HON. NICOLAS C. ADOLFO, MUNICIPAL JUDGE OF THE MUNICIPALITY OF SUBIC, PROVINCE OF ZAMBALES, PETITIONER, VS. COURT OF FIRST INSTANCE OF ZAMBALES, BRANCH I, HON. LUCAS LACSON, PRE…

In filing this petition for review on certiorari, on September 1,
1969, the Municipal Judge of Subic, Zambales, the Honorable Nicolas C. Adolfo, against the
Court of First Instance of that province and a certain Albert L. Merchant, as
respondents, would have us reverse and set aside a decision of respondent Court
of November 20, 1968 annulling petitioner’s order of June 29, 1967 in a
criminal case pending before him declaring as non-existent the custody receipt
issued by the Commander of the United States Naval Base at Subic
Bay for the provisional liberty of the respondent Albert L. Merchant, the
accused in that case, so that the warrant for his arrest could be reissued
pursuant to Article 13 of the United States -Philippines Military Bases
Agreement of 1937.  The petition quoted
the specific provision of paragraph 5 of the aforesaid article in the 1947
Military Bases Agreement.  It is worded
thus:  “In all cases over which
the Philippines exercises jurisdiction the custody of the accused, pending
trial and final judgment, shall be entrusted without delay to the commanding
officer of the nearest base, who shall acknowledge in writing that such accused
has been delivered to him for custody pending trial in a competent court of the
Philippines and that he will be held ready to appear and will be produced
before said court when required by it. 
The commanding officer shall be furnished by the fiscal (prosecuting
attorney) with a copy of the information against the accused upon the filing of
the original in the competent court.”^[1]
It likewise alleged that the clause “in all cases over which the
Philippines exercises jurisdiction” did obviously refer to the second
paragraph of the same article which reads: 
“2. The Philippines shall have the right to exercise jurisdiction
over all other offenses committed outside the bases by an member of the
armed forces of the United States.”^[2]
After which came this assertion in the petition:  “There is no dispute that the crime for
which respondent Albert L. Merchant is charged was committed outside a base, or
more particularly in Barrio Manggahan, Subic, Zambales * * *.  Said respondent, though a citizen of the
United States, is a civilian employee or component of the U. S. Naval Base at Subic Bay, thus not a member of the armed forces of the
United States within the purview of the oft-repeated Base Agreement.”^[3]

Petitioner, represented by the then Solicitor General, the
Honorable Felix Makasiar, took due ‘note of the stand
of respondent Court and of private respondent which is that “even if the
right of custody of a commanding officer over the person of an accused civilian
component of the base is not prescribed by the original Base Agreement,
nonetheless such a right is now provided for in paragraph 5 of the Agreed
Official Minutes of the Agreement entered into between the Philippines and the
United States on August 10, 1965, to wit: ‘5. In all cases over which the
Republic of the Philippines exercises juris­diction, the custody of an
accused member of the United States armed forces, civilian component,
or dependent, pending investigation, trial and final judgment, shall be
entrusted without delay to the commanding officer of the nearest base, who
shall acknowledge in writing (a) that such accused has been delivered to him
for custody pending investigation, trial and final judgment in a competent
court of the Philippines (b) that he will be made available to the Philippine
authorities for investigation upon their request and (c) that he will be produced
before said court when required by it. 
The commanding officer shall be furnished by the fiscal (prosecuting
attorney) with a copy of the information against the accused upon the filing of
the original in the competent court.”^[4]

The petition thus squarely raised in issue the validity of the
exchange of notes on August 10, 1965, more commonly known as the Mendez-Blair
Agreement insofar as it would modify or amend the provisions of the Military
Bases Agreement without such exchange of notes having been submitted to the
Senate for ratification as the Constitution requires in the case of
treaties.  It made a distinction between
a treaty and executive agreements, to which category the aforesaid exchange of
notes belongs.  Thus: “A treaty may
be defined as a compact made between two or more independent nations with a
view to the public welfare.  (Tañada & Fernando, Constitution of the Philippines, 4th
Edition, Vol. II, citing Altman & Co. vs. United States, 224 U.S.
583).  Executive Agreements fall into two
classes:  (1) agreements made purely as
executive acts effecting external relations and independent of or without
legislative authorization, termed as ‘presidential agreements’, and (2)
agreements entered into in pursuance to acts of Congress, designated as Congressional-Executive
Agreements.  (USAFFE Veterans Association
Inc. vs. The Treasurer of the Philippines,
et al., 105 Phil. 1030, 1038; citing several
authorities).  However, the distinction
between a ‘treaty’ or the so-called ‘executive
agreements’ is best understood by statements of what they are supposed to
cover, including examples thereof.  This
we can find in the above-cited case of the Commissioner of Customs vs. Eastern
Sea Trading, supra, citing U.S. authorities, to wit:  ‘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.”^[5]
After citing an article of Francis B. Sayre on “The Constitutionality of
Trade Agreement Acts”^[6]
it concluded:  “We can thus see that
executive agreements cover such subjects as commercial and consular relations,
property relations like patent rights, trademark and copyrights, postal,
navigation, settlement of private claims, tariff and trade matters.  These types of agreements are certainly not
in the plane of one, like the U.S.
– P.I. Military Bases Agreement, which affects and reduces to a certain degree
the territorial authority, the jurisdiction and even the dignity of the country
and its people.  Said Base Agreement
undoubtedly involves more than a national policy, and is practically of a
permanent nature (99 years or longer, Art. XXIX, ibid.  Therefore, said Agreement is a treaty which
must be ratified, as it was ratified, by the Senate.”^[7]
The petition reinforced the above conclusion with this argument:  “Since the power to make treaties
is lodged under our Constitution with the President with the concurrence of
two-thirds of the Senate, the power to amend these treaties must
similarly be vested in those organs of the government.  After all, an amendment to a statute produces
one law, usually the statute as amended. 
(Black, Interpretation of Laws, p. 574).  In pari materia is the observation that only Congress, with
its legislative power, can make laws and alter or repeal them (Cooley, p.
183).  The Chief Executive, with all his
vast powers, cannot suspend the operation of a statute (Philippine National
Bank vs. Bitulok Sawmill Inc., et al., G. R.
L-24177-85, June 29, 1968); a fortiori, he cannot exercise the
greater power to amend or to revoke a statute. 
Therefore, as applied to this case, the making of the treaty having been
undertaken under the joint auspices of the President and the Senate, its
amendment or revision must similarly be undertaken by both agencies of the
State as directed by the Constitution. 
The August 10, 1965 notes to the U.S. – P.I. Military Bases Agreement of
1947, not having been ratified yet by the Senate, remain as mere
proposals.”^[8]

The answer for respondents, filed on October 25, 1969, after it
admitted substantially the statement of facts, agreed as to the decisive issue
being the validity of the exchange of notes of August 10, 1965, which they
would uphold, being, in their opinion, in accord with law and established
precedents.

The brief for petitioner-appellant was filed on February 26,
1970.  After a motion for the extension
of time to file the brief for respondents-appellees
was filed on April 27, 1970, they filed a motion to dismiss on May 6, 1970,
wherein it was noted:  “By a letter
dated April 16, 1970 which was received on April 20, 1970, Rear Admiral V. G.
Lambert, Commander of the U.S. Naval Base at Subic
Bay, advised petitioner-appellant Judge Nicolas G. Adolfo as follows:  ‘This is in reference to Criminal Case No.
1625 in which Albert L. Merchant is charged with the crime of ‘Less Serious
Physical Injuries thru Reckless Imprudence.’ 
Please be advised that, upon the request of Albert L. Merchant, the
custody receipt issued on 26 June 1967 in accordance with Article XIII of the
Military Bases Agreement, as revised on 10 August 1965, is hereby withdrawn;
and the undersigned can no longer be held responsible for his presence.  We understand that Mr. Merchant is taking
this action because he desires to have his case finally adjudicated in your
Court at the earliest possible time.'”^[9]
Mention was likewise made of the following: 
“On April 20, 1970, Albert L. Merchant, through counsel, submitted
a Constancia to the Municipal Court of Subic, Zambales, as follows:  ‘[Comes now] the accused in the
above-entitled case, by his undersigned counsel, and, in accordance with the
provisions of Section 14, Rule 114, of the Rules of Court, to this Honorable
Court respectfully submits the certificate from the Municipal Treasurer of Subic, Zambales, dated April 20,
1970, that the sum of Six Hundred Pesos (P600.00), Philippine currency, has
been deposited as Cash Bond Deposit for the accused in the above-entitled case,
under Official Receipt No. M-8888315 dated April 20, 1970, as well as a Xerox copy
of said official receipt, which are marked as Annexes ‘A’ and ‘B’,
respectively, and made integral parts hereof. 
[Wherefore], it is most respectfully prayed of this Honorable Court that
the warrant for the arrest of the accused be recalled or the accused be
released from custody in accordance with the provisions of Section 14, Rule
114, of the Rules of Court.'”^[10]

The motion to dismiss was referred for comment to
petitioner-appellant in a resolution of May 15, 1970.  The comment came in the form of a manifestation
filed with us on June 2, 1970, the pertinent portion of which reads:  “That as thus crystallized, the issue is
the validity of the custodial receipt issued by the Commander of the US Naval
Base at Subic Bay over the person of respondent
Albert L. Merchant who is a civilian component of the United States Navy.  It is appellant’s contention that custodial
authority over the person of a civilian component by the U.S. Base Commander is
not provided for in the original US-P.I. Military Bases Agreement of 1947,
though it is now the subject of the so-called Mendez-Blair Agreement of August
10, 1965; and 2. That considering the fact that the custody receipt over the
person of Albert L. Merchant has already been withdrawn by the Base Commander
and Merchant has offered to submit a cash bond, in lieu of said receipt, before
the Municipal Court of Subic, Zambales,
the question with regard to said custodial authority has indeed become moot and
academic.”^[11]

The question raised is one the importance of which cannot be
denied.  Fortunately the turn of events
clearly reflects a change of mind on the part of respondent Albert L. Merchant
manifesting respect towards the terms of the Military Bases Agreement prior to
its alleged modification in the exchange of notes of August 10, 1965.  Its validity could have been passed upon in
this case were it not for such respondent Merchant’s recognition of the
controlling force and effect of the explicit provision in the Military Bases
Agreement as ratified by the Senate.  As
things stand now however, the determination of such crucial question must await
another day, the matter having become moot and academic.

WHEREFORE, in the absence of any objection to the
dismissal of this petition by petitioner-appellant, this petition for review on
certiorari is dismissed.  Without pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, and
Villamor, JJ., concur.

Teehankee and Barredo, JJ.,
took no part.

^[1]
Petition, par. 16, pp. 8-9.

^[2] Ibid, p. 9.

^[3] Ibid.

^[4] Ibid,
par. 17, pp. 11-12.

^[5] Ibid,
pp. 15-16.

^[6]
39 Col. Law
Rev. 753 (1939).

^[7]
Petition, par. 17, pp. 17-18.

^[8] Ibid, p. 19.

^[9] Motion to Dismiss, par. 2, pp. 3-4.

^[10] Ibid, p. 4.

^[11]
Manifestation, pars. 1-2.