philippines is concerned.
MS. AQUINO: It is my humble submission that we should provide, unless the Committee explains to us otherwise, an explicit proviso which would except executive agreements from the requirement of concurrence of two-thirds of the Members of the Senate, Unless I am enlightened by the Committee I propose that tentatively, the sentence should read. "No treaty or international agreement EXCEPT EXECUTIVE AGREEMENTS shall be valid and effective,"
FR, BERNAS: I wonder if a quotation from the Supreme Court decision might help clarify this:
chanRoblesvirtualLawlibraryThe right of the executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history, we have entered into executive agreements covering such subjects as commercial and consular relations, most favored nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of this has never been seriously questioned by our Courts.
Agreements with respect to the registration of trademarks have been concluded by the executive of various countries under the Act of Congress of March 3, 1881 (21 Stat. 502). xxx International agreements involving political issues or changes of national policy and those involving international agreements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail, carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements.
MR; ROMULO: Is the Commissioner, therefore, excluding the executive agreements?
FR. BERNAS: What we are referring to, therefore, when we say international agreements which need concurrence by at least two-thirds are those which are permanent in nature.
MS. AQUINO: And it may include commercial agreements which are executive agreements essentially but which are proceeding from the authorization of Congress. If that is our understanding, then I am willing to withdraw that amendment;
FR. BERNAS: If it is with prior authorization of Congress, then it does not need subsequent concurrence by Congress.
MS. AQUINO: In that case, I am withdrawing my amendmentx x x x
MR. GUINGONA: I am not clear as to the meaning of "executive agreements" because I heard that these executive agreements must rely on treaties. In other words, there must first be treaties.
MR. CONCEPCION: No, I was speaking about the common use, as executive agreements being the implementation of treaties, details of which do not affect the sovereignty of the State.
MR. GUINGONA: But what about the matter of permanence, Madam President? Would 99 years be considered permanent? What would be the measure of permanency? I do not conceive of a treaty that is going to be forever, so there must be some kind of a time limit.
MR. CONCEPCION: I suppose the Commissioner's question is whether this type of agreement should be included in a provision of the Constitution requiring the concurrence of Congress.
MR. GUINGONA: It depends on the concept of the executive agreement of which I am not clear. If the executive agreement partakes of the nature of a treaty, then it should also be included.
MR, CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within the power of the Constitutional Commission to require that.
MR. GUINGONA: Yes. That is why I am trying to clarify whether the words "international agreements" would include executive agreements.
MR. CONCEPCION: No, not necessarily; generally no.
MR. TINGSON: Madam President.
THE PRESIDENT: Commissioner Tingson is recognized.
MR. TINGSON: If the Floor Leader would allow me, I have only one short question.
MR. ROMULO: I wish to be recognized first. I have only one question. Do we take it, therefore, that as far as the Committee is concerned, the term "international agreements" does not include the term "executive agreements" as read by the Commissioner in that text?
FR, BERNAS: Yes20
Sec, 125. Representation; Address for Service. - If the applicant is not domiciled or has no real and effective commercial establishment in the Philippines, he shall designate by a written document filed in the office, the name and address of a Philippine resident who may be served notices or process in proceedings affecting the mark. Such notices or services may be served upon the person so designated by leaving a copy thereof at the address specified in the last designation filed. If the person so designated cannot be found at the address given in the last designation, such notice or process may be served upon the Director. (Sec. 3, R. A. No. 166a)
Endnotes:
1 G.R. No. L-14279, October 31, 1961.
2Angara v. Electoral Commission, 63 Phil. 139 (1936).
3 Ibid.
4 Article VI, Section 1 of the 1987 Constitution,
5 Article VI, Section 27 of the 1987 Constitution.
6 Ibid.
7 Article VII, Section 18 of the 1987 Constitution.
8 Article VIII, Section 1 of the 1987 Constitution; Article VII, Section 18 of the 1987 Constitution.
9Pimentel, Jr. v. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 622.
10 See the National Assembly's Resolution No. 73 in 1940.
11 See, Article VIII, Section 2 which provides:
chanRoblesvirtualLawlibrarySEC. 2. The Batasang Pambansa which shall be composed of not more than 200 Members unless otherwise provided by law, shall include representatives elected from the different regions of the Philippines, those elected or selected from various sectors as may be provided by law, and those chosen by the President from the members of the Cabinet. Regional representatives shall be apportioned among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio.
In reference to Article IX, Sections 1 to 3:
chanRoblesvirtualLawlibrarySECTION 1 There shall be a Cabinet which shall be composed of Ministers with or without portfolio appointed by the President. At least a majority of the Members of the Cabinet who are heads of ministries shall come from the Regional Representatives of the Batasang Pambansa.
The Prime Minister shall be the head of the Cabinet. He shall, upon the nomination of the President from among the Members of the Batasang Pambansa, be elected by a majority of all the Members thereof.
SEC. 2. The Prime Minister and the Cabinet shall be responsible to the Batasang Pambansa for the program of government approved by the President.
SEC. 3. There shall be an Executive Committee to be designated by the President, composed of the Prime Minister as Chairman, and not more than fourteen other members, at least half of whom shall be Members of the Batasang Pambansa. The Executive Committee shall assist the President in the exercise of his powers and functions and in the performance of his duties as he may prescribe.
The Members of the Executive Committee shall have the same qualifications as those of the Members of the Batasang Pambansa.
12 M. Magallona. "The Supreme Court and International Law: Problems and Approaches in Philippine Practice" 85 Philippine Law Journal 1, 2 (2010).
13 See: Secretary of Justice v. Hon. Lantion, 379 Phil. 165, 212-213 (2000).
14 The Philippines deposited its bstrument of ratification of the Vienna Convention on November 15, 1972.
15 See the following discussion during the deliberations of the 1986 Constitutional Commission:ChanRoblesVirtualawlibraryMR. SARMIENTO: I humbly propose an amendment to the proposed resolution of my Committee and this is on page 9, Section 20, line 7, which is to delete the words "or international agreement." May 1 briefly explain.16 In response to Commissioner Sarmiento's suggestion, Commissioner Concepcion offered the following insight:
First, Article VII of the 1935 Constitution does not mention international agreement. Second, the Vienna Convention on the Law on Treaties states that a treaty is an international agreement. Third, the very source of this provision, the United States Constitution, does not speak
of international agreement; it only speaks of treaties. So with that brief explanation, may I ask the Committee to consider our amendment.
Commissioners Guingona, Villacorta and Aquino are supportive of this amendment.
THE PRESIDENT: What does the Committee say?x x x x
chanRoblesvirtualLawlibraryMR. CONCEPCION: Madam President,17 The full discussion on executive agreements in Collector of Customs v. Eastern Shipping reads as:ChanRoblesVirtualawlibrary
THE PRESIDENT: Commissioner Concepcion is recognized.
MR. CONCEPCION: Thank you, Madam President.
International agreements can become valid and effective upon ratification of a designated number of parties to the agreement. But what we can say here is that it shall not be valid and effective as regards the Philippines. For instance, there are international agreements with 150 parties and there is a provision generally requiring say, 50, to ratify the agreement in order to be valid; then only those who ratified it will be bound. Ratification is always necessary in order that the agreement will be valid and binding.
MR SARMIENTO: Do I take it to mean that international agreements should be retained in this provision?
MR. CONCEPCION: Yes. But when we say "shall not be valid and effective, we say AS REGARDS THE PHILIPPINES
MR. SARMIENTO: So, the Commissioner is for the inclusion of the words "AS REGARDS THE PHILIPPINES"?
MR. CONCEPCION: Yes. No agreement will be valid unless the Philippines ratifies it.
MR. SARMIENTO: So may I know the final position of the Committee with respect to my amendment by deletion?
MR. CONCEPCION: I would say "No treaty or international agreement shall be valid and effective AS REGARDS THE PHILIPPINES unless concurred in by at least two-thirds of all the members of the Senate."
MR. SARMIENTO: If that is the position of the Chief Justice who is an expert on international law . . .
MR. CONCEPCION: I am not an expert.
MR. SARMIENTO: . . . then I will concede. I think Commissioner Aquino has something to say about Section 20.
THE PRESIDENT: This particular amendment is withdrawn.
MS. AQUINO: Madam President, first I would like a clarification from the Committee. We have retained the words "international agreement" which I think is the correct judgment on the
matter because an international agreement is different from a treaty. A treaty is a contract between parties which is in the nature of international agreement and also a municipal law in the sense that the people are bound. So there is a conceptual difference. However, I would like to be clarified if the international agreements include executive agreements.
MR. CONCEPCION: That depends upon the parties. All parties to these international negotiations stipulate the conditions which are necessary for the agreement or whatever it may be to become valid or effective as regards the parties. 11 RECORD, CONSTITUTIONAL COMMISSION (31 July 1986).The Court of Tax Appeals entertained doubts on the legality of the executive agreement sought to be implemented by Executive Order No. 328, owing to the fact that our Senate had not concurred in the making of said executive agreement. The concurrence of said House of Congress is required by our fundamental law in the making of "treaties" (Constitution of the Philippines, Article VII, Section 10[7]), which ares however, distinct and different from "executive agreements," which may be validly entered into without such concurrence.18 SEC. 2. (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en bane or in two divisions.
Treaties are formal documents which require ratification with the approval of two thirds of the Senate. Executive agreements become binding through executive action without the need of a vote by the Senate or by Congress.x x x x
. . . the right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts.x x x x
Agreements with respect to the registration of trade-marks have been concluded by the Executive with various countries under the Act of Congress of March 3, 1881 (21 Stat. 502). Postal conventions regulating the reciprocal treatment of mail matters, money orders, parcel post, etc., have been concluded by the Postmaster General with various countries under authorization by Congress beginning with the Act of February 20, 1792 (1 Stat. 232, 239). Ten executive agreements were concluded by the President pursuant to the McKinley Tariff Act of 1890 (26 Stat. 567, 612), and nine such agreements were entered into under the Dingley Tariff Act 1897 (30 Stat. 151, 203, 214). A very much larger number of agreements, along the lines of the one with Rumania previously referred to, providing for most-favored-nation treatment in customs and related matters have been entered into since the passage of the Tariff Act of 1922, not by direction of the Act but in harmony with it.x x x x
International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements.x x x x
Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality of executive agreements entered into without Senate approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. v. Curtis-Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. v. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. v. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic v. U.S., 188 F. 2d. 288; Yale Law Journal, Vol. 15, pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [Revised Edition], Vol. 2, pp. 1405, 1416-1418; Willoughby on the U.S. Constitutional Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407). (Emphasis supplied.)
In this connection, Francis B. Sayre, former U.S. High Commissioner to the Philippines, said in his work on "The Constitutionality of Trade Agreement Acts":
chanRoblesvirtualLawlibraryAgreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments — treaties and conventions. They sometimes take the form of exchanges of notes and at other times that of more formal documents denominated "agreements" time or "protocols". The point where ordinary correspondence between this and other governments ends and agreements — whether denominated executive agreements or exchanges of notes or otherwise — begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the large variety of executive agreements as such, concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreements act, have been negotiated with foreign governments. ... It would seem to be sufficient, in order to show that the trade agreements under the act of 1934 are not anomalous in character, that they are not treaties, and that they have abundant precedent in our history, to refer to certain classes of agreements heretofore entered into by the Executive without the approval of the Senate. They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil aircraft, customs matters, and commercial relations generally, international claims, postal matters, the registration of trademarks and copyrights, etcetera. Some of them were concluded not by specific congressional authorization but in conformity with policies declared in acts of Congress with respect to the general subject matter, such as tariff acts; while still others, particularly those with respect of the settlement of claims against foreign governments, were concluded independently of any legislation." (39 Columbia Law Review, pp. 651, 755.)
(2) All cases involving the constitutionality of a treaty, executive agreement, or law shall be heard and decided by the Supreme Court en bane, and no treaty, executive agreement, or law may be declared unconstitutional without the concurrence of at least ten Members. All other cases, which under its rules are required to be heard en bane, shall be decided with the concurrence of at least eight Members.
19 (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
chanRoblesvirtualLawlibrary(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
20 II RECORD, CONSTITUTIONAL COMMISSION 544-546 (31 July 1986). See J. Brion's Dissenting Opinion in Saguisag v. Executive Secretary, G.R. No 212426, January 12,2016.
22 Ibid.
23 Ibid.
24 See Secretary of Justice v. Lantion, 379 Phil. 165 (2004); Bayan Muna v. Romulo, 656 Phil. 246 (2011).
25cralawred See Bayan Muna v. Romulo, 656 Phil. 246 (2011); Nicolas v. Romulo, 598 Phil. 262 (2009); Gonzales v. Hechanova, 118 Phil. 1065 (1963); CIVIL CODE, Art. 7.; J. Brion's Dissenting Opinion in Saguisag v. Executive Secretary; G.R. No. 212426, January 12, 2016 and J. Carpio's Dissenting Opinion in Suplico v. National Economic Development Authority, G.R. No. 178830, 14 July 2008, 558 SCRA 329, 360-391.
26See J. Brion's Dissenting Opinion in Saguisag v. Executive Secretary; G.R. No. 212426 January 12, 2016.
27 See supra note 25.
28 See Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks;
29 Article 2 of the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks provides:
chanRoblesvirtualLawlibraryArticle 2
Securing Protection through International Registration
(1) Where an application for the registration of a mark has been filed with the Office of a Contracting Party, or where a mark has been registered in the register of the Office of a Contracting Party, the person in whose name that application (hereinafter referred to as "the basic application") or that registration (hereinafter referred to as "the basic registration") stands may, subject to the provisions of this Protocol, secure protection for his mark in the territory of the Contracting Parties, by obtaining the registration of that mark in the register of the International Bureau of the World Intellectual Property Organization (hereinafter referred to as "the international registration," "the International Register," "the International Bureau" and "the Organization," respectively), provided that,
(1) where the basic application has been filed with the Office of a Contracting State or where the basic registration has been made by such an Office, the person in whose name that application or registration stands is a national of that Contracting State, or is domiciled, or has a real and effective industrial or commercial establishment, in the said Contracting State,
(ii) where the basic application has been filed with the Office of a Contracting Organization or where the basic registration has been made by such an Office, the person in whose name that application or registration stands is a national of a State member of that Contracting Organization, or is domiciled, or has a real and effective industrial or commercial establishment, in the territory of the said Contracting Organization.
(2) The application for international registration (hereinafter referred to as "the international application") shall be filed with the International Bureau through the intermediary of the Office with which the basic application was filed or by which the basic registration was made (hereinafter referred to as "the Office of origin"), as the case may be.
(3) Any reference in this Protocol to an "Office" or an "Office of a Contracting Party" shall be construed as a reference to the office that is in charge, on behalf of a Contracting Party, of the registration of marks, and any reference in this Protocol to "marks" shall be construed as a reference to trademarks and service marks.
(4) For the purposes of this Protocol, "territory of a Contracting Party" means, where the Contracting Party is a State, the territory of that State and, where the Contracting Party is an intergovernmental organization, the territory in which the constituting treaty of that intergovernmental organization applies.
30 Ibid.
31 Article 4 in relation to Article 5 of the Madrid Agreement Concerning the International Registration of Marks; in particular, the language of paragraph 1, Article 5 provides:ChanRoblesVirtualawlibrary(1) Where the applicable legislation so authorizes, any Office of a Contracting Party which has been notified by the International Bureau of an extension to that Contracting Party, under Article 3ter(l) or (2), of the protection resulting from the international registration shall have the right to declare in a notification of refusal that protection cannot be granted in the said Contracting Party to the mark which is the subject of such extension. Any such refusal can be based only on the grounds which would apply, under the Paris Convention for the Protection of Industrial Property, in the case of a mark deposited direct with the Office which notifies the refusal. However, protection may not be refused, even partially, by reason only that the applicable legislation would permit registration only in a limited number of classes or for a limited number of goods or services.See also IPOPHIL Office Order No. 139, Series of 2012, the Philippine Regulations Implementing the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks
32See IPOPHIL Office Order No. 139, Series of 2012.
33 MM2 Form for the Application for International Registration of Governed Exclusively by the Madrid Protocol, accessed at http://www.wipo.int/export/sites/www/madrid/en/forms/docs/form_mm2.pdf
34 Sec. 124. Requirements of Application. -
124.1. The application for the registration of the mark shall be in Filipino or in English and shall contain the following:
chanRoblesvirtualLawlibrary(a) A request for registration;
(b) The name and address of the applicant;
(c) The name of a State of which the applicant is a national or where he has domicile; and the name of a State in which the applicant has a real and effective industrial or commercial establishment, if any;
(d) Where the applicant is a juridical entity, the law under which it is organized and existing;
(e) The appointment of an agent or representative, if the applicant is not domiciled in the Philippines;
(f) Where the applicant claims the priority of an earlier application, an indication of:
(i) The name of the State with whose national office the earlier application was filed or it filed with an office other than a national office, the name of that office,
(ii) The date on which the earlier application was filed, and
(iii) Where available, the application number of the earlier application;
(g) Where the applicant claims color as a distinctive feature of the mark, a statement to that effect as well as the name or names of the color or colors claimed and an indication, in respect of each color, of the principal parts of the mark which are in that color;
(h) Where the mark is a three-dimensional mark, a statement to that effect;
(i) One or more reproductions of the mark, as prescribed in the Regulations;
(j) A transliteration or translation of the mark or of some parts of the mark, as prescribed in the Regulations;
(k) The names of the goods or services for which the registration is sought, grouped according to the classes of the Nice Classification, together with the number of the class of the said Classification to which each group of goods or services belongs; and
(l) A signature by, or other self-identification of, the applicant or his representative,
124.2. The applicant or the registrant shall file a declaration of actual use of the mark with evidence to that effect, as prescribed by the Regulations within three (3) years from the filing date of the application. Otherwise, the application shall be refused or the mark shall be removed from the Register by the Director.
124.3. One (1) application may relate to several goods and/or services, whether they belong to one (1) class or to several classes of the Nice Classification.
124.4. If during the examination of the application, the Office finds factual basis to reasonably doubt the veracity of any indication or element in the application, it may require the applicant to submit sufficient evidence to remove the doubt. (Sec. 5, R. A. No. 166a)
35 See Chapter 3 of IPOPHIL Office Order No. 139, Series of 2012.
36 Rule 20, IPOPHIL Office Order No. 139, Series of 2012.
37 Rule 15, IPOPHIL Office Order No. 139, Series of 2012 provides: Rule 15. Effects of an International Registration.-
(1) An international registration desisnatine the Philippines shall have the same effect, from the date of the international registration, as if an application for the registration of the mark had been filed directly with the IPOPHL under the IP Code and the TM Regulations. xxx
38 Section 2 of the IP Code provides:
chanRoblesvirtualLawlibrarySECTION 2. Declaration of State Policy. — The State recognizes that an effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensures market access for our products. It shall protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such periods as provided in this Act. The use of intellectual property bears a social function. To this end, the State shall promote the diffusion of knowledge and information for the promotion of national development and progress and the common good. It is also the policy of the State to streamline administrative procedures of registering patents, trademarks and copyright, to liberalize the registration on the transfer of technology, and to enhance the enforcement of intellectual property rights in the Philippines, (n)
39See Section 124 of the IP Code enumerating the requirements for an application of trademark.
40See Rule 20, IPOPHIL Office Order No. 139, Series of 2012; Miscellaneous information provided by the World Intellectual Property Office Website on the Philippines' procedure in implementing the Madrid Protocol, accessed at http://www.wipo.int/madrid/en/members/profiles/ph.html?part=misc.
41See Rule 18, IPOPHIL Office Order No. 139, Series of 2012; Miscellaneous information provided by the World Intellectual Property Office Website on the Philippines' procedure in implementing the Madrid Protocol, accessed at http://www.wipo.int/madrid/en/members/profiles/ph.html?part=misc.
42See Rule 9, IPOPHIL Office Order No. 139, Series of 2012; Miscellaneous information provided by the World Intellectual Property Office Website on the Philippines' procedure in implementing the Madrid Protocol, accessed at http://www.wipo.int/madrid/en/members/profiles/ph.html?part=inisc.
43 Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law Land Bank of the Philippines v. Court of Appeals, 456 Phil. 755, 786 (2003).
PERLAS-BERNABE, J.:
Section 124. Requirements of application. - 124.1. The application for the registration of the mark shall be in Filipino or in English and shall contain the following:
chanRoblesvirtualLawlibraryx x x x
(e) The appointment of an agent or representative, if the applicant is not domiciled in the Philippines;
x x x x
Section 125. Representation; Address for Service. - If the applicant is not domiciled or has no real and effective commercial establishment in the Philippines, he shall designate by a written document filed in the office, the name and address of a Philippine resident who may be served notices or process in proceedings affecting the mark, x x x.
Article 2
Securing Protection through International Registration
(1) Where an application for the registration of a mark has been filed with the Office of a Contracting Party, or where a mark has been registered in the register of the Office of a Contracting Party, the person in whose name that application (hereinafter referred to as "the basic application") or that registration (hereinafter referred to as "the basic registration") stands may, subject to the provisions of this Protocol, secure protection for his mark in the territory of the Contracting Parties, by obtaining the registration of that mark in the register of the International Bureau of the World Intellectual Property Organization (hereinafter referred to as "the international registration," "the International Register," "the International Bureau" and "the Organization," respectively), provided that,(i) where the basic application has been filed with the Office of a Contracting State or where the basic registration has been made by such an Office, the person in whose name that application or registration stands is a national of that Contracting State, or is domiciled, or has a real and effective industrial or commercial establishment, in the said Contracting State,
x x x xArticle 3bis
Territorial Effect
The protection resulting from the international register shall extend to any Contracting Party only at the request of the person who files the international application or who is the holder of the international registration. However, no such request can be made with respect to the Contracting Party whose Office is the Office of origin. (Emphases supplied)
Stage 1 - Application through your National or Regional IP Office (Office of origin)
Before you can file an international application, you need to have already registered, or have filed an application, in your "home" IP office.
The registration or application is known as the basic mark. You then need to submit your international application through this same IP Office, which will certify and forward it to WIPO.
Stage 2 - Formal examination by WIPO
WIPO only conducts a formal examination of your international application. Once approved, your mark is recorded in the International Register and published in the WIPO Gazette of International Marks. WIPO will then send you a certificate of your international registration and notify the IP Offices in all the territories where you wish to have your mark protected.
It is important to note that the scope of protection of an international registration is not known at this stage in the process. It is only determined after substantive examination and decision by the IP Offices in the territories in which you seek protection, as outlined in Stage 3.
Stage 3 - Substantive examination by National or Regional IP Offices (Office of the designated Contracting Party)
The IP Offices of the territories where you want to protect your mark will make a decision within the applicable time limit (12 or 18 months) in accordance with their legislation. WIPO will record the decisions of the IP Offices in the International Register and then notify you.
If an IP Office refuses to protect your mark, either totally or partially, this decision will not affect the decisions of other IP Offices. You can contest a refusal decision directly before the IP Office concerned in accordance with its legislation. If an IP Office accepts to protect your mark, it will issue a statement of grant of protection.
The international registration of your mark is valid for 10 years. You can renew the registration at the end of each 10-year period directly with WIPO with effect in the designated Contracting Parties concerned.
Article 5
Refusal and Invalidation of Effects of International Registration in Respect of
Certain Contracting Parties
(1) Where the applicable legislation so authorizes, any Office of a Contracting Party which has been notified by the International Bureau of an extension to that Contracting Party, under Article 3ter(l) or (2), of the protection resulting from the international registration shall have the right to declare in a notification of refusal that protection cannot be granted in the said Contracting Party to the mark which is the subject of such extension. Any such refusal can be based only on the grounds which would apply, under the Paris Convention for the Protection of Industrial Property, in the case of a mark deposited direct with the Office which notifies the refusal. However, protection may not be refused, even partially, by reason only that the applicable legislation would permit registration only in a limited number of classes or for a limited number of goods or services.
x x x x (Emphases supplied)
Rule 9. Allowance of a Mark; Publication for Opposition. - Where the Philippines has been designated in an international registration, the IPOPHL shall undertake the substantive examination of the mark in accordance with the IP Code and the TM Regulations. Upon completion of the substantive examination and the mark is allowed, the mark shall be published for purposes of opposition in the IPOPHL's e-Gazette. Opposition proceedings shall be governed by the provisions of the IP Code, the TM Regulations, the BLA Regulations, and the Uniform Rules on Appeal.
Rule 10, Ex-officio Provisional Refusal of Protection. - Where the IPOPHL finds that, in accordance with the IP Code and the TM Regulations, the mark that is the subject of an international registration designating the Philippines cannot be protected, the IPOPHL shall, before the expiry of the refusal period under Article 5(2)(b) of the Madrid Protocol, notify the International Bureau of a provisional refusal of protection following the requirements of the Madrid Protocol and the Common Regulations. The holder of that international registration shall enjoy the same remedies as if the mark had been filed for registration directly with the IPOPHL. (Emphases supplied)
International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements.12
Endnotes:
1 Adopted at Madrid on June 27, 1989, as amended on October 3, 2006 and on November 12, 2007. See (last accessed on April 6, 2016).
2 Section 21, Article VII of the 1987 Constitution reads: "Section 21. 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."
3 Entitled "AN ACT PRESCRIBING THE INTELLECTUAL PROPERTY CODE AND ESTABLISHING THE INTELLECTUAL PROPERTY OFFICE, PROVIDING FOR ITS POWERS AND FUNCTIONS, AND FOR OTHER PURPOSES" (January 1, 1998).
4 The Madrid System for the International Registration of Marks is governed by the Madrid Agreement, concluded in 1891, and the Protocol relating to that Agreement, concluded in 1989. The system makes it possible to protect a mark in a large number of countries by obtaining an international registration that has effect in each of the designated Contracting Parties.
< http://www.wipo.int/treaties/en/registration/madrid_protocol/ > (last visited April 6, 2016).
5 < http://www.wipo.int/madrid/en/how_madrid_works.html > (last visited April 6, 2016.)
6 Article 6quinquies of the Paris Convention reads:
chanRoblesvirtualLawlibraryArticle 6quinquies
Marks: Protection of Marks Registered in One Country of the Union in the Other Countries of the Union
x x x x
B. Trademarks covered by this Article may be neither denied registration nor invalidated except in the following cases:
chanRoblesvirtualLawlibrary(i) when they are of such a nature as to infringe rights acquired by third parties in the country where protection is claimed;
(ii) when they are devoid of any distinctive character, or consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, place of origin, of the goods, or the time of production, or have become customary in the current language or in the bona fide and established practices of the trade of the country where protection is claimed;
(iii) when they are contrary to morality or public order and, in particular, of such a nature as to deceive the public. It is understood that a mark may not be considered contrary to public order for the sole reason that it does not conform to a provision of the legislation on marks, except if such provision itself relates to public order.
This provision is subject, however, to the application of Article 10bis.
x x x x
7 Section 123.1 of the IP Code reads:
chanRoblesvirtualLawlibrarySection 123. Registrability. - 123.1. A mark cannot be registered if it:
chanRoblesvirtualLawlibrary(a) Consists of immoral, deceptive or scandalous matter, or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute;
(b) Consists of the flag or coat of arms or other insignia of the Philippines or any of its political subdivisions, or of any foreign nation, or any simulation thereof;
(c) Consists of a name, portrait or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the Philippines, during the life of his widow, if any, except by written consent of the widow;
(d) Is identical with a registered mark belonging to a different proprietor or a mark with an earlier filing or priority date, in respect of:
chanRoblesvirtualLawlibrary(i) The same goods or services, or
(ii) Closely related goods or services, or
(iii) If it nearly resembles such a mark as to be likely to deceive or cause confusion;
(e) Is identical with, or confusingly similar to, or constitutes a translation of a mark which is considered by the competent authority of the Philippines to be well-known internationally and in the Philippines, whether or not it is registered here, as being already the mark of a person other than the applicant for registration, and used for identical or similar goods or services: Provided, That in determining whether a mark is well-known, account shall be taken of the knowledge of the relevant sector of the public, rather than of the public at large, including knowledge in the Philippines which has been obtained as a result of the promotion of the mark;
(f) Is identical with, or confusingly similar to, or constitutes a translation of a mark considered well-known in accordance with the preceding paragraph, which is registered in the Philippines with respect to goods or services which are not similar to those with respect to which registration is applied for: Provided, That use of the mark in relation to those goods or services would indicate a connection between those goods or services, and the owner of the registered mark: Provided further, That the interests of the owner of the registered mark are likely to be damaged by such use;
(g) Is likely to mislead the public, particularly as to the nature, quality, characteristics or geographical origin of the goods or services;
(h) Consists exclusively of signs that are generic for the goods or services that they seek to identify;
(i) Consists exclusively of signs or of indications that have become customary or usual to designate the goods or services in everyday language or in bona fide and established trade practice;
G) Consists exclusively of signs or of indications that may serve in trade to designate the kind, quality, quantity, intended purpose, value, geographical origin, time or production of the goods or rendering of the services, or other characteristics of the goods or services;
(k) Consists of shapes that may be necessitated by technical factors or by the nature of the goods themselves or factors that affect their intrinsic value;
(l) Consists of color alone, unless defined by a given form; or
(m) Is contrary to public order or morality.
8 Dated July 25, 2012.
9 See Ponencia, pp. 3-5, 13.
10Ponencia, p. 13.
11 113 Phil. 333 (1961).
12 Id. at 338.
LEONEN, J.:
SEC. 9. Determination of the Nature of the Agreement. - The Department of Foreign Affairs shall determine whether an agreement is an executive agreement or a treaty. (Emphasis in the original)
(1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in the questions being raised.14 (Citations omitted)
ARTICLE VII
EXECUTIVE DEPARTMENT
....
SECTION 11....
....
(7) The president shall have the power, with the concurrence of a majority of all the Members of the National Assembly to make treaties, and with the consent of the Commission on Appointments, he shall appoint ambassadors, other public ministers, and consuls. He shall receive ambassadors and other ministers duly accredited to the Government of the Philippines. (Emphasis supplied)
ARTICLE VIII
THE NATIONAL ASSEMBLY
....
SECTION 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 National Assembly. (Emphasis supplied)
ARTICLE XIV
THE NATIONAL ECONOMY AND THE PATRIMONY OF THE
NATION
....
Article VII, Section 21 does not limit the requirement of senate concurrence to treaties alone. It may cover other international agreements, including those classified as executive agreements, if: (1) they are more
SECTION 15. Any provision of paragraph one, Section fourteen, Article Eight and of this Article notwithstanding, the Prime Minister may enter into international treaties or agreements as the national welfare and interest may require.
ARTICLE VII
Executive Department
....
SECTION 21. 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. (Emphasis supplied)
For the role of the Senate in relation to treaties is essentially legislative in character; the Senate, as an independent body possessed of its own erudite mind, has the prerogative to either accept or reject the proposed agreement, and whatever action it takes in the exercise of its wide latitude of discretion, pertains to the wisdom rather than the legality of the act. In this sense, the Senate partakes a principal, yet delicate, role in keeping the principles of separation of powers and of checks and balances alive and vigilantly ensures that these cherished rudiments remain true to their form in a democratic government such as ours. The Constitution thus animates, through this treaty-concurring power of the Senate, a healthy system of checks and balances indispensable toward our nation's pursuit of political maturity and growth. True enough, rudimentary is the principle that matters pertaining to the wisdom of a legislative act are beyond the ambit and province of the courts to inquire.29 (Emphasis supplied, citations omitted)
If executive-agreement authority is un-contained, and if what may be the proper subject-matter of a treaty may also be included within the scope of executive-agreement power, the constitutional requirement of Senate concurrence could be rendered meaningless. The requirement could be circumvented by an expedient resort to executive agreement.
The definite provision for Senate concurrence in the Constitution indomitably signifies that there must be a regime of national interests, policies and problems which the Executive branch of the government cannot deal with in terms of foreign relations except through treaties concurred in by the Senate under Article VII, Section 21 of the Constitution. The problem is how to define that regime, i.e., that which is outside the scope of executive-agreement power of the President and which exclusively belongs to treaty-making as subject to Senate concurrence.30
7.43 Under the "Guide to the International Registration of Marks under the Madrid Agreement and the Madrid Protocol" the matter in relation to the appointment of a local representative before the Office of origin or the Office of a designated Contracting Party is outside the scope of the Madrid Protocol and is instead governed by the law and practice of the Contracting Party concerned, As such, there was no hindrance whatsoever for the Executive to have made a reservation when it acceded to the Madrid Protocol, to require foregoing applicants to obtain local representation in the Philippines upon the filing of trademark applications with the latter as the designated contracting party. Otherwise, the Executive should not have acceded to the Madrid Protocol without the concurrence of the Philippine Congress or should have done so only pursuant to an act of Congress.32
Endnotes:
1Rollo, p. 108, OSG Comment.
2 Id. at 19-21, Petition.
3 Providing for the Guidelines in the Negotiation of International Agreements and its Ratification (1997).
4Rollo, p. 14.
5 Id.
6 Id. at 3-34.
7 Id. at 17.
8 Id. at 19-21.
9 Ponencia, pp. 7-8.
10 450 Phil. 744 (2003) [Per J. Puno, En Banc].
11 629 Phil. 629 (2010) [Per J. Bersamin, En Banc].
12 392 Phil. 618 (2000) [Per J. Kapunan, En Bane].
13 638 Phil. 542 (2010) [Per J. Brion, En Banc].
14 Id. at 557.
15 CONST., art. VIII, sec. 1 provides:
chanRoblesvirtualLawlibrarySECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
16Rollo, pp. 114-115.
17 Id. at 114.
18 Id. at 115.
19 CONST., art. VIII, sec, 1.
20 Const., art. VIII, sec. 1.
21See Angara v. Electoral Commission, 63 Phil. 139, 157-159 (1936) [Per J. Laurel, En Banc]
22 Const., art. VIII, sec. 1.
23 J. Leonen Concurring Opinion in Poe-Llamanzares v. Commission on Elections, G.R, No. 221697, March 8, 2016 < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/march2016/221697_leonen.pdf > 25 [Per J. Perez, En Banc].
24 Id. at 54.
25cralawred G.R. No. 212426, January 12, 2016 [Per C.J. Sereno, En Banc].
26 Id. at 7.
27 Id.
28 396 Phil. 623 (2000) [Per J. Buena, En Banc].
29 Id. at 665.
30 MERLIN M. MAGALLONA, A PRIMER IN INTERNATIONAL LAW 66-67 (1997).
31 Rep. Act No. 8293 (1998).
32Rollo, p. 343, Petitioner's Memorandum.