EN BANC

On December 15, 2014, the Public Prosecutor filed an Information for murder
G.R. No. 217456, November 24, 2015 against Pemberton before the Regional Trial Court in Olongapo City.5 The case
was docketed as Case No. 865-14, and was raffled to Branch 74.6 A warrant of
MARILOU S. LAUDE AND MESEHILDA S. LAUDE, Petitioners, v. HON. arrest against Pemberton was issued on December 16, 2014.7 Pemberton
ROLINE M. GINEZ-JABALDE, PRESIDING JUDGE, BRANCH 74, surrendered personally to Judge Roline M. Ginez-Jabalde8 (Judge Ginez-
REGIONAL TRIAL COURT OF THE CITY OF OLONGAPO; HON. PAQUITO Jabalde) on December 19, 2014, and he was then arraigned.9
N. OCHOA, JR., EXECUTIVE SECRETARY; HON. ALBERT F. DEL
ROSARIO, SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS; On the same day, Marilou S. Laude filed an Urgent Motion to Compel the
HON. GEN. GREGORIO PIO P. CATAPANG, CHIEF OF STAFF OF THE Armed Forces of the Philippines to Surrender Custody of Accused to the
ARMED FORCES OF THE PHILIPPINES; HON. EMILIE FE DELOS Olongapo City Jail and a Motion to Allow Media Coverage.10 "The [M]otion was
SANTOS, CHIEF CITY PROSECUTOR OF OLONGAPO CITY; AND L/CPL [scheduled] for hearing on December 22, 2014, at 2 p.m."11 According to
JOSEPH SCOTT PEMBERTON, Respondent. petitioners, they were only able to serve the Motion on Pemberton's counsel
through registered mail.12 In any case, they claim to have also "furnished a
copy of the [M]otion personally ... at the hearing of the [M]otion."13
DECISION
On December 23, 2014, Judge Ginez-Jabalde denied petitioners' Urgent Motion
LEONEN, J.: for lack of merit, the dispositive portion of which reads:14
chanroblesvirtuallawlibrary

Failure to meet the three-day notice rule for filing motions and to obtain the Wherefore, the . . . UrgentMotion [sic] to Compel the Armed Forces of the
concurrence of the Public Prosecutor to move for an interlocutory relief in a Philippines to Surrender Custody of Accused to the Olongapo City Jail [is]
criminal prosecution cannot be excused by general exhortations of human denied for utter lack of merit.15 (Emphasis in the original)
rights. This Petition fails to show any grave abuse of discretion on the part of
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the trial court judge. Furthermore, the accused, while undergoing trial and Petitioners received a copy of the Order on January 5, 2015.16 On January 9,
before conviction, is already detained in the Philippines in compliance with the 2015, petitioners filed a Motion for Reconsideration.17 On February 18, 2015,
obligations contained in the Agreement Between the Government of the United Judge Ginez-Jabalde issued an Order denying petitioners' Motion for
States of America and the Government of the Republic of the Philippines Reconsideration for lack of merit.
Regarding the Treatment of United States Armed Forces Visiting the
Philippines (Visiting Forces Agreement). In a Resolution19 dated April 21, 2015, respondents were required to file their
Comment on the Petition. On June 5, 2015, public respondents, as
This is a Petition for Certiorari1 under Rule 65, with prayer for the issuance of a represented by the Office of the Solicitor General, filed their (First) Motion for
writ of mandatory injunction filed by Marilou S. Laude and Mesehilda S. Laude Extension of Time to File Comment20 for 60 days. On the same day, Pemberton
(petitioners). posted his Motion for Additional Time to File Comment21 for 10 days.
Pemberton filed his Comment by counsel on June 16, 2015,22 while public
On October 11, 2014, Jeffrey "Jennifer" Laude (Jennifer) was killed at the respondents, through the Office of the Solicitor General, filed their Comment
Celzone Lodge on Ramon Magsaysay Drive in Olongapo City allegedly by 19- on September 23, 2015.23
year-old US Marine L/CPL Joseph Scott Pemberton (Pemberton).2 On October
15, 2014, a Complaint for murder was filed by Jennifer's sibling, Marilou S. Petitioners argue that "[Respondent Judge committed grave abuse of
Laude, against Pemberton before the Olongapo City Office of the City discretion tantamount to an excess or absence of jurisdiction when she
Prosecutor.3 On October 22, 2014, Pemberton was detained in Camp dismissed the Urgent Motion to Compel the Armed Forces of the Philippines to
Aguinaldo, the general headquarters of the Armed Forces of the Philippines.4 Surrender Custody o[f] Accused to the Olongapo City Jail [based] on mere
technicalities[.]"24 In particular, they argue that the three-day rule on motions 3. In cases where the right to exercise jurisdiction is concurrent, the following
under Rule 15, Section 425 of the 1997 Rules of Court is not absolute, and rules shall apply:
should be liberally interpreted when a case is attended by exigent (a) Philippine authorities shall have the primary right to exercise
circumstances.26 jurisdiction over all offenses committed by United States
personnel . . .
Petitioners advance that the rationale behind the three-day notice rule is (Emphasis and underscoring in the original)40
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satisfied when there is an opportunity to be heard, which was present in this

case since Pemberton's counsel and the Public Prosecutor were present in the Petitioners argue that the custody of Pemberton must be ordered transferred
hearing of the two Motions filed by petitioners.27 Petitioners allege that the to the Olongapo City Jail, considering that the crime involved is murder, which
court noted their attendance, and were able to make comments during the is non-bailable.41 They aver that it is unconstitutional to refuse to put him "in
December 22, 2014 Motion hearing.28 They assert that the rights of Pemberton the custody of Philippine jail authorities[,]" as such refusal "undermines the
were not compromised in any way.29 Constitutional Powers of [the Court] to hear a jurisdictional matter brought
before it"42 and to promulgate rules for the practice of law.43 Petitioners argue
Petitioners also aver that the three-day notice rule should be liberally applied that even though the Visiting Forces Agreement gives the United States the
due to the timing of the arrest and arraignment.30 "The Urgent Motion was set "sole discretion" to decide whether to surrender custody of an accused
for hearing on December 22, 2014[.]"31 This date preceded a series of legal American military personnel to the Philippine authorities, "the rule is that . . .
holidays beginning on December 24, 2014, where all the courts and the Court [still] has control over any proceeding involving a jurisdictional
government offices suspended their work.32 Petitioners point out that a matter brought before it, even if it may well involve the country's relations
"murder trial is under a distinctly special circumstance in that Paragraph 6, with another foreign power."44
Article V of the Visiting Forces Agreement. . . provides for [a] one-year trial
period[,] after which the United States shall be relieved of any obligations As for the nonconformity of the Public Prosecutor, petitioners argue that the
under said paragraph[.]"33 Petitioners had to file and set the Motion hearing at Public Prosecutor's refusal to sign the Urgent Motion to Compel the Armed
the earliest possible date.34 Forces of the Philippines to Surrender Custody of Accused to the Olongapo City
Jail rendered the requirement for conformity superfluous.45 Petitioners allege
Petitioners further argue that Judge Ginez-Jabalde should not have dismissed that the Public Prosecutor's act is contrary to Department of Justice Secretary
the Urgent Motion to Compel the Armed Forces of the Philippines to Surrender Leila M. De Lima's (Secretary De Lima) position on the matter.46 They quote
Custody of Accused to the Olongapo City Jail "considering that the Urgent Secretary De Lima as having said the following statement in a news article
Motion raised issues that are of transcendental importance and of primordial dated December 17, 2014: chanRoblesvirtualLawlibrary

public interest."35 Petitioners aver that under international human rights law,

in particular the International Covenant on Civil and Political Rights and the The Philippines will now insist on the custody (of Pemberton) now that the
United Nations Declaration of Basic Principles of Justice for Victims of Crime (case) is filed in court and especially since the warrant of arrest has been
and Abuse of Power, they have the right to access to justice,36 which is issued," De Lima told reporters in an ambush interview.47 cralawlawlibrary

"distinct from the power of the Public Prosecutors to prosecute [the] criminal
case."37 Petitioners also quoted Secretary De Lima as having stated in another news
article dated December 18, 2014 the following: chanRoblesvirtualLawlibrary

Furthermore, petitioners advance that Philippine authorities ought to "have

primary jurisdiction over [Respondent Pemberton's person while [he] is being Justice Secretary Leila De Lima stressed that Pemberton should be under the
tried [in] a Philippine Court[,]"38 in accordance with Article V, paragraph (3)(b) custody of Philippine authorities, following the filing of charges.
of the Visiting Forces Agreement,39 which states: chanRoblesvirtualLawlibrary

"There is also a provision in the Visiting Forces Agreement that, in cases of

extraordinary circumstances, the Philippine government can insist on the
custody and for me, there are enough such circumstances, such as cruelty and the Accused to the Olongapo City Jail for being devoid of merit.61 Marilou S.
treachery, that justified the filing of the murder and not homicide," De Lima Laude filed a Motion for Reconsideration on January 9, 2015,62 without
said.48
cralawlawlibrary conformity of the Public Prosecutor.63 On January 20, 2015, Pemberton filed
his Ad Cautelam Opposition [To Private Complainant's Motion for
The contrary manifestations made by Secretary De Lima, according to Reconsideration], arguing that Judge Ginez-Jabalde correctly denied Marilou S.
petitioners, meant that "[t]he conformity of the Public Prosecutor . . . is a Laude's Urgent Motion due to the latter's "failure to comply with settled
mere superfluity"49 and was meant "to deny [petitioners' 'quest for procedure regarding hearing of motions[.]"64 Pemberton further argues that
justice[.]'"50 the custody over him "rightfully remain[ed] with the [United States]
authorities. . . ." He cites Section 6 of the Visiting Forces Agreement, which
Due to the nature of the case, petitioners pray in this Petition that procedural provides that the "custody of any United States personnel over whom the
requirements be set aside.51 Philippines is to exercise jurisdiction shall immediately reside with United
States military authorities, if they so request, from the commission of the
In his Comment dated June 16, 2015, Pemberton argues that Judge Ginez- offense, until completion of all judicial proceedings."65
Jabalde did not commit grave abuse of discretion in denying the Urgent Motion
to Compel the Armed Forces of the Philippines to Surrender Custody of Pemberton further argues in his Comment that the presence of his counsel
Accused to the Olongapo City Jail since petitioners violated the three-day during the Urgent Motion to Compel the Armed Forces of the Philippines to
notice rule and failed to secure the conformity of the Public Prosecutor Surrender Custody of the Accused to the Olongapo City Jail hearing did "not
assigned to the case.52 He claims that he "was not given an opportunity to be equate to an opportunity to be heard as to satisfy the purpose of the three-
heard"53 on petitioners' Motion. day notice rule."66 Citing Preysler, Jr. v. Manila Southcoast Development
Corporation,67 Cabrera v. Ng,68 and Jehan Shipping Corporation v. National
In his counterstatement of facts, Pemberton avers that he voluntarily Food Authority,69 Pemberton avers that an opposing party is given opportunity
surrendered to the Regional Trial Court, Branch 74, on December 19, to be heard when he is "afforded sufficient time to study the motion and to
2014.54 On the same day, Marilou S. Laude filed an Urgent Motion to Compel meaningfully oppose and controvert the same."70 Even though his counsel was
the Armed Forces of the Philippines to Surrender Custody of the Accused to able to orally comment on the Urgent Motion,71 Pemberton was deprived of
the Olongapo City Jail, and setting the Motion hearing for December 22, 2015, any meaningful opportunity to study and oppose it,72 having been furnished a
but did not obtain the Public Prosecutor's conformity.55 Marilou S. Laude also copy a few minutes before the hearing.73 Marilou S. Laude also failed to
failed to personally serve a copy of the Urgent Motion on Pemberton at least provide "justifiable reason for . . . failure to comply with the three-day notice
three days prior to the hearing thereof.56 that would warrant a liberal construction of the rules."74

Pemberton further avers that on December 22, 2014, Judge Ginez-Jabalde Pemberton likewise argues that Marilou S. Laude, being only the private
heard the Urgent Motion to Compel the Armed Forces of the Philippines to complainant, lacks the legal personality to file the Urgent Motion to Compel
Surrender Custody of the Accused to the Olongapo City Jail and a Motion to the Armed Forces of the Philippines to Surrender Custody of Accused to the
Suspend the Proceedings.57 Counsel for Pemberton was in court to attend the Olongapo City Jail and the subsequent Motion for Reconsideration "without the
hearing for the Motion to Suspend the Proceedings, but did not have conformity of the Public Prosecutor."75 Quoting Rule 110, Section 576 of the
knowledge of the Urgent Motion to Compel the Armed Forces of the Philippines Revised Rules of Criminal Procedure, Pemberton states that the Public
to Surrender Custody of the Accused to the Olongapo City Jail filed by Marilou Prosecutor's lack of consent "rendered the Urgent Motion a mere scrap of
S. Laude.58 Counsel for Pemberton received a copy of the Urgent Motion only paper."77 He adds that the defect is "not a mere technicality[.]"78
"a few minutes"59 before it was to be heard.60
Pemberton also argues that Marilou S. Laude cannot rely on the alleged
On December 23, 2014, Judge Ginez-Jabalde denied Marilou S. Laude's Urgent statements of Secretary De Lima for the following reasons:79 First, Secretary
Motion to Compel the Armed Forces of the Philippines to Surrender Custody of De Lima did not direct the Olongapo City Office of the City Prosecutor to give
its approval to the Urgent Motion and Motion for Reconsideration;80 second, criminal case] is properly the duty of the public prosecutor."96 The
Secretary De Lima did not state that the Public Prosecutor should insist on nonconformity of the Public Prosecutor in petitioners' Urgent Motion to Compel
turning over the custody of Pemberton to the Philippine authorities.81 Neither the Armed Forces of the Philippines to Surrender Custody of Accused to the
was there any such order from Secretary De Lima.82 Petitioners' claims are, Olongapo City Jail is fatal in light of its nature pertaining to the place of
therefore, without legal basis.83 Pemberton's confinement.97 The issue of confinement of an accused pertains to
the criminal aspect of the case and "involves the right to prosecute[,] which [is
According to Pemberton, petitioners' use of the '"right to access to justice' lodged] exclusively to the People[.]"98
under international law did not excuse [petitioner Marilou [S. Laude] from
securing the authority and conformity of the Public Prosecutor[.]"84 He argues Referring to Rule 110, Section 5 of the Rules of Court, public respondents aver
that both the International Covenant on Civil and Political Rights and the that the requirement for motions to be "filed in the name of and under the
United Nations Declaration of Basic Principles of Justice for Victims of Crime authority of the public prosecutor"99 is not a mere technical requirement, but is
and Abuse of Power "refer to national or domestic legislation in affording part of "the essential, inherent, and exclusive power of the State to prosecute
[victims] access to justice."85 The Rules of Court and jurisprudence have criminals[.]"100 Public respondents counter petitioners' claim that the Public
established procedures for criminal proceedings, and these require Marilou S. Prosecutor's approval is superfluous given the alleged position of Secretary De
Laude "to obtain authority and consent from the Public Prosecutor"86 before Lima in the newspaper articles. Citing Feria v. Court of Appeals, public
filing a Motion in the ongoing criminal proceeding.87 respondents argue that newspaper articles are "hearsay evidence, twice
removed"101 and are "inadmissible" for having no probative value, "whether
As for the issue of custody under the Visiting Forces Agreement, Pemberton objected to or not."102
argues that there is a difference between "jurisdiction" and "custody."88 He
avers that jurisdiction is "the power and authority of a court to try, hear[,] and As for the three-day notice rule under the Rules of Court, public respondents
decide a case."89 Pemberton does not dispute that "Philippine authorities have argue that petitioners' failure to comply cannot be excused in light of the rule's
the primary right to exercise jurisdiction over offenses committed by [a] purpose, that is, for the Motion's adverse party not to be surprised, granting
United States personnel[,] [which is] why the case is being tried [in] a one sufficient time to study the Motion and be able to meet the arguments
Philippine court."90 However, custody "pertains to [the] actual physical control contained in it.103
over the person of the accused[,]"91 and under the Visiting Forces Agreement,
Pemberton argues that custody shall reside with the United States Military Public respondents argue that while the Visiting Forces Agreement "grants
authorities, since the Visiting Forces Agreement expressly provides that "[t]he primary jurisdiction to Philippine authorities"104 in this case, Pemberton's
custody of any United States personnel . . . shall immediately reside with [the] handover specifically to the Olongapo City Jail is unnecessary.105 The Visiting
United States military authorities . . . from the commission of the offense until Forces Agreement does not specify the place of an accused American
completion of all judicial proceedings."92 personnel's confinement. The issue of custody is thus "best left to the
discretion of the trial court."106 According to public respondents, for so long as
Public respondents advance that Judge Ginez-Jabalde did not commit grave the present arrangement neither renders it difficult for Pemberton to appear in
abuse of discretion when she denied the Urgent Motion to Compel the Armed court when he is required nor impairs Judge Ginez-Jabalde's authority to try
Forces of the Philippines to Surrender Custody of Accused to the Olongapo City the case, the trial court may validly decide for Pemberton to remain where he
Jail.93 Public respondents, through their Comment filed by the Office of the currently is.107
Solicitor General, argue that "[petitioners are not real parties in
interest[.]"94 They claim that "the real party in interest is the People [of the Lastly, public respondents maintain that petitioners are not entitled to a
Philippines], represented by the public prosecutor in the lower court and by mandatory injunction since they have no "clear and unmistakable right to the
the Office of the Solicitor General ... in the Court of Appeals and in the transfer of [respondent Pemberton] from Camp Aguinaldo to the Olongapo
Supreme Court."95 While public respondents recognize that petitioners may City Jail."108 They underscore that "petitioners are private offended parties[,]
intervene as private offended parties, "the active conduct of. . . trial [in a not the real party in interest in [this] criminal case[.]"109
 holidays"117 where courts would be closed.118 To compound their obfuscation,
We dismiss the Petition. petitioners claim that the hearing held on December 22, 2014, attended by
Pemberton's counsel sufficiently satisfied the rationale of the three-day notice
I rule.

The failure of petitioners to comply with the three-day notice rule is These circumstances taken together do not cure the Motion's deficiencies.
unjustified. Even granting that Pemberton's counsel was able to comment on the motion
orally during the hearing, which incidentally was set for another incident,119 it
Rule 15, Section 4 of the Rules of Court clearly makes it a mandatory rule that cannot be said that Pemberton was able to study and prepare for his
the adverse party be given notice of hearing on the motion at least three days counterarguments to the issues raised in the Motion. Judge Ginez-Jabalde was
prior. correct to deny the Urgent Motion to Compel the Armed Forces of the
Philippines to Surrender Custody of Accused to the Olongapo City Jail based on
Failure to comply with this notice requirement renders the motion defective noncompliance of procedural rules. To rule otherwise would be to prejudice
consistent with protecting the adverse party's right to procedural due Pemberton's rights as an accused.
process.110 In Jehan Shipping Corporation:111 chanroblesvirtuallawlibrary

II
As an integral component of procedural due process, the three-day notice
required by the Rules is not intended for the benefit of the movant. Rather, Petitioners also argue that the Urgent Motion to Compel the Armed Forces of
the requirement is for the purpose of avoiding surprises that may be sprung the Philippines to Surrender Custody of Accused to the Olongapo City Jail is an
upon the adverse party, who must be given time to study and meet the assertion of their right to access to justice as recognized by international law
arguments in the motion before a resolution by the court. Principles of natural and the 1987 Constitution. They justify the separate filing of the Motion as a
justice demand that the right of a party should not be affected without giving right granted by Article 2, paragraph (3) of the International Covenant on Civil
it an opportunity to be heard.112 (Emphasis supplied, citations omitted) cralawlawlibrary and Political Rights,120 independent of "the power of the Public Prosecutors to
prosecute [a] criminal case."121
While the general rule is that a motion that fails to comply with the
requirements of Rule 15 is a mere scrap of paper, an exception may be made Article 2, paragraph (3) of the International Covenant on Civil and Political
and the motion may still be acted upon by the court, provided doing so will Rights states:  
neither cause prejudice to the other party nor violate his or her due process
rights.113 The adverse party must be given time to study the motion in order to 3. Each State Party to the present Covenant undertakes: chanRoblesvirtualLawlibrary

enable him or her to prepare properly and engage the arguments of the
movant.114 In this case, the general rule must apply because Pemberton was (a)  To ensure that any person whose rights or freedoms as herein recognized
not given sufficient time to study petitioners' Motion, thereby depriving him of are violated shall have an effective remedy, notwithstanding that the violation
his right to procedural due process. has been committed by persons acting in an official capacity;

Petitioners admit that they personally furnished Pemberton a copy of the (b) To ensure that any person claiming such a remedy shall have his right
Urgent Motion to Compel the Armed Forces of the Philippines to Surrender thereto determined by competent judicial, administrative or legislative
Custody of Accused to the Olongapo City Jail only during the hearing.115 They authorities, or by any other competent authority provided for by the legal
attempt to elude the consequences of this belated notice by arguing that they system of the State, and to develop the possibilities of judicial remedy;
also served a copy of the Motion by registered mail on Pemberton's
counsel.116 They also attempt to underscore the urgency of the Motion by (c) To ensure that the competent authorities shall enforce such remedies when
making a reference to the Christmas season and the "series of legal granted.122
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ChanRoblesVirtualawlibrary
 required by articles 9, paragraph 5, and 14, paragraph 6, the Committee
There is no need to discuss whether this provision has attained customary considers that the Covenant generally entails appropriate compensation. The
status, since under treaty law, the Philippines, as a State Party,123 is obligated Committee notes that, where appropriate, reparation can involve restitution,
to comply with its obligations under the International Covenant on Civil and rehabilitation and measures of satisfaction, such as public apologies, public
Political Rights.124 However, petitioners went too far in their interpretation, memorials, guarantees of non-repetition and changes in relevant laws and
ignoring completely the nature of the obligation contemplated by the provision practices, as well as bringing to justice the perpetrators of human rights
in an attempt to justify their failure to comply with a domestic procedural rule violations.126 (Emphasis supplied)
aimed to protect a human right in a proceeding, albeit that of the adverse
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party. The obligation contemplated by Article 2, paragraph (3) is for the State Party
to establish a system of accessible and effective remedies through judicial and
On March 29, 2004, the United Nations Human Rights Committee issued administrative mechanisms. The present trial of Pemberton, to which
General Comment No. 31,125 which pertained to the nature of the general legal petitioner, Marilou S. Laude, is included as a private complainant, indicates
obligations imposed by the International Covenant on Civil and Political Rights that there is a legal system of redress for violated rights. That petitioners
on State Parties. On Article 2, paragraph (3), the General Comment states: chanRoblesvirtualLawlibrary
chose to act on their own, in total disregard of the mechanism for criminal
proceedings established by this court, should not be tolerated under the guise
15. Article 2, paragraph 3, requires that in addition to effective of a claim to justice. This is especially in light of petitioners' decision to furnish
protection of Covenant rights[,] States Parties must ensure that the accused in the case a copy of her Motion only during the hearing.
individuals also have accessible and effective remedies to vindicate Upholding human rights pertaining to access to justice cannot be eschewed to
those rights. Such remedies should be appropriately adapted so as to take rectify an important procedural deficiency that was not difficult to comply with.
account of the special vulnerability of certain categories of person, including in Human rights are not a monopoly of petitioners. The accused also enjoys the
particular children. The Committee attaches importance to States protection of these rights.
Parties' establishing appropriate judicial and administrative
mechanisms for addressing claims of rights violations under domestic III
law. The Committee notes that the enjoyment of the rights recognized under
the Covenant can be effectively assured by the judiciary in many different The conformity of the Public Prosecutor to the Urgent Motion to Compel the
ways, including direct applicability of the Covenant, application of comparable Armed Forces of the Philippines to Surrender Custody of Accused to the
constitutional or other provisions of law, or the interpretive effect of the Olongapo City Jail is not a mere "superfluity."127 In Jimenez v.
Covenant in the application of national law. Administrative mechanisms are Sorongon,128 this court held that in criminal cases, the People is the real party
particularly required to give effect to the general obligation to investigate in interest, which means allowing a private complainant to pursue a criminal
allegations of violations promptly, thoroughly and effectively through action on his own is a rare exception:129 chanroblesvirtuallawlibrary

independent and impartial bodies. National human rights institutions, endowed

with appropriate powers, can contribute to this end. A failure by a State Party Procedural law basically mandates that "[ajll criminal actions
to investigate allegations of violations could in and of itself give rise to a commenced by complaint or by information shall be prosecuted under
separate breach of the Covenant. Cessation of an ongoing violation is an the direction and control of a public prosecutor." In appeals of criminal
essential element of the right to an effective remedy. cases before the CA and before this Court, the OSG is the appellate counsel of
the People. . . .
16. Article 2, paragraph 3, requires that States Parties make reparation ....
to individuals whose Covenant rights have been violated. Without
reparation to individuals whose Covenant rights have been violated, the The People is the real party in interest in a criminal case and only the
obligation to provide an effective remedy, which is central to the efficacy of OSG can represent the People in criminal proceedings pending in the
article 2, paragraph 3, is not discharged. In addition to the explicit reparation CA or in this Court. This ruling has been repeatedly stressed in several
cases and continues to be the controlling doctrine. provided the matter is not raised collaterally. In Planters Products, Inc. v.
Fertiphil Corporation:134
chanroblesvirtuallawlibrary

While there may be rare occasions when the offended party may be
allowed to pursue the criminal action on his own behalf (as when Judicial review of official acts on the ground of unconstitutionality may be
there is a denial of due process), this exceptional circumstance does sought or availed of through any of the actions cognizable by courts of justice,
not apply in the present case. not necessarily in a suit for declaratory relief. . . The constitutional issue,
however, (a) must be properly raised and presented in the case, and
In this case, the petitioner has no legal personality to assail the dismissal of (b) its resolution is necessary to a determination of the case, i.e., the
the criminal case since the main issue raised by the petitioner involved the issue of constitutionality must be the very lis mota
criminal aspect of the case, i.e., the existence of probable cause. The presented.135 (Emphasis supplied, citation omitted) cralawlawlibrary

petitioner did not appeal to protect his alleged pecuniary interest as an

offended party of the crime, but to cause the reinstatement of the criminal The constitutionality of the Visiting Forces Agreement is not the lis mota of this
action against the respondents. This involves the right to prosecute which Petition. Petitioners started their Petition with a claim that their right to access
pertains exclusively to the People, as represented by the OSG.130 (Emphasis to justice was violated, but ended it with a prayer for a declaration of the
supplied, citations omitted)cralawlawlibrary Visiting Forces Agreement's unconstitutionality. They attempt to create the
connection between the two by asserting that the Visiting Forces Agreement
In this case, petitioners have not shown why the Motion may be allowed to fall prevents the transfer of Pemberton to Olongapo City Jail, which allegedly is
under the exception. The alleged grave abuse of discretion of the Public tantamount to the impairment of this court's authority.
Prosecutor was neither clearly pleaded nor argued. The duty and authority to
prosecute the criminal aspects of this case, including the custody issue, are First, this Petition is not the proper venue to rule on the issue of whether the
duly lodged in the Public Prosecutor. Her refusal to give her conforme to the Visiting Forces Agreement transgresses the judicial authority of this court to
Motion is an act well within the bounds of her position. That petitioners used promulgate rules pertaining to criminal cases. Second, the issues of criminal
as bases newspaper articles for claiming that the Public Prosecutor acted jurisdiction and custody during trial as contained in the Visiting Forces
contrary to the position of Secretary De Lima cannot be given weight. Public Agreement were discussed in Nicolas v. Secretary Romulo, et al:136 chanroblesvirtuallawlibrary

respondents are correct in asserting that the proper remedy would have been
for petitioners to have the act reversed by Secretary De Lima through proper The VFA being a valid and binding agreement, the parties are required as a
legal venues. matter of international law to abide by its terms and provisions.

IV The VFA provides that in cases of offenses committed by the members of the
US Armed Forces in the Philippines, the following rules apply:
Finally, petitioners argue that the Visiting Forces Agreement should be Article V
declared "unconstitutional insofar as it impairs the . . . power of the Supreme Criminal Jurisdiction
Court[.]"131 They advance this argument in the context of their Motion to place xxx  xxx  xxx
Pemberton under the custody of Philippine authorities while the case is being
tried,132 with their prayer in this Petition phrased thus: chanRoblesvirtualLawlibrary 6. The custody of any United States personnel over whom the Philippines is to
exercise jurisdiction shall immediately reside with United States military
(b) Declare the VFA unconstitutional insofar as it impairs the constitutional authorities, if they so request, from the commission of the offense until
power of the Supreme Court to promulgate rules for practice before it, completion of all judicial proceedings. United States military authorities shall,
including the Rules of Criminal Procedure[.]133 cralawlawlibrary upon formal notification by the Philippine authorities and without delay, make
such personnel available to those authorities in time for any investigative or
The constitutionality of an official act may be the subject of judicial review, judicial proceedings relating to the offense with which the person has been
charged. In extraordinary cases, the Philippine Government shall present its immunity from jurisdiction or some aspects of jurisdiction (such as
position to the United States Government regarding custody, which the United custody), in relation to long-recognized subjects of such immunity like
States Government shall take into full account. In the event Philippine judicial Heads of State, diplomats and members of the armed forces
proceedings are not completed within one year, the United States shall be contingents of a foreign State allowed to enter another State's
relieved of any obligations under this paragraph. The one year period will not territory. On the contrary, the Constitution states that the Philippines
include the time necessary to appeal. Also, the one year period will not include adopts the generally accepted principles of international law as part of
any time during which scheduled trial procedures are delayed because United the law of the land. (Art. II, Sec. 2).
States authorities, after timely notification by Philippine authorities to arrange
for the presence of the accused, fail to do so. Applying, however, the provisions of VFA, the Court finds that there is
Petitioners contend that these undertakings violate another provision of the a different treatment when it comes to detention as against
Constitution, namely, that providing for the exclusive power of this Court to custody. The moment the accused has to be detained, e.g., after conviction,
adopt rules of procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]). the rule that governs is the following provision of the VFA:
They argue that to allow the transfer of custody of an accused to a foreign Article V
power is to provide for a different rule of procedure for that accused, which Criminal Jurisdiction
also violates the equal protection clause of the Constitution (Art. Ill, Sec. 1. xxx  xxx   xxx
[sic]).
Sec. 10. The confinement or detention by Philippine authorities of United
Again, this Court finds no violation of the Constitution. States personnel shall be carried out in facilities agreed on by appropriate
Philippines and United States authorities. United States personnel serving
The equal protection clause is not violated, because there is a sentences in the Philippines shall have the right to visits and material
substantial basis for a different treatment of a member of a foreign assistance.
military armed forces allowed to enter our territory and all other It is clear that the parties to the VFA recognized the difference
accused. between custody during the trial and detention after conviction,
because they provided for a specific arrangement to cover detention.
The rule in international law is that a foreign armed forces allowed to enter And this specific arrangement clearly states not only that the
one's territory is immune from local jurisdiction, except to the extent agreed detention shall be carried out in facilities agreed on by authorities of
upon. The Status of Forces Agreements involving foreign military units around both parties, but also that the detention shall be "by Philippine
the world vary in terms and conditions, according to the situation of the authorities."137 (Emphasis supplied, citations omitted)
cralawlawlibrary

parties involved, and reflect their bargaining power. But the principle
remains, i.e., the receiving State can exercise jurisdiction over the forces of In any case, Pemberton is confined, while undergoing trial, in Camp
the sending State only to the extent agreed upon by the parties. Aguinaldo, which by petitioners' own description is the "General Head Quarters
of the Armed Forces of the Philippines[.] "138Their claim that the detention
As a result, the situation involved is not one in which the power of this facility is under the "control, supervisionfj and jurisdiction of American military
Court to adopt rules of procedure is curtailed or violated, but rather authorities"139is not substantiated.
one in which, as is normally encountered around the world, the laws
(including rules of procedure) of one State do not extend or apply — Petitioners' prayer for the issuance of a writ of mandatory injunction to compel
except to the extent agreed upon — to subjects of another State due public respondents to turn over the custody of Pemberton "from American
to the recognition of extraterritorial immunity given to such bodies as military authorities to the OLONGAPO CITY JAIL"140 is likewise denied for lack
visiting foreign armed forces. of merit. In Semirara Coal Corporation v. HGL Development Corporation:141 chanroblesvirtuallawlibrary

Nothing in the Constitution prohibits such agreements recognizing

It is likewise established that a writ of mandatory injunction is granted
upon a showing that (a) the invasion of the right is material and
substantial; (b) the right of complainant is clear and unmistakable;
and (c) there is an urgent and permanent necessity for the writ to
prevent serious damage.142 (Emphasis supplied, citation omitted) cralawlawlibrary

Nowhere in their Petition did petitioners discuss the basis for their claim that
they are entitled to the sought writ, let alone mention it in their arguments.
This court cannot consider the issuance of a writ of mandatory injunction or a
temporary restraining order without any legal and factual basis.

Besides, considering the extent of the scope of this court's power to issue a
temporary restraining order, prayers for the issuance of a writ of mandatory
injunction is usually unnecessary.

WHEREFORE, premises considered, the Petition for Certiorari

is DISMISSED for lack of grave abuse of discretion resulting in lack or excess
of jurisdiction. The prayer for the issuance of a writ of mandatory injunction is
likewise DENIED for lack of merit.

SO ORDERED.