REPUBLIC OF THE PHILIPPINES SUPREME COURT En Banc, Manila

SUZETTE NICOLAS y SOMBILON, Petitioner, - versusALBERTO ROMULO, IN HIS CAPACITY AS SECRETARY OF FOREIGN AFFAIRS, ET. AL., Respondents. x-----------------------------------------------x JOVITO R. SALONGA, ET. AL., Petitioners, -versusDANIEL SMITH, ET. AL., Respondents. x-----------------------------------------------x BAGONG ALYANSANG MAKABAYAN, ET. AL., Petitioners, -versusPRESIDENT GLORIA MACAPAGALARROYO, ET. AL., Respondents. x----------------------------------------------x

G.R. No. 175888

G.R. No. 176051

G.R. No. 176222

MOTION FOR EXECUTION

Petitioners, through undersigned counsel, and to this Honorable Court, respectfully state that: 1. In his dissent to the Majority Opinion that decided this case, Associate Justice Antonio Carpio harkened back to the sensitivity of the framers of the Philippine Constitution to the “unacceptable asymmetry” of the then existing United States military bases in the Philippines. In his dissent, Justice Carpio categorically stated:
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2.

It would be naïve and foolish for the Philippines, or for any other State for that matter, to implement as part of its domestic law a treaty that the United States does not recognize as part of its domestic law. 3. Unfortunately, recent events have proven the eminent Justice correct in his assessment. Now, it is with one of our greatest treasures that we are paying the price for such naivety and foolishness. Judgment was rendered by this Honorable Court on 11 February 2009, on the multiple Petitions filed before it seeking the nullification of the Visiting Forces Agreement as well as the Kenney-Romulo Agreements of December 19 and December 22 of 2009. The dispositive portion of the aforementioned judgment states: WHEREFORE, the petitions are PARTLY GRANTED, AND THE Court of Appeals’ Decision in CA-G.R. SP No. 97212 dated January 2, 2007 is MODIFIED. The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, is UPHELD as constitutional, but the Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of Foreign Affairs, is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this Court. 6. On 25 August 2009 and 28 August 2009, a Motion for Reconsideration and Supplemental Motion for Reconsideration were filed respectively by the Petitioners in GR No. 176051 and 196222. Both Motions were Denied by this Honorable Court with Finality on 12 January 2010. Notice of the Court’s denial was received by Petitioner on 22 February 2010.
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From that period of time, no other Motions were filed by either party within their reglementary period, hence the original decision dated 11 February 2009 has become final and executory. Judgment on this case notwithstanding, there has been little effort exerted by the Philippine government to either renegotiate with US representatives as ordered by this Court or to strengthen our country’s position with regard to the provisions of the VFA. Recent events, specifically, the grounding of USS Guardian in Tubbataha Reef and our government’s reaction to it, have once more underscored the difficult situation that continues to face our government in properly enforcing the Visiting Forces Agreement. The US Navy website states that the incident occurred when mine countermeasures ship USS Guardian (MCM 5) ran aground on Tubbataha Reef at 2:25 a.m. local time, Jan. 17, while transiting the Sulu Sea (Annex A).1 US Navy information states that the Avenger-class mine countermeasures ship had just completed a port call in Subic Bay and was en route to Indonesia and then on to Timor-Leste to participate in a training exercise when the grounding occurred (Annex B).2 The circumstances surrounding the grounding of the ship cannot be more telling regarding the attitude that the United States Navy has with regard to their Philippine counterparts and their respect, or in this case, lack thereof, for Filipino authorities even within the confines of Philippine waters. News reports have stated that the crew of the ship was warned that they were nearing the reef, but they did not take heed and instead told the rangers to contact the US embassy (Annex C). The Superintendent of the Tubbataha Management Office, Angelique Songo has been quoted as saying: "'Yung masama, hindi sila nagko-communicate. Tinawagan nila (rangers) at sinabi nila sila ay patungo

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http://www.navy.mil/submit/display.asp?story_id=71488 http://www.navy.mil/submit/display.asp?story_id=71553 Page 3 of 14

roon. Ang sabi (ng taga) USS Guardian, kausapin ang embahada, ang embahada ang kausapin sa bagay na yan. (Kaya) hindi nila nakausap ang mga nasa bapor," 3 16. To further compound the situation, Ms. Songco also stated that rangers were about to follow protocol of boarding a vessel to check if it had the proper permit, but saw the minesweeper's crewmembers were in "battle position" (Annex D).4 The attitude shown by the crew of the USS Guardian is reflective of what has long been experienced by many Filipinos. The blatant disregard for Philippine authority and the disrespect shown to the rangers of the Tubbataha Reef National Park by the crew of the USS Guardian show that the VFA is unable to ensure that Philippine authority will be respected by US forces. This comes into sharper focus were this Court to consider that in the VFA itself, specifically in its Art. II, the US declared that: It is the duty of United States personnel to respect the laws of the Republic of the Philippines and to abstain from any activity inconsistent with the spirit of this agreement, and, in particular, from any political activity in the Philippines. The Government of the United States shall take all measures within its authority to ensure that this is done. 20. As with the case of the transfer of custody of Daniel Smith in December 2006 from the Makati City Jail to the US Embassy pending his imprisonment at the National Bilibid Prison at the time when he was convicted of rape (Annex E),5 Petitioners find that once more, Philippine sovereignty is not being given its due respect by US forces. Partly to blame are the unclear or inequitable provisions of the VFA which do not address many issues and concerns that

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http://ph.news.yahoo.com/uss-guardian-ignored-warnings-nearing-reef-tubbataha-management023035037.html 4 http://www.gmanetwork.com/news/story/291269/news/nation/uss-guardian-ignored-warnings-it-wasnearing-reef-tubbataha-official 5 http://www.gmanetwork.com/news/story/148268/news/nation/sc-rules-against-daniel-smith-detention-atus-embassy Page 4 of 14

Petitioners have encountered or will encounter in the future. This includes the criminal liability of US Forces under Philippine law. 22. For instance, Republic Act 10067 or the Tubbataha Reefs National Park of 2009, apart from providing for the protection of the reef and setting out how it is to be administered, is also a penal statute. It contains multiple provisions penalizing such as unauthorized entry into the Tubbataha Reefs National Park among others.6 However, to date, apart from assurances of compensation and working together to free the grounded ship (Annex F)7, nothing has been said by the Philippine government or the US government regarding the reason for the illegal entry of the USS Guardian into the Tubbataha Reef National Park – for whatever reason, possibly even for recreational purposes such as diving - despite the clear warnings from local authorities. In addition to this, apart from statements of apologies and regret from the US government via the Commander of the US Navy’s 7th Fleet (Annex G)8, there has been no mention from

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Sec. 19. Unauthorized Entry, Enjoyment or Use. - No person or entity shall enter, enjoy or utilize any portion of the TRNP and the resources therein for whatever purpose without prior permission from the TPAMB as herein provided. The TRNP shall be off-limits to navigation, except for activities that are sanctioned by the TPAMB such as, but not limited to, tourism and research. Except in emergency situations, it shall be unlawful to enter the TRNP without prior permission from the TPAMB or the PASu as herein provided. It shall also be unlawful to enter, enjoy or use for any purpose any prohibited management zone. This rule shall similarly apply to the use of vessels, gears and equipment in management zones where such are not allowed. Violation of this section shall be subject to imprisonment of not less than six (6) months but not more than one (1) year imprisonment and a fine of One hundred thousand pesos (P100,000.00) but not more than Three hundred thousand pesos (P300,000.00), as may be determined by the TPAMB. If the violator is a commercial fisher/fisherfolk, the penalty shall be imprisonment of not less than one (1) year but not more than three (3) years and a fine of Five hundred thousand pesos (P500,000.00). Section 20. Damages to the Reef. - Damages to the reef shall subject the responsible person or entity to the payment of administrative fines set by the TPAMB based on current valuation standards and to the payment of the cost of restoration. Section 30. Obstruction to Law Enforcement Officer. - The boat owner, master, operator, officer or any person acting on his/her behalf, of any vessel who evades, obstructs or hinders any law enforcement officer in the TRNP to perform his/her duty, shall be administratively fined Fifty thousand pesos (P50,000.00). In addition, the registration, permit and/or license of the vessel including the license of the officers thereof shall be cancelled. Section 31. Common Penal Provision. (a)In case the vessel used in violation is owned by a corporation or entity, the fine shall be twice the maximum amount imposed for the offense. (b)In case the vessel used in violation of this Act is foreign owned, the fine shall be thrice the maximum amount imposed for the offense committed without prejudice to the provision of Section 27 hereof. (c)The captain of the vessel shall suffer the maximum duration of the imprisonment for the offense committed. 7 http://www.gmanetwork.com/news/story/293562/news/nation/joint-phl-us-statement-on-the-uss-guardiangrounding-on-tubbataha-reef 8 http://www.navy.mil/submit/display.asp?story_id=71563 Page 5 of 14

any US Military official of sanctions to the crew of the USS Guardian as they also continue to remain mum the possible criminal liability of the crew of the USS Guardian. 25. Even the Philippine government has not been forthcoming about the criminal liability of the errant crew. Of late, Secretary of Justice Leila de Lima has only commented that they are waiting for results of investigations before considering taking any action (Annex H)9. What we know however is that the crew of the ship was brought back to Sasebo, Japan, their homeport, without even any contact or debriefing with local authorities. According to a report: Navy officials would not speculate on the crew’s future with the ship still stuck on Tubbataha Reef, a World Heritage Site off the coast of the Philippines. But they will remain together in Sasebo, their homeport, under their commanding officer, Lt. Cmdr. Mark Rice, and will train for “potential assignments” until further notice, CTF-76 commander Rear Admiral Jeffrey Harley told Stars and Stripes (Annex I).10 27. It remains to be seen whether the crew of the USS Guardian will ever be brought under Philippine jurisdiction again to face charges for what was clearly a violation of not only domestic but international laws as well given our prior experience in this case. The importance of the Tubbataha Reef to our country is emphasized by the fact that it is protected by domestic law which is enforced against our own people. Yet here, we are powerless to enforce our own legislation against the errant US Navy crew. The USS Guardian is still stuck on Tubbataha Reef. The US Navy recently awarded a contract worth $25 Million for its salvage to Singaporean firm SMIT. According to the contract, the estimated time for the salvage will extend all the way to December 2013 (Annex J).11

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http://www.gmanetwork.com/news/story/293534/news/nation/de-lima-we-ll-wait-for-tubbataha-proberesults-before-taking-legal-action 10 http://www.stripes.com/news/sailors-back-home-in-sasebo-as-minesweeper-remains-stuck-on-reef1.205509 11 http://www.defense.gov/Contracts/Contract.aspx?ContractID=4972 Page 6 of 14

30.

Estimates have shown that the damage to the reef has reached up to 4,000 square meters. With the number is likely to increase as the process of salvaging begins since the salvage ships will need to anchor causing even more reef damage (Annex K).12 This is indeed a tragedy for our nation as the protected Tubbataha Reef National Park continues to be damaged every day. The importance of the Tubbataha Reef cannot be more emphasized. It is not only protected by domestic legislation, it is was declared as United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage Site in 1993 and was inscribed in the list of Ramsar list of Wetlands of International Importance in 1999 (Annex L).13 According to UNESCO, Tubbataha Reefs Natural Park contains excellent examples of pristine reefs with a high diversity of marine life. The property includes extensive reef flats and perpendicular walls reaching over 100m depth, as well as large areas of deep sea. The remote and undisturbed character of the property and the continued presence of large marine fauna such as tiger sharks, cetaceans and turtles, and big schools of pelagic fishes such as barracuda and trevallies add to the aesthetic qualities of the property (Annex M).14

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However, Tubbataha is not only valuable for its beauty. More importantly, it has a high impact on the Philippines’ ecosystem. UNESCO further describes it as: Tubbataha Reefs Natural Park lies in a unique position in the middle of the Sulu Sea and is one of the Philippines’ oldest ecosystems. It plays a key role in the process of reproduction, dispersal and colonization by marine organisms in the whole Sulu Sea system, and helps support fisheries outside its boundaries. Xx

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http://www.philstar.com/headlines/2013/02/05/904988/dilemma-tubbataha-crane-needs-drop-anchor http://tubbatahareef.org/wp/global_ecological_significance 14 http://whc.unesco.org/en/list/653 Page 7 of 14

Xx Tubbataha Reefs Natural Park provides an important habitat for internationally threatened and endangered marine species.15 35. The Tubbataha Reef is literally the source of life for many Filipino families who rely on fishing. Studies have shown that it is a key source of coral and fish larvae which seeds the greater Sulu Sea. It is important to Filipinos in the Palawan and Sulu area as it plays a decisive role in sustaining the fisheries in surrounding areas thus providing livelihoods to many Filipino families.16 With the grounding of the USS Guardian, once more we see the potential destruction that US military presence has on our country and our inability to do anything to counter it. Clearly, as the Tubbataha Reef incident has shown, the entirety of VFA is in dire need of review. Its provisions clearly do not provide ample protection to Philippine interests. In order to ensure that our sovereignty is not sacrificed and our country is not shortchanged, we return to the instant case. Here, the Supreme Court recognized the validity of the VFA, albeit with multiple dissenting opinions not the least of which came from then Chief Justice Renato Puno and Associate Justice Antonio Caprio. In their dissents, the eminent Justices clearly sets out the case that there is an imbalance in the treatments of the Philippine government and the US government of the VFA. Justice Carpio, who was joined by Justice Alicia AustriaMartinez and Justice Conchita Carpio Morales, reasoned that his dissent was due to a supervening event that took place between the Bayan v. Zamora (10 October 2000) case and the events of this case. He cited the United States Supreme Court decision in Medellin v. Texas which ruled that a treaty, even if ratified by the United States Senate, is not enforceable as domestic federal law in the United States unless Congress enacts the implementing legislation or the treaty itself is self-executory.

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Ibid.

http://tubbatahareef.org/wp/global_ecological_significance Page 8 of 14

43.

Justice Carpio emphasized wisdom of the framers in crafting the requirement of Section 25, Article XVIII of the Philippine Constitution that: The other contracting state must “recognize as a treaty” any agreement on the presence of foreign troops in the Philippines, and such treaty must be equally binding on the Philippines and on the other contracting State.

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What is worse, even in the solution proffered by the US Supreme Court in Medellin for the wholesale ratification of the treaties the US has entered into, the VFA is not one of the 70 treaties listed. This is because the US does not even consider the VFA as treaty but as amere executive order. As such, the dissent found that the VFA is incomplete and ineffective and thus, unenforceable. Similarly, in his very strong dissent, Chief Justice Puno stated: I strongly dissented in the case of Bayan v. Zamora proffering the view that the VFA falls short of the requirement set by Section 25, Article XVIII of the 1987 Constitution stating that the agreement allowing presence of foreign military troops in the Philippines must be “recognized as a treaty by the other contracting state.” The circumstances present in the case at bar and recent case law in the United States’ policy on treaty enforcement further expose the anomalous asymmetry in the legal treatment of the VFA by the United States (U.S.) as opposed to the Republic of the Philippines (RP) which I denounced in Bayan v. Zamora. This slur on our sovereignty cannot continue, especially if we are the ones perpetuating it. [emphasis ours]

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Indeed, the pronouncements of the eminent Chief Justice have been further emphasized by the incident in Tubbataha reef. The treatment of the Philippines of US forces is in no way equal to how the US forces treat the Philippines. By continuing to abide by this patently unconstitutional agreement, we are perpetuating this situation upon ourselves which is unfortunate.

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48.

The former Chief Justice further elucidated that: The Philippine government has considered the VFA to be fully enforceable within our jurisdiction; yet, the U.S. does not look at the VFA as enforceable within its domestic jurisdiction. This dichotomy is evidently proscribed by the Constitution, for such dichotomy would render our sovereignty in tatters.

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It is little wonder then that there is such blatant disregard by US forces of Philippine authority even within our own territory. While we consider hold binding authority of the VFA on our territory in such high esteem, the US clearly does not. Unfortunately, majority of the Court did not agree with the well reasoned dissent of Chief Justice Puno. It is also of note that the Tubbataha Reef incident is not the first time that the VFA has caused unmitigated damage to Philippine environment. Just last year, Glenn Defense Marine Asia, a Malaysian contractor used the VFA in trying to elude responsibility for toxic chemical waste dumped in Philippine waters. This prompted a call from some members of Congress, particularly representatives from Partylist Group Gabriela, for the termination of the VFA (Annex N).17 However, while the Majority of the Court found the VFA to be constitutional, the Court also concluded that the KenneyRomulo Agreements relating to Section 10 or Article V of the VFA were not in accordance with the VFA. Petitioners continue to maintain the unconstitutionality of the VFA as a whole. However, it is worthwhile to take the opportunity that the Court has given to properly enforce one clarified provision of the VFA and in so doing prevent the trampling of our sovereignty as what happened before with the sudden whisking off of Daniel Smith from Philippine custody in 2009. Hence, we come back to the judgment that has been formerly laid down by the Supreme Court in this case.

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http://www.congress.gov.ph/press/details.php?pressid=6650 Page 10 of 14

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Indeed, it is high time that the aforementioned decision be actually followed as it would force our government to renegotiate with the US government for the proper enforcement procedure of a portion of the VFA which, as recent history has shown, proven to be problematic. Specifically, we ask that this Honorable Court enforce its ruling for the renegotiation of the agreement between the United States and Philippine government representatives as to proper detention facilities for US military service people under Philippine authorities, as it ruled in this case. While we believe that this Motion does not solve the bigger issue of the unfair and inequitable provisions and unconstitutionality as a whole of the VFA, it is a step towards ensuring that a portion of this defective agreement will not be used again in the future to subvert Philippine interests. Finally, it is important to note that the VFA does provide a mechanism by which it can be terminated. Article IX of the agreement states: xx This agreement shall remain in force until the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement.

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It is the Petitioners’ hope that the Philippine government sees the need for renegotiating the entirety of the VFA and if needed, to use the abovementioned section for abrogation in case the Philippines cannot get a more equitable agreement. It is recognized that the strategic alliance with the US are in some ways beneficial. However, the negatives far outweigh the benefits when the agreement, such as the current VFA, is clearly unbalanced in its treatment of the two nations involved.

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PRAYER WHEREFORE, premises considered, it is respectfully prayed that a WRIT OF EXECUTION be issued by this Honorable Court on its Judgment dated 11 February 2009 and that the Honorable Court order the Secretary of Foreign Affairs to negotiate with the United States representatives for:
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(1) A more equitable and just Visiting Forces Agreement, and barring that, abrogation of the Philippines from the agreement; or alternatively (2) The appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the Visiting Forces Agreement as ordered by this Court. Respectfully submitted. Makati City for Manila, Philippines; 12 February 2013.

For the Petitioners ROQUE & BUTUYAN LAW OFFICES 1904 Antel 2000 Corporate Centre 121 Valero Street, Salcedo Village Makati City 1200 mail@roquebutuyan.com Tel. Nos. 887-4445/887-3894 Fax No: 887-3893

H. HARRY L. ROQUE PTR No. 3692462/Jan 18, 2013/Makati City IBP No. 499912/Lifetime/Makati City Roll No. 36976 MCLE Exemption No. III-001000 (issued on 26 April 2010)

ROMEL REGALADO BAGARES PTR No. 3692460/Jan 18,2013/Makati City IBP No. 924439/Jan 10, 2013/SOCSARGEN Roll No. 49518 MCLE Compliance No. IV-0011822 (issued on 25 January 2013)

ETHEL C. AVISADO PTR No. 1327231/Jan 8, 2013/Davao City IBP No. 9033690/Sep 17, 2012/Davao City Roll No. 56254 MCLE Compliance No. III-0022118 (issued on October 25, 2012)
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Copy Furnished: ATTY. EVALYN G. URSUA Rm. 305 AMAREMCA Building 107-A Kalayaan Ave., Diliman 1101 Quezon City LANCE CORPORAL DANIEL SMITH c/o Department of Foreign Affairs Roxas Boulevard, 2330 Pasay City SECRETARY LEILA DELIMA Department of Justice 1000 Padre Faura, Manila ATTY. PACIFICO AGABIN Agabin Verzola Hermoso & Layaoen Law Offices 26th Floor, Pacific Star Building Gil Puyat Ave., cor Makati Avenue 1200 Makati City ATTY. ALBERTO SABATER CAGUIOA Presidential Legal Counsel Mabini Hall, Malacañang Palace Compound JP Laurel St., San Miguel 1005 Manila ATTY. ANTONIO R. BAUTISTA Bautista Law Building 30 Eugenio Lopez St., Diliman 1104 Quezon City JUDGE BENJAMIN E. PUZON Regional Trial Court, Branch139 1200 Makati City SECRETARY MANUEL A. ROXAS II Department of Interior and Local Government A. Francisco Gold Condominium II EDSA cor. Mapagmahal St., Diliman 1104 Quezon City HON. APOLINARIO D. BRUSELAS Court of Appeals Ma. Orosa Street, Ermita, 1000 Manila
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SECRETARY ALBERT DEL ROSARIO Department of Foreign Affairs Roxas Boulevard 2330 Pasay City HON. BENIGNO SIMEON C. AQUINO III President Mabini Hall, Malacañang Palace Compound JP Laurel St., San Miguel 1005 Manila SOLICTOR GENERAL FRANCIS H. JARDELEZA Office of the Solicitor General 134 Amorsolo Street, Legaspi Village 1229 Makati City EXECUTIVE SECRETARY PAQUITO OCHOA, JR. Mabini Hall, Malacañang Palace Compound JP Laurel St., San Miguel 1005 Manila ATTY. JOSE P.P. JUSTINIANO Sycip Salazar Hernandez and Gatmaitan Law Offices SSHG Center, 105 Paseo de Roxas Legaspi Village 1229, Makati City H.E. HARRY K. THOMAS Ambassador of the United States of America To the Philippines U.S. Embassy, Roxas Bouleverd 1000 Manila

EXPLANATION The foregoing pleading was sent by registered mail to the other parties in accordance with the applicable Rules of Procedure due to time, distance and personnel constraints. Ethel C. Avisado

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