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REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA
EN BANC

BAGONG
ALYANSANG
MAKABAYAN
(BAYAN),
represented by its Secretary General,
RENATO M. REYES, JR., et al.,
Petitioners,

G.R. No. 212444

-versusDEPARTMENT
SECRETARY
GAZMIN, et al.,

OF

DEFENSE
VOLTAIRE

Respondents.
x---------------------------------------------x
RENE A.V. SAGUISAG, et al.,
Petitioners,

G.R. No. 212426

-versusEXECUTIVE
SECRETARY
PAQUITO N. OCHOA, JR., et al.,
Respondents.
x---------------------------------------------x
KILUSANG
MAYO
UNO,
represented by its Chairperson,
ELMER LABOG, et al.,
Petitioners-in-Intervention.
x---------------------------------------------x
RENE A.Q. SAGUISAG, JR.,
Petitioners-in-Intervention.
x-----------------------------------------------------------------------------------x

MEMORANDUM

G.R. Nos. 212444, 212426

MEMORANDUM
Respondents, through the Office of the Solicitor General (OSG),
respectfully state:

RELEVANT FACTS
1.
The Mutual Defense Treaty. On 30 August 1951, the Republic of
the Philippines and the United States of America (US) entered into the
Mutual Defense Treaty (MDT) which stipulates that the parties shall
maintain and develop their individual and collective capacity to resist
armed attack.1 The MDT, concurred in by the Philippine Senate on 12
May 1952,2 locates the parties obligations within their commitments
under the Charter of the United Nations (UN). Article I of the MDT
provides:
The Parties undertake, as set forth in the Charter of the United
Nations, to settle any international disputes in which they may be
involved by peaceful means in such a manner that international peace
and security and justice are not endangered and to refrain in their
international relations from the threat or use of force in any manner
inconsistent with the purposes of the United Nations.

2.
The Visiting Forces Agreement. To implement the MDT and the
objective of both parties to strengthen their present efforts to collective
defense for the preservation of peace and security,3 the Republic of the
Philippines and the US entered into the Visiting Forces Agreement (VFA)
on 10 February 1998. The VFA was concurred in by the Philippine Senate
on 27 May 1999.4 It lays down the terms and conditions under which US
personnel5 and facilities6 may be present in the Philippines.
3.
Under the VFA, the Philippines and the US have participated
in the annual Balikatan exercises, which involve the training of Philippine
troops to enhance defense capabilities and promote interoperability of

MDT, Article II.


S.R. No. 84, 12 May 1952.
3
VFA, Preamble.
4
S.R. No. 18, 27 May 1999.
5
VFA, Article I.
6
VFA, Article VII.
2

MEMORANDUM

G.R. Nos. 212444, 212426

Philippine and US forces.7 The VFA was recognized as an implementing


agreement of the VFA in Nicolas v. Romulo.8
4.
The Enhanced Defense Cooperation Agreement. To implement the
MDT and the VFA,9 the Enhanced Defense Cooperation Agreement
(EDCA) was signed by Department of National Defense (DND)
Secretary Voltaire Gazmin for the Philippines and by US Ambassador to
the Philippines Philip Goldberg for the US on 28 April 2014.

ISSUE
WHETHER THE ENHANCED DEFENSE COOPERATION
AGREEMENT IS UNCONSTITUTIONAL.

SUMMARY OF ARGUMENTS
I.

PETITIONERS HAVE NO STANDING TO BRING THESE SUITS.

II.

EXECUTIVE AGREEMENTS FIND SUPPORT


CONSTITUTION AND JURISPRUDENCE.

III.

THE EDCA

IS

AN

EXECUTIVE

IN

AGREEMENT

THE

WHICH

IMPLEMENTS THE MDT AND THE VFA.

A. THE EDCA IMPLEMENTS THE MDT.


B. THE EDCA IMPLEMENTS THE VFA.
C. THE

EDCA PROVIDES A SYSTEM THAT DETAILS THE

CONDUCT

OF

ACTIVITIES

ALREADY

AUTHORIZED

UNDER THE MDT AND THE VFA.

D. THE

MDT

AND

THE

VFA

CONSTITUTE

THE

SUFFICIENT, PRIOR LICENSES FOR THE EDCA.

IV.

A SENATE

REFERRAL

OF

THE

EDCA

WILL

CREATE

MULTIPLE FUNDAMENTAL CONSTITUTIONAL PROBLEMS.

V.
7

ASSORTED ISSUES RAISED BY THE PETITIONS

Terms of Reference approved by Department of Foreign Affairs Secretary Teofisto T.


Guingona, cited in Lim v. Executive Secretary, G.R. No. 151445, 11 April 2002.
8
G.R. No. 175888, 11 February 2009.
9
EDCA, Preamble.

MEMORANDUM

G.R. Nos. 212444, 212426

A. ON PREPOSITIONING
B. ON OPERATIONAL CONTROL AND SELF DEFENSE
C. ON TELECOMMUNICATIONS
D. ON NUCLEAR WEAPONS
E. ON DISPUTE RESOLUTION

F. ON THE APPLICABILITY OF LOCAL LAWS


DISCUSSION
I.
PETITIONERS HAVE NO STANDING TO BRING THESE SUITS.
5. Lack of standing to assert institutional prerogatives. Petitioners assail
the constitutionality of the EDCA on the ground that it is a treaty that
requires the concurrence of the Senate under Article XVIII, Section 25 of
the Constitution. However, none of the petitioners is a member of the
Senate.
6.
The capacity of the Senate to sue as an institution in cases
involving alleged impairment of its constitutional prerogatives is
exemplified in Gonzales v. Macaraig.10 In said case, 23 Senators, comprising
the entire membership of the Senate, filed a petition to nullify the
presidential veto of Section 55 of the 1989 General Appropriations Bill.
The filing of the suit was authorized by Senate Resolution No. 381 dated
02 February 1989, which reads:
Authorizing and Directing the Committee on Finance to Bring in the
Name of the Senate of the Philippines the Proper Suit with the
Supreme Court of the Philippines contesting the Constitutionality of
the Veto by the President of Special and General Provisions,
particularly Section 55, of the General Appropriation Bill of 1989 (H.B.
No. 19186) and For Other Purposes.

WHEREAS, Be it Resolved, as it is hereby Resolved, That the Senate


express its sense that the veto by the President of Section 55 of the
10

G.R. No. 87636. 19 November 1990.

MEMORANDUM

G.R. Nos. 212444, 212426

GENERAL PROVISIONS of the General Appropriation Bill of 1989


(H.B. No. 19186) is unconstitutional and, therefore, void and without
any force and effect; hence, the aforesaid Section 55 remains;

7.
In Philconsa v. Enriquez,11 suits were filed by some members of
the Senate to question the validity of a presidential veto and a condition
imposed on an item in an appropriation bill without an enabling
resolution for the purpose. Nevertheless, the Court allowed the suits and
ruled that [a]n act of the Executive which injures the institution of
Congress causes a derivative but nonetheless substantial injury, which can
be questioned by a member of Congress.12 The Court said that [t]o the
extent the power of Congress is impaired, so is the power of each
member thereof, since his office confers a right to participate in the
exercise of the powers of that institution.13
8.
The rule, therefore, is that only the Senate itself may sue to
invoke the powers of the courts on matters involving its constitutional
prerogatives. This naturally makes sense given the requirement of injury
in fact essential for the operation of the case or controversy
component of the jurisdiction of courts in constitutional law cases. Those
whose rights are allegedly violated are, of course, in the best position to
fully articulate the nature and details of the injury they have suffered,
creating that concrete adverseness that sharpens the presentation of
issues.14
9.
By way of exception, incumbent Senators have been allowed by
courts to file cases in behalf of their institution, in cases where the court is
convinced that there are sufficient grounds to dispense with the rules of
agency. At a minimum, only incumbent Senators may be recognized to
have standing to raise the issue of Senate concurrence because it is their
constitutional function that is allegedly impaired.15
10. Only incumbent Senators may raise this issue because they
alone have legal standing to see to it that the prerogative, powers and
11

G.R. No. 113105, 19 August 1994.


Id.
13
Id.
14
Baker v. Carr, 369 U.S. 186 (1962).
15
CONSTITUTION, Art. VII, Sec. 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.
12

MEMORANDUM

G.R. Nos. 212444, 212426

privileges vested by the Constitution in their office remain inviolate.16 It


is a curious fact that only former Senators joined petitioners in filing these
cases. As such, they are in no position to concur in the EDCA and thus
are not injured by the alleged lack of Senate concurrence.
11. There is also no allegation that members of the Senate have
been prevented from exercising their privileges. The argument that the
Senate could not have joined the petitioners in filing these cases as it was
not made aware of the EDCA is belied by the fact that the EDCA has
been the subject of a number of Senate hearings where members of the
negotiating panel from the DND and the Department of Foreign Affairs
(DFA) were interpellated.17
12. The Senators are well-informed of the contents and coverage
of the EDCA and are presumed to have seriously considered whether the
EDCA is a treaty that requires their concurrence. The contents of the
EDCA have been available in the public domain for several months now,
or since April 2014.
13. To date, the Senate has not issued a Resolution expressing its
objection to the EDCA, much less authorized any of its members to file a
suit on its behalf.18 The silence and active non-participation of the Senate
in the current proceedings is an affirmation of the Presidents
characterization of the EDCA as an executive agreement.
14. Absent any clear evidence that Senators have been prevented
from invoking the privileges of their institution, the Honorable Court
must presume that the Senate itself sees no need for such concurrence.
Consequently, no actual case or controversy exists that would warrant the
exercise of the Honorable Courts power of judicial review.
15. The Honorable Court should not conflate petitions and
cases or controversies under the Constitution. The mere filing of a
16

Biraogo v. The Philippine Truth Commission, G.R. No. 192935, 07 December 2010.
Joint Hearing by the Senate Committee on Defense and Security with the Senate
Committee on Foreign Relations, 13 May 2014; Hearing by the Senate Committee on
Foreign Relations, 22 October 2014 and 01 December 2014.
18
Senate Foreign Relations Committee Chairperson Senator Miriam Defensor-Santiago said
that she would ask her colleagues to adopt a resolution that will express the Senates views
that
the
agreement
should
be
concurred
by
the
Senate.
See
http://www.philstar.com/headlines/2014/12/01/1397976/law-experts-tell-senate-edcaneeds-senate-concurrence
17

MEMORANDUM

G.R. Nos. 212444, 212426

petition does not automatically present a case within the meaning of the
actual case or controversy requirement of the Constitution.
16. An actual case or controversy which would trigger the
exercise of the Honorable Courts judicial review powers refers to a
conflict of legal right, an opposite legal claim susceptible of judicial
resolution.19 It must be definite and concrete, bearing upon the legal
relations of parties who are pitted against each other due to their adverse legal
interests.20
17. Here, there is no such actual conflict between the Executive and the
Senate. Thus, the issue of Senate concurrence does not present a justiciable
controversy which the Honorable Court may decide. Otherwise, the
Honorable Court could end up arbitrating constitutional questions in the
abstract and allocat[ing] constitutional boundaries21 without a dispute
upon the instance of third parties, however well-intentioned.
18. Inappropriateness of Taxpayer Standing. Petitioners cannot also
sue as taxpayers because the EDCA is neither a tax measure, nor one
primarily directed at the disbursement of public funds. In the absence of a
credible allegation of illegal or unconstitutional disbursement of public
funds, the Honorable Court cannot simply take at face value petitioners
bare assertion of their right to sue as taxpayers. The Honorable Court
should avoid being goaded into assuming jurisdiction at the say-so of
anyone who pays taxes.
19. The Inapplicability of the Transcendental Importance Exception. The
mere invocation of transcendental importance cannot also confer
standing on petitioners. In Anak Mindanao Party-List Group v. Executive
Secretary,22 the Honorable Court held that a party who assails the
constitutionality of a statute must have a direct and personal interest. It
must show not only that the law or any governmental act is invalid, but
also that it sustained or is in immediate danger of sustaining some direct

19

David v. Arroyo, G.R. No. 171396, 03 May 2006.


John Hay Peoples Alternative Coalition v. Lim, G. R. No. 119775, 24 October 2003. Italics
supplied.
21
Angara v. Electoral Commission, G.R. No. L-45081, 15 July 1936.
22
G.R. No. 166052, 29 August 2007.
20

MEMORANDUM

G.R. Nos. 212444, 212426

injury as a result of its enforcement, and not merely that it suffers thereby
in some indefinite way.23
20. Petitioners cannot use transcendental importance to cure
their inability to comply with the constitutional requirement of standing.
As the Honorable Court said, [c]ourts do not sit to adjudicate mere
academic questions to satisfy scholarly interest therein, however
intellectually solid the problem may be.24
21. The Honorable Court should already note that the overuse of
transcendental importance as an exception to the traditional
requirements for constitutional litigation has cheapened the value of the
Constitutions safeguards to adjudicationcase or controversy, standing,
prematurity, political questions, mootnessthat have long served to
protect the Supreme Court from unnecessary litigation of constitutional
questions and potential clashes with the other departments of
government.
22. The Supreme Courts role under the separation of powers
requires it to decide only legal disputes. The Court is not the appropriate
venue for airing historical grievances or vindicating purely symbolic
claims.
II.
EXECUTIVE AGREEMENTS FIND SUPPORT
IN THE CONSTITUTION AND JURISPRUDENCE.
23. The EDCA is an executive agreement that has already
entered into force, as all internal requirements of the Philippines and the
US have already been complied with. This is consistent with the
representations of the parties.
24. President Benigno Aquino III ratified the EDCA on 06 June
In the case of the US, it considers the EDCA to have entered into
force on 25 June 2014, as reflected in its diplomatic note of the same
date.26 Finally, the EDCA has been filed with the US Congress pursuant
2014.25

23

Id.
Philippine Association of Universities and Colleges v. Secretary of Education, G.R. No. L-5279, 31
October 1955.
25
See Annex A.
26
See Annex B.
24

MEMORANDUM

G.R. Nos. 212444, 212426

to the Case-Zablocki Act which requires all international agreements


entered into by the US President to be filed with the US Congress.
25. The characterization of the EDCA as an executive agreement
rests on the concept that the President, as Commander-in-Chief, Chief
Executive, and Chief Architect of Foreign Relations, has the authority to
enter into implementing agreements pursuant to existing treaties.
26. It was argued during oral arguments, however, that the
Constitution does not recognize executive agreements because Article
VII, Section 21 only mentions treaty and international agreement. It
was argued that the EDCA requires Senate concurrence to be valid and
effective, whether it is considered a treaty or an international agreement.
27. This view flies in the face of the text of the Constitution, the
jurisprudence of this Honorable Court, and the long-standing practice of
the Executive Department.
28. The authority to enter into executive agreements inheres in
the President as Chief Executive under Article VII, Section 21 of the
Constitution. By definition, executive agreements are executive or
implementing devices of pre-existing laws or treaties.27 Thus, entering into
executive agreements is, by nature, an exercise of the executive power of
the President.
29. In fact, the bulk of international agreements entered into by
the Philippines are executive agreements (or agreements which do not
require Senate concurrence such as exchange of notes, memoranda,
protocols, etc.)28 because the conduct of foreign affairs mostly consists of
the implementation of major policy decisions embodied in existing laws
and treaties. Limiting this otherwise constitutionally-guaranteed authority
to enter into executive agreements would fundamentally compromise the
powers of the President as Chief Executive and deprive him of the bulk
of his foreign affairs powers under the Constitution.
30. In the US, a great majority of international agreements are
not treaties but executive agreements, i.e., agreements made by the
executive branch that are not submitted to the Senate for its advice and
27

Gonzales v. Hechanova, G.R. No. L-21897, 22 October 1963; Secretary of Justice v. Lantion, G.R.
No. 139465, 18 January 2000.
28
See Annex C.

MEMORANDUM

10

G.R. Nos. 212444, 212426

consent. Although executive agreements are not specifically discussed in


the US Constitution, they nonetheless have been considered valid
international compacts under Supreme Court jurisprudence and as a
matter of historical practice.29
31. For purposes of comparison, and to the extent US practice
informs Philippine practice, US recognizes three types of executive
agreements:
(i)

the congressional-executive agreement, an international


agreement entered into by the President with the
approval or authorization of the entire Congress;

(ii)

the executive agreement, an international agreement


entered into by the President that implements a
treaty; and

(iii)

the sole executive agreement, an international


agreement entered into by the President on his
own authority.30

32. With the exception of congressional-executive agreements,


Philippine practice coincides with these categories of executive
agreements. This practice is found in Executive Order No. 459,31 which
provides the guidelines in the negotiation and ratification of international
agreements. Executive Order No. 459 grants to the DFA the authority to
determine whether an agreement is an executive agreement or a treaty.32

29

Garcia and MasonCongressional Oversight and Related Issues Concerning International Security
Agreements Concluded by the United States, Congressional Research Service, 07 June 2012, p. 2.
30
Id at pp. 2-7.
31
Providing for the Guidelines in the Negotiation of International Agreements and Its
Ratification.
32
Interestingly, Sen. Miriam Defensor-Santiago, Chairperson of the Senate Committee on
Foreign Relations, recognizes this authority of the DFA and the distinction between a treaty
and an executive agreement. She said: it is the foreign affairs department which
determines whether an agreement is an executive agreement on one hand; or a treaty on the
other hand. This distinction is important, because while it is claimed that an executive
agreement needs only ratification by the President, a treaty needs concurrence by the Senate.
This distinction drawn between an executive agreement and a treaty is based on the 1961
case of Commissioner of Customs v. Eastern Sea Trading. Defensor-Santiago, Procedure for
Senate Concurrence to Treaties (2007), p. 2, cited in Malaya and Mendoza-Oblena, Philippine Treaty
Law and Practice, 35 INTEGRATED BAR OF THE PHILIPPINES JOURNAL 1 (2010).

MEMORANDUM

11

G.R. Nos. 212444, 212426

33. Constitutional Basis of Executive Agreements. The power of the


President to enter into executive agreements without Senate concurrence
finds textual support in the following provisions of the Constitution
Article VIII, Section 4(2). All cases involving the constitutionality of
a treaty, international or executive agreement, or law, which shall be
heard by the Supreme Court en banc, and all other cases which under
the Rules of Court are required to be heard en banc, including those
involving the constitutionality, application, or operation of presidential
decrees, proclamations, orders, instructions, ordinances, and other
regulations, shall be decided with the concurrence of a majority of the
Members who actually took part in the deliberations on the issues in
the case and voted thereon.33
Article VIII, Section 5(2)(a). The Supreme Court shall have the
following powers: xxx 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: xxx 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.34

34. The existence of executive agreements as a distinct category


of legal instruments subject to judicial review is indisputable recognition
of the power of the Philippine President to enter into such agreements.
The constitutional mention of executive agreements alongside treaties and
international agreements is clear recognition of their separate ontological
existence.
35. In fact, Article VII, Section 21 mirrors this level of specificity
and distinction, mentioning treaties and international agreements, but
specifically excluding executive agreements. The absence of executive
agreements in the enumeration of specific legal instruments in Article VII,
Section 21 that have to be concurred in by the Senate is textual evidence
that the Constitution excludes executive agreements from such
requirement of Senate concurrence.
36. The practice of entering into executive agreements finds support in
Philippine jurisprudence. In Commissioner of Customs v. Eastern Sea Trading,35 a

33

Emphasis supplied.
Emphasis supplied.
35
G.R. No. L-14279, 31 October 1961.
34

MEMORANDUM

12

G.R. Nos. 212444, 212426

distinction was drawn between a treaty, which requires Senate


concurrence, and an executive agreement, which does not:
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.

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.36

37. The Court further said that [t]he right of the Executive to
enter into binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage and that [t]he
validity of these [executive agreements] has never been seriously
questioned by our courts. These executive agreements may cover 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.
38. In Bayan v. Romulo,37 the Honorable Court reiterated the
distinction between treaties and executive agreements, and affirmed the
power of the President to enter into executive agreements without Senate
concurrence. More importantly, the Honorable Court recognized a treatyauthorized or a treaty-implementing executive agreement as one type of executive
agreement.
39. In China National Machinery and Equipment Corp. Group
(CNMEG) v. Santamaria,38 the Honorable Court enumerated the requisites
of an executive agreement pursuant to the Vienna Convention: (a) the
agreement must be between states; (b) it must be written; and (c) it must
[be] governed by international law.

36

Italics in the original.


G.R. No. 159618, 01 February 2011.
38
G.R. No. 185572, 07 February 2012.
37

MEMORANDUM

13

G.R. Nos. 212444, 212426

40. In Abaya v. Ebdane,39 the Honorable Court held that an


exchange of notes is considered a form of an executive agreement, which
becomes binding through executive action without the need of a vote by
the Senate or Congress.
41. The Honorable Courts continued affirmation of executive
agreements as a category of international agreements which does not
require Senate concurrence is a recognition that executive agreements are
allowed by the Constitution. It is also a recognition of the impracticability
of submitting each and every international agreement to the Senate for
concurrence. One can imagine the substantial burden on the Senate of
such novel re-interpretation of the Constitution, independent of the
damage to the text of the Constitution itself.
42. In Bayan v. Romulo,40 the Honorable Court has taken judicial
notice of the fact that the conduct of foreign affairs has become more
complex and the domain of international law wider such that executive
agreements now cover human rights, the environment and the sea,
defense, trade, scientific cooperation, aviation, atomic energy,
environmental cooperation, peace corps, arms limitation and nuclear
safety, among others.
43. Indeed, practical as well as political considerations militate
against the submission of all types of international agreements to Senate
concurrence. To be realistic, agreements of an administrative nature, of
which hundreds are made annually to implement broad policy decisions,
should not be submitted to the Senate for approval. Otherwise, very soon,
the Senate would be swamped with such a multitude of agreements to
consider that unless it insisted it not be troubled with minor detail, it
would become an administrative organization.41
44. Putting the problem into context, the Senate would have to
contend with the sheer number of international agreements, the wide
scope of their subject matter, and the high level of detail of their
provisions. Our Senate, after concurring in a treaty, cannot be burdened
with formulating the minutest of operational details for its
implementation just as Congress, in the domestic sphere, is not expected

39

G.R. No. 167919, 14 February 2007.


Supra note 37.
41
E. Hopson, The Executive Agreement In United States Practice, 12 A.F. L. REV. 252.
40

MEMORANDUM

14

G.R. Nos. 212444, 212426

to formulate the implementing rules and regulations of the laws it passes.


These are tasks better left to the Executive.
III.
THE EDCA IS AN EXECUTIVE AGREEMENT WHICH IMPLEMENTS THE
MDT AND THE VFA.
45. Consistent with the Honorable Courts ruling in Commissioner
of Customs v. Eastern Sea Trading,42 the EDCA is an executive agreement
because it simply involves adjustments of detail to carry-out the security
policies in the MDT and the VFA.
46. By its own express terms, the EDCA declares itself to be an
implementing agreement of the MDT and the VFA
Article I
PURPOSE AND SCOPE
1.
This Agreement deepens defense cooperation between the Parties
and maintains and develops their individual and collective capacities, in
furtherance of Article II of the MDT, which states that the Parties
separately and jointly by self-help and mutual aid will maintain and develop
their individual and collective capacity to resist armed attack, and within the
context of the VFA.

47. Under Article 31 (1) of the Vienna Convention on the Law of


Treaties, [a] treaty shall be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose.
48. As will be discussed below, the EDCA is an implementing
agreement of the MDT and the VFA not only by its express declaration,
but also by its purpose, scope and operative provisions.
A.

The EDCA implements the MDT.

49. In geopolitical terms, the EDCA is the evidence of the


currency and credibility of the defense alliance between the Philippines
and the US. It is the clearest possible communication to everyone in the
region of the vitality of our half-century defense agreement with the US.
42

Supra note 35.

MEMORANDUM

15

G.R. Nos. 212444, 212426

Its operative provisions evince a serious commitment by the US to


entangle itself with the national security interests of the Philippines.
50. In entering into the MDT, the US and the Philippines seek,
among others, to declare publicly and formally their sense of unity and
their common determination to defend themselves against external armed
attack and further strengthen their present efforts to collective defense
for the preservation of peace and security pending the development of a
more comprehensive system of regional security in the Pacific Area.43
51. The MDT has two important operative principles. The first is
the Principle of Defensive Reaction in Article IV, which involves assistance in
the case of an armed attack on either of the parties in the Pacific Area.
Article IV of the MDT provides
ARTICLE IV
Each Party recognizes that an armed attack in the Pacific Area on either of
the Parties would be dangerous to its own peace and safety and declares that
it would act to meet the common dangers in accordance with its
constitutional processes.
Any such armed attack and all measures taken as a result thereof shall be
immediately reported to the Security Council of the United Nations. Such
measures shall be terminated when the Security Council has taken the
measures necessary to restore and maintain international peace and security.

52. The second is the Principle of Defensive Preparation in Article II


which states that [i]n order more effectively to achieve the objective of
this Treaty, the Parties separately and jointly by self-help and mutual aid
will maintain and develop their individual and collective capacity to resist
armed attack. The primary concern of the EDCA is the Principle of
Defensive Preparation in order to enhance both parties abilities, if
required, to operationalize the Principle of Defensive Reaction.
53. As the core of the defense relationship between the
Philippines and the US, the MDT seeks to enhance the strategic and
technological capabilities of the parties armed forces. The specific
language of the MDT does not limit its application to situations when
either party is already under armed attack.

43

MDT, Preamble. See list of island territories under Philippine jurisdiction, attached as
Annex D.

MEMORANDUM

16

G.R. Nos. 212444, 212426

54. The objective of the MDT, as stated in Article II, is to


enhance the parties capability to prevent or resist a possible armed attack.
The defensive nature of our constitution and defense agreements means
that our goal is peace-orientedto prevent war by setting up a defense
structure and signaling a force posture that makes it unwise for an
aggressor to attack the Philippines.
55. The purpose, scope and operative provisions of the EDCA implement
the MDT. Article I of the EDCA provides that it is in furtherance of
Article II of the MDT, which states that the Parties separately and jointly
by self-help and mutual aid will maintain and develop their individual and
collective capacity to resist armed attack.
56. The specific purposes of the EDCAto [s]upport[ ] the
Parties shared goal of improving interoperability of the Parties forces,
and for the Armed Forces of the Philippines (AFP), [to address its]
short-term capabilities gaps, promoting long-term modernization, and
helping maintain and develop additional maritime security, maritime
domain awareness, and humanitarian assistance and disaster relief
capabilities44properly fall within the MDTs objective of developing
the defense capabilities of the Philippines and the US. The EDCA
implements the MDT by providing for a mechanism that promotes
optimal cooperation between the US and the Philippines.
B.

The EDCA implements the VFA.

57. The Honorable Court ruled in Lim v. Executive Secretary45 and


Nicolas v. Romulo46 that the VFA is an implementing agreement of the
MDT. Consistent with the Principle of Defensive Preparation, the VFA
allows into our territory (1) US troops and personnel,47 (2) equipment,
materials, supplies, and other property,48 and (3) vessels, and aircraft49 so
the US and the Philippines may conduct activities that promote the
MDTs goal of maintaining and developing the capacity for individual and
collective defense.

44

EDCA, Article I.1.a.


G.R. No. 151445, 11 April 2002.
46
Supra note 8.
47
VFA, Article I.
48
VFA, Article VII.
49
VFA, Article VIII.
45

MEMORANDUM

17

G.R. Nos. 212444, 212426

58. The contention that the VFA is only an agreement relating to troops is
negated by the text of the VFA. The term forces is broader than troops.
Article I defines United States personnel as United States military and
civilian personnel temporarily in the Philippines in connection with
activities approved by the Philippine Government. Article VII is explicit
that the VFA relates to the entry or removal of US facilities in
connection with activities to which [the VFA] applies. It stipulates that
United States Government equipment, materials, supplies, and other
propertyin the Philippinesin connection with activities to which [the
VFA] applies may be imported or exported. 50 Article VIII allows the
entry of such facilities as vehicles, vessels and aircraft in Philippine
territory.
59. The authorization of activities under the VFA serves as the operative
license for allowing troops, equipment, supplies, vessels, aircraft, etc. This is
confirmed by the Honorable Courts decision in Lim when it said that
[t]he VFA permits United States personnel to engage, on an
impermanent basis, in activities, the exact meaning of which was left
undefined. The Honorable Court ruled that
After studied reflection, it appeared farfetched that the ambiguity
surrounding the meaning of the word activities arose from accident.
In our view, it was deliberately made that way to give both parties a
certain leeway in negotiation. In this manner, visiting US forces may
50

VFA, Article VII (Importation and Exportation). 1. United States Government


equipment, materials, supplies, and other property imported into or acquired in the
Philippines by or on behalf of the United States armed forces in connection with activities to
which this agreement applies, shall be free of all Philippine duties, taxes and other similar
charges. Title to such property shall remain with the United States, which may remove such
property from the Philippines at any time, free from export duties, taxes, and other similar
charges. The exemptions provided in this paragraph shall also extend to any duty, tax, or
other similar charges which would otherwise be assessed upon such property after
importation into, or acquisition within, the Philippines. Such property may be removed from
the Philippines, or disposed of therein, provided that disposition of such property in the
Philippines to persons or entities not entitled to exemption from applicable taxes and duties
shall be subject to payment of such taxes, and duties and prior approval of the Philippine
Government.
2. Reasonable quantities of personal baggage, personal effects, and other property for the
personal use of United States personnel may be imported into and used in the Philippines
free of all duties, taxes and other similar charges during the period of their temporary stay in
the Philippines. Transfers to persons or entities in the Philippines not entitled to import
privileges may only be made upon prior approval of the appropriate Philippine authorities
including payment by the recipient of applicable duties and taxes imposed in accordance
with the laws of the Philippines. The exportation of such property and of property acquired
in the Philippines by United States personnel shall be free of all Philippine duties, taxes, and
other similar charges.

MEMORANDUM

18

G.R. Nos. 212444, 212426

sojourn in Philippine territory for purposes other than military. As


conceived, the joint exercises may include training on new techniques
of patrol and surveillance to protect the nations marine resources, sea
search-and-rescue operations to assist vessels in distress, disaster relief
operations, civic action projects such as the building of school houses,
medical and humanitarian missions, and the like.

Both the history and intent of the Mutual Defense Treaty and
the VFA support the conclusion that combat-related activitiesas
opposed to combat itself are indeed authorized.

60. The purpose, scope and operative provisions of the EDCA


implement the VFA.
61. Article I of the EDCA provides that its purposes are to
support the Parties shared goal of improving interoperability of the
Parties forces, and for the Armed Forces of the Philippines (AFP), [to
address its] short-term capabilities gaps, promoting long-term
modernization, and helping maintain and develop additional maritime
security, maritime domain awareness, and humanitarian assistance and
disaster relief capabilities.
62. The Honorable Court in Lim ruled that these activities are
already covered by the VFA. Under Lim, maritime security, maritime
domain awareness, and humanitarian assistance and disaster relief
capabilities are activities that are authorized to be undertaken in the
Philippines under the VFA.
63. Article II of the EDCA reiterates the definition of United
States personnel in the VFA which means United States military and
civilian personnel temporarily in the Philippines in connection with
activities approved by the Philippines.
64. Article III of the EDCA provides for the Agreed Locations
where the Philippines authorizes US to conduct the following activities:
training; transit; support and related activities; refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles, vessels and
aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies and materiel; deploying forces and
materiel; and such other activities as the Parties may agree.

MEMORANDUM

19

G.R. Nos. 212444, 212426

65. Article IV of the EDCA authorizes the prepositioning and


storing of defense equipment, supplies and materiel. Under Article IV in
relation to Article III of the EDCA, the prepositioning of equipment,
supplies and materiel is an activity to be approved by the Philippine
Government through bilateral security mechanisms, such as the MDB
and SEB.54
66. In sum, what the EDCA does is to enhance the existing
contractual security apparatus between the Philippines and the US, set up
through the MDT and the VFA. It is the duty of the Honorable Court to
allow this security apparatus enough breathing space to respond to
perceived, anticipated, and actual exigencies.
C.

The EDCA provides a system that details the conduct of


activities already authorized under the MDT and the VFA.

67. The negotiation of the EDCA and its subsequent ratification


are acts which pertain solely to the President in the lawful exercise of his
executive and diplomatic powers. In fact, even without the EDCA, the
President may rely on his broad powers, as Chief Executive and
Commander-in-Chief,55 to take preparatory and preventive measures
against both external and internal threats to national security.
68. In choosing to enter into the EDCAan agreement that
provides for a more systematic framework for the fulfilment of the
objectives of the MDT and the VFAthe President has made the
decision to formalize pre-existing licenses into a framework agreement
that clarifies the rights and obligations of the parties. Such decision is in
response to the implementation gaps that the government seeks to
address through the EDCA.
69. For instance, our experience with Typhoon Haiyan, one of
the deadliest natural disasters ever recorded in the country, has made us
54

EDCA, Article IV.


Under Article II, Section 3 of the Constitution, the President is the Commander-in-Chief
of the Armed Forces of the Philippines (AFP), which is constitutionally designated as the
protector of the people and the State. Article II, Section 3 of the Constitution provides that
[t]he goal [of the Armed Forces of the Philippines] is to secure the sovereignty of the State
and the integrity of the national territory of the Philippines. Under Article II, Section 4 of
the Constitution, the President, as head of State and chief representative of government, has
the prime duty to serve and protect the people. The National Defense Act also provides
that [t]he national defense policy of the Philippines is the preservation of the State.
55

MEMORANDUM

20

G.R. Nos. 212444, 212426

acutely aware of the need to develop our humanitarian assistance and


disaster relief (HADR) capability. The aftermath of Typhoon Haiyan saw
the governments humanitarian relief operation initially hampered by a
number of significant challengesbureaucratic problems, lack of
transportation, extremely limited communications systems, and damaged
infrastructure.
70. US support following Typhoon Haiyan proved invaluable. A
naval task force from the USS George Washington and elements of the
31st Marine Expeditionary Unit of the US comprised the majority of Joint
Task Force (JTF) 505 which was formed to conduct initial relief
operations dubbed Operation Damayan. US military aircraft provided
reconnaissance of the affected areas, lifted aid workers into the disaster
zones, transported relief supplies, and evacuated those affected by the
typhoon. US Marines assisted with road clearance and with the
distribution of humanitarian assistance. At its peak, US military aircraft
and 12 naval vessels were involved in relief efforts, while nearly 14,000 US
military personnel were deployed directly to the disaster areas. US military
assistance included clearing roads, transporting aid workers, distributing
2,495 tons of relief supplies, and evacuating over 21,000 people.56
71. A significant observation during Typhoon Haiyan is that
despite the resources and technological capabilities of the US forces who
rendered HADR, it took days to get relief efforts underway. This is
because HADR equipment and materiel were not prepositioned, i.e., still
had to be transported to affected areas. This contributed to the delay in
the US forces relief efforts.
72. In the absence of the EDCA, coordination for contingency
operations may be hampered by the need to clarify and renegotiate minute
operational details. This includes the determination of the equipment and
supplies needed and their transport and storage, as well as the security and
logistical arrangements for the forces that would conduct the actual
operations.
73. The EDCA seeks to address the foregoing implementation
gaps and limitations by providing for mechanisms that will improve the
AFPs capacity to render HADR. One such mechanism is the

56

Lum and Margesson, Typhoon Haiyan (Yolanda): U.S. and International Response to Philippines
Disaster, Congressional Research Service, 10 February 2014.

MEMORANDUM

21

G.R. Nos. 212444, 212426

prepositioning of equipment and materiel necessary for the conduct of


HADR activities. Article IV of the EDCA provides
Article IV
EQUIPMENT, SUPPLIES, AND MATERIAL
1.
The Philippines hereby authorizes United States forces, through
bilateral security mechanisms, such as the MDB and SEB, to
preposition and store defense equipment, supplies, and materiel
(prepositioned material), including, but not limited to, humanitarian
assistance and disaster relief equipment, supplies, and materiel, at
Agreed Locations. United States forces shall notify the AFP in advance
regarding the quantities and delivery schedules of defense equipment,
supplies, and materiel that United States forces intend to preposition in
Agreed Locations, as well as who will make such deliveries.

74. Prepositioning will allow us to respond more rapidly in times


of natural disasters and other crises. Time is of the essence in these
situations and as shown by our experience in Typhoon Haiyan, the
transport of necessary supplies needed to support tens of thousands of
Filipinoslike potable water is a massive undertaking.
75. To put the problem into context, the equipment necessary to
respond to a contingency would include vehicles of all makes, sizes and
purposes; relocatable and temporary structures such as tents, barracks, or
temporary medical facilities and complex, and specialized equipment for
telecommunications. The transport of these equipment and the
manpower required to assemble, maintain, and operate them, especially in
a large scale operation, would be a huge task that circumstances simply do
not allow without severely limiting the effectivity of the response. To
complicate matters, relief operations, as an activity, requires going through
the complicated processes and consent mechanisms under our bilateral
system, taking much-needed attention away from the situation on the
ground.
76. Prepositioning not only addresses these serious problems but
also allows the Philippine Government to be proactive in responding to
future disasters because it allows the strategic placement of HADR
equipment and supplies at or near areas commonly plagued by typhoons
and other disasters. It also allows the Philippine Government to make
decisions prior to an emergency, providing the authorities the time to

MEMORANDUM

22

G.R. Nos. 212444, 212426

think things through and come up with a better response with all the
relevant data.
77. Furthermore, because the HADR equipment will be in the
Philippines, Philippine personnel are given the invaluable opportunity to
be trained in their operation and maintenance. This redounds to the
benefit of the Philippines, specifically in the increased effectivity of
disaster and relief operations, and generally in the raised competence of
our military forces.
78. Thus, from the Philippine perspective, the objectives of the
EDCA are twofold: (1) externally, to secure the territorial integrity of the
Philippine State and (2) internally, to improve the countrys HADR
capability.
79. In ratifying the EDCA, the President has made a
determination that both its external and internal aspects will advance the
national security of the Philippines. The President must be given the
widest latitude in balancing the nations limited options and calibrating his
responses to ensure their maximum intended effect. The Honorable
Court must approach this case with deference to a national security
decision already made.
D.

The MDT and the VFA constitute prior, sufficient licenses for
the EDCA.

80. The MDT and the VFA are valid and subsisting international
agreements that already allow the entry of US troops and facilities in the
Philippines under Article XVIII, Section 25 of the Constitution. The
Honorable Court has consistently affirmed the constitutionality of the
MDT and the VFA in BAYAN v. Zamora,58 Lim v. Executive Secretary,59
Nicolas v. Romulo60 and Arigo v. Swift.61
81. Both the MDT and the VFA constitute the prior, sufficient
licenses for the EDCA. The EDCA simply operationalizes and articulates

58

G.R. No. 138570, 10 October 2000.


Supra note 45.
60
Supra note 8.
61
G.R. No. 206510, 16 September 2014.
59

MEMORANDUM

23

G.R. Nos. 212444, 212426

the details of existing policies of the Philippines established under the


MDT and the VFA.62
82. With specific reference to activities to be conducted on Agreed Locations,
the EDCA traces its authority from the VFA.
83. On Agreed Locations. Article V.1 of the EDCA provides that
the Philippines shall retain ownership of and title to Agreed Locations.
This is consistent with Article II of the VFA which recognizes Philippine
sovereignty and jurisdiction over locations within Philippine territory.
84. Number of Agreed Locations. The allegation that the Agreed
Locations are without limit whether in number or size is disproved by the
reality that the decision to choose an Agreed Location occurs within a
highly constrained decision environment.
a)
The location must be owned by the Government
through the AFP and this constraint places potential
significant burdens on the Philippines given that a proposed
Agreed Location (if private property or public property not
used for military purposes) will have to be bought, converted
into a military base, and used for military purposes. This
means that, most likely, any Agreed Location will be within
pre-existing military bases.
b)
There must be a military necessity for the US to
propose a particular Agreed Location.
c)
There must be a corresponding military necessity
on the part of the Philippines to agree to such a proposal.
d)
The size and number of such Agreeed Locations
entail financial, operational, and political responsibilities on
both the Philippines and the US. In other words, the choice of a
particular Agreed Location must be geopolitically appropriate,
economically efficient, and politically sound on the basis of the security
concerns of the US and the Philippines.

62

See Annex E.

MEMORANDUM

24

G.R. Nos. 212444, 212426

The allegation therefore that the Philippines and US authorities may


place these so-called Agreed Locations anywhere in the Philippines is
baseless.63
85. On Activities. Article III.1 of the EDCA authorizes US forces
and vehicles, vessels, and aircraft operated by or for US forces to conduct
a variety of activities with respect to Agreed locations.64 This is not an
independent authorization for new activities. Rather, this only implements
Article I of the VFA which allows US military and civilian personnel
temporarily in the Philippines to engage in activities approved by the
Philippine Government, as well as provisions of the VFA relating to the
importation of materiel65 and movement of vessels and aircraft.66 The
permission system under the EDCA is co-extensive and identical with the
permission system under the VFA.
86. Because the EDCA is an executive agreement that merely
implements the MDT and the VFA, the EDCA does not require Senate
concurrence under Article XVIII, Section 25 of the Constitution. A
Senate concurrence to the EDCA is a legal superfluity.
87. There are some, however, who argue that the EDCA cannot
be couched as an executive agreement because it allegedly allows foreign
military bases and foreign military facilities. Thus, it is claimed that the
EDCA should be in the form of a treaty pursuant to Article XVIII,
Section 25 of the Constitution.
88.

A textual reading of the EDCA negates such claim.

89. First, under Article II.4 of the EDCA, all facilities and areas
that may be used and accessed by the US are provided by the Philippine
Government through the AFP. Article V of the EDCA clearly states that
[t]he Philippines shall retain ownership of and title to Agreed
63

BAYAN Petition, p. 29.


1. With the consideration of the views of the Parties, the Philippines hereby authorizes
and agrees that the United Sates forces, United States contractors, and vehicles, vessels, and
aircraft operated by or for United States forces may conduct the following activities with
respect to Agreed Locations: training; transit; support and related activities; refuelling of
aircraft; bunkering of vessels; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies, and material; deploying forces and material; and such
other activities as the Parties may agree.
65
VFA, Article VII.
66
VFA, Article VIII.
64

MEMORANDUM

25

G.R. Nos. 212444, 212426

Locations.67 By clear consequence of law, an Agreed Location is not a


situs of extraterritoriality. It remains Philippine territory and Philippine
property.
90. Second, while the US may be permitted by the Philippines to
construct and improve infrastructure in these Agreed Locations, the US
will not be building in the concept of an owner. They will be building for
the Philippines. This is because under the EDCA [a]ll buildings, nonrelocatable structures, and assemblies affixed to the land in the Agreed
Locations, including ones altered or improved by US forces, remain
property of the Philippines.68
91. Third, the use of and access to Philippine military bases by the
US will be restricted, and consistent with our national security interests:
(ii)

such use and access will be for activities that


must be approved by the Philippines;69

(iii)

such use and access must be on a rotational basis,


intermittent and temporary;70

(iv)

the Philippine Government shall have access to


the entire area of the Agreed Locations;71

(v)

the Philippine Government shall retain primary


responsibility for security with respect to the
Agreed Locations;72

(vi)

the operational control of the US is limited to


construction activities;73 and

(vii) the Agreed Locations will be areas of joint use,


consistent with the concept of responsibility
based on proportionate use of the areas and
facilities.74

67

EDCA, Article V.1.


EDCA, Article V.4.
69
EDCA, Article III.4; Art. IV.1.
70
EDCA, Article I.1.b.
71
EDCA, Article III.5.
72
EDCA, Article VI.2.
73
EDCA, Art. III, par. 4.
74
EDCA, Art. III, par. 6.
68

MEMORANDUM

26

G.R. Nos. 212444, 212426

92. These standards are sufficient to make a reasonable person


conclude that the Agreed Locations are not, will not, and cannot be
converted into foreign military bases or foreign military facilities.
93. No general-purpose license. Only agreements with respect to
foreign military bases or foreign military facilities are constitutionally
required to be concurred in by the Senate. The defining characteristic of a
foreign military base is the general ability of the foreign force to define,
within the base, the nature and scope of activities they wish to engage in.
This plenary ability, this general-purpose license, is found only in the
former Military Bases Agreement of 1947 which gave the US:
[T]he rights, power and authority within the bases which are
necessary for the establishment, use, operation and defense
thereof or appropriate for the control thereof and all the rights,
power and authority within the limits of territorial waters and air
space adjacent to, or in the vicinity of, the bases which are necessary
to provide access to them, or appropriate for their control. 75

94. This plenary ability, this general-purpose license, is patently


and demonstrably absent in the EDCA because of the permission system
in place for every activity that will be undertaken by US forces on
Philippine soil, as mandated by the VFA.
95. The Philippines has control over these Agreed Locations not
only because we own them but also because we can set the parameters for
their use and access by the US through the permission system in place. By
this control test, the Agreed Locations are decidedly Philippine, not foreign, Military
Bases.
96. Under the EDCA, as with the VFA, the consent mechanism
is individualized, ensuring that every activity will be limited in scope and
duration.76 This type of consent mechanism is highly protective of
Philippine interests because it provides the Mutual Defense Board (MDB)
and the Security Engagement Board (SEB) real opportunity to scrutinize
every activity that they authorize, develop a feedback mechanism for
previous authorizations, and make sure that every activity fits a larger
national or geopolitical context.
75

Article III. 1, Agreement Between the Republic of the Philippines and the United States of
America Concerning Military Bases. (Signed in Manila, March 14, 1947). Emphasis supplied.
76
See Flowchart, attached as Annex F.

MEMORANDUM

27

G.R. Nos. 212444, 212426

97. This consent mechanism is dynamic, fluid, and responsive to


varying security contexts as perceived by the current and future Philippine
political and military leaders. This consent mechanism, this permission
system, has been consistently declared valid by this Honorable Court in
Bayan, Lim, Nicolas, and Arigo.
98. Because the EDCA involves an agreement for the
improvement of Philippine military bases and Philippine military facilities,
the EDCA need only be approved by the President of the Philippines as
an executive agreement. It is beyond the purview of Article XVIII,
Section 25. This is because the improvement of Philippine military bases
or facilities is consistent with the principle of Defensive Preparation
found in the MDT and the VFA.
IV.
A SENATE REFERRAL OF THE EDCA WILL CREATE MULTIPLE
FUNDAMENTAL CONSTITUTIONAL PROBLEMS.
99. During the oral arguments on 18 November 2014, Justice
Leonen floated the possibility of referring the EDCA to the Senate for
concurrence under Article XVIII, Section 25 and Article VII, Section 21
of the Constitution.
100. With all due respect, a referral to the Senate will create
multiple fundamental constitutional problems for the Honorable Court,
the President, and the Senate.
101. The Court cannot refer the EDCA to the Senate for consideration
without preliminarily declaring the EDCA unconstitutional for non-compliance with
Article XVIII, Section 25. On the assumption that the Honorable Court
does not dismiss the present petitions for lack of standing or other
jurisdictional grounds, the question is whether the EDCA is an executive
agreement or a treaty, and the task of the Honorable Court is either to
dismiss the petitions or grant them.
102. The Court cannot force a referral to the Senate without authority from
the President. Only the President has the authority to refer international
agreements to the Senate. As held in Pimentel v. Executive Secretary, it is
within the authority of the President to refuse to submit a treaty to the

MEMORANDUM

28

G.R. Nos. 212444, 212426

Senate.77 Accordingly, the Honorable Court cannot circumvent such


authority either by ordering the President to make the referral or by doing
so itself.
103. The Senate cannot be compelled to accept a responsibility it did not seek
or does not want to assume. The role of the Senate is limited only to giving or
withholding its consent or concurrence to the ratification.78 In the context
of separation of powers, the silence of the Senate must be understood to
mean nothing less than a positive endorsement of the EDCA as an
executive agreement and as an executive agreement that is good for the
country. We ask the Honorable Court to consider the Senates silence as a
nuanced affirmation of the powers of the President.
104. A court-mandated referral to the Senate diminishes the powers of the
President as Commander-in-Chief to act on matters that are within his prerogatives.
The creation of a national defense apparatus and the determination of
activities such as the improvement of Philippine military bases,
prepositioning of defense materials, construction of military runways,
barracks, and ports, are core prerogatives of a Commander-in-Chief.
105. There is only one Commander-in-Chief. Military activities are
meant to consolidate decision-making in one person. The Honorable
Court should therefore seriously reflect on the wisdom of undermining
this decision-making structure in favor of an intervention by the Senate,
an institution that speaks with multiple voices. Now, perhaps more than at
any other time, the powers of our Commander-in-Chief need to be as
potent as it can be.
106. A court-mandated referral to the Senate will result in an international
embarrassment for the President as Sole Organ of Foreign Affairs. The ratification
by the President was a representation to the US that all internal
requirements for the entry into force of the EDCA have already been
complied with. A referral to the Senate contradicts this guaranty of the
President. Even a declaration that the EDCA is ineffectual until ratified
by the Senate achieves the same embarrassing effect for the President and
the countrys standing in the international community.

77
78

Pimentel v. Executive Secretary, G.R. No. 158088, 6 July 2005.


Pimentel v. Executive Secretary, supra note 77.

MEMORANDUM

29

G.R. Nos. 212444, 212426

107. A referral to the Senate is plain and simple delay. It accomplishes


nothing positive other than delay and restrict the Presidents ability to
respond to our manifold security concerns at present. Petitioners
argument against the EDCA is not an argument for referral but an
argument against the EDCA itself. On the assumption that this
Honorable Court can overturn settled and fundamental constitutional
doctrines and compel a referral to the Senate, a favorable action on the
part of the Senate will simply bring the petitioners back to the Supreme
Court to demand the nullification of the EDCA. The potential damage of
such delay to our national security is incalculable.
V.
ASSORTED ISSUES RAISED BY THE PETITIONS
A.

On Prepositioning

108. Prepositioning cannot be equated with bases, troops, or


facilities in the Constitution. In the context of the EDCA, it is a logistical
detail activity geared towards the operational requirements of activities
conducted under the VFA.
109. The training activities under the VFA require significant
logistical efforts that may be enhanced and made more efficient by the
prepositioning of supplies, equipment, and materiel prior to the actual
conduct of the training activities, especially for recurring activities.
110. As our most recent experience with Typhoon Ruby shows,
prepositioning is essential for HADR operations as it allows rescue and
relief operations to have one foot in in terms of ability to respond as
soon as possible.
111. Prepositioning is also justified as an implementation of the
MDTs core principle of Defensive Preparation. A country that seriously
intends to defend itself must construct a national defense apparatus and
adopt a force posture that makes it easier to respond in the case of an
actual armed attack. An important component of defensive preparation is
the prepositioning of defense materials.
112. To be sure, the prepositioning of US materiel, equipment,
and supplies is an activity subject to either the approval of the President as
Commander-in-Chief or the consent requirements under the MDT or the

MEMORANDUM

30

G.R. Nos. 212444, 212426

VFA. Any matter of troops in relation to any prepositioning activity is


always subject to the specific rules of the VFA and must always be
approved by the Philippines.
B.

On Operational Control and Self Defense

Operational control in general


113. Under Article VI.3 of the EDCA:
United States forces are authorized to exercise all rights and authorities
within Agreed Locations that are necessary for their operational
control or defense, including taking appropriate measures to protect
United States forces and United States contractors. The United States
should coordinate such measures with appropriate authorities of the
Philippines.

114. The operational control granted to the US does not refer to the control
over a military base or activity. Control over the Philippine military base
remains with the Philippine military commander while control over an
activity is exercised by the Philippines when it gives its consent and when
it sets the specific parameters of the activity approved. Operational
control is a characteristic inherent in military command and it pertains to
a much lower lever of controlthat of a superior officer over a
subordinate. Under the US Department of Defense glossary cited by
petitioners, operational control refers to:
The authority to perform those functions of command over
subordinate forces involving organizing and employing commands and
forces, assigning tasks, designating objectives, and giving authoritative
direction necessary to accomplish the mission.79

115. Within the framework of the permission system under the VFA, a
mission necessarily refers to the activity approved by the MDB/SEB.

116. The AFP has a similar concept. The Glossary of the


Philippine Air Force Manual contains a similar definition:
Transferable command authority that may
79

be exercised by

Department of Defense Dictionary of Military and Associated Terms,


http://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf. Emphasis supplied.

MEMORANDUM

31

G.R. Nos. 212444, 212426

commanders at any echelon at or below the level of combatant


command. Operational control is inherent in combatant command
(command authority) (COCOM). Operational control may be
delegated and is the authority to perform those functions of command
over subordinate forces involving organizing and employing
commands and forces, assigning tasks, designating objectives, and
giving authoritative direction necessary to accomplish the mission.80

117. Operational control thus extends only to command over


subordinate forces, as required for the accomplishment of a particular
pre-approved activity. The Philippines, pursuant to the consent
mechanisms in the MDT and the VFA, will always have a say in the
activities and objectives to which operational control relates. Article VI.3
of the EDCA simply restates an inherent attribute of armed forces.
Operational control over construction activities
118. Article III.4 of the EDCA grants to the US operational control for
construction activities:
The Philippines hereby grants to the United States, through bilateral
security mechanisms, such as the MDB and SEB, operational control of
Agreed Locations for construction activities and authority to undertake
such activities on, and make alterations and improvements to, Agreed
Locations. United States forces shall consult on issues regarding such
construction, alterations, and improvements based on the Parties shared
intent that the technical requirements and construction standards of any
such projects undertaken by or on behalf of United States forces should
be consistent with the requirements and standards of both Parties.

119. In the case of construction activities to be carried out by US


forces, operational control is granted through bilateral security
mechanisms. This means that US forces cannot dictate the nature and
scope of construction projectsthese too would be subject to the
consent mechanisms under the MDT and the VFA. Once the objective
for a particular construction activity is set, e.g., build a barracks with
certain specifications, it makes obvious sense to give the force carrying
out the construction activities the level of control necessary to achieve the
objective.

80

Glossary, Annex A of the Philippine Air Force Manual, available at


http://www.paf.mil.ph/archive/MANUALS/annexes/Annex%20A%20-%20Glossary.pdf.
Emphasis supplied.

MEMORANDUM

32

G.R. Nos. 212444, 212426

120. Even then, when construction activities approved by the


Philippine government are undertaken by the US, operational control is
always limited in terms of scope (only over the actual construction
activity) and area (only where the structure being constructed is located).
Self defense
121. Neither does the authorization for self-defense merit
inordinate concern. Pursuant to the VFA, activities are authorized by the
Philippines through implementing agreements. These implementing
agreements will further define the circumstances and limitations under
which visiting forces may engage in combat. The terms of reference for
military exercises, such as the one considered in Lim v. Executive Secretary,
have consistently prohibited US forces from engaging in combat
operations, except in self-defense.81
122. In addition to the authority provided by the VFA, the right
can also be located in the individual soldiers right to use force in selfdefense, generally accepted as either stemming from international law, or
the municipal law of the receiving state.82
123. The authorization extended to US forces is no different from
what any contingent of Philippine soldiers ought to be accorded abroad.
Filipino peacekeepers, including the contingent assigned to the United
Nations Disengagement Observer Force in the Golan Heights, operate
under the Handbook on United Nations Multidimensional Peacekeeping
Operations, which recognizes the right to self-defense:
Appropriate use of force. Since peacekeeping operations need the
consent of the parties to a conflict, military forces under UN command
are not usually required to use force beyond that necessary for selfdefence. Self-defence includes the right to protect oneself, other UN
personnel, UN property and any other persons under UN protection.
The use of force by the military component will depend on the
mandate of the peacekeeping operation and the rules of engagement;
sometimes the Security Council will authorize a peacekeeping
operation to use armed force in situations other than in self-defence.
The circumstances under which the operation may use armed force will
then be spelt out in the relevant resolution of the Council. The rules of
81
82

Supra note 45.


DIETER FLECK, ED., THE HANDBOOK OF THE LAW OF VISITING FORCES, 546 (2001).

MEMORANDUM

33

G.R. Nos. 212444, 212426

engagement for the peacekeeping operation will clarify the different


levels of force that can be used in various circumstances, how each
level of force should be used and any authorizations that may need to
be obtained from commanders.83

124. Article VI.3 of the EDCA does not refer to the self-defense of states,
legitimized through appropriate international processes and requiring the determination
of just cause. Rather, the concept is grounded in specific tactical situations
where an armed force is constrained to defend itself through combat. It is
limited in scope (only over the troops being attacked and always subject to
the rules of engagement) and area (the area of conflict). It does not refer
to control over the security of the Philippine military base, the primary
responsibility over which the EDCA explicitly gives to the Philippines.84
125. Even at the tactical level, it should be noted that the use of
force is not an automatic response to any attack. Both US armed forces
and the AFP practice weapons discipline, applying force based on rules of
engagement that can be tailored based on the nature of each mission.
126. The consent mechanisms in place, the limited scope of
operational control, and the explicit provisions of the EDCA granting
primary responsibility over security to the Philippines ensure that the
Philippine government exercises control over its military bases as well as
the activities to be conducted in Philippine soil at the highest levels and
prevent the US, in the guise of security, from assuming overall control.
C.

On Telecommunications

127. US access to and use of a telecommunications system does


not require legislative intervention in the form of a legislative franchise
under Article XII, Section 11 of the Constitution. The system referred to
in the EDCA should be distinguished from the telecommunications
services offered to the public and covered by the Telecommunications
Policy Act of the Philippines:
SECTION 3. Definitions and Interpretations. For purposes of this
Act, the following terms shall be used:
83

Handbook on United Nations Multidimensional Peacekeeping Operations, p. 57. Available

at
http://www.peacekeepingbestpractices.unlb.org/Pbps/library/Handbook%20on%20UN%
20PKOs.pdf
84
Article VI.2.

MEMORANDUM

34

G.R. Nos. 212444, 212426

b) Public telecommunications entity any person, firm, partnership


or corporation, government or private, engaged in the provision of
telecommunications services to the public for compensation. 85

128. Only telecommunications systems owned or operated by


public telecommunications entities, i.e., those that provide services to the
public for compensation, are required to secure a legislative franchise.86
Clearly, the franchise requirement only applies to telecommunications
providers operating public utilities.
129. The telecommunication system contemplated under the
EDCA will be used exclusively by US and Philippine forces in the context
of activities (such as joint exercises and maneuvers) where inter-operable
communications will be required. By military necessity, these systems will
not be accessible for use by the public, will not be available commercially,
and will only be used for the operational requirements of US and
Philippine armed forces.
130. Finally, the frequencies that will be made avaiable to the US
are only those that are already available to the Philippine military.
D.

On Dispute Resolution

131. The BAYAN Petition argues that the EDCA, in providing a


dispute settlement mechanism in Article XI, deprives the Supreme Court
of its jurisdiction under the Constitution.87 Article XI of the EDCA
provides:
RESOLUTION OF DISPUTES
The Parties agree to resolve any dispute arising under this Agreement
exclusively through consultation between the Parties. Disputes and
other matters subject to consultation under this Agreement shall not be
referred to any national or international court, tribunal, or other similar
body, or to any third party for settlement, unless otherwise agreed by
the parties.

85

Republic Act No. 7295.


Id. SEC. 16. Franchise. - No person shall commence or conduct the business of being a
public telecommunications entity without first obtaining a franchise.
87
BAYAN Petition, pp. 40-43.
86

MEMORANDUM

35

G.R. Nos. 212444, 212426

132. Under Article VIII, Section 5 of the Constitution, the


Supreme Court has jurisdiction to determine the constitutionality of an
international agreement under Philippine law. However, the Honorable
Court does not have the jurisdiction to settle disputes between states.
Any dispute settlement mechanism between states is subject to their
consent under international law.
133. This does not mean, however, that Philippine courts are
deprived of jurisdiction over other disputes. Neither does it mean that the
Philippines has deprived individuals who are non-parties to the agreement
of recourse to the courts. Only the parties to the EDCAthe Republic of
the Philippines and the USare bound by Article XI. Thus, only disputes
between the parties in relation to the EDCA are controlled by Article XI.
E.

On Nuclear Weapons

134. The EDCA does not violate the policy of freedom from
nuclear weapons under Article II, Section 8 of the Constitution. Article
IV.6 of the EDCA provides that [t]he prepositioned materiel shall not
include nuclear weapons. All prepositioning must be carried out through
bilateral security mechanisms such as the MDB and the SEB. Through the
MDB and SEB, the Philippine Government will regulate the equipment,
supplies and facilities that may be allowed entry into the Philippines.
Article IV.1 of the EDCA provides
The Philippines hereby authorizes United States forces, through
bilateral security mechanisms, such as the MDB and SEB, to
preposition and store defense equipment, supplies and materiel
(prepositioned materiel), including, but not limited to, humanitarian
assistance and disaster relief equipment, supplies and materiel, at
Agreed Locations. United States forces shall notify the AFP in advance
regarding the quantities and delivery schedules of defense equipment,
supplies and materiel that United States forces intend to preposition in
Agreed Locations, as well as who will make such deliveries.

135. The argument that Article IV.1 of the EDCA only applies to
prepositioned materiel and would not bar the entry of US vessels and
aircraft carrying nuclear weapons is specious and contradicted by the
express provisions of the EDCA. The EDCA is premised on full respect
for the Philippine Constitution and Philippine laws88 and the parties
88

EDCA, Preamble.

MEMORANDUM

36

G.R. Nos. 212444, 212426

obligations under international conventions against chemical and


biological weapons.
136. Activities involving the entry of vessels and aircraft will
require the approval of the Philippine Government. Such approval is
circumscribed by a policy of freedom from nuclear weapons under
Article II, Section 8 of the Constitution.
137. Article IX.1 of the EDCA expressly provides that [t]he
Parties recognize and acknowledge the importance of protection of the
environment and human health and safety in the context of activities
covered by this Agreement and agree to implement this Agreement in a
manner consistent with the protection of the natural environment and
human health and safety Article IX.2 also states that [t]he United
States confirms its intent to respect relevant Philippine environmental,
health, and safety laws, regulations, and standards in the execution of its
policies.
F.

On the applicability of local laws

138. Petitioners maintain that the EDCA violates the Labor Code,
the National Internal Revenue Code, the Local Government Code, and
the National Building Code, among others.
139. Two reasons should sweep aside petitioners assorted
objections to the EDCA
140. A sovereign nation cannot be bound by the laws of another.
The Republic of the Philippines, as a sovereign state, may apply its laws to
its subjects and within its territory. It is inherent in statehood, and a
functional requirement in international relations, that a states local laws
cannot bind another sovereign state. This immunity from jurisdiction
applies to contingents of US Armed Forces allowed to enter the country.
The rule in international law is that a foreign armed forces
allowed to enter ones territory is immune from local jurisdiction,
except to the extent agreed upon. The Status of Forces Agreements
involving foreign military units around the world vary in terms and
conditions, according to the situation of the parties involved, and
reflect their bargaining power. But the principle remains, i.e., the
receiving State can exercise jurisdiction over the forces of the sending

MEMORANDUM

37

G.R. Nos. 212444, 212426

State only to the extent agreed upon by the parties.89

141. The Supreme Court in Bayan v. Romulo recognized that states


may concede aspects of sovereignty through an agreement:
By their nature, treaties and international agreements actually
have a limiting effect on the otherwise encompassing and absolute
nature of sovereignty. By their voluntary act, nations may decide to
surrender or waive some aspects of their state power or agree to limit
the exercise of their otherwise exclusive and absolute jurisdiction. The
usual underlying consideration in this partial surrender may be the
greater benefits derived from a pact or a reciprocal undertaking of one
contracting party to grant the same privileges or immunities to the
other. On the rationale that the Philippines has adopted the generally
accepted principles of international law as part of the law of the land, a
portion of sovereignty may be waived without violating the
Constitution. Such waiver does not amount to an unconstitutional
diminution or deprivation of jurisdiction of Philippine courts.90

142. Without the consent of the US, petitioners cannot insist on


the application of the countrys taxes, labor laws and building codes.
143. With specific reference to taxes, the EDCA contemplates an
assumption of taxes by the Philippine Government and not an exemption from
taxes of the US forces and US contractors. Article VII states:
Article VII
UTILITIES AND COMMUNICATIONS
1.
The Philippines hereby grants to United States forces and
United States contractors the use of water, electricity, and other public
utilities on terms and conditions, including rates or charges, no less
favourable than those available to the AFP or the Government of the
Philippines in like circumstances, less charges for taxes and similar fees,
which will be for the account of the Philippine Government. United
States forces costs shall be equal to their pro rata share of the use of
such utilities.

144. Under the EDCA, taxes on the use of water, electricity, and
other public utilities by the US forces and US contractors will be for the
89

Nicolas v. Romulo, supra note 8, citing DIETER FLECK, ED., THE HANDBOOK OF THE LAW
(2001).
90
Supra note 37.
OF VISITING FORCES

MEMORANDUM

38

G.R. Nos. 212444, 212426

account of the Philippine Government. This is clearly not a tax


exemption, which, under the Constitution, can only be granted by
Congress.91
145. The assumption of taxes by the government is not unknown
in this jurisdiction. Tax assumption clauses are commonly found in BuildOperate-Transfer (BOT) contracts with the government as an incentive
for private corporations to take part and invest in Philippine industries.92
It is reasonable to assume that the assumption of taxes by the Philippine
Government was in exchange for the greater benefits that the country will
derive from the agreement.

PRAYER
WHEREFORE, it is respectfully prayed that:
1) The application for a Temporary Restraining Order and/or Writ
of Preliminary Injunction be DENIED; and
2) The petitions be DISMISSED for LACK OF MERIT.
Respondents pray for other just and equitable reliefs under the
premises.
Manila, 15 December 2014.

OFFICE OF THE SOLICITOR GENERAL


134 Amorsolo St., Legaspi Village
1229 Makati City
Tel. No.: 8186301 to 09 (Trunkline)
Fax No.: 8176037
Website: www.osg.gov.ph
Email: docket@osg.gov.ph

91

Article VI, Section 28(4): No law granting any tax exemption shall be passed without the
concurrence of a majority of all the Members of the Congress.
92
See National Power Corporation v. Province of Quezon, G.R. No. 171586, 15 July 2009.

MEMORANDUM

39

G.R. Nos. 212444, 212426

FLORIN T. HILBAY
Acting Solicitor General
Roll No. 44957
IBP Lifetime No. 08505
MCLE Exemption No. IV-001068, 5-14-13

EMERSON S. BAEZ
Associate Solicitor
Roll No. 56723
IBP No. 953502, 01-08-14
MCLE Compliance No. V-0002900, 07-09-14

MAXIMO PAULINO T. SISON III


Roll No. 59301
IBP Lifetime No. 012977
MCLE Compliance No. N/A

MARIA GRACIELA D. BASE


Associate Solicitor
Roll No. 61899
IBP No. 954310, 1-9-14
MCLE Compliance No. N/A

GERARDO E. MENDOZA
Associate Solicitor
Roll No. 62511
IBP No. 965933, 4-3-2014
MCLE Compliance No. V-0003278

MELBOURNE D. PANA
Associate Solicitor
Roll No. 61900
IBP No. 954309, 1-9-14
MCLE Compliance No. N/A

MEMORANDUM

40

G.R. Nos. 212444, 212426

RAMON ANTONIO D. PANDAN


Associate Solicitor
Roll No. 63042
IBP No. 96846, 4-15-14
MCLE Compliance No. N/A

LIWAY CZARINA S. RUIZO


Associate Solicitor
Roll No. 63351
IBP No. 967967, 3-31-14
MCLE Compliance No. N/A

MA. GOLDA GIGI G. MIOZA


Associate Solicitor
Roll No. 63462
IBP No. 968275
MCLE Compliance No. V-0004533, 11-11-14

Copy Furnished:
HARRY L. ROQUE
ROMMEL R. BAGARES
ETHEL C. AVISADO
Roque & Butuyan Law Offices
Counsel for Petitioners in G.R. No. 212426
1904 Antel Corporate Center
121 Valero St., Salcedo Village
Makati City
RACHEL F. PASTORES
AMYLYN B. SATO
FRANCIS ANTHONY P. PRINCIPE
SANDRA JILL S. SANTOS
CARLOS A. MONTEMAYOR, JR.
Public Interest Law Center
Counsel for Petitioners in G.R. No. 212444
4/F Kajia Bldg., 7836 Makati Avenue
MARIA KRISTINA C. CONTI
MANEEKA ASISTOL SARZA
National Union of Peoples Lawyers
Counsel for Petitioners in G.R. No. 212444
3/F Erythrina Building
No. 1 Matatag cor. Maaralin Sts.
Central District, Quezon City
REMEGIO D. SALADERO, JR.
NOEL V. NERI
VICENTE JAIME M. TOPACIO
Pro-Labor Legal Assistance Center
Counsel for Petitioners-in-Intervention
No. 33-B E. Rodriguez Sr. Avenue, Quezon
City
RENE A.V. SAGUISAG, SR.
Counsel for Petitioner-in-Intervention
4045 Bigasan St., Palanan
1235 Makati

Executive Secretary PAQUITO


OCHOA, JR.
Office of the President, Malacaan
Manila

N.

Secretary VOLTAIRE GAZMIN


Department of National Defense
DND Bldg., Segundo Avenue
Camp General Emilio Aguinaldo, Quezon
City
Secretary ALBERT DEL ROSARIO
Department of Foreign Affairs
DFA Bldg., Roxas Blvd., Pasay City
Secretary FLORENCIO ABAD
Department of Budget and Management
J.P. Laurel Sr. St., Malacaan Palace, Manila
General EMMANUEL T. BAUTISTA
Office of the Chief of Staff, Armed Forces
of the Philippines
DND Bldg., Segundo Avenue
Camp General Emilio Aguinaldo, Quezon
City
Undersecretary FRANCISCO BARAAN
III
Department of Justice
Padre Faura St., Legaspi Village
Makati City
Undersecretary
PIO
LORENZO
BATINO
Assistant Secretary RAYMOND JOSE
QUILOP
Department of National Defense
DND Bldg., Segundo Avenue
Camp General Emilio Aguinaldo, Quezon
City
Ambassador LOURDES YPARRAGUIRRE
DFA Bldg., 2330 Roxas Blvd., Pasay City
Ambassador J. EDUARDO MALAYA
DFA Bldg., 2330 Roxas Blvd., Pasay City

EXPLANATION
(Pursuant to Rule 13, Section 11 of the
1997 Rules of Civil Procedure)
This Memorandum is being served by registered mail due to lack of sufficient personnel in
the Office of the Solicitor General to effect personal service.
RAMON ANTONIO D. PANDAN
Associate Solicitor