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ZAMORA (Executive Secretary)

October 10, 2000 | Puno (Dissenting Opinion)
Petitioner: Bayan, Junk VFA Movement, Bishop Tomas Millamena,
Bishop Elmer Bolocan, Dr. Reynaldo Legasca, Kilusang
Mambubukid ng Pilipinas, Kilusang Mayo Un, Gabriela,
Polador, Public Interest Law Center
Respondents: Executive Secretary Rolando Zamora, DFA Sec.
Domingo Siazon, Defense Secretary Orlando Mercado,
Brig. Gen. Alexander Aguirre, Senate President
Marcelo Fernan, Sen. Franklin Drilon, Sen. Blas Ople,
Sen. Rodolfo Biazon, Sen. Francisco Tatad

Special civil action for certiorari and prohibition

Petitioners assail the validity of the VFA (Visiting Forces
Agreement) which after having been ratified by Pres.
Estrada was duly concurred by the Senate, by a 2/3 vote of
its members. They contend that the VFA did not satisfy the
requirement laid in Art XVIII, Sec 25 since US merely treats it
as an executive agreement rather than a treaty. As
such, US thinks that VFA does not need the ratification of
the US Senate.
Main decision upheld the validity of the Visiting Forces
Agreement. Justice Puno dissents and believes that VFA is
No facts are narrated in the dissenting opinion. Justice Puno
automatically jumps to the issue.

MAIN ISSUE: WON the Visiting Forces Agreement (VFA) violates Art.
XVIII, Sec 25 of the Constitution1, (YES)

1 After the expiration in 1991 of the Agreement between the

Republic of the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under
a treaty duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of the votes cast

3 Constitutional requisites that must be complied with

before foreign military bases, troops, or facilities can be
allowed in the Philippine territory
1. Their presence should be allowed by a treaty duly
concurred in by the Philippine Senate;
2. When Congress so requires, such treaty should be
ratified by majority of the votes cast by the
Filipino people in a national referendum held for
the purpose;
3. Such treaty should be recognized as a
treaty by the other contracting party (NOTE:
Please see sub-issue first before going to the
main issue. Medyo magulo pagkakaorder ni Puno
so I dont know how to structure it according to
your outline)
INTENT OF THE FRAMERS: The asymmetry in the 1947 RP-US
Military Bases Agreement, which was ratified by the
Philippine Senate and not by the US Senate was a slur to our
sovereignty. The framers do not want this anomalous
asymmetry to be repeated thats why Art XVIII, Sec. 25
requires that the treaty allowing the presence of foreign
military bases, troops, and facilities should also be
recognized as a treaty by the other contracting party.
o The yardstick should be the US Constitutional Law2.
o In US practice, a treaty is only one of the four types
of international agreements: (1) Article II Treaties, (2)
Executive Agreements pursuant to a treaty, (3)
Congressional Executive Agreements, (4) sole
executive agreements (VFA is more akin to
o The term executive agreement is used as a
convenient catch-all to subsume all international

by the people in a national referendum held for that purpose,

and recognized as a treaty by the other contracting State.
2 Sec. 2, Art. II, Clause 2 of US Consti the President shall
have power, by and with the advice and concurrence of the
senate, to make treaties, provided two thirds of the Sebators
present concur.

agreements intended to bind the US other than those

which receive consent of 2/3 of US Senate.
o The US Constitution does not expressly confer
authority to make these executive agreements,
hence the authority to make them, their scope, and
legal force have been the subject of a long on-going
FIRST VIEW: In the case of sole executive
agreements, commentators have been in
general agreement that unlike treaties, sole
executive agreements cannot prevail over
prior inconsistent federal legislation. It is
doubtful whether, in the absence of
appropriate legislation, it may supersede a
prior inconsistent statute.
SECOND VIEW: On the other hand, it is argued
that when the US President enters into a sole
exclusive presidential authority in the field of
foreign relations, such agreement may prevail
over prior inconsistent federal legislation.
In conclusion, with the doubtful legal status of sole
executive agreements, the Court will be standing on
unstable ground if it places a sole executive agreement like
the VFA on the same constitutional plateau as a treaty.
Questions remain and the debate continues on the
constitutional basis as well as the legal effects of sole
executive agreements under US Law.
In the words of Louis Henkin: often the treaty process
will be used at the insistence of other parties to an
agreement because they believe that a treaty has
greater dignity than an executive agreement,
because its constitutional effectiveness is beyond
doubt, because a treaty will commit the Senate and
the people of the US and make its subsequent
abrogation or violation less likely.
With the cloud of uncertainty still hanging on the exact legal
force of sole executive agreements under US Constitutional
Law, this Court must draw a bright line between the

dignity and status of a treaty in contrast with a sole

executive agreement.
DISSENT: Petition should have been granted. VFA falls short of the
requirement set by Art XVIII, Sec 25 of the 1987 Constitution.

Respondents: these constitutional requirements are not
applicable to the VFA.
o These requirements applies only to the stationing or
permanent presence since troops is mentioned
along with bases and facilities which are
permanent in nature
o VFA contemplates merely temporary visits of US
Military Troops in Philippine territory
Justice Puno: VFA is of a permanent nature
o Neither the VFA nor the Mutual Defense Treaty
provides the slightest suggestion on the duration of
the visits of U.S. Forces in Philippine territory.
o VFA does not provide for a specified and limited
period of effectivity. It instead provides an openended term3
o Both Blacks and Bouviers Law dictionaries
definition of permanent does not necessarily
contemplate absolute perpetuity. (as long as it
continues for an indefinite period of time)
o Also, Art XVIII, Sec 18 contemplates both permanent
and temporary presence of foreign military troops.
HENCE, VFA regardless of WON permanent or
temporary comes within its purview.

3 Art IX, VFA 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