G.R. No.

212426

RENE A.V. SAGUISAG, WIGBERTO E. TAADA, FRANCISCO "DODONG" NEMENZO, JR., SR. MARY JOHN
MANANZAN, PACIFICO A. AGABIN, ESTEBAN "STEVE" SALONGA, H. HARRY L. ROQUE, JR., EVALYN G.
URSUA, EDRE U. OLALIA, DR. CAROL PAGADUAN-ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY
CASIO, Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT OF NATIONAL DEFENSE SECRETARY
VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, JR.,
DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO ABAD, AND ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, Respondents.

x-----------------------x

G.R. No. 212444

BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS SECRETARY GENERAL RENATO M.

REYES, JR., BAYAN MUNA PARTY-LIST REPRESENTATIVES NERI J. COLMENARES AND CARLOS ZARATE,
GABRIELA WOMEN'S PARTY-LIST REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE JESUS, ACT
TEACHERS PARTY-LIST REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST REPRESENTATIVE
FERNANDO HICAP, KABATAAN PARTY-LIST REPRESENTATIVE TERRY RIDON, MAKABAYANG KOALISYON NG
MAMAMAYAN (MAKABAYAN), REPRESENTED BY SATURNINO OCAMPO AND LIZA MAZA, BIENVENIDO
LUMBERA, JOEL C. LAMANGAN, RAFAEL MARIANO, SALVADOR FRANCE, ROGELIO M. SOLUTA, AND
CLEMENTE G. BAUTISTA, Petitioners,
vs.
DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN
AFFAIRS SECRETARY ALBERT DEL ROSARIO, EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., ARMED
FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE
UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR LOURDES YPARRAGUIRRE, AMBASSADOR J.
EDUARDO MALAYA, DEPARTMENT OF JUSTICE UNDERSECRETARY FRANCISCO BARAAN III, AND DND
ASSISTANT SECRETARY FOR STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP AS CHAIRPERSON AND
MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR THE PHILIPPINES ON EDCA, Respondents.

x-----------------------x

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON, ELMER LABOG, CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED BY ITS
NATIONAL PRESIDENT FERDINAND GAITE, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO
UNO, REPRESENTED BY ITS NATIONAL PRESIDENT JOSELITO USTAREZ, NENITA GONZAGA, VIOLETA
ESPIRITU, VIRGINIA FLORES, AND ARMANDO TEODORO, JR., Petitioners-in-Intervention,
RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.

DECISION

SERENO, J.:

The petitions1 before this Court question the constitutionality of the Enhanced Defense Cooperation Agreement (EDCA)
between the Republic of the Philippines and the United States of America (U.S.). Petitioners allege that respondents
committed grave abuse of discretion amounting to lack or excess of jurisdiction when they entered into EDCA with the
U.S.,2 claiming that the instrument violated multiple constitutional provisions. 3 In reply, respondents argue that
petitioners lack standing to bring the suit. To support the legality of their actions, respondents invoke the 1987
Constitution, treaties, and judicial precedents.4

A proper analysis of the issues requires this Court to lay down at the outset the basic parameters of the constitutional
powers and roles of the President and the Senate in respect of the above issues. A more detailed discussion of these
powers and roles will be made in the latter portions.

I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE PRESIDENT: DEFENSE, FOREIGN

RELATIONS, AND EDCA

A. The Prime Duty of the State and the Consolidation of Executive Power in the President

Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang buong katapatan at sigasig ang aking mga
tungkulin bilang Pangulo (o Pangalawang Pangulo o Nanunungkulang Pangulo) ng Pilipinas, pangangalagaan at
ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang mga batas nito, magiging makatarungan sa bawat tao, at
itatalaga ang aking sarili sa paglilingkod sa Bansa. Kasihan nawa aka ng Diyos.

- Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa Saligang Batas 5

The 1987 Constitution has "vested the executive power in the President of the Republic of the Philippines." 6 While the
vastness of the executive power that has been consolidated in the person of the President cannot be expressed fully in
one provision, the Constitution has stated the prime duty of the government, of which the President is the head:

The prime duty of the Government is to serve and protect the people. The Government may call upon the
people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by
law, to render personal military or civil service.7 (Emphases supplied)

B. The duty to protect the territory and the citizens of the Philippines, the power to call upon the people
to defend the State, and the President as Commander-in-Chief

The duty to protect the State and its people must be carried out earnestly and effectively throughout the whole
territory of the Philippines in accordance with the constitutional provision on national territory. Hence, the President of
the Philippines, as the sole repository of executive power, is the guardian of the Philippine archipelago, including all
the islands and waters embraced therein and all other territories over which it has sovereignty or jurisdiction. These
territories consist of its terrestrial, fluvial, and aerial domains; including its territorial sea, the seabed, the subsoil, the
insular shelves, and other submarine areas; and the waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions.8

To carry out this important duty, the President is equipped with authority over the Armed Forces of the Philippines
(AFP),9 which is the protector of the people and the state. The AFP's role is to secure the sovereignty of the State and
the integrity of the national territory.10 In addition, the Executive is constitutionally empowered to maintain peace and
order; protect life, liberty, and property; and promote the general welfare. 11

In recognition of these powers, Congress has specified that the President must oversee, ensure, and reinforce our
defensive capabilities against external and internal threats 12 and, in the same vein, ensure that the country is
adequately prepared for all national and local emergencies arising from natural and man-made disasters. 13

To be sure, this power is limited by the Constitution itself. To illustrate, the President may call out the AFP to prevent or
suppress instances of lawless violence, invasion or rebellion, 14 but not suspend the privilege of the writ of habeas
corpus for a period exceeding 60 days, or place the Philippines or any part thereof under martial law exceeding that
same span. In the exercise of these powers, the President is also duty-bound to submit a report to Congress, in person
or in writing, within 48 hours from the proclamation of martial law or the suspension of the privilege of the writ of
habeas corpus; and Congress may in turn revoke the proclamation or suspension. The same provision provides for the
Supreme Court's review of the factual basis for the proclamation or suspension, as well as the promulgation of the
decision within 30 days from filing.

C. The power and duty to conduct foreign relations

The President also carries the mandate of being the sole organ in the conduct of foreign relations. 15 Since every state
has the capacity to interact with and engage in relations with other sovereign states, 16 it is but logical that every state
must vest in an agent the authority to represent its interests to those other sovereign states.

The conduct of foreign relations is full of complexities and consequences, sometimes with life and death significance to
the nation especially in times of war. It can only be entrusted to that department of government which can act on the
basis of the best available information and can decide with decisiveness. x x x It is also the President who possesses
the most comprehensive and the most confidential information about foreign countries for our diplomatic and consular
officials regularly brief him on meaningful events all over the world. He has also unlimited access to ultra-sensitive
military intelligence data. In fine, the presidential role in foreign affairs is dominant and the President is traditionally
accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are
adjudged under less stringent standards, lest their judicial repudiation lead to breach of an international obligation,
rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of other problems with
equally undesirable consequences.17

The role of the President in foreign affairs is qualified by the Constitution in that the Chief Executive must give
paramount importance to the sovereignty of the nation, the integrity of its territory, its interest, and the right of the
sovereign Filipino people to self-determination. 18 In specific provisions, the President's power is also limited, or at least
shared, as in Section 2 of Article II on the conduct of war; Sections 20 and 21 of Article VII on foreign loans, treaties,
and international agreements; Sections 4(2) and 5(2)(a) of Article VIII on the judicial review of executive acts; Sections
4 and 25 of Article XVIII on treaties and international agreements entered into prior to the Constitution and on the
presence of foreign military troops, bases, or facilities.

D. The relationship between the two major presidential functions and the role of the Senate

Clearly, the power to defend the State and to act as its representative in the international sphere inheres in the person
of the President. This power, however, does not crystallize into absolute discretion to craft whatever instrument the
Chief Executive so desires. As previously mentioned, the Senate has a role in ensuring that treaties or international
agreements the President enters into, as contemplated in Section 21 of Article VII of the Constitution, obtain the
approval of two-thirds of its members.

Previously, treaties under the 1973 Constitution required ratification by a majority of the Batasang Pambansa,19except
in instances wherein the President "may enter into international treaties or agreements as the national welfare and
interest may require."20 This left a large margin of discretion that the President could use to bypass the Legislature
altogether. This was a departure from the 1935 Constitution, which explicitly gave the President the power to enter
into treaties only with the concurrence of two-thirds of all the Members of the Senate. 21 The 1987 Constitution returned
the Senate's power22 and, with it, the legislative's traditional role in foreign affairs. 23

The responsibility of the President when it comes to treaties and international agreements under the present
Constitution is therefore shared with the Senate. This shared role, petitioners claim, is bypassed by EDCA.

II. HISTORICAL ANTECEDENTS OF EDCA

A. U.S. takeover of Spanish colonization and its military bases, and the transition to Philippine
independence

The presence of the U.S. military forces in the country can be traced to their pivotal victory in the 1898 Battle of Manila
Bay during the Spanish-American War.24 Spain relinquished its sovereignty over the Philippine Islands in favor of the
U.S. upon its formal surrender a few months later. 25 By 1899, the Americans had consolidated a military administration
in the archipelago.26

When it became clear that the American forces intended to impose colonial control over the Philippine Islands, General
Emilio Aguinaldo immediately led the Filipinos into an all-out war against the U.S. 27 The Filipinos were ultimately
defeated in the Philippine-American War, which lasted until 1902 and led to the downfall of the first Philippine
Republic.28 The Americans henceforth began to strengthen their foothold in the country. 29 They took over and
expanded the former Spanish Naval Base in Subic Bay, Zambales, and put up a cavalry post called Fort Stotsenberg in
Pampanga, now known as Clark Air Base.30

When talks of the eventual independence of the Philippine Islands gained ground, the U.S. manifested the desire to
maintain military bases and armed forces in the country. 31 The U.S. Congress later enacted the Hare-Hawes-Cutting Act
of 1933, which required that the proposed constitution of an independent Philippines recognize the right of the U.S. to
maintain the latter's armed forces and military bases. 32 The Philippine Legislature rejected that law, as it also gave the
U.S. the power to unilaterally designate any part of Philippine territory as a permanent military or naval base of the
U.S. within two years from complete independence. 33

The U.S. Legislature subsequently crafted another law called the Tydings-McDuffie Act or the Philippine Independence
Act of 1934. Compared to the old Hare-Hawes-Cutting Act, the new law provided for the surrender to the
Commonwealth Government of "all military and other reservations" of the U.S. government in the Philippines, except
"naval reservations and refueling stations." 34 Furthermore, the law authorized the U.S. President to enter into
negotiations for the adjustment and settlement of all questions relating to naval reservations and fueling stations
within two years after the Philippines would have gained independence. 35 Under the Tydings-McDuffie Act, the U.S.
President would proclaim the American withdrawal and surrender of sovereignty over the islands 10 years after the
inauguration of the new government in the Philippines. 36 This law eventually led to the promulgation of the 1935
Philippine Constitution.

The original plan to surrender the military bases changed. 37 At the height of the Second World War, the Philippine and
the U.S. Legislatures each passed resolutions authorizing their respective Presidents to negotiate the matter of
retaining military bases in the country after the planned withdrawal of the U.S. 38 Subsequently, in 1946, the countries
entered into the Treaty of General Relations, in which the U.S. relinquished all control and sovereignty over the
Philippine Islands, except the areas that would be covered by the American military bases in the country. 39 This treaty
eventually led to the creation of the post-colonial legal regime on which would hinge the continued presence of U.S.
military forces until 1991: the Military Bases Agreement (MBA) of 1947, the Military Assistance Agreement of 1947, and
the Mutual Defense Treaty (MDT) of 1951.40

B. Former legal regime on the presence of U.S. armed forces in the territory of an independent
Philippines (1946-1991)

Soon after the Philippines was granted independence, the two countries entered into their first military arrangement
pursuant to the Treaty of General Relations - the 1947 MBA. 41 The Senate concurred on the premise of "mutuality of
security interest,"42 which provided for the presence and operation of 23 U.S. military bases in the Philippines for 99
years or until the year 2046.43 The treaty also obliged the Philippines to negotiate with the U.S. to allow the latter to
expand the existing bases or to acquire new ones as military necessity might require. 44

A number of significant amendments to the 1947 MBA were made. 45 With respect to its duration, the parties entered
into the Ramos-Rusk Agreement of 1966, which reduced the term of the treaty from 99 years to a total of 44 years or
until 1991.46 Concerning the number of U.S. military bases in the country, the Bohlen-Serrano Memorandum of
Agreement provided for the return to the Philippines of 17 U.S. military bases covering a total area of 117,075
hectares.47 Twelve years later, the U.S. returned Sangley Point in Cavite City through an exchange of notes. 48 Then,
through the Romulo-Murphy Exchange of Notes of 1979, the parties agreed to the recognition of Philippine sovereignty
over Clark and Subic Bases and the reduction of the areas that could be used by the U.S. military. 49 The agreement
also provided for the mandatory review of the treaty every five years. 50In 1983, the parties revised the 1947 MBA
through the Romualdez-Armacost Agreement. 51 The revision pertained to the operational use of the military bases by
the U.S. government within the context of Philippine sovereignty, 52including the need for prior consultation with the
Philippine government on the former' s use of the bases for military combat operations or the establishment of long-
range missiles.53

Pursuant to the legislative authorization granted under Republic Act No. 9, 54 the President also entered into the 1947
Military Assistance Agreement55 with the U.S. This executive agreement established the conditions under which U.S.
military assistance would be granted to the Philippines, 56 particularly the provision of military arms, ammunitions,
supplies, equipment, vessels, services, and training for the latter's defense forces. 57 An exchange of notes in 1953
made it clear that the agreement would remain in force until terminated by any of the parties. 58

To further strengthen their defense and security relationship, 59 the Philippines and the U.S. next entered into the MDT
in 1951. Concurred in by both the Philippine 60 and the U.S.61 Senates, the treaty has two main features: first, it allowed
for mutual assistance in maintaining and developing their individual and collective capacities to resist an armed
attack;62 and second, it provided for their mutual self-defense in the event of an armed attack against the territory of
either party.63 The treaty was premised on their recognition that an armed attack on either of them would equally be a
threat to the security of the other.64

C. Current legal regime on the presence of U.S. armed forces in the country

In view of the impending expiration of the 1947 MBA in 1991, the Philippines and the U.S. negotiated for a possible
renewal of their defense and security relationship. 65 Termed as the Treaty of Friendship, Cooperation and Security, the
countries sought to recast their military ties by providing a new framework for their defense cooperation and the use
of Philippine installations.66 One of the proposed provisions included an arrangement in which U.S. forces would be
granted the use of certain installations within the Philippine naval base in Subic. 67 On 16 September 1991, the Senate
rejected the proposed treaty.68

The consequent expiration of the 1947 MBA and the resulting paucity of any formal agreement dealing with the
treatment of U.S. personnel in the Philippines led to the suspension in 1995 of large-scale joint military exercises. 69 In
the meantime, the respective governments of the two countries agreed 70 to hold joint exercises at a substantially
reduced level.71 The military arrangements between them were revived in 1999 when they concluded the first Visiting
Forces Agreement (VFA).72

As a "reaffirm[ation] [of the] obligations under the MDT," 73 the VFA has laid down the regulatory mechanism for the
treatment of U.S. military and civilian personnel visiting the country. 74 It contains provisions on the entry and departure
of U.S. personnel; the purpose, extent, and limitations of their activities; criminal and disciplinary jurisdiction; the
waiver of certain claims; the importation and exportation of equipment, materials, supplies, and other pieces of
property owned by the U.S. government; and the movement of U.S. military vehicles, vessels, and aircraft into and
within the country.75 The Philippines and the U.S. also entered into a second counterpart agreement (VFA II), which in
turn regulated the treatment of Philippine military and civilian personnel visiting the U.S. 76 The Philippine Senate
concurred in the first VFA on 27 May 1999.77
Beginning in January 2002, U.S. military and civilian personnel started arriving in Mindanao to take part in joint military
exercises with their Filipino counterparts.78 Called Balikatan, these exercises involved trainings aimed at simulating
joint military maneuvers pursuant to the MDT.79

In the same year, the Philippines and the U.S. entered into the Mutual Logistics Support Agreement to "further the
interoperability, readiness, and effectiveness of their respective military forces" 80 in accordance with the MDT, the
Military Assistance Agreement of 1953, and the VFA. 81 The new agreement outlined the basic terms, conditions, and
procedures for facilitating the reciprocal provision of logistics support, supplies, and services between the military
forces of the two countries. 82 The phrase "logistics support and services" includes billeting, operations support,
construction and use of temporary structures, and storage services during an approved activity under the existing
military arrangements.83 Already extended twice, the agreement will last until 2017. 84

D. The Enhanced Defense Cooperation Agreement

EDCA authorizes the U.S. military forces to have access to and conduct activities within certain "Agreed Locations" in
the country. It was not transmitted to the Senate on the executive's understanding that to do so was no longer
necessary.85 Accordingly, in June 2014, the Department of Foreign Affairs (DFA) and the U.S. Embassy exchanged
diplomatic notes confirming the completion of all necessary internal requirements for the agreement to enter into force
in the two countries.86

According to the Philippine government, the conclusion of EDCA was the result of intensive and comprehensive
negotiations in the course of almost two years. 87 After eight rounds of negotiations, the Secretary of National Defense
and the U.S. Ambassador to the Philippines signed the agreement on 28 April 2014. 88 President Benigno S. Aquino III
ratified EDCA on 6 June 2014. 89 The OSG clarified during the oral arguments 90 that the Philippine and the U.S.
governments had yet to agree formally on the specific sites of the Agreed Locations mentioned in the agreement.

Two petitions for certiorari were thereafter filed before us assailing the constitutionality of EDCA. They primarily argue
that it should have been in the form of a treaty concurred in by the Senate, not an executive agreement.

On 10 November 2015, months after the oral arguments were concluded and the parties ordered to file their
respective memoranda, the Senators adopted Senate Resolution No. (SR) 105. 91 The resolution expresses the "strong
sense"92 of the Senators that for EDCA to become valid and effective, it must first be transmitted to the Senate for
deliberation and concurrence.

III. ISSUES

Petitioners mainly seek a declaration that the Executive Department committed grave abuse of discretion in entering
into EDCA in the form of an executive agreement. For this reason, we cull the issues before us:

A. Whether the essential requisites for judicial review are present

B. Whether the President may enter into an executive agreement on foreign military bases, troops, or
facilities

C. Whether the provisions under EDCA are consistent with the Constitution, as well as with existing laws
and treaties

IV. DISCUSSION

A. Whether the essential requisites for judicial review have been satisfied

Petitioners are hailing this Court's power of judicial review in order to strike down EDCA for violating the Constitution.
They stress that our fundamental law is explicit in prohibiting the presence of foreign military forces in the country,
except under a treaty concurred in by the Senate. Before this Court may begin to analyze the constitutionality or
validity of an official act of a coequal branch of government, however, petitioners must show that they have satisfied
all the essential requisites for judicial review.93

Distinguished from the general notion of judicial power, the power of judicial review specially refers to both the
authority and the duty of this Court to determine whether a branch or an instrumentality of government has acted
beyond the scope of the latter's constitutional powers. 94 As articulated in Section 1, Article VIII of the Constitution, the
power of judicial review involves the power to resolve cases in which the questions concern the constitutionality or
validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation.95 In Angara v. Electoral Commission, this Court exhaustively discussed this "moderating
power" as part of the system of checks and balances under the Constitution. In our fundamental law, the role of the
Court is to determine whether a branch of government has adhered to the specific restrictions and limitations of the
latter's power:96

The separation of powers is a fundamental principle in our system of government. It obtains not through express
provision but by actual division in our Constitution. Each department of the government has exclusive
cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow
from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system
of checks and balances to secure coordination in the workings of the various departments of the government. x x
x. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other
departments in the exercise of its power to determine the law, and hence to declare executive and
legislative acts void if violative of the Constitution.

xxxx

As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was
within the power of our people, acting through their delegates to so provide, that instrument which is the
expression of their sovereignty however limited, has established a republican government intended to
operate and function as a harmonious whole, under a system of checks and balances, and subject to
specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no
uncertain language the restrictions and limitations upon governmental powers and agencies. If these
restrictions and limitations are transcended it would be inconceivable if the Constitution had not
provided for a mechanism by which to direct the course of government along constitutional channels, for
then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment,
and the principles of good government mere political apothegms. Certainly, the limitations and restrictions
embodied in our Constitution are real as they should be in any living constitution. x x x. In our case, this moderating
power is granted, if not expressly, by clear implication from section 2 of article VIII of [the 1935] Constitution.

The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such
powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the
judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual controversy the rights which
that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the Constitution. x x x x. (Emphases
supplied)

The power of judicial review has since been strengthened in the 1987 Constitution. The scope of that power has been
extended to the determination of whether in matters traditionally considered to be within the sphere of appreciation of
another branch of government, an exercise of discretion has been attended with grave abuse. 97The expansion of this
power has made the political question doctrine "no longer the insurmountable obstacle to the exercise of judicial
power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review." 98

This moderating power, however, must be exercised carefully and only if it cannot be completely avoided. We stress
that our Constitution is so incisively designed that it identifies the spheres of expertise within which the different
branches of government shall function and the questions of policy that they shall resolve. 99 Since the power of judicial
review involves the delicate exercise of examining the validity or constitutionality of an act of a coequal branch of
government, this Court must continually exercise restraint to avoid the risk of supplanting the wisdom of the
constitutionally appointed actor with that of its own. 100

Even as we are left with no recourse but to bare our power to check an act of a coequal branch of government - in this
case the executive - we must abide by the stringent requirements for the exercise of that power under the
Constitution. Demetria v. Alba101 and Francisco v. House of Representatives 102 cite the "pillars" of the limitations on the
power of judicial review as enunciated in the concurring opinion of U.S. Supreme Court Justice Brandeis in Ashwander
v. Tennessee Valley Authority.103 Francisco104 redressed these "pillars" under the following categories:

1. That there be absolute necessity of deciding a case

2. That rules of constitutional law shall be formulated only as required by the facts of the case

3. That judgment may not be sustained on some other ground

4. That there be actual injury sustained by the party by reason of the operation of the statute

5. That the parties are not in estoppel

6. That the Court upholds the presumption of constitutionality

(Emphases supplied)

These are the specific safeguards laid down by the Court when it exercises its power of judicial review. 105 Guided by
these pillars, it may invoke the power only when the following four stringent requirements are satisfied: (a) there is an
actual case or controversy; (b) petitioners possess locus standi; (c) the question of constitutionality is raised at the
earliest opportunity; and (d) the issue of constitutionality is the lis mota of the case.106 Of these four, the first two
conditions will be the focus of our discussion.

1. Petitioners have shown the presence of an actual case or controversy.

The OSG maintains107 that there is no actual case or controversy that exists, since the Senators have not been
deprived of the opportunity to invoke the privileges of the institution they are representing. It contends that the
nonparticipation of the Senators in the present petitions only confirms that even they believe that EDCA is a binding
executive agreement that does not require their concurrence.

It must be emphasized that the Senate has already expressed its position through SR 105. 108 Through the Resolution,
the Senate has taken a position contrary to that of the OSG. As the body tasked to participate in foreign affairs by
ratifying treaties, its belief that EDCA infringes upon its constitutional role indicates that an actual controversy - albeit
brought to the Court by non-Senators, exists.

Moreover, we cannot consider the sheer abstention of the Senators from the present proceedings as basis for finding
that there is no actual case or controversy before us. We point out that the focus of this requirement is the ripeness for
adjudication of the matter at hand, as opposed to its being merely conjectural or anticipatory. 109 The case must involve
a definite and concrete issue involving real parties with conflicting legal rights and legal claims admitting of specific
relief through a decree conclusive in nature. 110 It should not equate with a mere request for an opinion or advice on
what the law would be upon an abstract, hypothetical, or contingent state of facts. 111 As explained in Angara v.
Electoral Commission:112

[The] power of judicial review is limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions of wisdom, justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by
the Constitution but also because the judiciary in the determination of actual cases and controversies must
reflect the wisdom and justice of the people as expressed through their representatives in the executive
and legislative departments of the government. (Emphases supplied)

We find that the matter before us involves an actual case or controversy that is already ripe for adjudication. The
Executive Department has already sent an official confirmation to the U.S. Embassy that "all internal requirements of
the Philippines x x x have already been complied with." 113 By this exchange of diplomatic notes, the Executive
Department effectively performed the last act required under Article XII(l) of EDCA before the agreement entered into
force. Section 25, Article XVIII of the Constitution, is clear that the presence of foreign military forces in the country
shall only be allowed by virtue of a treaty concurred in by the Senate. Hence, the performance of an official act by the
Executive Department that led to the entry into force of an executive agreement was sufficient to satisfy the actual
case or controversy requirement.

2. While petitioners Saguisag et. al., do not have legal standing, they nonetheless raise issues involving
matters of transcendental importance.

The question of locus standi or legal standing focuses on the determination of whether those assailing the
governmental act have the right of appearance to bring the matter to the court for adjudication. 114 They must show
that they have a personal and substantial interest in the case, such that they have sustained or are in immediate
danger of sustaining, some direct injury as a consequence of the enforcement of the challenged governmental
act.115 Here, "interest" in the question involved must be material - an interest that is in issue and will be affected by the
official act - as distinguished from being merely incidental or general. 116 Clearly, it would be insufficient to show that
the law or any governmental act is invalid, and that petitioners stand to suffer in some indefinite way. 117 They must
show that they have a particular interest in bringing the suit, and that they have been or are about to be denied some
right or privilege to which they are lawfully entitled, or that they are about to be subjected to some burden or penalty
by reason of the act complained of.118 The reason why those who challenge the validity of a law or an international
agreement are required to allege the existence of a personal stake in the outcome of the controversy is "to assure the
concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions."119

The present petitions cannot qualify as citizens', taxpayers', or legislators' suits; the Senate as a body has the
requisite standing, but considering that it has not formally filed a pleading to join the suit, as it merely conveyed to the
Supreme Court its sense that EDCA needs the Senate's concurrence to be valid, petitioners continue to suffer from
lack of standing.

In assailing the constitutionality of a governmental act, petitioners suing as citizens may dodge the requirement of
having to establish a direct and personal interest if they show that the act affects a public right. 120 In arguing that they
have legal standing, they claim121 that the case they have filed is a concerned citizen's suit. But aside from general
statements that the petitions involve the protection of a public right, and that their constitutional rights as citizens
would be violated, they fail to make any specific assertion of a particular public right that would be violated by the
enforcement of EDCA. For their failure to do so, the present petitions cannot be considered by the Court as
citizens' suits that would justify a disregard of the aforementioned requirements.

In claiming that they have legal standing as taxpayers, petitioners 122 aver that the implementation of EDCA would
result in the unlawful use of public funds. They emphasize that Article X(1) refers to an appropriation of funds; and that
the agreement entails a waiver of the payment of taxes, fees, and rentals. During the oral arguments, however, they
admitted that the government had not yet appropriated or actually disbursed public funds for the purpose of
implementing the agreement.123 The OSG, on the other hand, maintains that petitioners cannot sue as
taxpayers.124 Respondent explains that EDCA is neither meant to be a tax measure, nor is it directed at the
disbursement of public funds.

A taxpayer's suit concerns a case in which the official act complained of directly involves the illegal disbursement of
public funds derived from taxation.125 Here, those challenging the act must specifically show that they have sufficient
interest in preventing the illegal expenditure of public money, and that they will sustain a direct injury as a result of
the enforcement of the assailed act. 126 Applying that principle to this case, they must establish that EDCA involves the
exercise by Congress of its taxing or spending powers.127

We agree with the OSG that the petitions cannot qualify as taxpayers' suits. We emphasize that a taxpayers' suit
contemplates a situation in which there is already an appropriation or a disbursement of public funds. 128 A reading of
Article X(l) of EDCA would show that there has been neither an appropriation nor an authorization of disbursement of
funds. The cited provision reads:

All obligations under this Agreement are subject to the availability of appropriated funds authorized for these
purposes. (Emphases supplied)

This provision means that if the implementation of EDCA would require the disbursement of public funds, the money
must come from appropriated funds that are specifically authorized for this purpose. Under the agreement, before
there can even be a disbursement of public funds, there must first be a legislative action. Until and unless the
Legislature appropriates funds for EDCA, or unless petitioners can pinpoint a specific item in the current
budget that allows expenditure under the agreement, we cannot at this time rule that there is in fact an
appropriation or a disbursement of funds that would justify the filing of a taxpayers' suit.

Petitioners Bayan et al. also claim129 that their co-petitioners who are party-list representatives have the standing to
challenge the act of the Executive Department, especially if it impairs the constitutional prerogatives, powers, and
privileges of their office. While they admit that there is no incumbent Senator who has taken part in the present
petition, they nonetheless assert that they also stand to sustain a derivative but substantial injury as legislators. They
argue that under the Constitution, legislative power is vested in both the Senate and the House of Representatives;
consequently, it is the entire Legislative Department that has a voice in determining whether or not the presence of
foreign military should be allowed. They maintain that as members of the Legislature, they have the requisite
personality to bring a suit, especially when a constitutional issue is raised.

The OSG counters130 that petitioners do not have any legal standing to file the suits concerning the lack of Senate
concurrence in EDCA. Respondent emphasizes that the power to concur in treaties and international agreements is an
"institutional prerogative" granted by the Constitution to the Senate. Accordingly, the OSG argues that in case of an
allegation of impairment of that power, the injured party would be the Senate as an institution or any of its incumbent
members, as it is the Senate's constitutional function that is allegedly being violated.
The legal standing of an institution of the Legislature or of any of its Members has already been recognized by this
Court in a number of cases.131 What is in question here is the alleged impairment of the constitutional duties and
powers granted to, or the impermissible intrusion upon the domain of, the Legislature or an institution thereof. 132 In the
case of suits initiated by the legislators themselves, this Court has recognized their standing to question the validity of
any official action that they claim infringes the prerogatives, powers, and privileges vested by the Constitution in their
office.133 As aptly explained by Justice Perfecto in Mabanag v. Lopez Vito:134

Being members of Congress, they are even duty bound to see that the latter act within the bounds of the
Constitution which, as representatives of the people, they should uphold, unless they are to commit a flagrant
betrayal of public trust. They are representatives of the sovereign people and it is their sacred duty to see to it
that the fundamental law embodying the will of the sovereign people is not trampled upon . (Emphases
supplied)

We emphasize that in a legislators' suit, those Members of Congress who are challenging the official act have standing
only to the extent that the alleged violation impinges on their right to participate in the exercise of the powers of the
institution of which they are members.135 Legislators have the standing "to maintain inviolate the prerogatives, powers,
and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any official
action, which they claim infringes their prerogatives as legislators." 136 As legislators, they must clearly show that there
was a direct injury to their persons or the institution to which they belong. 137

As correctly argued by respondent, the power to concur in a treaty or an international agreement is an institutional
prerogative granted by the Constitution to the Senate, not to the entire Legislature. In Pimentel v. Office of the
Executive Secretary, this Court did not recognize the standing of one of the petitioners therein who was a member of
the House of Representatives. The petition in that case sought to compel the transmission to the Senate for
concurrence of the signed text of the Statute of the International Criminal Court. Since that petition invoked the power
of the Senate to grant or withhold its concurrence in a treaty entered into by the Executive Department, only then
incumbent Senator Pimentel was allowed to assert that authority of the Senate of which he was a member.

Therefore, none of the initial petitioners in the present controversy has the standing to maintain the suits
as legislators.

Nevertheless, this Court finds that there is basis for it to review the act of the Executive for the following reasons.

In any case, petitioners raise issues involving matters of transcendental importance.

Petitioners138 argue that the Court may set aside procedural technicalities, as the present petition tackles issues that
are of transcendental importance. They point out that the matter before us is about the proper exercise of the
Executive Department's power to enter into international agreements in relation to that of the Senate to concur in
those agreements. They also assert that EDCA would cause grave injustice, as well as irreparable violation of the
Constitution and of the Filipino people's rights.

The OSG, on the other hand, insists 139 that petitioners cannot raise the mere fact that the present petitions involve
matters of transcendental importance in order to cure their inability to comply with the constitutional requirement of
standing. Respondent bewails the overuse of "transcendental importance" as an exception to the traditional
requirements of constitutional litigation. It stresses that one of the purposes of these requirements is to protect the
Supreme Court from unnecessary litigation of constitutional questions.

In a number of cases, 140 this Court has indeed taken a liberal stance towards the requirement of legal standing,
especially when paramount interest is involved. Indeed, when those who challenge the official act are able to craft an
issue of transcendental significance to the people, the Court may exercise its sound discretion and take cognizance of
the suit. It may do so in spite of the inability of the petitioners to show that they have been personally injured by the
operation of a law or any other government act.

While this Court has yet to thoroughly delineate the outer limits of this doctrine, we emphasize that not every other
case, however strong public interest may be, can qualify as an issue of transcendental importance. Before it can be
impelled to brush aside the essential requisites for exercising its power of judicial review, it must at the very least
consider a number of factors: (1) the character of the funds or other assets involved in the case; (2) the presence of a
clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality
of the government; and (3) the lack of any other party that has a more direct and specific interest in raising the
present questions.141

An exhaustive evaluation of the memoranda of the parties, together with the oral arguments, shows that petitioners
have presented serious constitutional issues that provide ample justification for the Court to set aside the rule on
standing. The transcendental importance of the issues presented here is rooted in the Constitution itself. Section 25,
Article XVIII thereof, cannot be any clearer: there is a much stricter mechanism required before foreign military troops,
facilities, or bases may be allowed in the country. The DFA has already confirmed to the U.S. Embassy that "all internal
requirements of the Philippines x x x have already been complied with." 142 It behooves the Court in this instance to
take a liberal stance towards the rule on standing and to determine forthwith whether there was grave abuse of
discretion on the part of the Executive Department.

We therefore rule that this case is a proper subject for judicial review.

B. Whether the President may enter into an executive agreement on foreign military bases, troops, or
facilities

C. Whether the provisions under EDCA are consistent with the Constitution, as well as with existing laws
and treaties

Issues B and C shall be discussed together infra.

1. The role of the President as the executor of the law includes the duty to defend the State, for which
purpose he may use that power in the conduct of foreign relations

Historically, the Philippines has mirrored the division of powers in the U.S. government. When the Philippine
government was still an agency of the Congress of the U.S., it was as an agent entrusted with powers categorized as
executive, legislative, and judicial, and divided among these three great branches. 143 By this division, the law implied
that the divided powers cannot be exercised except by the department given the power. 144

This divide continued throughout the different versions of the Philippine Constitution and specifically vested the
supreme executive power in the Governor-General of the Philippines, 145 a position inherited by the President of the
Philippines when the country attained independence. One of the principal functions of the supreme executive is the
responsibility for the faithful execution of the laws as embodied by the oath of office. 146 The oath of the President
prescribed by the 1987 Constitution reads thus:

I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or Vice-
President or Acting President) of the Philippines, preserve and defend its Constitution, execute its laws, do justice to
every man, and consecrate myself to the service of the Nation. So help me God. (In case of affirmation, last sentence
will be omitted.)147 (Emphases supplied)

This Court has interpreted the faithful execution clause as an obligation imposed on the President, and not a separate
grant of power.148 Section 1 7, Article VII of the Constitution, expresses this duty in no uncertain terms and includes it
in the provision regarding the President's power of control over the executive department, viz:

The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws
be faithfully executed.

The equivalent provisions in the next preceding Constitution did not explicitly require this oath from the President. In
the 1973 Constitution, for instance, the provision simply gives the President control over the ministries. 149 A similar
language, not in the form of the President's oath, was present in the 1935 Constitution, particularly in the enumeration
of executive functions.150 By 1987, executive power was codified not only in the Constitution, but also in the
Administrative Code:151

SECTION 1. Power of Control. - The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied)

Hence, the duty to faithfully execute the laws of the land is inherent in executive power and is intimately related to the
other executive functions. These functions include the faithful execution of the law in autonomous regions; 152the right
to prosecute crimes;153 the implementation of transportation projects; 154 the duty to ensure compliance with treaties,
executive agreements and executive orders;155 the authority to deport undesirable aliens; 156 the conferment of national
awards under the President's jurisdiction;157 and the overall administration and control of the executive department. 158

These obligations are as broad as they sound, for a President cannot function with crippled hands, but must be capable
of securing the rule of law within all territories of the Philippine Islands and be empowered to do so within
constitutional limits. Congress cannot, for instance, limit or take over the President's power to adopt implementing
rules and regulations for a law it has enacted.159
More important, this mandate is self-executory by virtue of its being inherently executive in nature. 160 As Justice
Antonio T. Carpio previously wrote,161

[i]f the rules are issued by the President in implementation or execution of self-executory constitutional powers vested
in the President, the rule-making power of the President is not a delegated legislative power. The most important self-
executory constitutional power of the President is the President's constitutional duty and mandate to "ensure that the
laws be faithfully executed." The rule is that the President can execute the law without any delegation of power from
the legislature.

The import of this characteristic is that the manner of the President's execution of the law, even if not
expressly granted by the law, is justified by necessity and limited only by law, since the President must
"take necessary and proper steps to carry into execution the law." 162 Justice George Malcolm states this
principle in a grand manner:163

The executive should be clothed with sufficient power to administer efficiently the affairs of state. He should have
complete control of the instrumentalities through whom his responsibility is discharged. It is still true, as said by
Hamilton, that "A feeble executive implies a feeble execution of the government. A feeble execution is but another
phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be in practice a bad
government." The mistakes of State governments need not be repeated here.

xxxx

Every other consideration to one side, this remains certain - The Congress of the United States clearly intended that
the Governor-General's power should be commensurate with his responsibility. The Congress never intended that the
Governor-General should be saddled with the responsibility of administering the government and of executing the laws
but shorn of the power to do so. The interests of the Philippines will be best served by strict adherence to the basic
principles of constitutional government.

In light of this constitutional duty, it is the President's prerogative to do whatever is legal and necessary for Philippine
defense interests. It is no coincidence that the constitutional provision on the faithful execution clause was followed by
that on the President's commander-in-chief powers, 164 which are specifically granted during extraordinary events of
lawless violence, invasion, or rebellion. And this duty of defending the country is unceasing, even in times when there
is no state of lawlesss violence, invasion, or rebellion. At such times, the President has full powers to ensure the
faithful execution of the laws.

It would therefore be remiss for the President and repugnant to the faithful-execution clause of the Constitution to do
nothing when the call of the moment requires increasing the military's defensive capabilities, which could include
forging alliances with states that hold a common interest with the Philippines or bringing an international suit against
an offending state.

The context drawn in the analysis above has been termed by Justice Arturo D. Brion's Dissenting Opinion as the
beginning of a "patent misconception." 165 His dissent argues that this approach taken in analyzing the President's role
as executor of the laws is preceded by the duty to preserve and defend the Constitution, which was allegedly
overlooked.166

In arguing against the approach, however, the dissent grossly failed to appreciate the nuances of the analysis, if read
holistically and in context. The concept that the President cannot function with crippled hands and therefore can
disregard the need for Senate concurrence in treaties 167 was never expressed or implied. Rather, the appropriate
reading of the preceding analysis shows that the point being elucidated is the reality that the President's duty to
execute the laws and protect the Philippines is inextricably interwoven with his foreign affairs powers, such that he
must resolve issues imbued with both concerns to the full extent of his powers, subject only to the limits supplied by
law. In other words, apart from an expressly mandated limit, or an implied limit by virtue of incompatibility, the manner
of execution by the President must be given utmost deference. This approach is not different from that taken by the
Court in situations with fairly similar contexts.

Thus, the analysis portrayed by the dissent does not give the President authority to bypass constitutional safeguards
and limits. In fact, it specifies what these limitations are, how these limitations are triggered, how these limitations
function, and what can be done within the sphere of constitutional duties and limitations of the President.

Justice Brion's dissent likewise misinterprets the analysis proffered when it claims that the foreign relations power of
the President should not be interpreted in isolation. 168 The analysis itself demonstrates how the foreign affairs function,
while mostly the President's, is shared in several instances, namely in Section 2 of Article II on the conduct of war;
Sections 20 and 21 of Article VII on foreign loans, treaties, and international agreements; Sections 4(2) and 5(2)(a) of
Article VIII on the judicial review of executive acts; Sections 4 and 25 of Article XVIII on treaties and international
agreements entered into prior to the Constitution and on the presence of foreign military troops, bases, or facilities.

In fact, the analysis devotes a whole subheading to the relationship between the two major presidential functions and
the role of the Senate in it.

This approach of giving utmost deference to presidential initiatives in respect of foreign affairs is not novel to the
Court. The President's act of treating EDCA as an executive agreement is not the principal power being analyzed as the
Dissenting Opinion seems to suggest. Rather, the preliminary analysis is in reference to the expansive power of foreign
affairs. We have long treated this power as something the Courts must not unduly restrict. As we stated recently
in Vinuya v. Romulo:

To be sure, not all cases implicating foreign relations present political questions, and courts certainly possess the
authority to construe or invalidate treaties and executive agreements. However, the question whether the Philippine
government should espouse claims of its nationals against a foreign government is a foreign relations matter, the
authority for which is demonstrably committed by our Constitution not to the courts but to the political branches. In
this case, the Executive Department has already decided that it is to the best interest of the country to waive all
claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not
for the courts to question. Neither could petitioners herein assail the said determination by the Executive Department
via the instant petition for certiorari.

In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court held that "[t]he President is the sole
organ of the nation in its external relations, and its sole representative with foreign relations."

It is quite apparent that if, in the maintenance of our international relations, embarrassment - perhaps serious
embarrassment - is to be avoided and success for our aims achieved, congressional legislation which is to be made
effective through negotiation and inquiry within the international field must often accord to the President a
degree of discretion and freedom from statutory restriction which would not be admissible where
domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions
which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of
information. He has his agents in the form of diplomatic, consular and other officials ....

This ruling has been incorporated in our jurisprudence through Bavan v. Executive
Secretary and Pimentel v. Executive Secretary; its overreaching principle was, perhaps, best articulated in (now
Chief) Justice Puno's dissent in Secretary of Justice v. Lantion:

. . . The conduct of foreign relations is full of complexities and consequences, sometimes with life and death
significance to the nation especially in times of war. It can only be entrusted to that department of government which
can act on the basis of the best available information and can decide with decisiveness .... It is also the President who
possesses the most comprehensive and the most confidential information about foreign countries for our diplomatic
and consular officials regularly brief him on meaningful events all over the world. He has also unlimited access to ultra-
sensitive military intelligence data. In fine, the presidential role in foreign affairs is dominant and the
President is traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The
regularity, nay, validity of his actions are adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation, rupture of state relations, forfeiture of
confidence, national embarrassment and a plethora of other problems with equally undesirable
consequences.169 (Emphases supplied)

Understandably, this Court must view the instant case with the same perspective and understanding, knowing full well
the constitutional and legal repercussions of any judicial overreach.

2. The plain meaning of the Constitution prohibits the entry of foreign military bases, troops or facilities,
except by way of a treaty concurred in by the Senate - a clear limitation on the President's dual role as
defender of the State and as sole authority in foreign relations.

Despite the President's roles as defender of the State and sole authority in foreign relations, the 1987 Constitution
expressly limits his ability in instances when it involves the entry of foreign military bases, troops or facilities. The
initial limitation is found in Section 21 of the provisions on the Executive Department: "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."
The specific limitation is given by Section 25 of the Transitory Provisions, the full text of which reads as follows:

SECTION 25. 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 by the people in a national referendum held for that purpose, and recognized as a treaty by
the other contracting State.

It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add to the basic requirements of a
treaty under Section 21 of Article VII. This means that both provisions must be read as additional limitations to the
President's overarching executive function in matters of defense and foreign relations.

3. The President, however, may enter into an executive agreement on foreign military bases, troops, or
facilities, if (a) it is not the instrument that allows the presence of foreign military bases, troops, or
facilities; or (b) it merely aims to implement an existing law or treaty.

Again we refer to Section 25, Article XVIII of the Constitution:

SECTION 25. 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 by the people in a national referendum held for that purpose, and recognized as
a treaty by the other contracting State. (Emphases supplied)

In view of this provision, petitioners argue 170 that EDCA must be in the form of a "treaty" duly concurred in by the
Senate. They stress that the Constitution is unambigous in mandating the transmission to the Senate of all
international agreements concluded after the expiration of the MBA in 1991 - agreements that concern the presence of
foreign military bases, troops, or facilities in the country. Accordingly, petitioners maintain that the Executive
Department is not given the choice to conclude agreements like EDCA in the form of an executive agreement.

This is also the view of the Senate, which, through a majority vote of 15 of its members - with 1 against and 2
abstaining - says in SR 105171 that EDCA must be submitted to the Senate in the form of a treaty for concurrence by at
least two-thirds of all its members.

The Senate cites two constitutional provisions (Article VI, Section 21 and Article XVIII, Section 25) to support its
position. Compared with the lone constitutional provision that the Office of the Solicitor General (OSG) cites, which is
Article XVIII, Section 4(2), which includes the constitutionality of "executive agreement(s)" among the cases subject to
the Supreme Court's power of judicial review, the Constitution clearly requires submission of EDCA to the Senate. Two
specific provisions versus one general provision means that the specific provisions prevail. The term "executive
agreement" is "a term wandering alone in the Constitution, bereft of provenance and an unidentified constitutional
mystery."

The author of SR 105, Senator Miriam Defensor Santiago, upon interpellation even added that the MDT, which the
Executive claims to be partly implemented through EDCA, is already obsolete.

There are two insurmountable obstacles to this Court's agreement with SR 105, as well as with the comment on
interpellation made by Senator Santiago.

First, the concept of "executive agreement" is so well-entrenched in this Court's pronouncements on the powers of the
President. When the Court validated the concept of "executive agreement," it did so with full knowledge of the
Senate's role in concurring in treaties. It was aware of the problematique of distinguishing when an international
agreement needed Senate concurrence for validity, and when it did not; and the Court continued to validate the
existence of "executive agreements" even after the 1987 Constitution. 172 This follows a long line of similar decisions
upholding the power of the President to enter into an executive agreement. 173

Second, the MDT has not been rendered obsolescent, considering that as late as 2009, 174 this Court continued to
recognize its validity.

Third, to this Court, a plain textual reading of Article XIII, Section 25, inevitably leads to the conclusion that it applies
only to a proposed agreement between our government and a foreign government, whereby military bases, troops, or
facilities of such foreign government would be "allowed" or would "gain entry" Philippine territory.

Note that the provision "shall not be allowed" is a negative injunction. This wording signifies that the President is not
authorized by law to allow foreign military bases, troops, or facilities to enter the Philippines, except under a treaty
concurred in by the Senate. Hence, the constitutionally restricted authority pertains to the entry of the bases, troops,
or facilities, and not to the activities to be done after entry.
Under the principles of constitutional construction, of paramount consideration is the plain meaning of the language
expressed in the Constitution, or the verba legis rule.175 It is presumed that the provisions have been carefully crafted
in order to express the objective it seeks to attain. 176 It is incumbent upon the Court to refrain from going beyond the
plain meaning of the words used in the Constitution. It is presumed that the framers and the people meant what they
said when they said it, and that this understanding was reflected in the Constitution and understood by the people in
the way it was meant to be understood when the fundamental law was ordained and promulgated. 177 As this Court has
often said:

We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that
is where we begin. It is to be assumed that the words in which constitutional provisions are couched express the
objective sought to be attained. They are to be given their ordinary meaning except where technical terms
are employed in which case the significance thus attached to them prevails. As the Constitution is not primarily
a lawyer's document, it being essential for the rule of law to obtain that it should ever be present in the people's
consciousness, its language as much as possible should be understood in the sense they have in common
use. What it says according to the text of the provision to be construed compels acceptance and negates the power of
the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus,
these are the cases where the need for construction is reduced to a minimum.178 (Emphases supplied)

It is only in those instances in which the constitutional provision is unclear, ambiguous, or silent that further
construction must be done to elicit its meaning.179 In Ang Bagong Bayani-OFW v. Commission on Elections,180 we
reiterated this guiding principle:

it [is] safer to construe the Constitution from what appears upon its face. The proper interpretation therefore
depends more on how it was understood by the people adopting it than in the framers' understanding
thereof. (Emphases supplied)

The effect of this statement is surprisingly profound, for, if taken literally, the phrase "shall not be allowed in the
Philippines" plainly refers to the entry of bases, troops, or facilities in the country. The Oxford English
Dictionary defines the word "allow" as a transitive verb that means "to permit, enable"; "to give consent to the
occurrence of or relax restraint on (an action, event, or activity)"; "to consent to the presence or attendance of (a
person)"; and, when with an adverbial of place, "to permit (a person or animal) to go, come, or be in, out, near,
etc."181 Black's Law Dictionary defines the term as one that means "[t]o grant, approve, or permit."182

The verb "allow" is followed by the word "in," which is a preposition used to indicate "place or position in space or
anything having material extension: Within the limits or bounds of, within (any place or thing)." 183 That something is
the Philippines, which is the noun that follows.

It is evident that the constitutional restriction refers solely to the initial entry of the foreign military bases, troops, or
facilities. Once entry is authorized, the subsequent acts are thereafter subject only to the limitations provided by the
rest of the Constitution and Philippine law, and not to the Section 25 requirement of validity through a treaty.

The VFA has already allowed the entry of troops in the Philippines. This Court stated in Lim v. Executive Secretary:

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 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 nation's 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.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that
"Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls under the umbrella of
sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense
Treaty and the VFA support the conclusion that combat-related activities -as opposed to combat itself-such as the one
subject of the instant petition, are indeed authorized.184 (Emphasis supplied)

Moreover, the Court indicated that the Constitution continues to govern the conduct of foreign military troops in the
Philippines,185 readily implying the legality of their initial entry into the country.

The OSG emphasizes that EDCA can be in the form of an executive agreement, since it merely involves "adjustments
in detail" in the implementation of the MDT and the VFA. 186 It points out that there are existing treaties between the
Philippines and the U.S. that have already been concurred in by the Philippine Senate and have thereby met the
requirements of the Constitution under Section 25. Because of the status of these prior agreements, respondent
emphasizes that EDCA need not be transmitted to the Senate.

The aforecited Dissenting Opinion of Justice Brion disagrees with the ponencia's application of verba legis construction
to the words of Article XVIII, Section 25. 187 It claims that the provision is "neither plain, nor that simple." 188 To buttress
its disagreement, the dissent states that the provision refers to a historical incident, which is the expiration of the 1947
MBA.189 Accordingly, this position requires questioning the circumstances that led to the historical event, and the
meaning of the terms under Article XVIII, Section 25.

This objection is quite strange. The construction technique of verba legis is not inapplicable just because a provision
has a specific historical context. In fact, every provision of the Constitution has a specific historical context. The
purpose of constitutional and statutory construction is to set tiers of interpretation to guide the Court as to how a
particular provision functions. Verba legis is of paramount consideration, but it is not the only consideration. As this
Court has often said:

We look to the language of the document itself in our search for its meaning. We do not of course stop there, but
that is where we begin. It is to be assumed that the words in which constitutional provisions are couched express
the objective sought to be attained. They are to be given their ordinary meaning except where technical
terms are employed in which case the significance thus attached to them prevails. As the Constitution is not
primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be present in the
people's consciousness, its language as much as possible should be understood in the sense they have in
common use. What it says according to the text of the provision to be construed compels acceptance and negates
the power of the courts to alter it, based on the postulate that the framers and the people mean what they
say. Thus, these are the cases where the need for construction is reduced to a minimum .190 (Emphases
supplied)

As applied, verba legis aids in construing the ordinary meaning of terms. In this case, the phrase being construed is
"shall not be allowed in the Philippines" and not the preceding one referring to "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." It is explicit in the wording of the provision itself that any interpretation goes
beyond the text itself and into the discussion of the framers, the context of the Constitutional Commission's time of
drafting, and the history of the 1947 MBA. Without reference to these factors, a reader would not understand those
terms. However, for the phrase "shall not be allowed in the Philippines," there is no need for such reference. The law is
clear. No less than the Senate understood this when it ratified the VFA.

4. The President may generally enter into executive agreements subject to limitations defined by the
Constitution and may be in furtherance of a treaty already concurred in by the Senate.

We discuss in this section why the President can enter into executive agreements.

It would be helpful to put into context the contested language found in Article XVIII, Section 25. Its more exacting
requirement was introduced because of the previous experience of the country when its representatives felt compelled
to consent to the old MBA. 191 They felt constrained to agree to the MBA in fulfilment of one of the major conditions for
the country to gain independence from the U.S. 192 As a result of that experience, a second layer of consent for
agreements that allow military bases, troops and facilities in the country is now articulated in Article XVIII of our
present Constitution.

This second layer of consent, however, cannot be interpreted in such a way that we completely ignore the intent of our
constitutional framers when they provided for that additional layer, nor the vigorous statements of this Court that
affirm the continued existence of that class of international agreements called "executive agreements."

The power of the President to enter into binding executive agreements without Senate concurrence is already well-
established in this jurisdiction. 193 That power has been alluded to in our present and past Constitutions, 194 in various
statutes,195 in Supreme Court decisions, 196 and during the deliberations of the Constitutional Commission. 197 They cover
a wide array of subjects with varying scopes and purposes, 198 including those that involve the presence of foreign
military forces in the country.199

As the sole organ of our foreign relations 200 and the constitutionally assigned chief architect of our foreign policy, 201 the
President is vested with the exclusive power to conduct and manage the country's interface with other states and
governments. Being the principal representative of the Philippines, the Chief Executive speaks and listens for the
nation; initiates, maintains, and develops diplomatic relations with other states and governments; negotiates and
enters into international agreements; promotes trade, investments, tourism and other economic relations; and settles
international disputes with other states.202
As previously discussed, this constitutional mandate emanates from the inherent power of the President to enter into
agreements with other states, including the prerogative to conclude binding executive agreements that do not require
further Senate concurrence. The existence of this presidential power 203 is so well-entrenched that Section 5(2)(a),
Article VIII of the Constitution, even provides for a check on its exercise. As expressed below, executive agreements
are among those official governmental acts that can be the subject of this Court's power of judicial review:

(2) 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:

(a) 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. (Emphases supplied)

In Commissioner of Customs v. Eastern Sea Trading, executive agreements are defined as "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." 204 In Bayan Muna v. Romulo, this Court further clarified that
executive agreements can cover a wide array of subjects that have various scopes and purposes. 205They are no longer
limited to the traditional subjects that are usually covered by executive agreements as identified in Eastern Sea
Trading. The Court thoroughly discussed this matter in the following manner:

The categorization of subject matters that may be covered by international

agreements mentioned in Eastern Sea Trading is not cast in stone. x x x.

As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea
Trading. Since then, the conduct of foreign affairs has become more complex and the domain of
international law wider, as to include such subjects as human rights, the environment, and the sea. In fact, in the
US alone, the executive agreements executed by its President from 1980 to 2000 covered subjects such as defense,
trade, scientific cooperation, aviation, atomic energy, environmental cooperation, peace corps, arms
limitation, and nuclear safety, among others. Surely, the enumeration in Eastern Sea Trading cannot
circumscribe the option of each state on the matter of which the international agreement format would be
convenient to serve its best interest. As Francis Sayre said in his work referred to earlier:

. . . It would be useless to undertake to discuss here the large variety of executive agreements as such
concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade-
agreement act, have been negotiated with foreign governments. . . . They cover such subjects as the inspection of
vessels, navigation dues, income tax on shipping profits, the admission of civil air craft, custom matters and
commercial relations generally, international claims, postal matters, the registration of trademarks and copyrights,
etc .... (Emphases Supplied)

One of the distinguishing features of executive agreements is that their validity and effectivity are not affected by a
lack of Senate concurrence.206 This distinctive feature was recognized as early as in Eastern Sea Trading (1961), viz:

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.

xxxx

[T]he right of the Executive to enter into binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage. From the earliest days of our history we have entered
into executive agreements covering 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. The validity of these has never been seriously questioned by our courts. (Emphases Supplied)

That notion was carried over to the present Constitution. In fact, the framers specifically deliberated on whether the
general term "international agreement" included executive agreements, and whether it was necessary to include an
express proviso that would exclude executive agreements from the requirement of Senate concurrence. After noted
constitutionalist Fr. Joaquin Bernas quoted the Court's ruling in Eastern Sea Trading, the Constitutional Commission
members ultimately decided that the term "international agreements" as contemplated in Section 21, Article VII, does
not include executive agreements, and that a proviso is no longer needed. Their discussion is reproduced below: 207

MS. AQUINO: Madam President, first I would like a clarification from the Committee. We have retained the words
"international agreement" which I think is the correct judgment on the matter because an international agreement is
different from a treaty. A treaty is a contract between parties which is in the nature of international agreement and also
a municipal law in the sense that the people are bound. So there is a conceptual difference. However, I would like to
be clarified if the international agreements include executive agreements.

MR. CONCEPCION: That depends upon the parties. All parties to these international negotiations stipulate the
conditions which are necessary for the agreement or whatever it may be to become valid or effective as regards the
parties.

MS. AQUINO: Would that depend on the parties or would that depend on the nature of the executive agreement?
According to common usage, there are two types of executive agreement: one is purely proceeding from an
executive act which affects external relations independent of the legislative and the other is an executive
act in pursuance of legislative authorization. The first kind might take the form of just conventions or
exchanges of notes or protocol while the other, which would be pursuant to the legislative authorization,
may be in the nature of commercial agreements.

MR. CONCEPCION: Executive agreements are generally made to implement a treaty already enforced or to
determine the details for the implementation of the treaty. We are speaking of executive agreements, not
international agreements.

MS. AQUINO: I am in full agreement with that, except that it does not cover the first kind of executive agreement which
is just protocol or an exchange of notes and this would be in the nature of reinforcement of claims of a citizen against a
country, for example.

MR. CONCEPCION: The Commissioner is free to require ratification for validity insofar as the Philippines is concerned.

MS. AQUINO: It is my humble submission that we should provide, unless the Committee explains to us otherwise,
an explicit proviso which would except executive agreements from the requirement of concurrence of two-
thirds of the Members of the Senate. Unless I am enlightened by the Committee I propose that tentatively, the
sentence should read. "No treaty or international agreement EXCEPT EXECUTIVE AGREEMENTS shall be valid and
effective."

FR. BERNAS: I wonder if a quotation from the Supreme Court decision [in Eastern Sea Trading] might help
clarify this:

The right of the executive to enter into binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage. From the earliest days of our history, we have
entered into executive agreements covering 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. The validity of this has never been seriously questioned by our Courts.

Agreements with respect to the registration of trademarks have been concluded by the executive of various countries
under the Act of Congress of March 3, 1881 (21 Stat. 502) . . . International agreements involving political issues
or changes of national policy and those involving international agreements 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.

MR. ROMULO: Is the Commissioner, therefore, excluding the executive agreements?

FR. BERNAS: What we are referring to, therefore, when we say international agreements which need
concurrence by at least two-thirds are those which are permanent in nature.

MS. AQUINO: And it may include commercial agreements which are executive agreements essentially but which are
proceeding from the authorization of Congress. If that is our understanding, then I am willing to withdraw that
amendment.

FR. BERNAS: If it is with prior authorization of Congress, then it does not need subsequent concurrence by
Congress.

MS. AQUINO: In that case, I am withdrawing my amendment.

MR. TINGSON: Madam President.

THE PRESIDENT: Is Commissioner Aquino satisfied?

MS. AQUINO: Yes. There is already an agreement among us on the definition of "executive agreements" and
that would make unnecessary any explicit proviso on the matter.

xxx

MR. GUINGONA: I am not clear as to the meaning of "executive agreements" because I heard that these executive
agreements must rely on treaties. In other words, there must first be treaties.

MR. CONCEPCION: No, I was speaking about the common use, as executive agreements being the implementation of
treaties, details of which do not affect the sovereignty of the State.

MR. GUINGONA: But what about the matter of permanence, Madam President? Would 99 years be considered
permanent? What would be the measure of permanency? I do not conceive of a treaty that is going to be forever, so
there must be some kind of a time limit.

MR. CONCEPCION: I suppose the Commissioner's question is whether this type of agreement should be included in a
provision of the Constitution requiring the concurrence of Congress.

MR. GUINGONA: It depends on the concept of the executive agreement of which I am not clear. If the executive
agreement partakes of the nature of a treaty, then it should also be included.

MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within the power of the Constitutional
Commission to require that.

MR. GUINGONA: Yes. That is why I am trying to clarify whether the words "international agreements" would
include executive agreements.

MR. CONCEPCION: No, not necessarily; generally no.

xxx

MR. ROMULO: I wish to be recognized first. I have only one question. Do we take it, therefore, that as far as the
Committee is concerned, the term "international agreements" does not include the term "executive
agreements" as read by the Commissioner in that text?

FR. BERNAS: Yes. (Emphases Supplied)

The inapplicability to executive agreements of the requirements under Section 21 was again recognized in Bayan v.
Zamora and in Bayan Muna v. Romulo. These cases, both decided under the aegis of the present Constitution,
quoted Eastern Sea Trading in reiterating that executive agreements are valid and binding even without the
concurrence of the Senate.

Executive agreements may dispense with the requirement of Senate concurrence because of the legal mandate with
which they are concluded. As culled from the afore-quoted deliberations of the Constitutional Commission, past
Supreme Court Decisions, and works of noted scholars, 208 executive agreements merely involve arrangements on the
implementation of existing policies, rules, laws, or agreements. They are concluded (1) to adjust the details of a
treaty;209 (2) pursuant to or upon confirmation by an act of the Legislature; 210 or (3) in the exercise of the President's
independent powers under the Constitution. 211 The raison d'etre of executive agreements hinges on prior constitutional
or legislative authorizations.

The special nature of an executive agreement is not just a domestic variation in international agreements.
International practice has accepted the use of various forms and designations of international agreements, ranging
from the traditional notion of a treaty - which connotes a formal, solemn instrument - to engagements concluded in
modem, simplified forms that no longer necessitate ratification. 212 An international agreement may take different
forms: treaty, act, protocol, agreement, concordat, compromis d'arbitrage, convention, covenant, declaration,
exchange of notes, statute, pact, charter, agreed minute, memorandum of agreement, modus vivendi, or some other
form.213 Consequently, under international law, the distinction between a treaty and an international agreement or
even an executive agreement is irrelevant for purposes of determining international rights and obligations.

However, this principle does not mean that the domestic law distinguishing treaties, international
agreements, and executive agreements is relegated to a mere variation in form, or that the constitutional requirement
of Senate concurrence is demoted to an optional constitutional directive. There remain two very important features
that distinguish treaties from executive agreements and translate them into terms of art in the domestic setting.
First, executive agreements must remain traceable to an express or implied authorization under the Constitution,
statutes, or treaties. The absence of these precedents puts the validity and effectivity of executive agreements under
serious question for the main function of the Executive is to enforce the Constitution and the laws enacted by the
Legislature, not to defeat or interfere in the performance of these rules. 214 In turn, executive agreements cannot create
new international obligations that are not expressly allowed or reasonably implied in the law they purport to
implement.

Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are products of the
acts of the Executive and the Senate215 unlike executive agreements, which are solely executive actions. 216Because of
legislative participation through the Senate, a treaty is regarded as being on the same level as a statute. 217 If there is
an irreconcilable conflict, a later law or treaty takes precedence over one that is prior. 218 An executive agreement is
treated differently. Executive agreements that are inconsistent with either a law or a treaty are considered
ineffective.219 Both types of international agreement are nevertheless subject to the supremacy of the Constitution. 220

This rule does not imply, though, that the President is given carte blanche to exercise this discretion. Although the
Chief Executive wields the exclusive authority to conduct our foreign relations, this power must still be exercised within
the context and the parameters set by the Constitution, as well as by existing domestic and international laws. There
are constitutional provisions that restrict or limit the President's prerogative in concluding international agreements,
such as those that involve the following:

a. The policy of freedom from nuclear weapons within Philippine territory 221

b. The fixing of tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts, which
must be pursuant to the authority granted by Congress222

c. The grant of any tax exemption, which must be pursuant to a law concurred in by a majority of all the Members of
Congress223

d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must be previously concurred in
by the Monetary Board224

e. The authorization of the presence of foreign military bases, troops, or facilities in the country must be in the form of
a treaty duly concurred in by the Senate. 225

f. For agreements that do not fall under paragraph 5, the concurrence of the Senate is required, should the form of the
government chosen be a treaty.

5. The President had the choice to enter into EDCA by way of an executive agreement or a treaty.

No court can tell the President to desist from choosing an executive agreement over a treaty to embody an
international agreement, unless the case falls squarely within Article VIII, Section 25.

As can be gleaned from the debates among the members of the Constitutional Commission, they were aware that
legally binding international agreements were being entered into by countries in forms other than a treaty. At the same
time, it is clear that they were also keen to preserve the concept of "executive agreements" and the right of the
President to enter into such agreements.

What we can glean from the discussions of the Constitutional Commissioners is that they understood the following
realities:

1. Treaties, international agreements, and executive agreements are all constitutional manifestations of the conduct of
foreign affairs with their distinct legal characteristics.

a. Treaties are formal contracts between the Philippines and other States-parties, which are in the nature of
international agreements, and also of municipal laws in the sense of their binding nature. 226

b. International agreements are similar instruments, the provisions of which may require the ratification of a
designated number of parties thereto. These agreements involving political issues or changes in national policy, as
well as those involving international agreements of a permanent character, usually take the form of treaties. They may
also include commercial agreements, which are executive agreements essentially, but which proceed from previous
authorization by Congress, thus dispensing with the requirement of concurrence by the Senate. 227

c. Executive agreements are generally intended to implement a treaty already enforced or to determine the details of
the implementation thereof that do not affect the sovereignty of the State. 228
2. Treaties and international agreements that cannot be mere executive agreements must, by constitutional decree, be
concurred in by at least two-thirds of the Senate.

3. However, an agreement - the subject of which is the entry of foreign military troops, bases, or facilities - is
particularly restricted. The requirements are that it be in the form of a treaty concurred in by the Senate; that when
Congress so requires, it be ratified by a majority of the votes cast by the people in a national referendum held for that
purpose; and that it be recognized as a treaty by the other contracting State.

4. Thus, executive agreements can continue to exist as a species of international agreements.

That is why our Court has ruled the way it has in several cases.

In Bayan Muna v. Romulo, we ruled that the President acted within the scope of her constitutional authority and
discretion when she chose to enter into the RP-U.S. Non-Surrender Agreement in the form of an executive agreement,
instead of a treaty, and in ratifying the agreement without Senate concurrence. The Court en banc discussed this
intrinsic presidential prerogative as follows:

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature of a treaty;
hence, it must be duly concurred in by the Senate. x x x x. Pressing its point, petitioner submits that the subject of the
Agreement does not fall under any of the subject-categories that xx x may be covered by an executive agreement,
such as commercial/consular relations, most-favored nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and settlement of claims.

The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea
Trading is not cast in stone. There are no hard and fast rules on the propriety of entering, on a given
subject, into a treaty or an executive agreement as an instrument of international relations. The primary
consideration in the choice of the form of agreement is the parties' intent and desire to craft an international
agreement in the form they so wish to further their respective interests. Verily, the matter of form takes a
back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive
agreement, as the parties in either international agreement each labor under the pacta sunt servanda principle.

xxxx

But over and above the foregoing considerations is the fact that - save for the situation and matters contemplated in
Sec. 25, Art. XVIII of the Constitution - when a treaty is required, the Constitution does not classify any subject,
like that involving political issues, to be in the form of, and ratified as, a treaty. What the Constitution
merely prescribes is that treaties need the concurrence of the Senate by a vote defined therein to complete the
ratification process.

xxxx

x x x. As the President wields vast powers and influence, her conduct in the external affairs of the nation is,
as Bayan would put it, "executive altogether." The right of the President to enter into or ratify binding
executive agreements has been confirmed by long practice.

In thus agreeing to conclude the Agreement thru E/N BF0-028-03, then President Gloria Macapagal-Arroyo,
represented by the Secretary of Foreign Affairs, acted within the scope of the authority and discretion vested
in her by the Constitution. At the end of the day, the President - by ratifying, thru her deputies, the non-
surrender agreement - did nothing more than discharge a constitutional duty and exercise a prerogative
that pertains to her office. (Emphases supplied)

Indeed, in the field of external affairs, the President must be given a larger measure of authority and wider discretion,
subject only to the least amount of checks and restrictions under the Constitution. 229 The rationale behind this power
and discretion was recognized by the Court in Vinuya v. Executive Secretary, cited earlier.230

Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of International Agreements and its
Ratification, thus, correctly reflected the inherent powers of the President when it stated that the DFA "shall determine
whether an agreement is an executive agreement or a treaty."

Accordingly, in the exercise of its power of judicial review, the Court does not look into whether an international
agreement should be in the form of a treaty or an executive agreement, save in cases in which the Constitution or a
statute requires otherwise. Rather, in view of the vast constitutional powers and prerogatives granted to the President
in the field of foreign affairs, the task of the Court is to determine whether the international agreement is consistent
with the applicable limitations.
6. Executive agreements may cover the matter of foreign military forces if it merely involves detail
adjustments.

The practice of resorting to executive agreements in adjusting the details of a law or a treaty that already deals with
the presence of foreign military forces is not at all unusual in this jurisdiction. In fact, the Court has already implicitly
acknowledged this practice in Lim v. Executive Secretary.231 In that case, the Court was asked to scrutinize the
constitutionality of the Terms of Reference of the Balikatan 02-1 joint military exercises, which sought to implement the
VFA. Concluded in the form of an executive agreement, the Terms of Reference detailed the coverage of the term
"activities" mentioned in the treaty and settled the matters pertaining to the construction of temporary structures for
the U.S. troops during the activities; the duration and location of the exercises; the number of participants; and the
extent of and limitations on the activities of the U.S. forces. The Court upheld the Terms of Reference as being
consistent with the VFA. It no longer took issue with the fact that the Balikatan Terms of Reference was not in the form
of a treaty concurred in by the Senate, even if it dealt with the regulation of the activities of foreign military forces on
Philippine territory.

In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an executive agreement in an attempt to adjust
the details of a provision of the VFA. The Philippines and the U.S. entered into the Romulo-Kenney Agreement, which
undertook to clarify the detention of a U.S. Armed Forces member, whose case was pending appeal after his conviction
by a trial court for the crime of rape. In testing the validity of the latter agreement, the Court precisely alluded to one
of the inherent limitations of an executive agreement: it cannot go beyond the terms of the treaty it purports to
implement. It was eventually ruled that the Romulo-Kenney Agreement was "not in accord" with the VFA, since the
former was squarely inconsistent with a provision in the treaty requiring that the detention be "by Philippine
authorities." Consequently, the Court ordered the Secretary of Foreign Affairs to comply with the VFA and "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. "233

Culling from the foregoing discussions, we reiterate the following pronouncements to guide us in resolving the present
controversy:

1. Section 25, Article XVIII of the Constitution, contains stringent requirements that must be fulfilled by the
international agreement allowing the presence of foreign military bases, troops, or facilities in the Philippines: (a) the
agreement must be in the form of a treaty, and (b) it must be duly concurred in by the Senate.

2. If the agreement is not covered by the above situation, then the President may choose the form of the
agreement (i.e., either an executive agreement or a treaty), provided that the agreement dealing with foreign military
bases, troops, or facilities is not the principal agreement that first allows their entry or presence in the Philippines.

3. The executive agreement must not go beyond the parameters, limitations, and standards set by the law and/or
treaty that the former purports to implement; and must not unduly expand the international obligation expressly
mentioned or necessarily implied in the law or treaty.

4. The executive agreement must be consistent with the Constitution, as well as with existing laws and treaties.

In light of the President's choice to enter into EDCA in the form of an executive agreement, respondents carry the
burden of proving that it is a mere implementation of existing laws and treaties concurred in by the Senate. EDCA
must thus be carefully dissected to ascertain if it remains within the legal parameters of a valid executive agreement.

7. EDCA is consistent with the content, purpose, and framework of the MDT and the VFA

The starting point of our analysis is the rule that "an executive agreement xx x may not be used to amend a
treaty."234 In Lim v. Executive Secretary and in Nicolas v. Romulo, the Court approached the question of the validity of
executive agreements by comparing them with the general framework and the specific provisions of the treaties they
seek to implement.

In Lim, the Terms of Reference of the joint military exercises was scrutinized by studying "the framework of the treaty
antecedents to which the Philippines bound itself," 235 i.e., the MDT and the VFA. The Court proceeded to examine the
extent of the term "activities" as contemplated in Articles 1 236 and II237 of the VFA. It later on found that the term
"activities" was deliberately left undefined and ambiguous in order to permit "a wide scope of undertakings subject
only to the approval of the Philippine government" 238 and thereby allow the parties "a certain leeway in
negotiation."239 The Court eventually ruled that the Terms of Reference fell within the sanctioned or allowable activities,
especially in the context of the VFA and the MDT.
The Court applied the same approach to Nicolas v. Romulo. It studied the provisions of the VFA on custody and
detention to ascertain the validity of the Romulo-Kenney Agreement. 240 It eventually found that the two international
agreements were not in accord, since the Romulo-Kenney Agreement had stipulated that U.S. military personnel shall
be detained at the U.S. Embassy Compound and guarded by U.S. military personnel, instead of by Philippine
authorities. According to the Court, the parties "recognized the difference between custody during the trial and
detention after conviction."241 Pursuant to Article V(6) of the VFA, the custody of a U.S. military personnel resides with
U.S. military authorities during trial. Once there is a finding of guilt, Article V(l0) requires that the confinement or
detention be "by Philippine authorities."

Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially modifies or amends the VFA" 242and
follows with an enumeration of the differences between EDCA and the VFA. While these arguments will be rebutted
more fully further on, an initial answer can already be given to each of the concerns raised by his dissent.

The first difference emphasized is that EDCA does not only regulate visits as the VFA does, but allows temporary
stationing on a rotational basis of U.S. military personnel and their contractors in physical locations with permanent
facilities and pre-positioned military materiel.

This argument does not take into account that these permanent facilities, while built by U.S. forces, are to be owned by
the Philippines once constructed. 243 Even the VFA allowed construction for the benefit of U.S. forces during their
temporary visits.

The second difference stated by the dissent is that EDCA allows the prepositioning of military materiel, which can
include various types of warships, fighter planes, bombers, and vessels, as well as land and amphibious vehicles and
their corresponding ammunition.244

However, the VFA clearly allows the same kind of equipment, vehicles, vessels, and aircraft to be brought into the
country. Articles VII and VIII of the VFA contemplates that U.S. equipment, materials, supplies, and other property are
imported into or acquired in the Philippines by or on behalf of the U.S. Armed Forces; as are vehicles, vessels, and
aircraft operated by or for U.S. forces in connection with activities under the VFA. These provisions likewise provide for
the waiver of the specific duties, taxes, charges, and fees that correspond to these equipment.

The third difference adverted to by the Justice Leonen's dissent is that the VFA contemplates the entry of troops for
training exercises, whereas EDCA allows the use of territory for launching military and paramilitary operations
conducted in other states.245 The dissent of Justice Teresita J. Leonardo-De Castro also notes that VFA was intended for
non-combat activides only, whereas the entry and activities of U.S. forces into Agreed Locations were borne of military
necessity or had a martial character, and were therefore not contemplated by the VFA. 246

This Court's jurisprudence however established in no uncertain terms that combat-related activities, as opposed to
actual combat, were allowed under the MDT and VFA, viz:

Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related
activities as opposed to combat itself such as the one subject of the instant petition, are indeed authorized. 247

Hence, even if EDCA was borne of military necessity, it cannot be said to have strayed from the intent of the VFA since
EDCA's combat-related components are allowed under the treaty.

Moreover, both the VFA and EDCA are silent on what these activities actually are. Both the VFA and EDCA deal with the
presence of U.S. forces within the Philippines, but make no mention of being platforms for activity beyond Philippine
territory. While it may be that, as applied, military operations under either the VFA or EDCA would be carried out in the
future the scope of judicial review does not cover potential breaches of discretion but only actual occurrences or
blatantly illegal provisions. Hence, we cannot invalidate EDCA on the basis of the potentially abusive use of its
provisions.

The fourth difference is that EDCA supposedly introduces a new concept not contemplated in the VFA or the MDT:
Agreed Locations, Contractors, Pre-positioning, and Operational Control. 248

As previously mentioned, these points shall be addressed fully and individually in the latter analysis of EDCA's
provisions. However, it must already be clarified that the terms and details used by an implementing agreement need
not be found in the mother treaty. They must be sourced from the authority derived from the treaty, but are not
necessarily expressed word-for-word in the mother treaty. This concern shall be further elucidated in this Decision.

The fifth difference highlighted by the Dissenting Opinion is that the VFA does not have provisions that may be
construed as a restriction on or modification of obligations found in existing statues, including the jurisdiction of courts,
local autonomy, and taxation. Implied in this argument is that EDCA contains such restrictions or modifications. 249
This last argument cannot be accepted in view of the clear provisions of EDCA. Both the VFA and EDCA ensure
Philippine jurisdiction in all instances contemplated by both agreements, with the exception of those outlined by the
VFA in Articles III-VI. In the VFA, taxes are clearly waived whereas in EDCA, taxes are assumed by the government as
will be discussed later on. This fact does not, therefore, produce a diminution of jurisdiction on the part of the
Philippines, but rather a recognition of sovereignty and the rights that attend it, some of which may be waived as in
the cases under Articles III-VI of the VFA.

Taking off from these concerns, the provisions of EDCA must be compared with those of the MDT and the VFA, which
are the two treaties from which EDCA allegedly draws its validity.

"Authorized presence" under the VFA versus "authorized activities" under EDCA: (1) U.S. personnel and
(2) U.S. contractors

The OSG argues250 that EDCA merely details existing policies under the MDT and the VFA. It explains that EDCA
articulates the principle of defensive preparation embodied in Article II of the MDT; and seeks to enhance the
defensive, strategic, and technological capabilities of both parties pursuant to the objective of the treaty to strengthen
those capabilities to prevent or resist a possible armed attack. Respondent also points out that EDCA simply
implements Article I of the VFA, which already allows the entry of U.S. troops and personnel into the country.
Respondent stresses this Court's recognition in Lim v. Executive Secretary that U.S. troops and personnel are
authorized to conduct activities that promote the goal of maintaining and developing their defense capability.

Petitioners contest251 the assertion that the provisions of EDCA merely implement the MDT. According to them, the
treaty does not specifically authorize the entry of U.S. troops in the country in order to maintain and develop the
individual and collective capacities of both the Philippines and the U.S. to resist an armed attack. They emphasize that
the treaty was concluded at a time when there was as yet no specific constitutional prohibition on the presence of
foreign military forces in the country.

Petitioners also challenge the argument that EDCA simply implements the VFA. They assert that the agreement covers
only short-term or temporary visits of U.S. troops "from time to time" for the specific purpose of combined military
exercises with their Filipino counterparts. They stress that, in contrast, U.S. troops are allowed under EDCA to perform
activities beyond combined military exercises, such as those enumerated in Articles 111(1) and IV(4) thereof.
Furthermore, there is some degree of permanence in the presence of U.S. troops in the country, since the effectivity of
EDCA is continuous until terminated. They proceed to argue that while troops have a "rotational" presence, this
scheme in fact fosters their permanent presence.

a. Admission of U.S. military and civilian personnel into Philippine territory is already allowed under the VFA

We shall first deal with the recognition under EDCA of the presence in the country of three distinct classes of
individuals who will be conducting different types of activities within the Agreed Locations: (1) U.S. military personnel;
(2) U.S. civilian personnel; and (3) U.S. contractors. The agreement refers to them as follows:

"United States personnel" means United States military and civilian personnel temporarily in the territory
of the Philippines in connection with activities approved by the Philippines, as those terms are defined in
the VFA.252

"United States forces" means the entity comprising United States personnel and all property, equipment, and
materiel of the United States Armed Forces present in the territory of the Philippines. 253

"United States contractors" means companies and firms, and their employees, under contract or
subcontract to or on behalf of the United States Department of Defense. United States contractors are not included
as part of the definition of United States personnel in this Agreement, including within the context of the VFA. 254

United States forces may contract for any materiel, supplies, equipment, and services (including
construction) to be furnished or undertaken in the territory of the Philippines without restriction as to choice of
contractor, supplier, or person who provides such materiel, supplies, equipment, or services. Such contracts
shall be solicited, awarded, and administered in accordance with the laws and regulations of the United
States.255 (Emphases Supplied)

A thorough evaluation of how EDCA is phrased clarities that the agreement does not deal with the entry into
the country of U.S. personnel and contractors per se. While Articles I(l)(b)256 and II(4)257 speak of "the right to
access and use" the Agreed Locations, their wordings indicate the presumption that these groups have already been
allowed entry into Philippine territory, for which, unlike the VFA, EDCA has no specific provision. Instead, Article II of the
latter simply alludes to the VFA in describing U.S. personnel, a term defined under Article I of the treaty as follows:
As used in this Agreement, "United States personnel" means United States military and civilian personnel temporarily
in the Philippines in connection with activities approved by the Philippine Government. Within this definition:

1. The term "military personnel" refers to military members of the United States Army, Navy, Marine Corps,
Air Force, and Coast Guard.

2. The term "civilian personnel" refers to individuals who are neither nationals of nor ordinarily resident in
the Philippines and who are employed by the United States armed forces or who are accompanying the
United States armed forces, such as employees of the American Red Cross and the United Services
Organization.258

Article II of EDCA must then be read with Article III of the VFA, which provides for the entry accommodations to be
accorded to U.S. military and civilian personnel:

1. The Government of the Philippines shall facilitate the admission of United States personnel and their
departure from the Philippines in connection with activities covered by this agreement.

2. United States military personnel shall be exempt from passport and visa regulations upon entering and
departing the Philippines.

3. The following documents only, which shall be required in respect of United States military personnel who enter the
Philippines; xx xx.

4. United States civilian personnel shall be exempt from visa requirements but shall present, upon
demand, valid passports upon entry and departure of the Philippines. (Emphases Supplied)

By virtue of Articles I and III of the VFA, the Philippines already allows U.S. military and civilian personnel to be
"temporarily in the Philippines," so long as their presence is "in connection with activities approved by the Philippine
Government." The Philippines, through Article III, even guarantees that it shall facilitate the admission of U.S.
personnel into the country and grant exemptions from passport and visa regulations. The VFA does not even limit their
temporary presence to specific locations.

Based on the above provisions, the admission and presence of U.S. military and civilian personnel in
Philippine territory are already allowed under the VFA, the treaty supposedly being implemented by
EDCA. What EDCA has effectively done, in fact, is merely provide the mechanism to identify the locations in which
U.S. personnel may perform allowed activities pursuant to the VFA. As the implementing agreement, it regulates and
limits the presence of U.S. personnel in the country.

b. EDCA does not provide the legal basis for admission of U.S. contractors into Philippine territory; their entry must be
sourced from extraneous Philippine statutes and regulations for the admission of alien employees or business persons.

Of the three aforementioned classes of individuals who will be conducting certain activities within the Agreed
Locations, we note that only U.S. contractors are not explicitly mentioned in the VFA. This does not mean, though, that
the recognition of their presence under EDCA is ipso facto an amendment of the treaty, and that there must be Senate
concurrence before they are allowed to enter the country.

Nowhere in EDCA are U.S. contractors guaranteed immediate admission into the Philippines. Articles III and IV, in fact,
merely grant them the right of access to, and the authority to conduct certain activities within the Agreed Locations.
Since Article II(3) of EDCA specifically leaves out U.S. contractors from the coverage of the VFA, they shall not be
granted the same entry accommodations and privileges as those enjoyed by U.S. military and civilian personnel under
the VFA.

Consequently, it is neither mandatory nor obligatory on the part of the Philippines to admit U.S. contractors into the
country.259 We emphasize that the admission of aliens into Philippine territory is "a matter of pure permission and
simple tolerance which creates no obligation on the part of the government to permit them to stay." 260 Unlike U.S.
personnel who are accorded entry accommodations, U.S. contractors are subject to Philippine immigration laws. 261 The
latter must comply with our visa and passport regulations 262 and prove that they are not subject to exclusion under any
provision of Philippine immigration laws.263 The President may also deny them entry pursuant to his absolute and
unqualified power to prohibit or prevent the admission of aliens whose presence in the country would be inimical to
public interest.264

In the same vein, the President may exercise the plenary power to expel or deport U.S. contractors 265 as may be
necessitated by national security, public safety, public health, public morals, and national interest. 266 They may also be
deported if they are found to be illegal or undesirable aliens pursuant to the Philippine Immigration Act 267and the Data
Privacy Act.268 In contrast, Article 111(5) of the VFA requires a request for removal from the Philippine government
before a member of the U.S. personnel may be "dispos[ed] xx x outside of the Philippines."

c. Authorized activities of U.S. military and civilian personnel within Philippine territory are in furtherance of the MDT
and the VFA

We begin our analysis by quoting the relevant sections of the MDT and the VFA that pertain to the activities in which
U.S. military and civilian personnel may engage:

MUTUAL DEFENSE TREATY

Article II

In 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.

Article III

The Parties, through their Foreign Ministers or their deputies, will consult together from time to time
regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial integrity,
political independence or security of either of the Parties is threatened by external armed attack in the Pacific.

VISITING FORCES AGREEMENT

Preamble

xxx

Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;

Noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines;

Considering that cooperation between the United States and the Republic of the Philippines promotes their
common security interests;

xxx

Article I - Definitions

As used in this Agreement, "United States personnel" means United States military and civilian personnel temporarily
in the Philippines in connection with activities approved by the Philippine Government. Within this definition: xx
x

Article II - Respect for Law

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.

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. x x x.

Article VIII - Movement of Vessels and Aircraft

1. Aircraft operated by or for the United States armed forces may enter the Philippines upon approval of the
Government of the Philippines in accordance with procedures stipulated in implementing arrangements.

2. Vessels operated by or for the United States armed forces may enter the Philippines upon approval of the
Government of the Philippines. The movement of vessels shall be in accordance with international custom
and practice governing such vessels, and such agreed implementing arrangements as necessary. x x x
(Emphases Supplied)
Manifest in these provisions is the abundance of references to the creation of further "implementing arrangements"
including the identification of "activities [to be] approved by the Philippine Government." To determine the parameters
of these implementing arrangements and activities, we referred to the content, purpose, and framework of the MDT
and the VFA.

By its very language, the MDT contemplates a situation in which both countries shall engage in joint activities, so that
they can maintain and develop their defense capabilities. The wording itself evidently invites a reasonable construction
that the joint activities shall involve joint military trainings, maneuvers, and exercises. Both the interpretation 269 and
the subsequent practice270 of the parties show that the MDT independently allows joint military exercises in the
country. Lim v. Executive Secretary 271 and Nicolas v. Romulo272 recognized that Balikatan exercises, which are activities
that seek to enhance and develop the strategic and technological capabilities of the parties to resist an armed attack,
"fall squarely under the provisions of the RP-US MDT." 273 In Lim, the Court especially noted that the Philippines and the
U.S. continued to conduct joint military exercises even after the expiration of the MBA and even before the conclusion
of the VFA.274 These activities presumably related to the Status of Forces Agreement, in which the parties agreed on
the status to be accorded to U.S. military and civilian personnel while conducting activities in the Philippines in relation
to the MDT.275

Further, it can be logically inferred from Article V of the MDT that these joint activities may be conducted on Philippine
or on U.S. soil. The article expressly provides that the term armed attack includes "an armed attack on
the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific
or on its armed forces, public vessels or aircraft in the Pacific." Surely, in maintaining and developing our defense
capabilities, an assessment or training will need to be performed, separately and jointly by self-help and mutual aid, in
the territories of the contracting parties. It is reasonable to conclude that the assessment of defense capabilities would
entail understanding the terrain, wind flow patterns, and other environmental factors unique to the Philippines.

It would also be reasonable to conclude that a simulation of how to respond to attacks in vulnerable areas would be
part of the training of the parties to maintain and develop their capacity to resist an actual armed attack and to test
and validate the defense plan of the Philippines. It is likewise reasonable to imagine that part of the training would
involve an analysis of the effect of the weapons that may be used and how to be prepared for the eventuality. This
Court recognizes that all of this may require training in the area where an armed attack might be directed at the
Philippine territory.

The provisions of the MDT must then be read in conjunction with those of the VFA.

Article I of the VFA indicates that the presence of U.S. military and civilian personnel in the Philippines is "in connection
with activities approved by the Philippine Government." While the treaty does not expressly enumerate or detail the
nature of activities of U.S. troops in the country, its Preamble makes explicit references to the reaffirmation of the
obligations of both countries under the MDT. These obligations include the strengthening of international and regional
security in the Pacific area and the promotion of common security interests.

The Court has already settled in Lim v. Executive Secretary that the phrase "activities approved by the Philippine
Government" under Article I of the VFA was intended to be ambiguous in order to afford the parties flexibility to adjust
the details of the purpose of the visit of U.S. personnel. 276 In ruling that the Terms of Reference for
the Balikatan Exercises in 2002 fell within the context of the treaty, this Court explained:

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 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 nation's 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.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that
"Balikatan 02-1," a "mutual anti-terrorism advising, assisting and training exercise," falls under the
umbrella of sanctioned or allowable activities in the context of the agreement. Both the history and intent of
the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities - as opposed to combat
itself- such as the one subject of the instant petition, are indeed authorized. (Emphases Supplied)

The joint report of the Senate committees on foreign relations and on national defense and security further explains
the wide range and variety of activities contemplated in the VFA, and how these activities shall be identified: 277
These joint exercises envisioned in the VFA are not limited to combat-related activities; they have a wide
range and variety. They include exercises that will reinforce the AFP's ability to acquire new techniques of patrol
and surveillance to protect the country's maritime resources; sea-search and rescue operations to assist ships in
distress; and disaster-relief operations to aid the civilian victims of natural calamities, such as earthquakes,
typhoons and tidal waves.

xxxx

Joint activities under the VFA will include combat maneuvers; training in aircraft maintenance and equipment repair;
civic-action projects; and consultations and meetings of the Philippine-U.S. Mutual Defense Board. It is at the level of
the Mutual Defense Board-which is headed jointly by the Chief of Staff of the AFP and the Commander in Chief of
the U.S. Pacific Command-that the VFA exercises are planned. Final approval of any activity involving U.S.
forces is, however, invariably given by the Philippine Government.

xxxx

Siazon clarified that it is not the VFA by itself that determines what activities will be conducted between the
armed forces of the U.S. and the Philippines. The VFA regulates and provides the legal framework for the
presence, conduct and legal status of U.S. personnel while they are in the country for visits, joint exercises and
other related activities. (Emphases Supplied)

What can be gleaned from the provisions of the VFA, the joint report of the Senate committees on foreign
relations and on national defense and security, and the ruling of this Court in Lim is that the "activities"
referred to in the treaty are meant to be specified and identified infurther agreements. EDCA is one such
agreement.

EDCA seeks to be an instrument that enumerates the Philippine-approved activities of U.S. personnel referred to in the
VFA. EDCA allows U.S. military and civilian personnel to perform "activities approved by the Philippines, as those terms
are defined in the VFA"278 and clarifies that these activities include those conducted within the Agreed Locations:

1. Security cooperation exercises; joint and combined training activities; humanitarian assistance and disaster relief
activities; and such other activities as may be agreed upon by the Parties 279

2. 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; deployment of forces and materiel; and such other activities as the Parties may agree 280

3. Exercise of operational control over the Agreed Locations for construction activities and other types of activity,
including alterations and improvements thereof281

4. Exercise of all rights and authorities within the Agreed Locations that are necessary for their operational control or
defense, including the adoption of apfropriate measures to protect U.S. forces and contractors 282

5. Use of water, electricity, and other public utilities 283

6. Operation of their own telecommunication systems, including the utilization of such means and services as are
required to ensure the full ability to operate telecommunication systems, as well as the use of the necessary radio
spectrum allocated for this purpose284

According to Article I of EDCA, one of the purposes of these activities is to maintain and develop, jointly and by mutual
aid, the individual and collective capacities of both countries to resist an armed attack. It further states that the
activities are in furtherance of the MDT and within the context of the VFA.

We note that these planned activities are very similar to those under the Terms of Reference 285 mentioned in Lim. Both
EDCA and the Terms of Reference authorize the U.S. to perform the following: (a) participate in training exercises; (b)
retain command over their forces; (c) establish temporary structures in the country; (d) share in the use of their
respective resources, equipment and other assets; and (e) exercise their right to self-defense. We quote the relevant
portion of the Terms and Conditions as follows:286

I. POLICY LEVEL

xxxx
No permanent US basing and support facilities shall be established. Temporary structures such as those for troop
billeting, classroom instruction and messing may be set up for use by RP and US Forces during the
Exercise.

The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of the Chief of Staff,
AFP. In no instance will US Forces operate independently during field training exercises (FTX). AFP and US Unit
Commanders will retain command over their respective forces under the overall authority of the Exercise
Co-Directors. RP and US participants shall comply with operational instructions of the AFP during the FTX.

The exercise shall be conducted and completed within a period of not more than six months, with the projected
participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to
wind up and terminate the Exercise and other activities within the six month Exercise period.

The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine
efforts against the ASG, and will be conducted on the Island of Basilan. Further advising, assisting and training
exercises shall be conducted in Malagutay and the Zamboanga area. Related activities in Cebu will be for support of
the Exercise.

xx xx.

US exercise participants shall not engage in combat, without prejudice to their right of self-defense.

These terms of Reference are for purposes of this Exercise only and do not create additional legal obligations between
the US Government and the Republic of the Philippines.

II. EXERCISE LEVEL

1. TRAINING

a. The Exercise shall involve the conduct of mutual military assisting, advising and training of RP and US Forces
with the primary objective of enhancing the operational capabilities of both forces to combat terrorism.

b. At no time shall US Forces operate independently within RP territory.

c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations.

2. ADMINISTRATION & LOGISTICS

xxxx

a. RP and US participating forces may share, in accordance with their respective laws and regulations, in the use of
their resources, equipment and other assets. They will use their respective logistics channels . x x x.
(Emphases Supplied)

After a thorough examination of the content, purpose, and framework of the MDT and the VFA, we find that EDCA has
remained within the parameters set in these two treaties. Just like the Terms of Reference mentioned in Lim, mere
adjustments in detail to implement the MDT and the VFA can be in the form of executive agreements.

Petitioners assert287 that the duration of the activities mentioned in EDCA is no longer consistent with the temporary
nature of the visits as contemplated in the VFA. They point out that Article XII(4) of EDCA has an initial term of 10
years, a term automatically renewed unless the Philippines or the U.S. terminates the agreement. According to
petitioners, such length of time already has a badge of permanency.

In connection with this, Justice Teresita J. Leonardo-De Castro likewise argues in her Concurring and Dissenting Opinion
that the VFA contemplated mere temporary visits from U.S. forces, whereas EDCA allows an unlimited period for U.S.
forces to stay in the Philippines.288

However, the provisions of EDCA directly contradict this argument by limiting itself to 10 years of effectivity. Although
this term is automatically renewed, the process for terminating the agreement is unilateral and the right to do so
automatically accrues at the end of the 10 year period. Clearly, this method does not create a permanent obligation.

Drawing on the reasoning in Lim, we also believe that it could not have been by chance that the VFA does not include
a maximum time limit with respect to the presence of U.S. personnel in the country. We construe this lack of specificity
as a deliberate effort on the part of the Philippine and the U.S. governments to leave out this aspect and reserve it for
the "adjustment in detail" stage of the implementation of the treaty. We interpret the subsequent, unconditional
concurrence of the Senate in the entire text of the VFA as an implicit grant to the President of a margin of appreciation
in determining the duration of the "temporary" presence of U.S. personnel in the country.

Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more permanent" in nature. 289However,
this argument has not taken root by virtue of a simple glance at its provisions on the effectivity period. EDCA does not
grant permanent bases, but rather temporary rotational access to facilities for efficiency. As Professor Aileen S.P.
Baviera notes:

The new EDCA would grant American troops, ships and planes rotational access to facilities of the Armed Forces of the
Philippines but not permanent bases which are prohibited under the Philippine Constitution - with the result of
reducing response time should an external threat from a common adversary crystallize. 290

EDCA is far from being permanent in nature compared to the practice of states as shown in other defense cooperation
agreements. For example, Article XIV(l) of the U.S.-Romania defense agreement provides the following:

This Agreement is concluded for an indefinite period and shall enter into force in accordance with the internal laws
of each Party x x x. (emphasis supplied)

Likewise, Article 36(2) of the US-Poland Status of Forces Agreement reads:

This Agreement has been concluded for an indefinite period of time. It may be terminated by written notification
by either Party and in that event it terminates 2 years after the receipt of the notification. (emphasis supplied)

Section VIII of US.-Denmark Mutual Support Agreement similarly provides:

8.1 This Agreement, which consists of a Preamble, SECTIONs I-VIII, and Annexes A and B, shall become effective on the
date of the last signature affixed below and shall remain in force until terminated by the Parties, provided that it
may be terminated by either Party upon 180 days written notice of its intention to do so to the other Party. (emphasis
supplied)

On the other hand, Article XXI(3) of the US.-Australia Force Posture Agreement provides a longer initial term:

3. This Agreement shall have an initial term of 25 years and thereafter shall continue in force, but may be
terminated by either Party at any time upon one year's written notice to the other Party through diplomatic channels.
(emphasis supplied)

The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with a term less than half of that is provided in
the latter agreement. This means that EDCA merely follows the practice of other states in not specifying a non-
extendible maximum term. This practice, however, does not automatically grant a badge of permanency to its terms.
Article XII(4) of EDCA provides very clearly, in fact, that its effectivity is for an initial term of 10 years, which is far
shorter than the terms of effectivity between the U.S. and other states. It is simply illogical to conclude that the initial,
extendible term of 10 years somehow gives EDCA provisions a permanent character.

The reasoning behind this interpretation is rooted in the constitutional role of the President who, as Commander-in-
Chief of our armed forces, is the principal strategist of the nation and, as such, duty-bound to defend our national
sovereignty and territorial integrity;291 who, as chief architect of our foreign relations, is the head policymaker tasked to
assess, ensure, and protect our national security and interests; 292 who holds the most comprehensive and most
confidential information about foreign countries 293 that may affect how we conduct our external affairs; and who has
unrestricted access to highly classified military intelligence data 294 that may threaten the life of the nation. Thus, if
after a geopolitical prognosis of situations affecting the country, a belief is engendered that a much longer period of
military training is needed, the President must be given ample discretion to adopt necessary measures including the
flexibility to set an extended timetable.

Due to the sensitivity and often strict confidentiality of these concerns, we acknowledge that the President may not
always be able to candidly and openly discuss the complete situation being faced by the nation. The Chief Executive's
hands must not be unduly tied, especially if the situation calls for crafting programs and setting timelines for approved
activities. These activities may be necessary for maintaining and developing our capacity to resist an armed attack,
ensuring our national sovereignty and territorial integrity, and securing our national interests. If the Senate decides
that the President is in the best position to define in operational terms the meaning of temporary in relation to the
visits, considered individually or in their totality, the Court must respect that policy decision. If the Senate feels that
there is no need to set a time limit to these visits, neither should we.

Evidently, the fact that the VFA does not provide specificity in regard to the extent of the "temporary" nature of the
visits of U.S. personnel does not suggest that the duration to which the President may agree is unlimited. Instead, the
boundaries of the meaning of the term temporary in Article I of the treaty must be measured depending on the
purpose of each visit or activity.295 That purpose must be analyzed on a case-by-case basis depending on the factual
circumstances surrounding the conclusion of the implementing agreement. While the validity of the President's actions
will be judged under less stringent standards, the power of this Court to determine whether there was grave abuse of
discretion remains unimpaired.

d. Authorized activities performed by US. contractors within Philippine territory - who were legitimately permitted to
enter the country independent of EDCA - are subject to relevant Philippine statutes and regulations and must be
consistent with the MDT and the VFA

Petitioners also raise296 concerns about the U.S. government's purported practice of hiring private security contractors
in other countries. They claim that these contractors - one of which has already been operating in Mindanao since
2004 - have been implicated in incidents or scandals in other parts of the globe involving rendition, torture and other
human rights violations. They also assert that these contractors employ paramilitary forces in other countries where
they are operating.

Under Articles III and IV of EDCA, U.S. contractors are authorized to perform only the following activities:

1. 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; deployment of forces and materiel; and such other activities as the Parties may agree 297

2. Prepositioning and storage of defense equipment, supplies, and materiel, including delivery, management,
inspection, use, maintenance, and removal of such equipment, supplies and materiel 298

3. Carrying out of matters in accordance with, and to the extent permissible under, U.S. laws, regulations, and
policies299

EDCA requires that all activities within Philippine territory be in accordance with Philippine law. This means that certain
privileges denied to aliens are likewise denied to foreign military contractors. Relevantly, providing security 300 and
carrying, owning, and possessing firearms 301 are illegal for foreign civilians.

The laws in place already address issues regarding the regulation of contractors. In the 2015 Foreign Investment
Negative list,302 the Executive Department has already identified corporations that have equity restrictions in Philippine
jurisdiction. Of note is No. 5 on the list - private security agencies that cannot have any foreign equity by virtue of
Section 4 of Republic Act No. 5487; 303 and No. 15, which regulates contracts for the construction of defense-related
structures based on Commonwealth Act No. 541.

Hence, any other entity brought into the Philippines by virtue of EDCA must subscribe to corporate and civil
requirements imposed by the law, depending on the entity's corporate structure and the nature of its business.

That Philippine laws extraneous to EDCA shall govern the regulation of the activities of U.S. contractors has been clear
even to some of the present members of the Senate.

For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of spilling fuel in the waters off Manila
Bay.304 The Senate Committee on Foreign Relations and the Senate Committee on Environment and Natural Resources
chairperson claimed environmental and procedural violations by the contractor. 305 The U.S. Navy investigated the
contractor and promised stricter guidelines to be imposed upon its contractors. 306 The statement attributed to
Commander Ron Steiner of the public affairs office of the U.S. Navy's 7th Fleet - that U.S. Navy contractors are bound
by Philippine laws - is of particular relevance. The statement acknowledges not just the presence of the contractors,
but also the U.S. position that these contractors are bound by the local laws of their host state. This stance was echoed
by other U.S. Navy representatives.307

This incident simply shows that the Senate was well aware of the presence of U.S. contractors for the purpose of
fulfilling the terms of the VFA. That they are bound by Philippine law is clear to all, even to the U.S.

As applied to EDCA, even when U.S. contractors are granted access to the Agreed Locations, all their activities must be
consistent with Philippine laws and regulations and pursuant to the MDT and the VFA.

While we recognize the concerns of petitioners, they do not give the Court enough justification to strike down EDCA.
In Lim v. Executive Secretary, we have already explained that we cannot take judicial notice of claims aired in news
reports, "not because of any issue as to their truth, accuracy, or impartiality, but for the simple reason that facts must
be established in accordance with the rules of evidence." 308 What is more, we cannot move one step ahead and
speculate that the alleged illegal activities of these contractors in other countries would take place in the Philippines
with certainty. As can be seen from the above discussion, making sure that U.S. contractors comply with Philippine
laws is a function of law enforcement. EDCA does not stand in the way of law enforcement.

Nevertheless, we emphasize that U.S. contractors are explicitly excluded from the coverage of the VFA. As visiting
aliens, their entry, presence, and activities are subject to all laws and treaties applicable within the Philippine territory.
They may be refused entry or expelled from the country if they engage in illegal or undesirable activities. There is
nothing that prevents them from being detained in the country or being subject to the jurisdiction of our courts. Our
penal laws,309 labor laws,310 and immigrations laws311 apply to them and therefore limit their activities here. Until and
unless there is another law or treaty that specifically deals with their entry and activities, their presence in the country
is subject to unqualified Philippine jurisdiction.

EDCA does not allow the presence of U.S.-owned or -controlled military facilities and bases in the
Philippines

Petitioners Saguisag et al. claim that EDCA permits the establishment of U.S. military bases through the
"euphemistically" termed "Agreed Locations. " 312 Alluding to the definition of this term in Article II(4) of EDCA, they
point out that these locations are actually military bases, as the definition refers to facilities and areas to which U.S.
military forces have access for a variety of purposes. Petitioners claim that there are several badges of exclusivity in
the use of the Agreed Locations by U.S. forces. First, Article V(2) of EDCA alludes to a "return" of these areas once they
are no longer needed by U.S. forces, indicating that there would be some transfer of use. Second, Article IV(4) ofEDCA
talks about American forces' unimpeded access to the Agreed Locations for all matters relating to the prepositioning
and storage of U.S. military equipment, supplies, and materiel. Third, Article VII of EDCA authorizes U.S. forces to use
public utilities and to operate their own telecommunications system.

a. Preliminary point on badges of exclusivity

As a preliminary observation, petitioners have cherry-picked provisions of EDCA by presenting so-called "badges of
exclusivity," despite the presence of contrary provisions within the text of the agreement itself.

First, they clarify the word "return" in Article V(2) of EDCA. However, the use of the word "return" is within the context
of a lengthy provision. The provision as a whole reads as follows:

The United States shall return to the Philippines any Agreed Locations, or any portion thereof, including non-
relocatable structures and assemblies constructed, modified, or improved by the United States, once no longer
required by United States forces for activities under this Agreement. The Parties or the Designated Authorities shall
consult regarding the terms of return of any Agreed Locations, including possible compensation for improvements or
construction.

The context of use is "required by United States forces for activities under this Agreement." Therefore, the return of an
Agreed Location would be within the parameters of an activity that the Mutual Defense Board (MDB) and the Security
Engagement Board (SEB) would authorize. Thus, possession by the U.S. prior to its return of the Agreed Location would
be based on the authority given to it by a joint body co-chaired by the "AFP Chief of Staff and Commander, U.S. PACOM
with representatives from the Philippines' Department of National Defense and Department of Foreign Affairs sitting as
members."313 The terms shall be negotiated by both the Philippines and the U.S., or through their Designated
Authorities. This provision, seen as a whole, contradicts petitioners' interpretation of the return as a "badge of
exclusivity." In fact, it shows the cooperation and partnership aspect of EDCA in full bloom.

Second, the term "unimpeded access" must likewise be viewed from a contextual perspective. Article IV(4) states that
U.S. forces and U.S. contractors shall have "unimpeded access to Agreed Locations for all matters relating to the
prepositioning and storage of defense equipment, supplies, and materiel, including delivery, management, inspection,
use, maintenance, and removal of such equipment, supplies and materiel."

At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the authority to bring in these equipment,
supplies, and materiel through the MDB and SEB security mechanism. These items are owned by the U.S., 314 are
exclusively for the use of the U.S. 315 and, after going through the joint consent mechanisms of the MDB and the SEB,
are within the control of the U.S.316 More importantly, before these items are considered prepositioned, they must have
gone through the process of prior authorization by the MDB and the SEB and given proper notification to the AFP. 317

Therefore, this "unimpeded access" to the Agreed Locations is a necessary adjunct to the ownership, use, and control
of the U.S. over its own equipment, supplies, and materiel and must have first been allowed by the joint mechanisms
in play between the two states since the time of the MDT and the VFA. It is not the use of the Agreed Locations that is
exclusive per se; it is mere access to items in order to exercise the rights of ownership granted by virtue of the
Philippine Civil Code.318
As for the view that EDCA authorizes U.S. forces to use public utilities and to operate their own telecommunications
system, it will be met and answered in part D, infra.

Petitioners also point out319 that EDCA is strongly reminiscent of and in fact bears a one-to-one correspondence with
the provisions of the 1947 MBA. They assert that both agreements (a) allow similar activities within the area; (b)
provide for the same "species of ownership" over facilities; and (c) grant operational control over the entire area.
Finally, they argue320 that EDCA is in fact an implementation of the new defense policy of the U.S. According to them,
this policy was not what was originally intended either by the MDT or by the VFA.

On these points, the Court is not persuaded.

The similar activities cited by petitioners 321 simply show that under the MBA, the U.S. had the right to construct,
operate, maintain, utilize, occupy, garrison, and control the bases. The so-called parallel provisions of EDCA allow only
operational control over the Agreed Locations specifically for construction activities. They do not allow the overarching
power to operate, maintain, utilize, occupy, garrison, and control a base with full discretion. EDCA in fact limits the
rights of the U.S. in respect of every activity, including construction, by giving the MDB and the SEB the power to
determine the details of all activities such as, but not limited to, operation, maintenance, utility, occupancy,
garrisoning, and control.322

The "species of ownership" on the other hand, is distinguished by the nature of the property. For immovable property
constructed or developed by the U.S., EDCA expresses that ownership will automatically be vested to the
Philippines.323 On the other hand, for movable properties brought into the Philippines by the U.S., EDCA provides that
ownership is retained by the latter. In contrast, the MBA dictates that the U.S. retains ownership over immovable and
movable properties.

To our mind, both EDCA and the MBA simply incorporate what is already the law of the land in the Philippines. The Civil
Code's provisions on ownership, as applied, grant the owner of a movable property full rights over that property, even
if located in another person's property.324

The parallelism, however, ends when the situation involves facilities that can be considered immovable. Under the
MBA, the U.S. retains ownership if it paid for the facility. 325 Under EDCA, an immovable is owned by the Philippines,
even if built completely on the back of U.S. funding. 326 This is consistent with the constitutional prohibition on foreign
land ownership.327

Despite the apparent similarity, the ownership of property is but a part of a larger whole that must be considered
before the constitutional restriction is violated. Thus, petitioners' points on operational control will be given more
attention in the discussion below. The arguments on policy are, however, outside the scope of judicial review and will
not be discussed

Moreover, a direct comparison of the MBA and EDCA will result in several important distinctions that would allay
suspicion that EDCA is but a disguised version of the MBA.

b. There are substantial matters that the US. cannot do under EDCA, but which it was authorized to do under the 1947
MBA

The Philippine experience with U.S. military bases under the 1947 MBA is simply not possible under EDCA for a number
of important reasons.

First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over Philippine territory occupied by American
bases. In contrast, the U.S. under EDCA does not enjoy any such right over any part of the Philippines in which its
forces or equipment may be found. Below is a comparative table between the old treaty and EDCA:

1947 MBA/ 1946 Treaty of General EDCA

Relations

1947 MBA, Art. I(1): EDCA, preamble:

The Government of the Republic of Affirming that the Parties share an

the Philippines (hereinafter referred to as the understanding for the United States not to
Philippines) grants to the Government of establish a permanent military presence
the United States of America (hereinafter or base in the territory of the Philippines;
referred to as the United States) the right to
 retain the use of the bases in the
Philippines listed in Annex A attached hereto.
1947 MBA, Art. XVII(2):
All buildings and structures which
are erected by the United States in the
bases shall be the property of the United
States and may be removed by it before the
expiration of this Agreement or the earlier
relinquishment of the base on which the
structures are situated. There shall be no
obligation on the part of the Philippines or of
the United States to rebuild or repair any
destruction or damage inflicted from any cause
whatsoever on any of the said buildings or
structures owned or used by the United States
in the bases. x x x x.
1946 Treaty of Gen. Relations, Art. I:
The United States of America agrees to
withdraw and surrender, and does hereby
withdraw and surrender, all rights of
possession, supervision, jurisdiction,
control or sovereignty existing and
exercised by the United States of America in
and over the territory and the people of
the Philippine Islands, except the use of
such bases, necessary appurtenances to
such bases, and the rights incident
thereto, as the United States of America, by
agreement with the Republic of the Philippines
may deem necessary to retain for the mutual
protection of the Republic of the Philippines
and of the United States of America. x x x.
Second, in the bases agreement, the U.S. and the Philippines were visibly not on equal footing when it came to
deciding whether to expand or to increase the number of bases, as the Philippines may be compelled to negotiate with
the U.S. the moment the latter requested an expansion of the existing bases or to acquire additional bases. In EDCA,
U.S. access is purely at the invitation of the Philippines.
1947 MBA/ 1946 Treaty of General
Relations
1947 MBA, Art.I(3):
The Philippines agree to enter into
negotiations with the United States at the
latter's request, to permit the United
States to expand such bases, to exchange
such bases for other bases, to acquire
additional bases, or relinquish rights to
bases, as any of such exigencies may be
required by military necessity.
xxxx
Recognizing that all United States access to
and use of facilities and areas will be at the
invitation of the Philippines and with full
respect for the Philippine Constitution
and Philippine laws;
xxxx
EDCA, Art. II(4):
"Agreed Locations" means facilities and
areas that are provided by the Government
of the Philippines through the AFP and that
United States forces, United States contractors,
and others as mutually agreed, shall have the
right to access and use pursuant to this
Agreement. Such Agreed Locations may be
listed in an annex to be appended to this
Agreement, and may be further described in
implementing arrangements.
EDCA, Art. V:
1. The Philippines shall retain ownership of
and title to Agreed Locations.
xxxx
4. All buildings, non-relocatable
structures, and assemblies affixed to the
land in the Agreed Locations, including ones
altered or improved by United States
forces, remain the property of the
Philippines. Permanent buildings constructed
by United States forces become the property of
the Philippines, once constructed, but shall be
used by United States forces until no longer
required by United States forces.
EDCA
EDCA, preamble:
Recognizing that all United States access to
and use of facilities and areas will be at the
invitation of the Philippines and with full
respect for the Philippine Constitution
and Philippine laws;
xxxx
 1946 Treaty of Gen. Relations, Art. I: EDCA. Art. II(4):

The United States of America agrees to
withdraw and surrender, and does hereby
withdraw and surrender, all rights of
possession, supervision, jurisdiction,
control or sovereignty existing and
exercised by the United States of America in
and over the territory and the people of
the Philippine Islands, except the use of
such bases, necessary appurtenances to such
bases, and the rights incident thereto, as the
United States of America, by agreement
with the Republic of the Philippines may
deem necessary to retain for the mutual
protection of the Republic of the Philippines
and of the United States of America. x x x.
"Agreed Locations" means facilities and
areas that are provided by the Government
of the Philippines through the AFP and that
United States forces, United States contractors,
and others as mutually agreed, shall have
the right to access and use pursuant to this
Agreement. Such Agreed Locations may be
listed in an annex to be appended to this
Agreement, and may be further described in
implementing arrangements.

Third, in EDCA, the Philippines is- guaranteed access over the entire area of the Agreed Locations. On the other hand,
given that the U.S. had complete control over its military bases under the 1947 MBA, the treaty did not provide for any
express recognition of the right of access of Philippine authorities. Without that provision and in light of the retention of
U.S. sovereignty over the old military bases, the U.S. could effectively prevent Philippine authorities from entering
those bases.

1947 MBA EDCA

No equivalent provision. EDCA, Art. III(5):

The Philippine Designated Authority and

its authorized representative shall have
access to the entire area of the Agreed
Locations. Such access shall be provided
promptly consistent with operational safety
and security requirements in accordance with
agreed procedures developed by the Parties.

Fourth, in the bases agreement, the U.S. retained the right, power, and authority over the establishment, use,
operation, defense, and control of military bases, including the limits of territorial waters and air space adjacent to or
in the vicinity of those bases. The only standard used in determining the extent of its control was military necessity. On
the other hand, there is no such grant of power or authority under EDCA. It merely allows the U.S. to exercise
operational control over the construction of Philippine-owned structures and facilities:

1947 MBA EDCA

1947 MBA, Art.I(2): EDCA, Art. III(4):

The Philippines agrees to permit the UnitedThe Philippines hereby grants to the United
States, upon notice to the Philippines, to use
States, through bilateral security
such of those bases listed in Annex B as the
mechanisms, such as the MDB and
United States determines to be required SEB, operational control of Agreed
by military necessity. Locations for construction
activities and authority to undertake such
1947 MBA, Art. III(1): activities on, and make alterations and
It is mutually agreed that the United improvements to, Agreed Locations. United
States shall have the rights, power and States forces shall consult on issues
authority within the bases which regarding such construction, alterations,
are necessary for the establishment, use, and improvements based on the Parties'
shared intent that the technical requirements
 operation and defense thereof or and construction standards of any such
appropriate for the control thereof and all projects undertaken by or on behalf of United
the rights, power and authority within the States forces should be consistent with the
limits of territorial waters and air space requirements and standards of both Parties.
adjacent to, or in the vicinity of, the bases
which are necessary to provide access to
them, or appropriate for their control.

Fifth, the U.S. under the bases agreement was given the authority to use Philippine territory for additional staging
areas, bombing and gunnery ranges. No such right is given under EDCA, as seen below:

1947 MBA EDCA

1947 MBA, Art. VI: EDCA, Art. III(1):

The United States shall, subject to previous
agreement with the Philippines, have the right
to use land and coastal sea areas of
appropriate size and location for periodic
maneuvers, for additional staging areas,
bombing and gunnery ranges, and for
such intermediate airfields as may be
required for safe and efficient air operations.
Operations in such areas shall be carried on
with due regard and safeguards for the public
safety.
1947 MBA, Art.I(2):
The Philippines agrees to permit the United
States, upon notice to the Philippines, to use
such of those bases listed in Annex B as the
United States determines to be required
by military necessity.
With consideration of the views of
the Parties,
the Philippines hereby authorizes and
agrees that United States 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; 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.

Sixth, under the MBA, the U.S. was given the right, power, and authority to control and prohibit the movement and
operation of all types of vehicles within the vicinity of the bases. The U.S. does not have any right, power, or authority
to do so under EDCA.

1947 MBA EDCA

1947 MBA, Art. 111(2)(c) No equivalent provision.

Such rights, power and authority shall

include, inter alia, the right, power and
authority: x x x x to control (including the
right to prohibit) in so far as may be required
for the efficient operation and safety of the
bases, and within the limits of military
necessity, anchorages, moorings, landings,
takeoffs, movements and operation of
ships and water-borne craft, aircraft and
other vehicles on water, in the air or on
land comprising

Seventh, under EDCA, the U.S. is merely given temporary access to land and facilities (including roads, ports, and
airfields). On the other hand, the old treaty gave the U.S. the right to improve and deepen the harbors, channels,
entrances, and anchorages; and to construct or maintain necessary roads and bridges that would afford it access to its
military bases.
 1947 MBA EDCA

1947 MBA, Art. III(2)(b): EDCA, Art. III(2):

Such rights, power and authority shall
include, inter alia, the right, power and
authority: x x x x to improve and deepen
the harbors, channels, entrances and
anchorages, and to construct or maintain
necessary roads and bridges affording access
to the bases.
When requested, the Designated Authority of
the Philippines shall assist in facilitating
transit or temporary access by United
States forces to public land and facilities
(including roads, ports, and airfields), including
those owned or controlled by local
governments, and to other land and facilities
(including roads, ports, and airfields).

Eighth, in the 1947 MBA, the U.S. was granted the automatic right to use any and all public utilities, services and
facilities, airfields, ports, harbors, roads, highways, railroads, bridges, viaducts, canals, lakes, rivers, and streams in the
Philippines in the same manner that Philippine military forces enjoyed that right. No such arrangement appears in
EDCA. In fact, it merely extends to U.S. forces temporary access to public land and facilities when requested:

1947 MBA EDCA

1947 MBA, Art. VII: EDCA, Art. III(2):

It is mutually agreed that the United States When requested, the Designated Authority of
may employ and use for United States the Philippines shall assist in facilitating
military forces any and all public utilities, transit or temporary access by United
other services and facilities, airfields, ports, States forces to public land and facilities
harbors, roads, highways, railroads, bridges, (including roads, ports, and airfields), including
viaducts, canals, lakes, rivers and streams in those owned or controlled by local
the Philippines under conditions no less governments, and to other land and facilities
favorable than those that may (including roads, ports, and airfields).
be applicable from time to time to
the military forces of the Philippines.

Ninth, under EDCA, the U.S. no longer has the right, power, and authority to construct, install, maintain, and
employ any type of facility, weapon, substance, device, vessel or vehicle, or system unlike in the old treaty. EDCA
merely grants the U.S., through bilateral security mechanisms, the authority to undertake construction, alteration, or
improvements on the Philippine-owned Agreed Locations.

1947 MBA EDCA

1947 MBA, Art. III(2)(e): EDCA, Art. III(4):

Such rights, power and authority shall
include, inter alia, the right, power and
authority: x x x x to construct, install,
maintain, and employ on any base any
type of facilities, weapons, substance,
device, vessel or vehicle on or under the
ground, in the air or on or under the water that
may be requisite or appropriate, including
meteorological systems, aerial and water
navigation lights, radio and radar apparatus
and electronic devices, of any desired power,
type of emission and frequency.
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.

Tenth, EDCA does not allow the U.S. to acquire, by condemnation or expropriation proceedings, real property
belonging to any private person. The old military bases agreement gave this right to the U.S. as seen below:

1947 MBA EDCA

1947 MBA, Art. XXII(l): No equivalent provision.

Whenever it is necessary to acquire by

condemnation or expropriation
proceedings real property belonging to
any private persons, associations or
corporations located in bases named in Annex
A and Annex B in order to carry out the
purposes of this Agreement, the Philippines will
institute and prosecute such condemnation or
expropriation proceedings in accordance with
the laws of the Philippines. The United States
agrees to reimburse the Philippines for all the
reasonable expenses, damages and costs
therebv incurred, including the value of the
property as determined by the Court. In
addition, subject to the mutual agreement of
the two Governments, the United States will
reimburse the Philippines for the reasonable
costs of transportation and removal of any
occupants displaced or ejected by reason of
the condemnation or expropriation.

Eleventh, EDCA does not allow the U.S. to unilaterally bring into the country non-Philippine nationals who are under
its employ, together with their families, in connection with the construction, maintenance, or operation of the bases.
EDCA strictly adheres to the limits under the VFA.

1947 MBA EDCA

1947 MBA, Art. XI(l): EDCA, Art. II:

It is mutually agreed that the United States 1. "United States personnel" means United
shall have the right to bring into the States military and civilian
Philippines members of the United States personnel temporarily in the territory of the
military forces and the United States Philippines in connection with activities
nationals employed by or under a approved by the Philippines, as those terms
contract with the United States together are defined in the VFA.
with their families, and technical
personnel of other nationalities (not being x xx x
persons excluded by the laws of the 3. "United States contractors" means
Philippines) in connection with the companies and firms, and their employees,
construction, maintenance, or operation of the under contract or subcontract to or on behalf of
bases. The United States shall make suitable the United States Department of Defense.
arrangements so that such persons may be United States contractors are not included as
readily identified and their status established part of the definition of United States
when necessary by the Philippine authorities. personnel in this Agreement, including
Such persons, other than members of the within the context of the VFA.
United States armed forces in uniform, shall
present their travel documents to the
appropriate Philippine authorities for visas, it
 being understood that no objection will be
made to their travel to the Philippines as
non-immigrants.

Twelfth, EDCA does not allow the U.S. to exercise jurisdiction over any offense committed by any person within the
Agreed Locations, unlike in the former military bases:

1947 MBA EDCA

1947 MBA, Art. XIII(l)(a): No equivalent provision.

The Philippines consents that the United

States shall have the right to exercise

jurisdiction over the following offenses:
(a) Any offense committed by any
person within any base except where the
offender and offended parties are both
Philippine citizens (not members of the armed
forces of the United States on active duty) or
the offense is against the security of the
Philippines.

Thirteenth, EDCA does not allow the U.S. to operate military post exchange (PX) facilities, which is free of customs
duties and taxes, unlike what the expired MBA expressly allowed. Parenthetically, the PX store has become the cultural
icon of U.S. military presence in the country.

1947 MBA EDCA

1947 MBA, Art. XVIII(l): No equivalent provision.

It is mutually agreed that the United States

shall have the right to establish on bases,

free of all licenses; fees; sales, excise or
other taxes, or imposts; Government
agencies, including concessions, such
as sales commissaries and post
exchanges; messes and social clubs, for the
exclusive use of the United States
military forces and authorized civilian
personnel and their families. The
merchandise or services sold or dispensed by
such agencies shall be free of all taxes,
duties and inspection by the Philippine
authorities. Administrative measures shall be
taken by the appropriate authorities of the
United States to prevent the resale of goods
which are sold under the provisions of this
Article to persons not entitled to buy goods at
such agencies and, generally, to prevent abuse
of the privileges granted under this Article.
There shall be cooperation between such
authorities and the Philippines to this end.

In sum, EDCA is a far cry from a basing agreement as was understood by the people at the time that the 1987
Constitution was adopted.
Nevertheless, a comprehensive review of what the Constitution means by "foreign military bases" and "facilities" is
required before EDCA can be deemed to have passed judicial scrutiny.

c. The meaning of military facilities and bases

An appreciation of what a military base is, as understood by the Filipino people in 1987, would be vital in determining
whether EDCA breached the constitutional restriction.

Prior to the drafting of the 1987 Constitution, the last definition of "military base" was provided under Presidential
Decree No. (PD) 1227.328 Unlawful entry into a military base is punishable under the decree as supported by Article 281
of the Revised Penal Code, which itself prohibits the act of trespass.

Section 2 of the law defines the term in this manner: "'[M]ilitary base' as used in this decree means any military, air,
naval, or coast guard reservation, base, fort, camp, arsenal, yard, station, or installation in the Philippines."

Commissioner Tadeo, in presenting his objections to U.S. presence in the Philippines before the 1986 Constitutional
Commission, listed the areas that he considered as military bases:

1,000 hectares Camp O'Donnel

20,000 hectares Crow Valley Weapon's Range

55,000 hectares Clark Air Base

150 hectares Wallace Air Station

400 hectares John Hay Air Station

15,000 hectares Subic Naval Base

1,000 hectares San Miguel Naval Communication

750 hectares Radio Transmitter in Capas, Tarlac

900 hectares Radio Bigot Annex at Bamban, Tarlac329

The Bases Conversion and Development Act of 1992 described its coverage in its Declaration of Policies:

Sec. 2. Declaration of Policies. - It is hereby declared the policy of the Government to accelerate the sound and
balanced conversion into alternative productive uses of the Clark and Subic military reservations and their extensions
(John Hay Station, Wallace Air Station, O'Donnell Transmitter Station, San Miguel Naval Communications Station and
Capas Relay Station), to raise funds by the sale of portions of Metro Manila military camps, and to apply said funds as
provided herein for the development and conversion to productive civilian use of the lands covered under the 194 7
Military Bases Agreement between the Philippines and the United States of America, as amended. 330

The result of the debates and subsequent voting is Section 25, Article XVIII of the Constitution, which specifically
restricts, among others, foreign military facilities or bases. At the time of its crafting of the Constitution, the 1986
Constitutional Commission had a clear idea of what exactly it was restricting. While the term "facilities and bases" was
left undefined, its point of reference was clearly those areas covered by the 1947 MBA as amended.

Notably, nearly 30 years have passed since then, and the ever-evolving world of military technology and geopolitics
has surpassed the understanding of the Philippine people in 1986. The last direct military action of the U.S. in the
region was the use of Subic base as the staging ground for Desert Shield and Desert Storm during the Gulf War. 331 In
1991, the Philippine Senate rejected the successor treaty of the 1947 MBA that would have allowed the continuation of
U.S. bases in the Philippines.

Henceforth, any proposed entry of U.S. forces into the Philippines had to evolve likewise, taking into consideration the
subsisting agreements between both parties, the rejection of the 1991 proposal, and a concrete understanding of what
was constitutionally restricted. This trend birthed the VFA which, as discussed, has already been upheld by this Court.

The latest agreement is EDCA, which proposes a novel concept termed "Agreed Locations."

By definition, Agreed Locations are

facilities and areas that are provided by the Government of the Philippines through the AFP and that United States
forces, United States contractors, and others as mutually agreed, shall have the right to access and use pursuant to
this Agreement. Such Agreed Locations may be listed in an annex to be appended to this Agreement, and may be
further described in implementing arrangements.332

Preliminarily, respondent already claims that the proviso that the Philippines shall retain ownership of and title to the
Agreed Locations means that EDCA is "consistent with Article II of the VFA which recognizes Philippine sovereignty and
jurisdiction over locations within Philippine territory. 333

By this interpretation, respondent acknowledges that the contention of petitioners springs from an understanding that
the Agreed Locations merely circumvent the constitutional restrictions. Framed differently, the bone of contention is
whether the Agreed Locations are, from a legal perspective, foreign military facilities or bases. This legal framework
triggers Section 25, Article XVIII, and makes Senate concurrence a sine qua non.

Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized by the Philippines 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."

This creation of EDCA must then be tested against a proper interpretation of the Section 25 restriction.

d. Reasons for the constitutional requirements and legal standards for constitutionally compatible military bases and
facilities

Section 25 does not define what is meant by a "foreign military facility or base." While it specifically alludes to U.S.
military facilities and bases that existed during the framing of the Constitution, the provision was clearly meant to
apply to those bases existing at the time and to any future facility or base. The basis for the restriction must first be
deduced from the spirit of the law, in order to set a standard for the application of its text, given the particular
historical events preceding the agreement.

Once more, we must look to the 1986 Constitutional Commissioners to glean, from their collective wisdom, the intent
of Section 25. Their speeches are rich with history and wisdom and present a clear picture of what they considered in
the crafting the provision.

SPEECH OF COMMISSIONER REGALADO334

xxxx

We have been regaled here by those who favor the adoption of the anti-bases provisions with what purports to be an
objective presentation of the historical background of the military bases in the Philippines. Care appears, however, to
have been taken to underscore the inequity in their inception as well as their implementation, as to seriously
reflect on the supposed objectivity of the report. Pronouncements of military and civilian officials shortly after World
War II are quoted in support of the proposition on neutrality; regrettably, the implication is that the same remains
valid today, as if the world and international activity stood still for the last 40 years.

We have been given inspired lectures on the effect of the presence of the military bases on our
sovereignty - whether in its legal or political sense is not clear - and the theory that any country with
foreign bases in its territory cannot claim to be fully sovereign or completely independent. I was not aware
that the concepts of sovereignty and independence have now assumed the totality principle, such that a willing
assumption of some delimitations in the exercise of some aspects thereof would put that State in a lower bracket of
nationhood.

xxxx

We have been receiving a continuous influx of materials on the pros and cons on the advisability of having military
bases within our shores. Most of us who, only about three months ago, were just mulling the prospects of these
varying contentions are now expected, like armchair generals, to decide not only on the geopolitical aspects and
contingent implications of the military bases but also on their political, social, economic and cultural impact on our
national life. We are asked to answer a plethora of questions, such as: 1) whether the bases are magnets of nuclear
attack or are deterrents to such attack; 2) whether an alliance or mutual defense treaty is a derogation of our national
sovereignty; 3) whether criticism of us by Russia, Vietnam and North Korea is outweighed by the support for us of the
ASEAN countries, the United States, South Korea, Taiwan, Australia and New Zealand; and 4) whether the social, moral
and legal problems spawned by the military bases and their operations can be compensated by the economic benefits
outlined in papers which have been furnished recently to all of us. 335
xxxx

Of course, one side of persuasion has submitted categorical, unequivocal and forceful assertions of their positions.
They are entitled to the luxury of the absolutes. We are urged now to adopt the proposed declaration as a
"golden," "unique" and "last" opportunity for Filipinos to assert their sovereign rights. Unfortunately, I have
never been enchanted by superlatives, much less for the applause of the moment or the ovation of the hour. Nor do I
look forward to any glorious summer after a winter of political discontent. Hence, if I may join Commissioner Laurel, I
also invoke a caveat not only against the tyranny of labels but also the tyranny of slogans. 336

xxxx

SPEECH OF COMMISSIONER SUAREZ337

MR. SUAREZ: Thank you, Madam President.

I am quite satisfied that the crucial issues involved in the resolution of the problem of the removal of foreign bases
from the Philippines have been adequately treated by previous speakers. Let me, therefore, just recapitulate the
arguments adduced in favor of a foreign bases-free Philippines:

1. That every nation should be free to shape its own destiny without outside interference;

2. That no lasting peace and no true sovereignty would ever be achieved so long as there are foreign military
forces in our country;

3. That the presence of foreign military bases deprives us of the very substance of national sovereignty and
this is a constant source of national embarrassment and an insult to our national dignity and selfrespect as a nation;

4. That these foreign military bases unnecessarily expose our country to devastating nuclear attacks;

5. That these foreign military bases create social problems and are designed to perpetuate the strangle-hold of United
States interests in our national economy and development;

6. That the extraterritorial rights enjoyed by these foreign bases operate to deprive our country of jurisdiction
over civil and criminal offenses committed within our own national territory and against Filipinos;

7. That the bases agreements are colonial impositions and dictations upon our helpless country; and

8. That on the legal viewpoint and in the ultimate analysis, all the bases agreements are null and void ab
initio, especially because they did not count the sovereign consent and will of the Filipino people. 338

xxxx

In the real sense, Madam President, if we in the Commission could accommodate the provisions I have cited, what is
our objection to include in our Constitution a matter as priceless as the nationalist values we cherish? A matter of
the gravest concern for the safety and survival of this nation indeed deserves a place in our Constitution.

xxxx

x x x Why should we bargain away our dignity and our self-respect as a nation and the future of generations to
come with thirty pieces of silver?339

SPEECH OF COMMISSIONER BENNAGEN340

xxxx

The underlying principle of military bases and nuclear weapons wherever they are found and whoever owns them is
that those are for killing people or for terrorizing humanity. This objective by itself at any point in history is
morally repugnant. This alone is reason enough for us to constitutionalize the ban on foreign military bases and on
nuclear weapons.341

SPEECH OF COMMISSIONER BACANI342

xxxx

x x x Hence, the remedy to prostitution does not seem to be primarily to remove the bases because even if
the bases are removed, the girls mired in poverty will look for their clientele elsewhere. The remedy to the problem of
prostitution lies primarily elsewhere - in an alert and concerned citizenry, a healthy economy and a sound education in
values.343

SPEECH OF COMMISSIONER JAMIR344

xxxx

One of the reasons advanced against the maintenance of foreign military bases here is that they impair
portions of our sovereignty. While I agree that our country's sovereignty should not be impaired, I also hold the
view that there are times when it is necessary to do so according to the imperatives of national interest. There are
precedents to this effect. Thus, during World War II, England leased its bases in the West Indies and in Bermuda for 99
years to the United States for its use as naval and air bases. It was done in consideration of 50 overaged destroyers
which the United States gave to England for its use in the Battle of the Atlantic.

A few years ago, England gave the Island of Diego Garcia to the United States for the latter's use as a naval base in
the Indian Ocean. About the same time, the United States obtained bases in Spain, Egypt and Israel. In doing so, these
countries, in effect, contributed to the launching of a preventive defense posture against possible trouble in the Middle
East and in the Indian Ocean for their own protection. 345

SPEECH OF COMMISSIONER TINGSON346

xxxx

In the case of the Philippines and the other Southeast Asian nations, the presence of American troops in the country is
a projection of America's security interest. Enrile said that nonetheless, they also serve, although in an incidental and
secondary way, the security interest of the Republic of the Philippines and the region. Yes, of course, Mr. Enrile also
echoes the sentiments of most of us in this Commission, namely: It is ideal for us as an independent and
sovereign nation to ultimately abrogate the RP-US military treaty and, at the right time, build our own air
and naval might.347

xxxx

Allow me to say in summation that I am for the retention of American military bases in the Philippines
provided that such an extension from one period to another shall be concluded upon concurrence of the
parties, and such extension shall be based on justice, the historical amity of the people of the Philippines
and the United States and their common defense interest.348

SPEECH OF COMMISSIONER ALONTO 349

xxxx

Madam President, sometime ago after this Commission started with this task of framing a constitution, I read a
statement of President Aquino to the effect that she is for the removal of the U.S. military bases in this country but that
the removal of the U.S. military bases should not be done just to give way to other foreign bases. Today, there are two
world superpowers, both vying to control any and all countries which have importance to their strategy for world
domination. The Philippines is one such country.

Madam President, I submit that I am one of those ready to completely remove any vestiges of the days of
enslavement, but not prepared to erase them if to do so would merely leave a vacuum to be occupied by a far worse
type.350

SPEECH OF COMMISSIONER GASCON351

xxxx

Let us consider the situation of peace in our world today. Consider our brethren in the Middle East, in Indo-China,
Central America, in South Africa - there has been escalation of war in some of these areas because of foreign
intervention which views these conflicts through the narrow prism of the East-West conflict. The United States bases
have been used as springboards for intervention in some of these conflicts. We should not allow
ourselves to be party to the warlike mentality of these foreign interventionists. We must always be on the
side of peace this means that we should not always rely on military solution. 352

xxxx
x x x The United States bases, therefore, are springboards for intervention in our own internal affairs and in
the affairs of other nations in this region.

xxxx

Thus, I firmly believe that a self-respecting nation should safeguard its fundamental freedoms which should logically be
declared in black and white in our fundamental law of the land - the Constitution. Let us express our desire for
national sovereignty so we may be able to achieve national self-determination. Let us express our desire for
neutrality so that we may be able to follow active nonaligned independent foreign policies. Let us express our desire
for peace and a nuclear-free zone so we may be able to pursue a healthy and tranquil existence, to have peace that is
autonomous and not imposed. 353

xxxx

SPEECH OF COMMISSIONER TADEO354

Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases? Para sa magbubukid, ang kahulugan
nito ay pagkaalipin. Para sa magbubukid, ang pananatili ng U.S. military bases ay tinik sa dibdib ng
sambayanang Pilipinong patuloy na nakabaon. Para sa sambayanang magbubukid, ang ibig sabihin ng U.S.
military bases ay batong pabigat na patuloy na pinapasan ng sambayanang Pilipino. Para sa sambayanang
magbubukid, ang pananatili ng U.S. military bases ay isang nagdudumilat na katotohanan ng patuloy na
paggahasa ng imperyalistang Estados Unidos sa ating Inang Bayan - economically, politically and
culturally. Para sa sambayanang magbubukid ang U.S. military bases ay kasingkahulugan ng nuclear weapon
- ang kahulugan ay magneto ng isang nuclear war. Para sa sambayanang magbubukid, ang kahulugan ng U.S.
military bases ay isang salot.355

SPEECH OF COMMISSIONER QUESADA356

xxxx

The drift in the voting on issues related to freeing ourselves from the instruments of domination and
subservience has clearly been defined these past weeks.

xxxx

So for the record, Mr. Presiding Officer, I would like to declare my support for the committee's position to enshrine in
the Constitution a fundamental principle forbidding foreign military bases, troops or facilities in any part of the
Philippine territory as a clear and concrete manifestation of our inherent right to national self-
determination, independence and sovereignty.

Mr. Presiding Officer, I would like to relate now these attributes of genuine nationhood to the social cost of allowing
foreign countries to maintain military bases in our country. Previous speakers have dwelt on this subject, either to
highlight its importance in relation to the other issues or to gloss over its significance and !llake this a part of future
negotiations.357

xxxx

Mr. Presiding Officer, I feel that banning foreign military bases is one of the solutions and is the response of the Filipino
people against this condition and other conditions that have already been clearly and emphatically discussed in past
deliberations. The deletion, therefore, of Section 3 in the Constitution we are drafting will have the following
implications:

First, the failure of the Constitutional Commission to decisively respond to the continuing violation of our
territorial integrity via the military bases agreement which permits the retention of U.S. facilities within
the Philippine soil over which our authorities have no exclusive jurisdiction contrary to the accepted
definition of the exercise of sovereignty.

Second, consent by this forum, this Constitutional Commission, to an exception in the application of a provision
in the Bill of Rights that we have just drafted regarding equal application of the laws of the land to all inhabitants,
permanent or otherwise, within its territorial boundaries.

Third, the continued exercise by the United States of extraterritoriality despite the condemnations of such
practice by the world community of nations in the light of overwhelming international approval of eradicating all
vestiges of colonialism.358
xxxx

Sixth, the deification of a new concept called pragmatic sovereignty, in the hope that such can be wielded to force
the United States government to concede to better terms and conditions concerning the military bases agreement,
including the transfer of complete control to the Philippine government of the U.S. facilities, while in the
meantime we have to suffer all existing indignities and disrespect towards our rights as a sovereign nation.

xxxx

Eighth, the utter failure of this forum to view the issue of foreign military bases as essentially a question
of sovereignty which does not require in-depth studies or analyses and which this forum has, as a constituent
assembly drafting a constitution, the expertise and capacity to decide on except that it lacks the political will that
brought it to existence and now engages in an elaborate scheme of buck-passing.

xxxx

Without any doubt we can establish a new social order in our country, if we reclaim, restore, uphold and defend our
national sovereignty. National sovereignty is what the military bases issue is all about. It is only the sovereign
people exercising their national sovereignty who can design an independent course and take full control of their
national destiny.359

SPEECH OF COMMISSIONER P ADILLA360

xxxx

Mr. Presiding Officer, in advocating the majority committee report, specifically Sections 3 and 4 on neutrality, nuclear
and bases-free country, some views stress sovereignty of the Republic and even invoke survival of the
Filipino nation and people.361

REBUTTAL OF COMMISSIONER NOLLEDO362

xxxx

The anachronistic and ephemeral arguments against the provisions of the committee report to dismantle the American
bases after 1991 only show the urgent need to free our country from the entangling alliance with any power
bloc.363

xxxx

xx x Mr. Presiding Officer, it is not necessary for us to possess expertise to know that the so-called RP-US Bases
Agreement will expire in 1991, that it infringes on our sovereignty and jurisdiction as well as national dignity and
honor, that it goes against the UN policy of disarmament and that it constitutes unjust intervention in our internal
affairs.364 (Emphases Supplied)

The Constitutional Commission eventually agreed to allow foreign military bases, troops, or facilities, subject to the
provisions of Section 25. It is thus important to read its discussions carefully. From these discussions, we can deduce
three legal standards that were articulated by the Constitutional Commission Members. These are characteristics of
any agreement that the country, and by extension this Court, must ensure are observed. We can thereby determine
whether a military base or facility in the Philippines, which houses or is accessed by foreign military troops, is foreign
or remains a Philippine military base or facility. The legal standards we find applicable are: independence from foreign
control, sovereignty and applicable law, and national security and territorial integrity.

i. First standard: independence from foreign control

Very clearly, much of the opposition to the U.S. bases at the time of the Constitution's drafting was aimed at asserting
Philippine independence from the U.S., as well as control over our country's territory and military.

Under the Civil Code, there are several aspects of control exercised over property.

Property is classified as private or public. 365 It is public if "intended for public use, such as roads, canals, rivers,
torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and others of similar character[,]" or
"[t]hose which belong to the State, without being for public use, and are intended for some public service or for the
development of the national wealth. "366

Quite clearly, the Agreed Locations are contained within a property for public use, be it within a government military
camp or property that belongs to the Philippines.1avvphi1
Once ownership is established, then the rights of ownership flow freely. Article 428 of the Civil Code provides that
"[t]he owner has the right to enjoy and dispose of a thing, without other limitations than those established by law."
Moreover, the owner "has also a right of action against the holder and possessor of the thing in order to recover it."

Philippine civil law therefore accords very strong rights to the owner of property, even against those who hold the
property. Possession, after all, merely raises a disputable presumption of ownership, which can be contested through
normal judicial processes.367

In this case, EDCA explicitly provides that ownership of the Agreed Locations remains with the Philippine
govemment.368 What U.S. personnel have a right to, pending mutual agreement, is access to and use of these
locations.369

The right of the owner of the property to allow access and use is consistent with the Civil Code, since the owner may
dispose of the property in whatever way deemed fit, subject to the limits of the law. So long as the right of ownership
itself is not transferred, then whatever rights are transmitted by agreement does not completely divest the owner of
the rights over the property, but may only limit them in accordance with law.

Hence, even control over the property is something that an owner may transmit freely. This act does not translate into
the full transfer of ownership, but only of certain rights. In Roman Catholic Apostolic Administrator of Davao, Inc. v.
Land Registration Commission, we stated that the constitutional proscription on property ownership is not violated
despite the foreign national's control over the property.370

EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of use and access. Under its pertinent
provisions, it is the Designated Authority of the Philippines that shall, when requested, assist in facilitating transit or
access to public land and facilities.371 The activities carried out within these locations are subject to agreement as
authorized by the Philippine govemment. 372 Granting the U.S. operational control over these locations is likewise
subject to EDCA' s security mechanisms, which are bilateral procedures involving Philippine consent and
cooperation.373 Finally, the Philippine Designated Authority or a duly designated representative is given access to the
Agreed Locations.374

To our mind, these provisions do not raise the spectre of U.S. control, which was so feared by the Constitutional
Commission. In fact, they seem to have been the product of deliberate negotiation from the point of view of the
Philippine government, which balanced constitutional restrictions on foreign military bases and facilities against the
security needs of the country. In the 1947 MBA, the U.S. forces had "the right, power and authority x x x to construct
(including dredging and filling), operate, maintain, utilize, occupy, garrison and control the bases." 375 No similarly
explicit provision is present in EDCA.

Nevertheless, the threshold for allowing the presence of foreign military facilities and bases has been raised by the
present Constitution. Section 25 is explicit that foreign military bases, troops, or facilities shall not be allowed in the
Philippines, except under a treaty duly concurred in by the Senate. Merely stating that the Philippines would retain
ownership would do violence to the constitutional requirement if the Agreed Locations were simply to become a less
obvious manifestation of the U.S. bases that were rejected in 1991.

When debates took place over the military provisions of the Constitution, the committee rejected a specific provision
proposed by Commissioner Sarmiento. The discussion illuminates and provides context to the 1986 Constitutional
Commission's vision of control and independence from the U.S., to wit:

MR. SARMIENTO: Madam President, my proposed amendment reads as follows: "THE STATE SHALL ESTABLISH AND
MAINTAIN AN INDEPENDENT AND SELF-RELIANT ARMED FORCES OF THE PHILIPPINES." Allow me to briefly explain,
Madam President. The Armed Forces of the Philippines is a vital component of Philippine society depending upon its
training, orientation and support. It will either be the people's protector or a staunch supporter of a usurper or tyrant,
local and foreign interest. The Armed Forces of the Philippines' past and recent experience shows it has
never been independent and self-reliant. Facts, data and statistics will show that it has been substantially
dependent upon a foreign power. In March 1968, Congressman Barbero, himself a member of the Armed Forces of the
Philippines, revealed top secret documents showing what he described as U.S. dictation over the affairs of the Armed
Forces of the Philippines. He showed that under existing arrangements, the United States unilaterally
determines not only the types and quantity of arms and equipments that our armed forces would have,
but also the time when these items are to be made available to us. It is clear, as he pointed out, that the
composition, capability and schedule of development of the Armed Forces of the Philippines is under the
effective control of the U.S. government.376 (Emphases supplied)

Commissioner Sarmiento proposed a motherhood statement in the 1987 Constitution that would assert "independent"
and "self-reliant" armed forces. This proposal was rejected by the committee, however. As Commissioner De
Castro asserted, the involvement of the Philippine military with the U.S. did not, by itself, rob the
Philippines of its real independence. He made reference to the context of the times: that the limited resources of
the Philippines and the current insurgency at that time necessitated a strong military relationship with the U.S. He said
that the U.S. would not in any way control the Philippine military despite this relationship and the fact that the former
would furnish military hardware or extend military assistance and training to our military. Rather, he claimed that the
proposal was in compliance with the treaties between the two states.

MR. DE CASTRO: If the Commissioner will take note of my speech on U.S. military bases on 12 September 1986, I
spoke on the selfreliance policy of the armed forces. However, due to very limited resources, the only thing we could
do is manufacture small arms ammunition. We cannot blame the armed forces. We have to blame the whole Republic
of the Philippines for failure to provide the necessary funds to make the Philippine Armed Forces self-reliant. Indeed
that is a beautiful dream. And I would like it that way. But as of this time, fighting an insurgency case, a rebellion in our
country - insurgency - and with very limited funds and very limited number of men, it will be quite impossible for the
Philippines to appropriate the necessary funds therefor. However, if we say that the U.S. government is
furnishing us the military hardware, it is not control of our armed forces or of our government. It is in
compliance with the Mutual Defense Treaty. It is under the military assistance program that it becomes the
responsibility of the United States to furnish us the necessary hardware in connection with the military bases
agreement. Please be informed that there are three (3) treaties connected with the military bases agreement; namely:
the RP-US Military Bases Agreement, the Mutual Defense Treaty and the Military Assistance Program.

My dear Commissioner, when we enter into a treaty and we are furnished the military hardware pursuant
to that treaty, it is not in control of our armed forces nor control of our government. True indeed, we have
military officers trained in the U.S. armed forces school. This is part of our Military Assistance Program, but it does not
mean that the minds of our military officers are for the U.S. government, no. I am one of those who took four courses
in the United States schools, but I assure you, my mind is for the Filipino people. Also, while we are sending military
officers to train or to study in U.S. military schools, we are also sending our officers to study in other military schools
such as in Australia, England and in Paris. So, it does not mean that when we send military officers to United States
schools or to other military schools, we will be under the control of that country. We also have foreign officers in our
schools, we in the Command and General Staff College in Fort Bonifacio and in our National Defense College, also in
Fort Bonifacio.377 (Emphases supplied)

This logic was accepted in Taada v. Angara, in which the Court ruled that independence does not mean the absence
of foreign participation:

Furthermore, the constitutional policy of a "self-reliant and independent national economy" does not necessarily
rule out the entry of foreign investments, goods and services. It contemplates neither "economic seclusion"
nor "mendicancy in the international community." As explained by Constitutional Commissioner Bernardo Villegas,
sponsor of this constitutional policy:

Economic self reliance is a primary objective of a developing country that is keenly aware of overdependence on
external assistance for even its most basic needs. It does not mean autarky or economic seclusion; rather, it means
avoiding mendicancy in the international community. Independence refers to the freedom from undue foreign
control of the national economy, especially in such strategic industries as in the development of natural resources
and public utilities.378 (Emphases supplied)

The heart of the constitutional restriction on foreign military facilities and bases is therefore the assertion of
independence from the U.S. and other foreign powers, as independence is exhibited by the degree of foreign control
exerted over these areas.1wphi1 The essence of that independence is self-governance and self-
control.379Independence itself is "[t]he state or condition of being free from dependence, subjection, or control. " 380

Petitioners assert that EDCA provides the U.S. extensive control and authority over Philippine facilities and locations,
such that the agreement effectively violates Section 25 of the 1987 Constitution. 381

Under Article VI(3) of EDCA, U.S. forces are authorized to act as necessary for "operational control and defense." The
term "operational control" has led petitioners to regard U.S. control over the Agreed Locations as unqualified and,
therefore, total.382 Petitioners contend that the word "their" refers to the subject "Agreed Locations."

This argument misreads the text, which is quoted below:

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 measure to protect United States forces and United
States contractors. The United States should coordinate such measures with appropriate authorities of the Philippines.
A basic textual construction would show that the word "their," as understood above, is a possessive pronoun for the
subject "they," a third-person personal pronoun in plural form. Thus, "their" cannot be used for a non-personal subject
such as "Agreed Locations." The simple grammatical conclusion is that "their" refers to the previous third-person plural
noun, which is "United States forces." This conclusion is in line with the definition of operational control.

a. U.S. operational control as the exercise of authority over U.S. personnel, and not over the Agreed Locations

Operational control, as cited by both petitioner and respondents, is a military term referring to

[t]he authority to perform those functions of command over subordinate forces involving organizing and employing
commands and forces, assigning tasks, designating objective, and giving authoritative direction necessary to
accomplish the mission.383

At times, though, operational control can mean something slightly different. In JUSMAG Philippines v. National Labor
Relations Commission, the Memorandum of Agreement between the AFP and JUSMAG Philippines defined the term as
follows:384

The term "Operational Control" includes, but is not limited to, all personnel administrative actions, such as: hiring
recommendations; firing recommendations; position classification; discipline; nomination and approval of incentive
awards; and payroll computation.

Clearly, traditional standards define "operational control" as personnel control. Philippine law, for instance, deems
operational control as one exercised by police officers and civilian authorities over their subordinates and is distinct
from the administrative control that they also exercise over police subordinates. 385 Similarly, a municipal mayor
exercises operational control over the police within the municipal government, 386 just as city mayor possesses the
same power over the police within the city government. 387

Thus, the legal concept of operational control involves authority over personnel in a commander-subordinate
relationship and does not include control over the Agreed Locations in this particular case. Though not necessarily
stated in EDCA provisions, this interpretation is readily implied by the reference to the taking of "appropriate measures
to protect United States forces and United States contractors."

It is but logical, even necessary, for the U.S. to have operational control over its own forces, in much the same way
that the Philippines exercises operational control over its own units.

For actual operations, EDCA is clear that any activity must be planned and pre-approved by the MDB-SEB. 388 This
provision evinces the partnership aspect of EDCA, such that both stakeholders have a say on how its provisions should
be put into effect.

b. Operational control vis--vis effective command and control

Petitioners assert that beyond the concept of operational control over personnel, qualifying access to the Agreed
Locations by the Philippine Designated Authority with the phrase "consistent with operational safety and security
requirements in accordance with agreed procedures developed by the Parties" leads to the conclusion that the U.S.
exercises effective control over the Agreed Locations. 389 They claim that if the Philippines exercises possession of and
control over a given area, its representative should not have to be authorized by a special provision. 390

For these reasons, petitioners argue that the "operational control" in EDCA is the "effective command and control" in
the 1947 MBA.391 In their Memorandum, they distinguish effective command and control from operational control in
U.S. parlance.392 Citing the Doctrine for the Armed Forces of the United States, Joint Publication 1, "command and
control (C2)" is defined as "the exercise of authority and direction by a properly designated commander over assigned
and attached forces in the accomplishment of the mission x x x." 393 Operational control, on the other hand, refers to
"[t]hose functions of command over assigned forces involving the composition of subordinate forces, the assignment
of tasks, the designation of objectives, the overall control of assigned resources, and the full authoritative direction
necessary to accomplish the mission."394

Two things demonstrate the errors in petitioners' line of argument.

Firstly, the phrase "consistent with operational safety and security requirements in accordance with agreed procedures
developed by the Parties" does not add any qualification beyond that which is already imposed by existing treaties. To
recall, EDCA is based upon prior treaties, namely the VFA and the MDT. 395 Treaties are in themselves contracts from
which rights and obligations may be claimed or waived. 396 In this particular case, the Philippines has already agreed to
abide by the security mechanisms that have long been in place between the U.S. and the Philippines based on the
implementation of their treaty relations.397
Secondly, the full document cited by petitioners contradicts the equation of "operational control" with "effective
command and control," since it defines the terms quite differently, viz:398

Command and control encompasses the exercise of authority, responsibility, and direction by a commander over
assigned and attached forces to accomplish the mission. Command at all levels is the art of motivating and directing
people and organizations into action to accomplish missions. Control is inherent in command. To control is to manage
and direct forces and functions consistent with a commander's command authority. Control of forces and functions
helps commanders and staffs compute requirements, allocate means, and integrate efforts. Mission command is the
preferred method of exercising C2. A complete discussion of tenets, organization, and processes for effective C2 is
provided in Section B, "Command and Control of Joint Forces," of Chapter V "Joint Command and Control."

Operational control is defined thus:399

OPCON is able to be delegated from a lesser authority than COCOM. It 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 over all aspects of military operations and joint training
necessary to accomplish the mission. It should be delegated to and exercised by the commanders of subordinate
organizations; normally, this authority is exercised through subordinate JFCs, Service, and/or functional component
commanders. OPCON provides authority to organize and employ commands and forces as the commander considers
necessary to accomplish assigned missions. It does not include authoritative direction for logistics or matters of
administration, discipline, internal organization, or unit training. These elements of COCOM must be specifically
delegated by the CCDR. OPCON does include the authority to delineate functional responsibilities and operational
areas of subordinate JFCs.

Operational control is therefore the delegable aspect of combatant command, while command and control is the
overall power and responsibility exercised by the commander with reference to a mission. Operational control is a
narrower power and must be given, while command and control is plenary and vested in a commander. Operational
control does not include the planning, programming, budgeting, and execution process input; the assignment of
subordinate commanders; the building of relationships with Department of Defense agencies; or the directive authority
for logistics, whereas these factors are included in the concept of command and control. 400

This distinction, found in the same document cited by petitioners, destroys the very foundation of the arguments they
have built: that EDCA is the same as the MBA.

c. Limited operational control over the Agreed Locations only for construction activitites

As petitioners assert, EDCA indeed contains a specific provision that gives to the U.S. operational control within the
Agreed Locations during construction activities. 401 This exercise of operational control is premised upon the approval by
the MDB and the SEB of the construction activity through consultation and mutual agreement on the requirements and
standards of the construction, alteration, or improvement. 402

Despite this grant of operational control to the U.S., it must be emphasized that the grant is only for construction
activities. The narrow and limited instance wherein the U.S. is given operational control within an Agreed Location
cannot be equated with foreign military control, which is so abhorred by the Constitution.

The clear import of the provision is that in the absence of construction activities, operational control over the Agreed
Location is vested in the Philippine authorities. This meaning is implicit in the specific grant of operational control only
during construction activities. The principle of constitutional construction, "expressio unius est exclusio
alterius," means the failure to mention the thing becomes the ground for inferring that it was deliberately
excluded.403 Following this construction, since EDCA mentions the existence of U.S. operational control over the Agreed
Locations for construction activities, then it is quite logical to conclude that it is not exercised over other activities.

Limited control does not violate the Constitution. The fear of the commissioners was total control, to the point that the
foreign military forces might dictate the terms of their acts within the Philippines. 404 More important, limited control
does not mean an abdication or derogation of Philippine sovereignty and legal jurisdiction over the Agreed Locations. It
is more akin to the extension of diplomatic courtesies and rights to diplomatic agents, 405 which is a waiver of control on
a limited scale and subject to the terms of the treaty.

This point leads us to the second standard envisioned by the framers of the Constitution: that the Philippines must
retain sovereignty and jurisdiction over its territory.

ii. Second standard: Philippine sovereignty and applicable law

EDCA states in its Preamble the "understanding for the United States not to establish a permanent military presence or
base in the territory of the Philippines." Further on, it likewise states the recognition that "all United States access to
and use of facilities and areas will be at the invitation of the Philippines and with full respect for the Philippine
Constitution and Philippine laws."

The sensitivity of EDCA provisions to the laws of the Philippines must be seen in light of Philippine sovereignty and
jurisdiction over the Agreed Locations.

Sovereignty is the possession of sovereign power, 406 while jurisdiction is the conferment by law of power and authority
to apply the law.407 Article I of the 1987 Constitution states:

The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all
other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and
aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas.
The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines. (Emphasis supplied)

From the text of EDCA itself, Agreed Locations are territories of the Philippines that the U.S. forces are allowed to
access and use.408 By withholding ownership of these areas and retaining unrestricted access to them, the government
asserts sovereignty over its territory. That sovereignty exists so long as the Filipino people exist. 409

Significantly, the Philippines retains primary responsibility for security with respect to the Agreed Locations. 410Hence,
Philippine law remains in force therein, and it cannot be said that jurisdiction has been transferred to the U.S. Even the
previously discussed necessary measures for operational control and defense over U.S. forces must be coordinated
with Philippine authorities.411

Jurisprudence bears out the fact that even under the former legal regime of the MBA, Philippine laws continue to be in
force within the bases.412 The difference between then and now is that EDCA retains the primary jurisdiction of the
Philippines over the security of the Agreed Locations, an important provision that gives it actual control over those
locations. Previously, it was the provost marshal of the U.S. who kept the peace and enforced Philippine law in the
bases. In this instance, Philippine forces act as peace officers, in stark contrast to the 1947 MBA provisions on
jurisdiction.413

iii. Third standard: must respect national security and territorial integrity

The last standard this Court must set is that the EDCA provisions on the Agreed Locations must not impair or threaten
the national security and territorial integrity of the Philippines.

This Court acknowledged in Bayan v. Zamora that the evolution of technology has essentially rendered the prior notion
of permanent military bases obsolete.

Moreover, military bases established within the territory of another state is no longer viable because of the
alternatives offered by new means and weapons of warfare such as nuclear weapons, guided missiles as well as huge
sea vessels that can stay afloat in the sea even for months and years without returning to their home country. These
military warships are actually used as substitutes for a land-home base not only of military aircraft but also of military
personnel and facilities. Besides, vessels are mobile as compared to a land-based military headquarters. 414

The VFA serves as the basis for the entry of U.S. troops in a limited scope. It does not allow, for instance, the re-
establishment of the Subic military base or the Clark Air Field as U.S. military reservations. In this context, therefore,
this Court has interpreted the restrictions on foreign bases, troops, or facilities as three independent restrictions. In
accord with this interpretation, each restriction must have its own qualification.

Petitioners quote from the website http://en.wikipedia.org to define what a military base is. 415 While the source is not
authoritative, petitioners make the point that the Agreed Locations, by granting access and use to U.S. forces and
contractors, are U.S. bases under a different name. 416 More important, they claim that the Agreed Locations invite
instances of attack on the Philippines from enemies of the U.S. 417

We believe that the raised fear of an attack on the Philippines is not in the realm of law, but of politics and policy. At
the very least, we can say that under international law, EDCA does not provide a legal basis for a justified attack on
the Philippines.

In the first place, international law disallows any attack on the Agreed Locations simply because of the presence of U.S.
personnel. Article 2(4) of the United Nations Charter states that "All Members shall refrain in their international
relations from the threat or use of force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations." 418 Any unlawful attack on the Philippines breaches
the treaty, and triggers Article 51 of the same charter, which guarantees the inherent right of individual or collective
self-defence.

Moreover, even if the lawfulness of the attack were not in question, international humanitarian law standards prevent
participants in an armed conflict from targeting non-participants. International humanitarian law, which is the branch
of international law applicable to armed conflict, expressly limits allowable military conduct exhibited by forces of a
participant in an armed conflict. 419 Under this legal regime, participants to an armed conflict are held to specific
standards of conduct that require them to distinguish between combatants and non-combatants, 420 as embodied by
the Geneva Conventions and their Additional Protocols.421

Corollary to this point, Professor John Woodcliffe, professor of international law at the University of Leicester, noted
that there is no legal consensus for what constitutes a base, as opposed to other terms such as "facilities" or
"installation."422 In strategic literature, "base" is defined as an installation "over which the user State has a right to
exclusive control in an extraterritorial sense." 423 Since this definition would exclude most foreign military installations,
a more important distinction must be made.

For Woodcliffe, a type of installation excluded from the definition of "base" is one that does not fulfill a combat role. He
cites an example of the use of the territory of a state for training purposes, such as to obtain experience in local
geography and climactic conditions or to carry out joint exercises. 424 Another example given is an advanced
communications technology installation for purposes of information gathering and communication. 425Unsurprisingly, he
deems these non-combat uses as borderline situations that would be excluded from the functional understanding of
military bases and installations.426

By virtue of this ambiguity, the laws of war dictate that the status of a building or person is presumed to be protected,
unless proven otherwise.427 Moreover, the principle of distinction requires combatants in an armed conflict to
distinguish between lawful targets 428 and protected targets.429 In an actual armed conflict between the U.S. and a third
state, the Agreed Locations cannot be considered U.S. territory, since ownership of territory even in times of armed
conflict does not change.430

Hence, any armed attack by forces of a third state against an Agreed Location can only be legitimate under
international humanitarian law if it is against a bona fide U.S. military base, facility, or installation that directly
contributes to the military effort of the U.S. Moreover, the third state's forces must take all measures to ensure that
they have complied with the principle of distinction (between combatants and non-combatants).

There is, then, ample legal protection for the Philippines under international law that would ensure its territorial
integrity and national security in the event an Agreed Location is subjected to attack. As EDCA stands, it does not
create the situation so feared by petitioners - one in which the Philippines, while not participating in an armed conflict,
would be legitimately targeted by an enemy of the U.S.431

In the second place, this is a policy question about the wisdom of allowing the presence of U.S. personnel within our
territory and is therefore outside the scope of judicial review.

Evidently, the concept of giving foreign troops access to "agreed" locations, areas, or facilities within the military base
of another sovereign state is nothing new on the international plane. In fact, this arrangement has been used as the
framework for several defense cooperation agreements, such as in the following:

1. 2006 U.S.-Bulgaria Defense Cooperation Agreement 432

2. 2009 U.S.-Colombia Defense Cooperation Agreement 433

3. 2009 U.S.-Poland Status of Forces Agreement434

4. 2014 U.S.-Australia Force Posture Agreement 435

5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement 436

In all of these arrangements, the host state grants U.S. forces access to their military bases. 437 That access is without
rental or similar costs to the U.S. 438 Further, U.S. forces are allowed to undertake construction activities in, and make
alterations and improvements to, the agreed locations, facilities, or areas. 439 As in EDCA, the host states retain
ownership and jurisdiction over the said bases.440

In fact, some of the host states in these agreements give specific military-related rights to the U.S. For example, under
Article IV(l) of the US.-Bulgaria Defense Cooperation Agreement, "the United States forces x x x are authorized access
to and may use agreed facilities and areas x x x for staging and deploying of forces and materiel, with the purpose of
conducting x x x contingency operations and other missions, including those undertaken in the framework of the North
Atlantic Treaty." In some of these agreements, host countries allow U.S. forces to construct facilities for the latters
exclusive use.441

Troop billeting, including construction of temporary structures, is nothing new. In Lim v. Executive Secretary, the Court
already upheld the Terms of Reference of Balikatan 02-1, which authorized U.S. forces to set up "[t]emporary
structures such as those for troop billeting, classroom instruction and messing x x x during the Exercise." Similar
provisions are also in the Mutual Logistics Support Agreement of 2002 and 2007, which are essentially executive
agreements that implement the VFA, the MDT, and the 1953 Military Assistance Agreement. These executive
agreements similarly tackle the "reciprocal provision of logistic support, supplies, and services," 442 which include "[b ]
illeting, x x x operations support (and construction and use of temporary structures incident to operations support),
training services, x x x storage services, x x x during an approved activity." 443These logistic supplies, support, and
services include temporary use of "nonlethal items of military equipment which are not designated as significant
military equipment on the U.S. Munitions List, during an approved activity." 444 The first Mutual Logistics Support
Agreement has lapsed, while the second one has been extended until 2017 without any formal objection before this
Court from the Senate or any of its members.

The provisions in EDCA dealing with Agreed Locations are analogous to those in the aforementioned executive
agreements. Instead of authorizing the building of temporary structures as previous agreements have done, EDCA
authorizes the U.S. to build permanent structures or alter or improve existing ones for, and to be owned by, the
Philippines.445 EDCA is clear that the Philippines retains ownership of altered or improved facilities and newly
constructed permanent or non-relocatable structures. 446 Under EDCA, U.S. forces will also be allowed to use facilities
and areas for "training; x x x; support and related activities; x x x; temporary accommodation of personnel;
communications" and agreed activities.447

Concerns on national security problems that arise from foreign military equipment being present in the Philippines
must likewise be contextualized. Most significantly, the VFA already authorizes the presence of U.S. military
equipment in the country. Article VII of the VFA already authorizes the U.S. to import into or acquire in the
Philippines "equipment, materials, supplies, and other property" that will be used "in connection with activities"
contemplated therein. The same section also recognizes that "[t]itle to such property shall remain" with the US and
that they have the discretion to "remove such property from the Philippines at any time."

There is nothing novel, either, in the EDCA provision on the prepositioning and storing of "defense equipment,
supplies, and materiel,"448 since these are sanctioned in the VFA. In fact, the two countries have already entered into
various implementing agreements in the past that are comparable to the present one. The Balikatan 02-1 Terms of
Reference mentioned in Lim v. Executive Secretary specifically recognizes that Philippine and U.S. forces "may share x
x x in the use of their resources, equipment and other assets." Both the 2002 and 2007 Mutual Logistics Support
Agreements speak of the provision of support and services, including the "construction and use of temporary
structures incident to operations support" and "storage services" during approved activities. 449 These logistic supplies,
support, and services include the "temporary use of x x x nonlethal items of military equipment which are not
designated as significant military equipment on the U.S. Munitions List, during an approved activity." 450 Those activities
include "combined exercises and training, operations and other deployments" and "cooperative efforts, such as
humanitarian assistance, disaster relief and rescue operations, and maritime anti-pollution operations" within or
outside Philippine territory.451 Under EDCA, the equipment, supplies, and materiel that will be prepositioned at Agreed
Locations include "humanitarian assistance and disaster relief equipment, supplies, and materiel. " 452 Nuclear weapons
are specifically excluded from the materiel that will be prepositioned.

Therefore, there is no basis to invalidate EDCA on fears that it increases the threat to our national security. If anything,
EDCA increases the likelihood that, in an event requiring a defensive response, the Philippines will be prepared
alongside the U.S. to defend its islands and insure its territorial integrity pursuant to a relationship built on the MDT
and VFA.

8. Others issues and concerns raised

A point was raised during the oral arguments that the language of the MDT only refers to mutual help and defense in
the Pacific area.453 We believe that any discussion of the activities to be undertaken under EDCA vis-a-vis the defense
of areas beyond the Pacific is premature. We note that a proper petition on that issue must be filed before we rule
thereon. We also note that none of the petitions or memoranda has attempted to discuss this issue, except only to
theorize that the U.S. will not come to our aid in the event of an attack outside of the Pacific. This is a matter of policy
and is beyond the scope of this judicial review.
In reference to the issue on telecommunications, suffice it to say that the initial impression of the facility adverted to
does appear to be one of those that require a public franchise by way of congressional action under Section 11, Article
XII of the Constitution. As respondents submit, however, the system referred to in the agreement does not provide
telecommunications services to the public for compensation. 454 It is clear from Article VIl(2) of EDCA that the
telecommunication system is solely for the use of the U.S. and not the public in general, and that this system will not
interfere with that which local operators use. Consequently, a public franchise is no longer necessary.

Additionally, the charge that EDCA allows nuclear weapons within Philippine territory is entirely speculative. It is
noteworthy that the agreement in fact specifies that the prepositioned materiel shall not include nuclear
weapons.455 Petitioners argue that only prepositioned nuclear weapons are prohibited by EDCA; and that, therefore, the
U.S. would insidiously bring nuclear weapons to Philippine territory. 456 The general prohibition on nuclear weapons,
whether prepositioned or not, is already expressed in the 1987 Constitution. 457 It would be unnecessary or superfluous
to include all prohibitions already in the Constitution or in the law through a document like EDCA.

Finally, petitioners allege that EDCA creates a tax exemption, which under the law must originate from Congress. This
allegation ignores jurisprudence on the government's assumption of tax liability. EDCA simply states that the taxes on
the use of water, electricity, and public utilities are for the account of the Philippine Government. 458 This provision
creates a situation in which a contracting party assumes the tax liability of the other. 459 In National Power Corporation
v. Province of Quezon, we distinguished between enforceable and unenforceable stipulations on the assumption of tax
liability. Afterwards, we concluded that an enforceable assumption of tax liability requires the party assuming the
liability to have actual interest in the property taxed. 460 This rule applies to EDCA, since the Philippine Government
stands to benefit not only from the structures to be built thereon or improved, but also from the joint training with U.S.
forces, disaster preparation, and the preferential use of Philippine suppliers. 461Hence, the provision on the assumption
of tax liability does not constitute a tax exemption as petitioners have posited.

Additional issues were raised by petitioners, all relating principally to provisions already sufficiently addressed above.
This Court takes this occasion to emphasize that the agreement has been construed herein as to absolutely
disauthorize the violation of the Constitution or any applicable statute. On the contrary, the applicability of Philippine
law is explicit in EDCA.

EPILOGUE

The fear that EDCA is a reincarnation of the U.S. bases so zealously protested by noted personalities in Philippine
history arises not so much from xenophobia, but from a genuine desire for self-determination, nationalism, and above
all a commitment to ensure the independence of the Philippine Republic from any foreign domination.

Mere fears, however, cannot curtail the exercise by the President of the Philippines of his Constitutional prerogatives in
respect of foreign affairs. They cannot cripple him when he deems that additional security measures are made
necessary by the times. As it stands, the Philippines through the Department of Foreign Affairs has filed several
diplomatic protests against the actions of the People's Republic of China in the West Philippine Sea; 462 initiated
arbitration against that country under the United Nations Convention on the Law of the Sea; 463 is in the process of
negotiations with the Moro Islamic Liberation Front for peace in Southern Philippines, 464 which is the subject of a
current case before this Court; and faces increasing incidents of kidnappings of Filipinos and foreigners allegedly by
the Abu Sayyaf or the New People's Army. 465 The Philippine military is conducting reforms that seek to ensure the
security and safety of the nation in the years to come. 466 In the future, the Philippines must navigate a world in which
armed forces fight with increasing sophistication in both strategy and technology, while employing asymmetric warfare
and remote weapons.

Additionally, our country is fighting a most terrifying enemy: the backlash of Mother Nature. The Philippines is one of
the countries most directly affected and damaged by climate change. It is no coincidence that the record-setting
tropical cyclone Yolanda (internationally named Haiyan), one of the most devastating forces of nature the world has
ever seen hit the Philippines on 8 November 2013 and killed at least 6,000 people. 467 This necessitated a massive
rehabilitation project.468 In the aftermath, the U.S. military was among the first to extend help and support to the
Philippines.

That calamity brought out the best in the Filipinos as thousands upon thousands volunteered their help, their wealth,
and their prayers to those affected. It also brought to the fore the value of having friends in the international
community.

In order to keep the peace in its archipelago in this region of the world, and to sustain itself at the same time against
the destructive forces of nature, the Philippines will need friends. Who they are, and what form the friendships will
take, are for the President to decide. The only restriction is what the Constitution itself expressly prohibits. It appears
that this overarching concern for balancing constitutional requirements against the dictates of necessity was what led
to EDCA.

As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains consistent with existing laws and
treaties that it purports to implement.

WHEREFORE, we hereby DISMISS the petitions.

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

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS MILLAMENA (Iglesia
Filipina Independiente), BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.), DR. REYNALDO
LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR, and
the PUBLIC INTEREST LAW CENTER, petitioners,
vs.
EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO SIAZON, DEFENSE
SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO
FERNAN, SENATOR FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON, and SENATOR
FRANCISCO TATAD, respondents.

x-----------------------x

G.R. No. 138572 October 10, 2000

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA, AMADOGAT INCIONG,

CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners,
vs.
HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as Secretary of National
Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign Affairs, respondents.

x-----------------------x

G.R. No. 138587 October 10, 2000

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA III, petitioners,
vs.
JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO, MARCELO
B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G. BIAZON, respondents.

x-----------------------x

G.R. No. 138680 October 10, 2000

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila
Grapilon, petitioners,
vs.
JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the Philippines, and HON. DOMINGO
SIAZON, in his capacity as Secretary of Foreign Affairs, respondents.

x-----------------------x

G.R. No. 138698 October 10, 2000

JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON-AVENCEA, ROLANDO SIMBULAN, PABLITO V.

SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO, FRANCISCO C. RIVERA JR.,
RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND
NATIONALISM, INC. (MABINI), petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL
DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO G.
BIAZON, AND ALL OTHER PERSONS ACTING THEIR CONTROL, SUPERVISION, DIRECTION, AND
INSTRUCTION IN RELATION TO THE VISITING FORCES AGREEMENT (VFA), respondents.

DECISION

BUENA, J.:

Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition are issues
relating to, and borne by, an agreement forged in the turn of the last century between the Republic of the Philippines
and the United States of America -the Visiting Forces Agreement.

The antecedents unfold.

On March 14, 1947, the Philippines and the United States of America forged a Military Bases Agreement which
formalized, among others, the use of installations in the Philippine territory by United States military personnel. To
further strengthen their defense and security relationship, the Philippines and the United States entered into a Mutual
Defense Treaty on August 30, 1951. Under the treaty, the parties agreed to respond to any external armed attack on
their territory, armed forces, public vessels, and aircraft. 1

In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines and the United
States negotiated for a possible extension of the military bases agreement. On September 16, 1991, the Philippine
Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and Security which, in effect, would have
extended the presence of US military bases in the Philippines. 2 With the expiration of the RP-US Military Bases
Agreement, the periodic military exercises conducted between the two countries were held in abeyance.
Notwithstanding, the defense and security relationship between the Philippines and the United States of America
continued pursuant to the Mutual Defense Treaty.

On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for Asia Pacific Kurt
Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange
notes on "the complementing strategic interests of the United States and the Philippines in the Asia-Pacific region."
Both sides discussed, among other things, the possible elements of the Visiting Forces Agreement (VFA for brevity).
Negotiations by both panels on the VFA led to a consolidated draft text, which in turn resulted to a final series of
conferences and negotiations3 that culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel
V. Ramos approved the VFA, which was respectively signed by public respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard on February 10, 1998.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA. 4

On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially
transmitted to the Senate of the Philippines, 5 the Instrument of Ratification, the letter of the President 6 and the VFA, for
concurrence pursuant to Section 21, Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to its
Committee on Foreign Relations, chaired by Senator Blas F. Ople, and its Committee on National Defense and Security,
chaired by Senator Rodolfo G. Biazon, for their joint consideration and recommendation. Thereafter, joint public
hearings were held by the two Committees.7

On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443 8 recommending the concurrence of
the Senate to the VFA and the creation of a Legislative Oversight Committee to oversee its implementation. Debates
then ensued.

On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-thirds (2/3) vote 9of its
members. Senate Resolution No. 443 was then re-numbered as Senate Resolution No. 18. 10

On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between respondent Secretary Siazon
and United States Ambassador Hubbard.

The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for regulating the
circumstances and conditions under which US Armed Forces and defense personnel may be present in the Philippines,
and is quoted in its full text, hereunder:

"Article I
Definitions

"As used in this Agreement, United States personnel means United States military and civilian personnel temporarily
in the Philippines in connection with activities approved by the Philippine Government.

"Within this definition:

"1. The term military personnel refers to military members of the United States Army, Navy, Marine Corps, Air Force,
and Coast Guard.

"2. The term civilian personnel refers to individuals who are neither nationals of, nor ordinary residents in the
Philippines and who are employed by the United States armed forces or who are accompanying the United States
armed forces, such as employees of the American Red Cross and the United Services Organization.

"Article II
Respect for Law
"It is the duty of the 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.

"Article III
Entry and Departure

"1. The Government of the Philippines shall facilitate the admission of United States personnel and their departure
from the Philippines in connection with activities covered by this agreement.

"2. United States military personnel shall be exempt from passport and visa regulations upon entering and departing
the Philippines.

"3. The following documents only, which shall be presented on demand, shall be required in respect of United States
military personnel who enter the Philippines:

"(a) personal identity card issued by the appropriate United States authority showing full name, date of birth, rank or
grade and service number (if any), branch of service and photograph;

"(b) individual or collective document issued by the appropriate United States authority, authorizing the travel or visit
and identifying the individual or group as United States military personnel; and

"(c) the commanding officer of a military aircraft or vessel shall present a declaration of health, and when required by
the cognizant representative of the Government of the Philippines, shall conduct a quarantine inspection and will
certify that the aircraft or vessel is free from quarantinable diseases. Any quarantine inspection of United States
aircraft or United States vessels or cargoes thereon shall be conducted by the United States commanding officer in
accordance with the international health regulations as promulgated by the World Health Organization, and mutually
agreed procedures.

"4. United States civilian personnel shall be exempt from visa requirements but shall present, upon demand, valid
passports upon entry and departure of the Philippines.

"5. If the Government of the Philippines has requested the removal of any United States personnel from its territory,
the United States authorities shall be responsible for receiving the person concerned within its own territory or
otherwise disposing of said person outside of the Philippines.

"Article IV

Driving and Vehicle Registration

"1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license issued by the appropriate
United States authority to United States personnel for the operation of military or official vehicles.

"2. Vehicles owned by the Government of the United States need not be registered, but shall have appropriate
markings.

"Article V
Criminal Jurisdiction

"1. Subject to the provisions of this article:

(a) Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within
the Philippines and punishable under the law of the Philippines.

(b) United States military authorities shall have the right to exercise within the Philippines all criminal and disciplinary
jurisdiction conferred on them by the military law of the United States over United States personnel in the Philippines.

"2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect to offenses,
including offenses relating to the security of the Philippines, punishable under the laws of the Philippines, but not
under the laws of the United States.

(b) United States authorities exercise exclusive jurisdiction over United States personnel with respect to offenses,
including offenses relating to the security of the United States, punishable under the laws of the United States, but not
under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating to security means:

(1) treason;

(2) sabotage, espionage or violation of any law relating to national defense.

"3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:

(a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses committed by United
States personnel, except in cases provided for in paragraphs 1(b), 2 (b), and 3 (b) of this Article.

(b) United States military authorities shall have the primary right to exercise jurisdiction over United States personnel
subject to the military law of the United States in relation to.

(1) offenses solely against the property or security of the United States or offenses solely against the property or
person of United States personnel; and

(2) offenses arising out of any act or omission done in performance of official duty.

(c) The authorities of either government may request the authorities of the other government to waive their primary
right to exercise jurisdiction in a particular case.

(d) Recognizing the responsibility of the United States military authorities to maintain good order and discipline among
their forces, Philippine authorities will, upon request by the United States, waive their primary right to exercise
jurisdiction except in cases of particular importance to the Philippines. If the Government of the Philippines determines
that the case is of particular importance, it shall communicate such determination to the United States authorities
within twenty (20) days after the Philippine authorities receive the United States request.

(e) When the United States military commander determines that an offense charged by authorities of the Philippines
against United states personnel arises out of an act or omission done in the performance of official duty, the
commander will issue a certificate setting forth such determination. This certificate will be transmitted to the
appropriate authorities of the Philippines and will constitute sufficient proof of performance of official duty for the
purposes of paragraph 3(b)(2) of this Article. In those cases where the Government of the Philippines believes the
circumstances of the case require a review of the duty certificate, United States military authorities and Philippine
authorities shall consult immediately. Philippine authorities at the highest levels may also present any information
bearing on its validity. United States military authorities shall take full account of the Philippine position. Where
appropriate, United States military authorities will take disciplinary or other action against offenders in official duty
cases, and notify the Government of the Philippines of the actions taken.

(f) If the government having the primary right does not exercise jurisdiction, it shall notify the authorities of the other
government as soon as possible.

(g) The authorities of the Philippines and the United States shall notify each other of the disposition of all cases in
which both the authorities of the Philippines and the United States have the right to exercise jurisdiction.

"4. Within the scope of their legal competence, the authorities of the Philippines and United States shall assist each
other in the arrest of United States personnel in the Philippines and in handling them over to authorities who are to
exercise jurisdiction in accordance with the provisions of this article.

"5. United States military authorities shall promptly notify Philippine authorities of the arrest or detention of United
States personnel who are subject of Philippine primary or exclusive jurisdiction. Philippine authorities shall promptly
notify United States military authorities of the arrest or detention of any United States personnel.

"6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately
reside with United States military authorities, if they so request, from the commission of the offense until completion of
all judicial proceedings. United States military authorities shall, upon formal notification by the Philippine authorities
and without delay, make such personnel available to those authorities in time for any investigative or judicial
proceedings relating to the offense with which the person has been charged in extraordinary cases, the Philippine
Government shall present its position to the United States Government regarding custody, which the United States
Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year,
the United States shall be relieved of any obligations under this paragraph. The one-year period will not include the
time necessary to appeal. Also, the one-year period will not include any time during which scheduled trial procedures
are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the
presence of the accused, fail to do so.
"7. Within the scope of their legal authority, United States and Philippine authorities shall assist each other in the
carrying out of all necessary investigation into offenses and shall cooperate in providing for the attendance of
witnesses and in the collection and production of evidence, including seizure and, in proper cases, the delivery of
objects connected with an offense.

"8. When United States personnel have been tried in accordance with the provisions of this Article and have been
acquitted or have been convicted and are serving, or have served their sentence, or have had their sentence remitted
or suspended, or have been pardoned, they may not be tried again for the same offense in the Philippines. Nothing in
this paragraph, however, shall prevent United States military authorities from trying United States personnel for any
violation of rules of discipline arising from the act or omission which constituted an offense for which they were tried
by Philippine authorities.

"9. When United States personnel are detained, taken into custody, or prosecuted by Philippine authorities, they shall
be accorded all procedural safeguards established by the law of the Philippines. At the minimum, United States
personnel shall be entitled:

(a) To a prompt and speedy trial;

(b) To be informed in advance of trial of the specific charge or charges made against them and to have reasonable
time to prepare a defense;

(c) To be confronted with witnesses against them and to cross examine such witnesses;

(d) To present evidence in their defense and to have compulsory process for obtaining witnesses;

(e) To have free and assisted legal representation of their own choice on the same basis as nationals of the Philippines;

(f) To have the service of a competent interpreter; and

(g) To communicate promptly with and to be visited regularly by United States authorities, and to have such authorities
present at all judicial proceedings. These proceedings shall be public unless the court, in accordance with Philippine
laws, excludes persons who have no role in the proceedings.

"10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities
agreed on by appropriate Philippine and United States authorities. United States Personnel serving sentences in the
Philippines shall have the right to visits and material assistance.

"11. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction, and shall not be
subject to the jurisdiction of Philippine military or religious courts.

"Article VI
Claims

"1. Except for contractual arrangements, including United States foreign military sales letters of offer and acceptance
and leases of military equipment, both governments waive any and all claims against each other for damage, loss or
destruction to property of each others armed forces or for death or injury to their military and civilian personnel
arising from activities to which this agreement applies.

"2. For claims against the United States, other than contractual claims and those to which paragraph 1 applies, the
United States Government, in accordance with United States law regarding foreign claims, will pay just and reasonable
compensation in settlement of meritorious claims for damage, loss, personal injury or death, caused by acts or
omissions of United States personnel, or otherwise incident to the non-combat activities of the United States forces.

"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.

"Article VIII
Movement of Vessels and Aircraft

"1. Aircraft operated by or for the United States armed forces may enter the Philippines upon approval of the
Government of the Philippines in accordance with procedures stipulated in implementing arrangements.

"2. Vessels operated by or for the United States armed forces may enter the Philippines upon approval of the
Government of the Philippines. The movement of vessels shall be in accordance with international custom and practice
governing such vessels, and such agreed implementing arrangements as necessary.

"3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not be subject to the
payment of landing or port fees, navigation or over flight charges, or tolls or other use charges, including light and
harbor dues, while in the Philippines. Aircraft operated by or for the United States armed forces shall observe local air
traffic control regulations while in the Philippines. Vessels owned or operated by the United States solely on United
States Government non-commercial service shall not be subject to compulsory pilotage at Philippine ports.

"Article IX
Duration and Termination

"This agreement shall enter into force on the date on which the parties have notified each other in writing through the
diplomatic channel that they have completed their constitutional requirements for entry into force. 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."

Via these consolidated11 petitions for certiorari and prohibition, petitioners - as legislators, non-governmental
organizations, citizens and taxpayers - assail the constitutionality of the VFA and impute to herein respondents grave
abuse of discretion in ratifying the agreement.

We have simplified the issues raised by the petitioners into the following:

Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the constitutionality of
the VFA?

II

Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of the Constitution?

III

Does the VFA constitute an abdication of Philippine sovereignty?

a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by US military personnel?

b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion perpetua or higher?

IV

Does the VFA violate:

a. the equal protection clause under Section 1, Article III of the Constitution?

b. the Prohibition against nuclear weapons under Article II, Section 8?

c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties for the equipment,
materials supplies and other properties imported into or acquired in the Philippines by, or on behalf, of the US Armed
Forces?
LOCUS STANDI

At the outset, respondents challenge petitioners standing to sue, on the ground that the latter have not shown any
interest in the case, and that petitioners failed to substantiate that they have sustained, or will sustain direct injury as
a result of the operation of the VFA. 12 Petitioners, on the other hand, counter that the validity or invalidity of the VFA is
a matter of transcendental importance which justifies their standing. 13

A party bringing a suit challenging the constitutionality of a law, act, or statute must show "not only that the law is
invalid, but also that he has sustained or in is in immediate, or imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some indefinite way." He must show that he has
been, or is about to be, denied some right or privilege to which he is lawfully entitled, or that he is about to be
subjected to some burdens or penalties by reason of the statute complained of. 14

In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have sustained, or are in
danger of sustaining any direct injury as a result of the enforcement of the VFA. As taxpayers, petitioners have not
established that the VFA involves the exercise by Congress of its taxing or spending powers. 15 On this point, it bears
stressing that a taxpayers suit refers to a case where the act complained of directly involves the illegal disbursement
of public funds derived from taxation.16 Thus, in Bugnay Const. & Development Corp. vs. Laron17 , we held:

"x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by the judgment or
entitled to the avails of the suit as a real party in interest. Before he can invoke the power of judicial review, he must
specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and
that he will sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not
sufficient that he has merely a general interest common to all members of the public."

Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence of any allegation
by petitioners that public funds are being misspent or illegally expended, petitioners, as taxpayers, have no legal
standing to assail the legality of the VFA.

Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as petitioners-legislators, do not possess
the requisite locus standi to maintain the present suit. While this Court, in Phil. Constitution Association vs. Hon.
Salvador Enriquez,18 sustained the legal standing of a member of the Senate and the House of Representatives to
question the validity of a presidential veto or a condition imposed on an item in an appropriation bull, we cannot, at
this instance, similarly uphold petitioners standing as members of Congress, in the absence of a clear showing of any
direct injury to their person or to the institution to which they belong.

Beyond this, the allegations of impairment of legislative power, such as the delegation of the power of Congress to
grant tax exemptions, are more apparent than real. While it may be true that petitioners pointed to provisions of the
VFA which allegedly impair their legislative powers, petitioners failed however to sufficiently show that they have in
fact suffered direct injury.

In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these cases. As aptly
observed by the Solicitor General, the IBP lacks the legal capacity to bring this suit in the absence of a board resolution
from its Board of Governors authorizing its National President to commence the present action. 19

Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the
petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance
of the petitions, as we have done in the early Emergency Powers Cases,20 where we had occasion to rule:

"x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued
by President Quirino although they were involving only an indirect and general interest shared in common with the
public. The Court dismissed the objection that they were not proper parties and ruled that transcendental
importance to the public of these cases demands that they be settled promptly and definitely, brushing
aside, if we must, technicalities of procedure. We have since then applied the exception in many other cases.
(Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343)." (Underscoring
Supplied)

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,21 Daza vs. Singson,22 and Basco
vs. Phil. Amusement and Gaming Corporation,23 where we emphatically held:

"Considering however the importance to the public of the case at bar, and in keeping with the Courts duty, under the
1987 Constitution, to determine whether or not the other branches of the government have kept themselves within the
limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court has
brushed aside technicalities of procedure and has taken cognizance of this petition. x x x"

Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,24 thisCourt ruled that in cases of transcendental
importance, the Court may relax the standing requirements and allow a suit to prosper even where there
is no direct injury to the party claiming the right of judicial review.

Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of
powers, which enjoins upon the departments of the government a becoming respect for each others acts, 25 this Court
nevertheless resolves to take cognizance of the instant petitions.

APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is the determination of which provision of the Constitution applies, with
regard to the exercise by the senate of its constitutional power to concur with the VFA. Petitioners argue that Section
25, Article XVIII is applicable considering that the VFA has for its subject the presence of foreign military troops in the
Philippines. Respondents, on the contrary, maintain that Section 21, Article VII should apply inasmuch as the VFA is not
a basing arrangement but an agreement which involves merely the temporary visits of United States personnel
engaged in joint military exercises.

The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on treaties or
international agreements. Section 21, Article VII, which herein respondents invoke, reads:

"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."

Section 25, Article XVIII, provides:

"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 by the people in a national referendum held for that purpose, and recognized as a treaty by the other
contracting State."

Section 21, Article VII deals with treatise or international agreements in general, in which case, the concurrence of at
least two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty, or international
agreement, valid and binding on the part of the Philippines. This provision lays down the general rule on treatise or
international agreements and applies to any form of treaty with a wide variety of subject matter, such as, but not
limited to, extradition or tax treatise or those economic in nature. All treaties or international agreements entered into
by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the
concurrence of the Senate to be valid and effective.

In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of foreign
military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is only one of
the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the
Philippines. Section 25, Article XVIII further requires that "foreign military bases, troops, or facilities" may be allowed in
the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a
national referendum held for that purpose if so required by Congress, and recognized as such by the other contracting
state.

It is our considered view that both constitutional provisions, far from contradicting each other, actually share some
common ground. These constitutional provisions both embody phrases in the negative and thus, are deemed
prohibitory in mandate and character. In particular, Section 21 opens with the clause "No treaty x x x," and Section 25
contains the phrase "shall not be allowed." Additionally, in both instances, the concurrence of the Senate is
indispensable to render the treaty or international agreement valid and effective.

To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and that the
Senate extended its concurrence under the same provision, is immaterial. For in either case, whether under Section
21, Article VII or Section 25, Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is
mandatory to comply with the strict constitutional requirements.

On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the
Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of
the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment, materials and supplies.

Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops, or
facilities, should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section
21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of
votes required to obtain the valid concurrence of the Senate, as will be further discussed hereunder.

It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general
one. Lex specialis derogat generali. Thus, where there is in the same statute a particular enactment and also a
general one which, in its most comprehensive sense, would include what is embraced in the former, the particular
enactment must be operative, and the general enactment must be taken to affect only such cases within its general
language which are not within the provision of the particular enactment. 26

In Leveriza vs. Intermediate Appellate Court,27 we enunciated:

"x x x that another basic principle of statutory construction mandates that general legislation must give way to a
special legislation on the same subject, and generally be so interpreted as to embrace only cases in which the special
provisions are not applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute prevails over a
general statute (De Jesus vs. People, 120 SCRA 760) and that where two statutes are of equal theoretical application to
a particular case, the one designed therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38)."

Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the
reason that there is no permanent placing of structure for the establishment of a military base. On this score, the
Constitution makes no distinction between "transient and "permanent". Certainly, we find nothing in Section 25,
Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.

It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should not distinguish- Ubi
lex non distinguit nec nos distinguire debemos.

In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling since no foreign
military bases, but merely foreign troops and facilities, are involved in the VFA. Notably, a perusal of said constitutional
provision reveals that the proscription covers "foreign military bases, troops, or facilities." Stated differently, this
prohibition is not limited to the entry of troops and facilities without any foreign bases being established. The clause
does not refer to "foreign military bases, troops, or facilities" collectively but treats them as separate and independent
subjects. The use of comma and the disjunctive word "or" clearly signifies disassociation and independence of one
thing from the others included in the enumeration, 28 such that, the provision contemplates three different situations - a
military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities - any of
the three standing alone places it under the coverage of Section 25, Article XVIII.

To this end, the intention of the framers of the Charter, as manifested during the deliberations of the 1986
Constitutional Commission, is consistent with this interpretation:

"MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.

This formulation speaks of three things: foreign military bases, troops or facilities. My first question is: If the country
does enter into such kind of a treaty, must it cover the three-bases, troops or facilities-or could the
treaty entered into cover only one or two?

FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, the
requirement will be the same.

MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not bases but
merely troops?

FR. BERNAS. Yes.

MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering only troops.

FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some. We just want to cover
everything."29 (Underscoring Supplied)

Moreover, military bases established within the territory of another state is no longer viable because of the
alternatives offered by new means and weapons of warfare such as nuclear weapons, guided missiles as well as huge
sea vessels that can stay afloat in the sea even for months and years without returning to their home country. These
military warships are actually used as substitutes for a land-home base not only of military aircraft but also of military
personnel and facilities. Besides, vessels are mobile as compared to a land-based military headquarters.

At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25 were complied with
when the Senate gave its concurrence to the VFA.

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following
conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the
Senate and, when so required by congress, ratified by a majority of the votes cast by the people in a national
referendum; and (c) recognized as a treaty by the other contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the
Senate through Resolution No. 18 is in accordance with the provisions of the Constitution, whether under the general
requirement in Section 21, Article VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in
the latter article requiring ratification by a majority of the votes cast in a national referendum being unnecessary since
Congress has not required it.

As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international agreement, to be
valid and effective, must be concurred in by at least two-thirds of all the members of the Senate. On the other
hand, Section 25, Article XVIII simply provides that the treaty be "duly concurred in by the Senate."

Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is clearly required
so that the concurrence contemplated by law may be validly obtained and deemed present. While it is true that
Section 25, Article XVIII requires, among other things, that the treaty-the VFA, in the instant case-be "duly concurred in
by the Senate," it is very true however that said provision must be related and viewed in light of the clear mandate
embodied in Section 21, Article VII, which in more specific terms, requires that the concurrence of a treaty, or
international agreement, be made by a two -thirds vote of all the members of the Senate. Indeed, Section 25, Article
XVIII must not be treated in isolation to section 21, Article, VII.

As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in relation to the provisions
of Section 21, Article VII. In a more particular language, the concurrence of the Senate contemplated under Section 25,
Article XVIII means that at least two-thirds of all the members of the Senate favorably vote to concur with the treaty-
the VFA in the instant case.

Under these circumstances, the charter provides that the Senate shall be composed of twenty-four (24)
Senators.30 Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16) members, favorably
acting on the proposal is an unquestionable compliance with the requisite number of votes mentioned in Section 21 of
Article VII. The fact that there were actually twenty-three (23) incumbent Senators at the time the voting was
made,31 will not alter in any significant way the circumstance that more than two-thirds of the members of the Senate
concurred with the proposed VFA, even if the two-thirds vote requirement is based on this figure of actual members
(23). In this regard, the fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes,
suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the subject treaty.

Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall now pass upon
and delve on the requirement that the VFA should be recognized as a treaty by the United States of America.

Petitioners content that the phrase "recognized as a treaty," embodied in section 25, Article XVIII, means that the VFA
should have the advice and consent of the United States Senate pursuant to its own constitutional process, and that it
should not be considered merely an executive agreement by the United States.

In opposition, respondents argue that the letter of United States Ambassador Hubbard stating that the VFA is binding
on the United States Government is conclusive, on the point that the VFA is recognized as a treaty by the United States
of America. According to respondents, the VFA, to be binding, must only be accepted as a treaty by the United States.

This Court is of the firm view that the phrase "recognized as a treaty" means that the other contracting
party accepts or acknowledges the agreement as a treaty.32 To require the other contracting state, the United States
of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, 33 is
to accord strict meaning to the phrase.

Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except
where technical terms are employed, in which case the significance thus attached to them prevails. Its language
should be understood in the sense they have in common use. 34
Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because,
under international law, an executive agreement is as binding as a treaty. 35 To be sure, as long as the VFA possesses
the elements of an agreement under international law, the said agreement is to be taken equally as a treaty.

A treaty, as defined by the Vienna Convention on the Law of Treaties, is "an international instrument concluded
between States in written form and governed by international law, whether embodied in a single instrument or in two
or more related instruments, and whatever its particular designation." 36 There are many other terms used for a treaty
or international agreement, some of which are: act, protocol, agreement, compromis d arbitrage, concordat,
convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius
onward, have pointed out that the names or titles of international agreements included under the general
term treaty have little or no legal significance. Certain terms are useful, but they furnish little more than mere
description.37

Article 2(2) of the Vienna Convention provides that "the provisions of paragraph 1 regarding the use of terms in the
present Convention are without prejudice to the use of those terms, or to the meanings which may be given to them in
the internal law of the State."

Thus, in international law, there is no difference between treaties and executive agreements in their binding effect
upon states concerned, as long as the negotiating functionaries have remained within their powers. 38International law
continues to make no distinction between treaties and executive agreements: they are equally binding obligations
upon nations.39

In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the
Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading,40 we had occasion to pronounce:

"x x x the right of the Executive to enter into binding agreements without the necessity of subsequent congressional
approval has been confirmed by long usage. From the earliest days of our history we have entered into executive
agreements covering 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. The validity of
these has never been seriously questioned by our courts.

"x x x x x x x x x

"Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality of executive
agreements entered into without Senate approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs.
Curtis Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed.
1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15
pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [revised Edition],
Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore,
International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407).
(Italics Supplied)" (Emphasis Ours)

The deliberations of the Constitutional Commission which drafted the 1987 Constitution is enlightening and highly-
instructive:

"MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other state is concerned, that is
entirely their concern under their own laws.

FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done everything to make it a treaty,
then as far as we are concerned, we will accept it as a treaty." 41

The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the
United States government has fully committed to living up to the terms of the VFA. 42 For as long as the united States of
America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the
treaty, there is indeed marked compliance with the mandate of the Constitution.

Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the Senate should be
taken as a clear an unequivocal expression of our nations consent to be bound by said treaty, with the concomitant
duty to uphold the obligations and responsibilities embodied thereunder.

Ratification is generally held to be an executive act, undertaken by the head of the state or of the government, as the
case may be, through which the formal acceptance of the treaty is proclaimed. 43 A State may provide in its domestic
legislation the process of ratification of a treaty. The consent of the State to be bound by a treaty is expressed by
ratification when: (a) the treaty provides for such ratification, (b) it is otherwise established that the negotiating States
agreed that ratification should be required, (c) the representative of the State has signed the treaty subject to
ratification, or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its
representative, or was expressed during the negotiation.44

In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The
role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification. 45

With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the
Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the
principles of international law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the
Constitution,46 declares that the Philippines adopts the generally accepted principles of international law as part of the
law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.

As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct
of its international relations. While the international obligation devolves upon the state and not upon any particular
branch, institution, or individual member of its government, the Philippines is nonetheless responsible for violations
committed by any branch or subdivision of its government or any official thereof. As an integral part of the community
of nations, we are responsible to assure that our government, Constitution and laws will carry out our international
obligation.47 Hence, we cannot readily plead the Constitution as a convenient excuse for non-compliance with our
obligations, duties and responsibilities under international law.

Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission
in 1949 provides: "Every State has the duty to carry out in good faith its obligations arising from treaties and other
sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to
perform this duty."48

Equally important is Article 26 of the convention which provides that "Every treaty in force is binding upon the parties
to it and must be performed by them in good faith." This is known as the principle of pacta sunt servanda which
preserves the sanctity of treaties and have been one of the most fundamental principles of positive international law,
supported by the jurisprudence of international tribunals. 49

NO GRAVE ABUSE OF DISCRETION

In the instant controversy, the President, in effect, is heavily faulted for exercising a power and performing a task
conferred upon him by the Constitution-the power to enter into and ratify treaties. Through the expediency of Rule 65
of the Rules of Court, petitioners in these consolidated cases impute grave abuse of discretion on the part of the
chief Executive in ratifying the VFA, and referring the same to the Senate pursuant to the provisions of Section 21,
Article VII of the Constitution.

On this particular matter, grave abuse of discretion implies such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty enjoined
or to act at all in contemplation of law.50

By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and
authority in the external affairs of the country. In many ways, the President is the chief architect of the nations foreign
policy; his "dominance in the field of foreign relations is (then) conceded." 51 Wielding vast powers an influence, his
conduct in the external affairs of the nation, as Jefferson describes, is "executive altogether."52

As regards the power to enter into treaties or international agreements, the Constitution vests the same in the
President, subject only to the concurrence of at least two-thirds vote of all the members of the Senate. In this light, the
negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts which pertain solely to the
President, in the lawful exercise of his vast executive and diplomatic powers granted him no less than by the
fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to
invade it.53 Consequently, the acts or judgment calls of the President involving the VFA-specifically the acts of
ratification and entering into a treaty and those necessary or incidental to the exercise of such principal acts - squarely
fall within the sphere of his constitutional powers and thus, may not be validly struck down, much less calibrated by
this Court, in the absence of clear showing of grave abuse of power or discretion.

It is the Courts considered view that the President, in ratifying the VFA and in submitting the same to the Senate for
concurrence, acted within the confines and limits of the powers vested in him by the Constitution. It is of no moment
that the President, in the exercise of his wide latitude of discretion and in the honest belief that the VFA falls within the
ambit of Section 21, Article VII of the Constitution, referred the VFA to the Senate for concurrence under the
aforementioned provision. Certainly, no abuse of discretion, much less a grave, patent and whimsical abuse of
judgment, may be imputed to the President in his act of ratifying the VFA and referring the same to the Senate for the
purpose of complying with the concurrence requirement embodied in the fundamental law. In doing so, the President
merely performed a constitutional task and exercised a prerogative that chiefly pertains to the functions of his office.
Even if he erred in submitting the VFA to the Senate for concurrence under the provisions of Section 21 of Article VII,
instead of Section 25 of Article XVIII of the Constitution, still, the President may not be faulted or scarred, much less be
adjudged guilty of committing an abuse of discretion in some patent, gross, and capricious manner.

For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope of judicial inquiry into
areas normally left to the political departments to decide, such as those relating to national security, it has not
altogether done away with political questions such as those which arise in the field of foreign relations. 54 The High
Tribunals function, as sanctioned by Article VIII, Section 1, "is merely (to) check whether or not the governmental
branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or has a different view.
In the absence of a showing (of) grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for
the Court to exercise its corrective powerIt has no power to look into what it thinks is apparent error." 55

As to the power to concur with treaties, the constitution lodges the same with the Senate alone. 1wphi1 Thus, once
the Senate56 performs that power, or exercises its prerogative within the boundaries prescribed by the Constitution, the
concurrence cannot, in like manner, be viewed to constitute an abuse of power, much less grave abuse thereof.
Corollarily, the Senate, in the exercise of its discretion and acting within the limits of such power, may not be similarly
faulted for having simply performed a task conferred and sanctioned by no less than the fundamental law.

For the role of the Senate in relation to treaties is essentially legislative in character; 57 the Senate, as an independent
body possessed of its own erudite mind, has the prerogative to either accept or reject the proposed agreement, and
whatever action it takes in the exercise of its wide latitude of discretion, pertains to the wisdom rather than the legality
of the act. In this sense, the Senate partakes a principal, yet delicate, role in keeping the principles of separation of
powers and of checks and balances alive and vigilantly ensures that these cherished rudiments remain true to their
form in a democratic government such as ours. The Constitution thus animates, through this treaty-concurring power
of the Senate, a healthy system of checks and balances indispensable toward our nations pursuit of political maturity
and growth. True enough, rudimentary is the principle that matters pertaining to the wisdom of a legislative act are
beyond the ambit and province of the courts to inquire.

In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this Court- as the final
arbiter of legal controversies and staunch sentinel of the rights of the people - is then without power to conduct an
incursion and meddle with such affairs purely executive and legislative in character and nature. For the Constitution no
less, maps out the distinct boundaries and limits the metes and bounds within which each of the three political
branches of government may exercise the powers exclusively and essentially conferred to it by law.

WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED.

SO ORDERED.
G.R. No. 151445 April 11, 2002

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,

vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCEY GLORIA MACAPAGAL-ARROYO, and
HONORABLE ANGELO REYES in his capacity as Secretary of National Defense, respondents.

----------------------------------------

SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors,

vs.
GLORIA MACAPAGA-ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents.

DISSENTING OPINION

SEPARATE OPINION

DE LEON, JR., J.:

This case involves a petition for certiorari and prohibition as well as a petition-in-intervention, praying that respondents
be restrained from proceeding with the so-called "Balikatan 02-1" and that after due notice and hearing, that judgment
be rendered issuing a permanent writ of injunction and/or prohibition against the deployment of U.S. troops in Basilan
and Mindanao for being illegal and in violation of the Constitution.

The facts are as follows:

Beginning January of this year 2002, personnel from the armed forces of the United States of America started arriving
in Mindanao to take part, in conjunction with the Philippine military, in "Balikatan 02-1." These so-called "Balikatan"
exercises are the largest combined training operations involving Filipino and American troops. In theory, they are a
simulation of joint military maneuvers pursuant to the Mutual Defense Treaty, 1 a bilateral defense agreement entered
into by the Philippines and the United States in 1951.

Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the paucity of any formal agreement
relative to the treatment of United States personnel visiting the Philippines. In the meantime, the respective
governments of the two countries agreed to hold joint exercises on a reduced scale. The lack of consensus was
eventually cured when the two nations concluded the Visiting Forces Agreement (V FA) in 1999.

The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism campaign
declared by President George W. Bush in reaction to the tragic events that occurred on September 11, 2001. On that
day, three (3) commercial aircrafts were hijacked, flown and smashed into the twin towers of the World Trade Center in
New York City and the Pentagon building in Washington, D.C. by terrorists with alleged links to the al-Qaeda ("the
Base"), a Muslim extremist organization headed by the infamous Osama bin Laden. Of no comparable historical
parallels, these acts caused billions of dollars worth of destruction of property and incalculable loss of hundreds of
lives.

On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari and prohibition,
attacking the constitutionality of the joint exercise. 2 They were joined subsequently by SANLAKAS and PARTIDO NG
MANGGAGAWA, both party-Iist organizations, who filed a petition-in-intervention on February 11, 2002.

Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO, on the other
hand, aver that certain members of their organization are residents of Zamboanga and Sulu, and hence will be directly
affected by the operations being conducted in Mindanao. They likewise pray for a relaxation on the rules relative
to locus standi citing the unprecedented importance of the issue involved.

On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise wherein Vice-President Teofisto T.
Guingona, Jr., who is concurrently Secretary of Foreign. Affairs, presented the Draft Terms of Reference (TOR). 3 Five
days later, he approved the TOR, which we quote hereunder:

I. POLICY LEVEL

1. The Exercise shall be consistent with the Philippine Constitution and all its activities shall be in consonance with the
laws of the land and the provisions of the RP-US Visiting Forces Agreement (VFA).
2. The conduct of this training Exercise is in accordance with pertinent United Nations resolutions against global
terrorism as understood by the respective parties.

3. No permanent US basing and support facilities shall be established. Temporary structures such as those for troop
billeting, classroom instruction and messing may be set up for use by RP and US Forces during the Exercise.

4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of the Chief of
Staff, AFP. In no instance will US Forces operate independently during field training exercises (FTX). AFP and US Unit
Commanders will retain command over their respective forces under the overall authority of the Exercise Co-Directors.
RP and US participants shall comply with operational instructions of the AFP during the FTX.

5. The exercise shall be conducted and completed within a period of not more than six months, with the projected
participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to
wind up and terminate the Exercise and other activities within the six month Exercise period.

6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine efforts
against the ASG, and will be conducted on the Island of Basilan. Further advising, assisting and training exercises shall
be conducted in Malagutay and the Zamboanga area. Related activities in Cebu will be for support of the Exercise.

7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP field, commanders. The
US teams shall remain at the Battalion Headquarters and, when approved, Company Tactical headquarters where they
can observe and assess the performance of the AFP Forces.

8. US exercise participants shall not engage in combat, without prejudice to their right of self-defense.

9. These terms of Reference are for purposes of this Exercise only and do not create additional legal obligations
between the US Government and the Republic of the Philippines.

II. EXERCISE LEVEL

1. TRAINING

a. The Exercise shall involve the conduct of mutual military assisting, advising and training of RP and US Forces with
the primary objective of enhancing the operational capabilities of both forces to combat terrorism.

b. At no time shall US Forces operate independently within RP territory.

c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations.

2. ADMINISTRATION & LOGISTICS

a. RP and US participants shall be given a country and area briefing at the start of the Exercise. This briefing shall
acquaint US Forces on the culture and sensitivities of the Filipinos and the provisions of the VF A. The briefing shall also
promote the full cooperation on the part of the RP and US participants for the successful conduct of the Exercise.

b. RP and US participating forces may share, in accordance with their respective laws and regulations, in the use of
their resources, equipment and other assets. They will use their respective logistics channels.

c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and resources.

d. Legal liaison officers from each respective party shall be appointed by the Exercise Directors.

3. PUBLIC AFFAIRS

a. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in Zamboanga City and at
GHQ, AFP in Camp Aguinaldo, Quezon City.

b. Local media relations will be the concern of the AFP and all public affairs guidelines shall be jointly developed by RP
and US Forces.

c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US Forces in accordance with
their respective laws and regulations, and in consultation with community and local government officials.

Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and United States Charge d'
Affaires Robert Fitts signed the Agreed Minutes of the discussion between the Vice-President and Assistant Secretary
Kelly.4
Petitioners Lim and Ersando present the following arguments:

THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) in 1951 TO PROVIDE MUTUAL
MILITARY ASSIST ANCE IN ACCORDANCE WITH THE 'CONSTITUTIONAL PROCESSE-S' OF EACH COUNTRY ONLY IN THE
CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF THEM.

BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN BASILAN CONSTITUTE AN
EXTERNAL ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES TO AN ARMED EXTERNAL ATTACK TO WARRANT U.S.
MILITARY ASSISTANCE UNDER THE MDT OF 1951.

II

NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE IN COMBAT OPERATIONS IN PHILIPPINE
TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON".

Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO.

In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter alia, Lim and Ersando's
standing to file suit, the prematurity of the action, as well as the impropriety of availing of certiorari to ascertain a
question of fact. Anent their locus standi, the Solicitor General argues that first, they may not file suit in their
capacities as, taxpayers inasmuch as it has not been shown that "Balikatan 02-1 " involves the exercise of Congress'
taxing or spending powers. Second, their being lawyers does not invest them with sufficient personality to initiate the
case, citing our ruling in Integrated Bar of the Philippines v. Zamora.5 Third, Lim and Ersando have failed to
demonstrate the requisite showing of direct personal injury. We agree.

It is also contended that the petitioners are indulging in speculation. The Solicitor General is of the view that since the
Terms of Reference are clear as to the extent and duration of "Balikatan 02-1," the issues raised by petitioners are
premature, as they are based only on a fear of future violation of the Terms of Reference. Even petitioners' resort to a
special civil action for certiorari is assailed on the ground that the writ may only issue on the basis of established facts.

Apart from these threshold issues, the Solicitor General claims that there is actually no question of constitutionality
involved. The true object of the instant suit, it is said, is to obtain an interpretation of the V FA. The Solicitor General
asks that we accord due deference to the executive determination that "Balikatan 02-1" is covered by the VFA,
considering the President's monopoly in the field of foreign relations and her role as commander-in-chief of the
Philippine armed forces.

Given the primordial importance of the issue involved, it will suffice to reiterate our view on this point in a related case:

Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the
petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance
of the petitions, as we have done in the early Emergency Powers Cases, where we had occasion to rule:

'x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued
by President Quirino although they were involving only an indirect and general interest shared in common with the
public. The Court dismissed the objection that they were not proper parties and ruled that 'transcendental
importance to the public of these cases demands that they be settled promptly and definitely, brushing
aside, if we must, technicalities of procedure.' We have since then applied the exception in many other cases.
[citation omitted]

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs. Singson, and Basco vs.
Phil, Amusement and Gaming Corporation, where we emphatically held:

Considering however the importance to the public of the case at bar, and in keeping with the Court's duty, under the
1987 Constitution, to determine whether or not the other branches of the government have kept themselves within the
limits of the Constitution and the laws that they have not abused the discretion given to them, the Court has brushed
aside technicalities of procedure and has taken cognizance of this petition. xxx'

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of transcendental
importance, the Court may relax the standing requirements and allow a suit to prosper even where there
is no direct injury to the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of
powers, which enjoins upon the department of the government a becoming respect for each other's act, this Court
nevertheless resolves to take cognizance of the instant petition. 6

Hence, we treat with similar dispatch the general objection to the supposed prematurity of the action. At any rate,
petitioners' concerns on the lack of any specific regulation on the latitude of activity US personnel may undertake and
the duration of their stay has been addressed in the Terms of Reference.

The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to which the Philippines
bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has been described as the
"core" of the defense relationship between the Philippines and its traditional ally, the United States. Its aim is to
enhance the strategic and technological capabilities of our armed forces through joint training with its American
counterparts; the "Balikatan" is the largest such training exercise directly supporting the MDT's objectives. It is this
treaty to which the V FA adverts and the obligations thereunder which it seeks to reaffirm.

The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in US-
Philippine defense relations, that is, until it was replaced by the Visiting Forces Agreement. It should be recalled that on
October 10, 2000, by a vote of eleven to three, this Court upheld the validity of the VFA. 7 The V FA provides the
"regulatory mechanism" by which "United States military and civilian personnel [may visit] temporarily in the
Philippines in connection with activities approved by the Philippine Government." It contains provisions relative to
entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation
and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. It is
the VFA which gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate the
promotion of optimal cooperation between American and Philippine military forces in the event of an attack by a
common foe.

The first question that should be addressed is whether "Balikatan 02-1" is covered by the Visiting Forces Agreement. To
resolve this, it is necessary to refer to the V FA itself: Not much help can be had therefrom, unfortunately, since the
terminology employed is itself the source of the problem. The VFA permits United States personnel to engage, on an
impermanent basis, in "activities," the exact meaning of which was left undefined. The expression is ambiguous,
permitting a wide scope of undertakings subject only to the approval of the Philippine government. 8 The sole
encumbrance placed on its definition is couched in the negative, in that United States personnel must "abstain from
any activity inconsistent with the spirit of this agreement, and in particular, from any political activity."9 All other
activities, in other words, are fair game.

We are not left completely unaided, however. The Vienna Convention on the Law of Treaties, which contains provisos
governing interpretations of international agreements, state:

SECTION 3. INTERPRETATION OF TREATIES

Article 31

General rule of interpretation

1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given to the tenus of the
treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its
preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of
the treaty;

(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and
accepted by the other parties as an instrument related to the party .

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its
provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding
its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the
circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to
determine the meaning when the interpretation according to article 31 :

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd unreasonable.

It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is
presumed to verbalize the parties' intentions. The Convention likewise dictates what may be used as aids to deduce
the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into
account alongside the aforesaid context. As explained by a writer on the Convention ,

[t]he Commission's proposals (which were adopted virtually without change by the conference and are now reflected in
Articles 31 and 32 of the Convention) were clearly based on the view that the text of a treaty must be presumed to be
the authentic expression of the intentions of the parties; the Commission accordingly came down firmly in favour of
the view that 'the starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab
initio into the intentions of the parties'. This is not to say that the travauxpreparatoires of a treaty , or the
circumstances of its conclusion, are relegated to a subordinate, and wholly ineffective, role. As Professor Briggs points
out, no rigid temporal prohibition on resort to travaux preparatoires of a treaty was intended by the use of the phrase
'supplementary means of interpretation' in what is now Article 32 of the Vienna Convention. The distinction between
the general rule of interpretation and the supplementary means of interpretation is intended rather to ensure that the
supplementary means do not constitute an alternative, autonomous method of interpretation divorced from the
general rule.10

The Terms of Reference rightly fall within the context of the VFA.

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 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 nation's
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.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume
that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls under the umbrella of
sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense
Treaty and the V FA support the conclusion that combat-related activities -as opposed to combat itself -such as the one
subject of the instant petition, are indeed authorized.

That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under the terms of the VFA, what
may US forces legitimately do in furtherance of their aim to provide advice, assistance and training in the global effort
against terrorism? Differently phrased, may American troops actually engage in combat in Philippine territory? The
Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants
may not engage in combat "except in self-defense." We wryly note that this sentiment is admirable in the abstract
but difficult in implementation. The target of "Balikatan 02-1 I" the Abu Sayyaf, cannot reasonably be expected to sit
idly while the battle is brought to their very doorstep. They cannot be expected to pick and choose their targets for
they will not have the luxury of doing so. We state this point if only to signify our awareness that the parties straddle a
fine line, observing the honored legal maxim "Nemo potest facere per alium quod non potest facere per
directum."11 The indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1 " is actually a war
principally conducted by the United States government, and that the provision on self-defense serves only as
camouflage to conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes crucial.

In our considered opinion, neither the MDT nor the V FA allow foreign troops to engage in an offensive war on
Philippine territory. We bear in mind the salutary proscription stated in the Charter of the United Nations, to wit:

Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the
following Principles.

xxx xxx xxx xxx

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity
or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

xxx xxx xxx xxx

In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and
international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution. In
particular, the Mutual Defense Treaty was concluded way before the present Charter, though it nevertheless remains in
effect as a valid source of international obligation. The present Constitution contains key provisions useful in
determining the extent to which foreign military troops are allowed in Philippine territory. Thus, in the Declaration of
Principles and State Policies, it is provided that:

xxx xxx xxx xxx

SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.

xxx xxx xxx xxx

SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount
consideration shall be national sovereignty, territorial integrity, national interest, and the right to self- determination.

SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear
weapons in the country.

xxx xxx xxx xxx

The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that "[n]o 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 Even more pointedly, the Transitory Provisions state:

Sec. 25. 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 by the people in a national referendum held for that purpose, and recognized as a treaty by the other
contracting state.

The aforequoted provisions betray a marked antipathy towards foreign military presence in the country, or of foreign
influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception.
Conflict arises then between the fundamental law and our obligations arising from international agreements.

A rather recent formulation of the relation of international law vis-a-vis municipal law was expressed in Philip Morris,
Inc. v. Court of Appeals,13 to wit:

xxx Withal, the fact that international law has been made part of the law of the land does not by any means imply the
primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied
in most countries, rules of international law are given a standing equal, not superior, to national legislation.

This is not exactly helpful in solving the problem at hand since in trying to find a middle ground, it favors neither one
law nor the other, which only leaves the hapless seeker with an unsolved dilemma. Other more traditional approaches
may offer valuable insights.

From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle
of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must be performed by
them in good faith."14 Further, a party to a treaty is not allowed to "invoke the provisions of its internal law as
justification for its failure to perform a treaty."15

Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5 of Article VIII:

The Supreme Court shall have the following powers:

xxx xxx xxx xxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final
judgments and order of lower courts in:

(A) 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.

xxx xxx xxx xxx

In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject to qualification or amendment
by a subsequent law, or that it is subject to the police power of the State. In Gonzales v. Hechanova,17

xxx As regards the question whether an international agreement may be invalidated by our courts, suffice it to say
that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article VIII
thereof, that the Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse, modify, or affirm on
appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior
courts in -( I) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or
regulation is in question." In other words, our Constitution authorizes the nullification of a treaty, not only when it
conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.

The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an offensive war on
Philippine territory.

Yet a nagging question remains: are American troops actively engaged in combat alongside Filipino soldiers under the
guise of an alleged training and assistance exercise? Contrary to what petitioners would have us do, we cannot take
judicial notice of the events transpiring down south,18 as reported from the saturation coverage of the media. As a
rule, we do not take cognizance of newspaper or electronic reports per se, not because of any issue as to their truth,
accuracy, or impartiality, but for the simple reason that facts must be established in accordance with the rules of
evidence. As a result, we cannot accept, in the absence of concrete proof, petitioners' allegation that the Arroyo
government is engaged in "doublespeak" in trying to pass off as a mere training exercise an offensive effort by foreign
troops on native soil. The petitions invite us to speculate on what is really happening in Mindanao, to issue I make
factual findings on matters well beyond our immediate perception, and this we are understandably loath to do.

It is all too apparent that the determination thereof involves basically a question of fact. On this point, we must concur
with the Solicitor General that the present subject matter is not a fit topic for a special civil action for certiorari. We
have held in too many instances that questions of fact are not entertained in such a remedy. The sole object of the writ
is to correct errors of jurisdiction or grave abuse of discretion: The phrase "grave abuse of discretion" has a precise
meaning in law, denoting abuse of discretion "too patent and gross as to amount to an evasion of a positive duty, or a
virtual refusal to perform the duty enjoined or act in contemplation of law, or where the power is exercised in an
arbitrary and despotic manner by reason of passion and personal hostility." 19

In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts. 20

Under the expanded concept of judicial power under the Constitution, courts are charged with the duty "to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government." 21 From the facts obtaining, we find that the holding of "Balikatan 02-
1" joint military exercise has not intruded into that penumbra of error that would otherwise call for correction on our
part. In other words, respondents in the case at bar have not committed grave abuse of discretion amounting to lack
or excess of jurisdiction.

WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without prejudice to the filing of a
new petition sufficient in form and substance in the proper Regional Trial Court.

SO ORDERED.
G.R. No. 158088 July 6, 2005

SENATOR AQUILINO PIMENTEL, JR., REP. ETTA ROSALES, PHILIPPINE COALITION FOR THE ESTABLISHMENT
OF THE INTERNATIONAL CRIMINAL COURT, TASK FORCE DETAINEES OF THE PHILIPPINES, FAMILIES OF
VICTIMS OF INVOLUNTARY DISAPPEARANCES, BIANCA HACINTHA R. ROQUE, HARRISON JACOB R. ROQUE,
AHMED PAGLINAWAN, RON P. SALO, * LEAVIDES G. DOMINGO, EDGARDO CARLO VISTAN, NOEL
VILLAROMAN, CELESTE CEMBRANO, LIZA ABIERA, JAIME ARROYO, MARWIL LLASOS, CRISTINA ATENDIDO,
ISRAFEL FAGELA, and ROMEL BAGARES, Petitioners,
vs. OFFICE OF THE EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, and the DEPARTMENT OF FOREIGN
AFFAIRS, represented by HON. BLAS OPLE, Respondents.

DECISION

PUNO J.:

This is a petition for mandamus filed by petitioners to compel the

Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome
Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in accordance with
Section 21, Article VII of the 1987 Constitution.

The Rome Statute established the International Criminal Court which "shall have the power to exercise its jurisdiction
over persons for the most serious crimes of international concern xxx and shall be complementary to the national
criminal jurisdictions."1 Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the
crime of aggression as defined in the Statute. 2 The Statute was opened for signature by all states in Rome on July 17,
1998 and had remained open for signature until December 31, 2000 at the United Nations Headquarters in New York.
The Philippines signed the Statute on December 28, 2000 through Charge d Affairs Enrique A. Manalo of the Philippine
Mission to the United Nations.3 Its provisions, however, require that it be subject to ratification, acceptance or approval
of the signatory states.4

Petitioners filed the instant petition to compel the respondents the Office of the Executive Secretary and the
Department of Foreign Affairs to transmit the signed text of the treaty to the Senate of the Philippines for
ratification.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a
function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome
Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. Moreover, petitioners
submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary
international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from
acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification
unless they have made their intention clear not to become parties to the treaty. 5

The Office of the Solicitor General, commenting for the respondents, questioned the standing of the petitioners to file
the instant suit. It also contended that the petition at bar violates the rule on hierarchy of courts. On the substantive
issue raised by petitioners, respondents argue that the executive department has no duty to transmit the Rome
Statute to the Senate for concurrence.

A petition for mandamus may be filed when any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station. 6We have
held that to be given due course, a petition for mandamus must have been instituted by a party aggrieved by the
alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment
of a legal right. The petitioner in every case must therefore be an aggrieved party in the sense that he possesses a
clear legal right to be enforced and a direct interest in the duty or act to be performed. 7 The Court will exercise its
power of judicial review only if the case is brought before it by a party who has the legal standing to raise the
constitutional or legal question. "Legal standing" means a personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result of the government act that is being challenged. The term
"interest" is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest
in the question involved, or a mere incidental interest.8

The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to file the suit as member
of the Senate; Congresswoman Loretta Ann Rosales, a member of the House of Representatives and Chairperson of its
Committee on Human Rights; the Philippine Coalition for the Establishment of the International Criminal Court which is
composed of individuals and corporate entities dedicated to the Philippine ratification of the Rome Statute; the Task
Force Detainees of the Philippines, a juridical entity with the avowed purpose of promoting the cause of human rights
and human rights victims in the country; the Families of Victims of Involuntary Disappearances, a juridical entity duly
organized and existing pursuant to Philippine Laws with the avowed purpose of promoting the cause of families and
victims of human rights violations in the country; Bianca Hacintha Roque and Harrison Jacob Roque, aged two (2) and
one (1), respectively, at the time of filing of the instant petition, and suing under the doctrine of inter-generational
rights enunciated in the case of Oposa vs. Factoran, Jr.;9 and a group of fifth year working law students from the
University of the Philippines College of Law who are suing as taxpayers.

The question in standing is whether a party has alleged such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends
for illumination of difficult constitutional questions. 10

We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit. The other
petitioners maintain their standing as advocates and defenders of human rights, and as citizens of the country. They
have not shown, however, that they have sustained or will sustain a direct injury from the non-transmittal of the
signed text of the Rome Statute to the Senate. Their contention that they will be deprived of their remedies for the
protection and enforcement of their rights does not persuade. The Rome Statute is intended to complement national
criminal laws and courts. Sufficient remedies are available under our national laws to protect our citizens against
human rights violations and petitioners can always seek redress for any abuse in our domestic courts.

As regards Senator Pimentel, it has been held that "to the extent the powers of Congress are 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."11 Thus, legislators have the standing to maintain inviolate the prerogatives, powers and privileges vested
by the Constitution in their office and are allowed to sue to question the validity of any official action which they claim
infringes their prerogatives as legislators. The petition at bar invokes the power of the Senate to grant or withhold its
concurrence to a treaty entered into by the executive branch, in this case, the Rome Statute. The petition seeks to
order the executive branch to transmit the copy of the treaty to the Senate to allow it to exercise such authority.
Senator Pimentel, as member of the institution, certainly has the legal standing to assert such authority of the Senate.

We now go to the substantive issue.

The core issue in this petition for mandamus is whether the Executive Secretary and the Department of Foreign Affairs
have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine
Mission to the United Nations even without the signature of the President.

We rule in the negative.

In our system of government, the President, being the head of state, is regarded as the sole organ and authority in
external relations and is the countrys sole representative with foreign nations. 12 As the chief architect of foreign policy,
the President acts as the countrys mouthpiece with respect to international affairs. Hence, the President is vested with
the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic
relations, enter into treaties, and otherwise transact the business of foreign relations. 13 In the realm of treaty-making,
the President has the sole authority to negotiate with other states.

Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a
limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the
treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that "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."
The 1935 and the 1973 Constitution also required the concurrence by the legislature to the treaties entered into by the
executive. Section 10 (7), Article VII of the 1935 Constitution provided:

Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the Members of the Senate, to
make treaties xxx.

Section 14 (1) Article VIII of the 1973 Constitution stated:

Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective unless concurred in
by a majority of all the Members of the Batasang Pambansa.

The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on
the executive in the field of foreign relations. 14 By requiring the concurrence of the legislature in the treaties entered
into by the President, the Constitution ensures a healthy system of checks and balance necessary in the nations
pursuit of political maturity and growth.15
In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean that the power to
ratify treaties belongs to the Senate.

We disagree.

Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:

The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments
of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this
step is not essential to the validity of the agreement as between the parties.

Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized
representatives. These representatives are provided with credentials known as full powers, which they exhibit to the
other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of
the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations.
The negotiations may be brief or protracted, depending on the issues involved, and may even "collapse" in case the
parties are unable to come to an agreement on the points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is
primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of
the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of
the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several
negotiators is allowed to sign first on the copy which he will bring home to his own state.

Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty
concluded by its representatives. The purpose of ratification is to enable the contracting states to examine
the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it
inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and
consent of a department of the government other than that which negotiated them.

xxx

The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also
signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is
dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its
signature.16 [emphasis supplied]

Petitioners arguments equate the signing of the treaty by the Philippine representative with ratification. It should be
underscored that the signing of the treaty and the ratification are two separate and distinct steps in the treaty-making
process. As earlier discussed, the signature is primarily intended as a means of authenticating the instrument and as a
symbol of the good faith of the parties. It is usually performed by the states authorized representative in the
diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representative. It is generally held to be an executive act, undertaken by the
head of the state or of the government. 17 Thus, Executive Order No. 459 issued by President Fidel V. Ramos on
November 25, 1997 provides the guidelines in the negotiation of international agreements and its ratification. It
mandates that after the treaty has been signed by the Philippine representative, the same shall be transmitted to the
Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare the ratification papers and forward
the signed copy of the treaty to the President for ratification. After the President has ratified the treaty, the
Department of Foreign Affairs shall submit the same to the Senate for concurrence. Upon receipt of the concurrence of
the Senate, the Department of Foreign Affairs shall comply with the provisions of the treaty to render it effective.
Section 7 of Executive Order No. 459 reads:

Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. The
domestic requirements for the entry into force of a treaty or an executive agreement, or any amendment thereto, shall
be as follows:

A. Executive Agreements.

i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their signing for the
preparation of the ratification papers. The transmittal shall include the highlights of the agreements and the benefits
which will accrue to the Philippines arising from them.
ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall transmit the
agreements to the President of the Philippines for his ratification. The original signed instrument of ratification shall
then be returned to the Department of Foreign Affairs for appropriate action.

B. Treaties.

i. All treaties, regardless of their designation, shall comply with the requirements provided in sub-paragraph[s] 1 and 2,
item A (Executive Agreements) of this Section. In addition, the Department of Foreign Affairs shall submit the treaties
to the Senate of the Philippines for concurrence in the ratification by the President. A certified true copy of the treaties,
in such numbers as may be required by the Senate, together with a certified true copy of the ratification instrument,
shall accompany the submission of the treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with the provision of
the treaties in effecting their entry into force.

Petitioners submission that the Philippines is bound under treaty law and international law to ratify the treaty which it
has signed is without basis. The signature does not signify the final consent of the state to the treaty. It is the
ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires that the signature of
the representatives of the states be subject to ratification, acceptance or approval of the signatory states. Ratification
is the act by which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a treaty
signed in its behalf, a state expresses its willingness to be bound by the provisions of such treaty. After the treaty is
signed by the states representative, the President, being accountable to the people, is burdened with the
responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the
interest of the state and its people. Thus, the President has the discretion even after the signing of the treaty by the
Philippine representative whether or not to ratify the same. The Vienna Convention on the Law of Treaties does not
contemplate to defeat or even restrain this power of the head of states. If that were so, the requirement of ratification
of treaties would be pointless and futile. It has been held that a state has no legal or even moral duty to ratify a treaty
which has been signed by its plenipotentiaries. 18 There is no legal obligation to ratify a treaty, but it goes without
saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise,
the other state would be justified in taking offense. 19

It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the
concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or
concurrence, to the ratification.20 Hence, it is within the authority of the President to refuse to submit a treaty to the
Senate or, having secured its consent for its ratification, refuse to ratify it. 21 Although the refusal of a state to ratify a
treaty which has been signed in its behalf is a serious step that should not be taken lightly, 22 such decision is within the
competence of the President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has
no jurisdiction over actions seeking to enjoin the President in the performance of his official duties. 23 The Court,
therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the
executive branch of the government to transmit the signed text of Rome Statute to the Senate. IN VIEW WHEREOF,
the petition is DISMISSED. SO ORDERED.
G.R. No. 106064 October 13, 2005

Spouses Renato Constantino, Jr. and Lourdes Constantino and their minor children Renato Redentor, Anna
Marika Lissa, Nina Elissa, and Anna Karmina, Freedom From Debt Coalition, and Filomeno Sta. Ana
III, Petitioners,
vs.
Hon. Jose B. Cuisia, in his capacity as Governor of the Central Bank, Hon. Ramon del Rosario, in his
capacity as Secretary of Finance, Hon. Emmanuel V. Pelaez, in his capacity as Philippine Debt Negotiating
Chairman, and the NATIONAL TREASURER, Respondents.

DECISION

Tinga, J.:

The quagmire that is the foreign debt problem has especially confounded developing nations around the world for
decades. It has defied easy solutions acceptable both to debtor countries and their creditors. It has also emerged
as cause celebre for various political movements and grassroots activists and the wellspring of much scholarly thought
and debate.

The present petition illustrates some of the ideological and functional differences between experts on how to achieve
debt relief. However, this being a court of law, not an academic forum or a convention on development economics, our
resolution has to hinge on the presented legal issues which center on the appreciation of the constitutional provision
that empowers the President to contract and guarantee foreign loans. The ultimate choice is between a restrictive
reading of the constitutional provision and an alimentative application thereof consistent with time-honored principles
on executive power and the alter ego doctrine.

This Petition for Certiorari, Prohibition and Mandamus assails said contracts which were entered into pursuant to the
Philippine Comprehensive Financing Program for 1992 ("Financing Program" or "Program"). It seeks to enjoin
respondents from executing additional debt-relief contracts pursuant thereto. It also urges the Court to issue an order
compelling the Secretary of Justice to institute criminal and administrative cases against respondents foracts which
circumvent or negate the provisions Art. XII of the Constitution. 1

Parties and Facts

The petition was filed on 17 July 1992 by petitioners spouses Renato Constantino, Jr. and Lourdes Constantino and their
minor children, Renato Redentor, Anna Marika Lissa, Nina Elissa, and Anna Karmina, Filomeno Sta. Ana III, and the
Freedom from Debt Coalition, a non-stock, non-profit, non-government organization that advocates a "pro-people and
just Philippine debt policy." 2 Named respondents were the then Governor of the Bangko Sentral ng Pilipinas, the
Secretary of Finance, the National Treasurer, and the Philippine Debt Negotiation Chairman Emmanuel V. Pelaez. 3 All
respondents were members of the Philippine panel tasked to negotiate with the countrys foreign creditors pursuant to
the Financing Program.

The operative facts are sparse and there is little need to elaborate on them.

The Financing Program was the culmination of efforts that began during the term of former President Corazon Aquino
to manage the countrys external debt problem through a negotiation-oriented debt strategy involving cooperation
and negotiation with foreign creditors.4 Pursuant to this strategy, the Aquino government entered into three
restructuring agreements with representatives of foreign creditor governments during the period of 1986 to
1991.5 During the same period, three similarly-oriented restructuring agreements were executed with commercial bank
creditors.6

On 28 February 1992, the Philippine Debt Negotiating Team, chaired by respondent Pelaez, negotiated an agreement
with the countrys Bank Advisory Committee, representing all foreign commercial bank creditors, on the Financing
Program which respondents characterized as "a multi-option financing

package."7 The Program was scheduled to be executed on 24 July 1992 by respondents in behalf of the Republic.
Nonetheless, petitioners alleged that even prior to the execution of the Program respondents had already implemented
its "buyback component" when on 15 May 1992, the Philippines bought back P1.26 billion of external debts pursuant to
the Program.8

The petition sought to enjoin the ratification of the Program, but the Court did not issue any injunctive relief. Hence, it
came to pass that the Program was signed in London as scheduled. The petition still has to be resolved though as
petitioners seek the annulment "of

any and all acts done by respondents, their subordinates and any other public officer pursuant to the agreement and
program in question."9 Even after the signing of the Program, respondents themselves acknowledged that the
remaining principal objective of the petition is to set aside respondents actions. 10

Petitioners characterize the Financing Program as a package offered to the countrys foreign creditors consisting of two
debt-relief options.11 The first option was a cash buyback of portions of the Philippine foreign debt at a discount. 12 The
second option allowed creditors to convert existing Philippine debt instruments into any of three kinds of
bonds/securities: (1) new money bonds with a five-year grace period and 17 years final maturity, the purchase of
which would allow the creditors to convert their eligible debt papers into bearer bonds with the same terms; (2)
interest-reduction bonds with a maturity of 25 years; and (3) principal-collateralized interest-reduction bonds with a
maturity of 25 years.13

On the other hand, according to respondents the Financing Program would cover about U.S. $5.3 billion of foreign
commercial debts and it was expected to deal comprehensively with the commercial bank debt problem of the country
and pave the way for the countrys access to capital markets. 14 They add that the Program carried three basic options
from which foreign bank lenders could choose, namely: to lend money, to exchange existing restructured Philippine
debts with an interest reduction bond; or to exchange the same Philippine debts with a principal collateralized interest
reduction bond.15

Issues for Resolution

Petitioners raise several issues before this Court.

First, they object to the debt-relief contracts entered into pursuant to the Financing Program as beyond the powers
granted to the President under Section 20,

Article VII of the Constitution. 16 The provision states that the President may contract or guarantee foreign loans in
behalf of the Republic. It is claimed that the buyback and securitization/bond conversion schemes are neither "loans"
nor "guarantees," and hence beyond the power of the President to execute.

Second, according to petitioners even assuming that the contracts under the Financing Program are constitutionally
permissible, yet it is only the President who may exercise the power to enter into these contracts and such power may
not be delegated to respondents.
Third, petitioners argue that the Financing Program violates several constitutional policies and that contracts executed
or to be executed pursuant thereto were or will be done by respondents with grave abuse of discretion amounting to
lack or excess of jurisdiction.

Petitioners contend that the Financing Program was made available for debts that were either fraudulently contracted
or void. In this regard, petitioners rely on a 1992 Commission on Audit (COA) report which identified several "behest"
loans as either contracted or guaranteed fraudulently during the Marcos regime. 17 They posit that since these and
other similar debts, such as the ones pertaining to the Bataan Nuclear Power Plant, 18 were eligible for buyback or
conversion under the Program, the resultant relief agreements pertaining thereto would be void for being waivers of
the Republics right to repudiate the void or fraudulently contracted loans.

For their part, respondents dispute the points raised by petitioners. They also question the standing of petitioners to
institute the present petition and the justiciability of the issues presented.

The Court shall tackle the procedural questions ahead of the substantive issues.

The Courts Rulings

Standing of Petitioners

The individual petitioners are suing as citizens of the Philippines; those among them who are of age are suing in their
additional capacity as taxpayers.19 It is not indicated in what capacity the Freedom from Debt Coalition is suing.

Respondents point out that petitioners have no standing to file the present suit since the rule allowing taxpayers to
assail executive or legislative acts has been applied only to cases where the constitutionality of a statute is involved.
At the same time, however, they urge this Court to exercise its wide discretion and waive petitioners lack of standing.
They invoke the transcendental importance of resolving the validity of the questioned debt-relief contracts and others
of similar import.

The recent trend on locus standi has veered towards a liberal treatment in taxpayers suits. In Tatad v. Garcia Jr.,20 this
Court reiterated that the "prevailing doctrines in taxpayers suits are to allow taxpayers to question contracts entered
into by the national government or government owned and controlled corporations allegedly in contravention of
law."21 A taxpayer is allowed to sue where there is a claim that public funds are illegally disbursed, or that public
money is being deflected to any improper purpose, or that there is a wastage of public funds through the enforcement
of an invalid or unconstitutional law.22

Moreover, a ruling on the issues of this case will not only determine the validity or invalidity of the subject pre-
termination and bond-conversion of foreign debts but also create a precedent for other debts or debt-related contracts
executed or to be executed in behalf of the President of the Philippines by the Secretary of Finance. Considering the
reported Philippine debt of P3.80 trillion as of November 2004, the foreign public borrowing component of which
reached P1.81 trillion in November, equivalent to 47.6% of total government borrowings, 23the importance of the issues
raised and the magnitude of the public interest involved are indubitable.

Thus, the Courts cognizance of this petition is also based on the consideration that the determination of the issues
presented will have a bearing on the state of the countrys economy, its international financial ratings, and perhaps
even the Filipinos way of life. Seen in this light, the transcendental importance of the issues herein presented cannot
be doubted.

Where constitutional issues are properly raised in the context of alleged facts, procedural questions acquire a relatively
minor significance.24 We thus hold that by the very nature of the power wielded by the President, the effect of using
this power on the economy, and the well-being in general of the Filipino nation, the Court must set aside the
procedural barrier of standing and rule on the justiciable issues presented by the parties.

Ripeness/Actual Case Dimension

Even as respondents concede the transcendental importance of the issues at bar, in their Rejoinder they ask this Court
to dismiss the Petition. Allegedly, petitioners arguments are mere attempts at abstraction. 25 Respondents are correct
to some degree. Several issues, as shall be discussed in due course, are not ripe for adjudication.

The allegation that respondents waived the Philippines right to repudiate void and fraudulently contracted loans by
executing the debt-relief agreements is, on many levels, not justiciable.

In the first place, records do not show whether the so-called behest loansor other allegedly void or fraudulently
contracted loans for that matterwere subject of the debt-relief contracts entered into under the Financing Program.
Moreover, asserting a right to repudiate void or fraudulently contracted loans begs the question of whether indeed
particular loans are void or fraudulently contracted. Fraudulently contracted loans are voidable and, as such, valid and
enforceable until annulled by the courts. On the other hand, void contracts that have already been fulfilled must be
declared void in view of the maxim that no one is allowed to take the law in his own hands. 26 Petitioners theory
depends on a prior annulment or declaration of nullity of the pre-existing loans, which thus far have not been
submitted to this Court. Additionally, void contracts are unratifiable by their very nature; they are null and void ab
initio. Consequently, from the viewpoint of civil law, what petitioners present as the Republics "right to repudiate" is
yet a contingent right, one which cannot be allowed as an anticipatory basis for annulling the debt-relief contracts.
Petitioners contention that the debt-relief agreements are tantamount to waivers of the Republics "right to repudiate"
so-called behest loans is without legal foundation.

It may not be amiss to recognize that there are many advocates of the position that the Republic should renege on
obligations that are considered as "illegitimate." However, should the executive branch unilaterally, and possibly even
without prior court determination of the validity or invalidity of these contracts, repudiate or otherwise declare to the
international community its resolve not to recognize a certain set of "illegitimate" loans, adverse repercussions 27 would
come into play. Dr. Felipe Medalla, former Director General of the National Economic Development Authority, has
warned, thus:

One way to reduce debt service is to repudiate debts, totally or selectively. Taken to its limit, however, such a strategy
would put the Philippines at such odds with too many enemies. Foreign commercial banks by themselves and without
the cooperation of creditor governments, especially the United States, may not be in a position to inflict much
damage, but concerted sanctions from commercial banks, multilateral financial institutions and creditor governments
would affect not only our sources of credit but also our access to markets for our exports and the level of development
assistance. . . . [T]he country might face concerted sanctions even if debts were repudiated only selectively.

The point that must be stressed is that repudiation is not an attractive alternative if net payments to creditors in the
short and medium-run can be reduced through an agreement (as opposed to a unilaterally set ceiling on debt service
payments) which provides for both rescheduling of principal and capitalization of interest, or its equivalent in new
loans, which would make it easier for the country to pay interest. 28

Sovereign default is not new to the Philippine setting. In October 1983, the Philippines declared a moratorium on
principal payments on its external debts that eventually

lasted four years,29 that virtually closed the countrys access to new foreign money 30 and drove investors to leave the
Philippine market, resulting in some devastating consequences. 31 It would appear then that this beguilingly attractive
and dangerously simplistic solution deserves the utmost circumspect cogitation before it is resorted to.

In any event, the discretion on the matter lies not with the courts but with the executive. Thus, the Program was
conceptualized as an offshoot of the decision made by then

President Aquino that the Philippines should recognize its sovereign debts 32 despite the controversy that engulfed
many debts incurred during the Marcos era. It is a scheme whereby the Philippines restructured its debts following a
negotiated approach instead of a default approach to manage the bleak Philippine debt situation.

As a final point, petitioners have no real basis to fret over a possible waiver of the right to repudiate void contracts.
Even assuming that spurious loans had become the subject of debt-relief contracts, respondents unequivocally assert
that the Republic did not waive any right to repudiate void or fraudulently contracted loans, it having incorporated a
"no-waiver" clause in the agreements.33

Substantive Issues

It is helpful to put the matter in perspective before moving on to the merits. The Financing Program extinguished
portions of the countrys pre-existing loans

through either debt buyback or bond-conversion. The buyback approach essentially pre-terminated portions of public
debts while the bond-conversion scheme extinguished public debts through the obtention of a new loan by virtue of a
sovereign bond issuance, the proceeds of which in turn were used for terminating the original loan.

First Issue: The Scope of Section 20, Article VII

For their first constitutional argument, petitioners submit that the buyback and bond-conversion schemes do not
constitute the loan "contract" or "guarantee" contemplated in the Constitution and are consequently prohibited. Sec.
20, Art. VII of the Constitution provides, viz:
The President may contract or guarantee foreign loans in behalf of the Republic of the Philippines with the prior
concurrence of the Monetary Board and subject to such limitations as may be provided under law. The Monetary Board
shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete report
of its decisions on applications for loans to be contracted or guaranteed by the government or government-owned and
controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as
may be provided by law.

On Bond-conversion

Loans are transactions wherein the owner of a property allows another party to use the property and where
customarily, the latter promises to return the property after a specified period with payment for its use, called
interest.34 On the other hand, bonds are interest-bearing or discounted government or corporate securities that
obligate the issuer to pay the bondholder a specified sum of money, usually at specific intervals, and to repay the
principal amount of the loan at maturity. 35 The word "bond" means contract, agreement, or guarantee. All of these
terms are applicable to the securities known as bonds. An investor who purchases a bond is lending money to the
issuer, and the bond represents the issuers contractual promise to pay interest and repay principal according to
specific terms. A short-term bond is often called a note. 36

The language of the Constitution is simple and clear as it is broad. It allows the President to contract and guarantee
foreign loans. It makes no prohibition on the issuance of certain kinds of loans or distinctions as to which kinds of debt
instruments are more onerous than others. This Court may not ascribe to the Constitution meanings and restrictions
that would unduly burden the powers of the President. The plain, clear and unambiguous language of the Constitution
should be construed in a sense that will allow the full exercise of the power provided therein. It would be the worst kind
of judicial legislation if the courts were to misconstrue and change the meaning of the organic act.

The only restriction that the Constitution provides, aside from the prior concurrence of the Monetary Board, is that the
loans must be subject to limitations provided by law. In this regard, we note that Republic Act (R.A.) No. 245 as
amended by Pres. Decree (P.D.) No. 142, s. 1973, entitled An Act Authorizing the Secretary of Finance to Borrow to
Meet Public Expenditures Authorized by Law, and for Other Purposes, allows foreign loans to be contracted in the form
of, inter alia, bonds. Thus:

Sec. 1. In order to meet public expenditures authorized by law or to provide for the purchase, redemption, or refunding
of any obligations, either direct or guaranteed of the Philippine Government, the Secretary of Finance, with the
approval of the President of the Philippines, after consultation with the Monetary Board, is authorized to
borrow from time to time on the credit of the Republic of the Philippines such sum or sums as in his
judgment may be necessary, and to issue therefor evidences of indebtedness of the Philippine
Government."

Such evidences of indebtedness may be of the following types:

....

c. Treasury bonds, notes, securities or other evidences of indebtedness having maturities of one year or
more but not exceeding twenty-five years from the date of issue. (Emphasis supplied.)

Under the foregoing provisions, sovereign bonds may be issued not only to supplement government expenditures but
also to provide for the purchase, 37 redemption,38 or refunding39 of any obligation, either direct or guaranteed, of the
Philippine Government.

Petitioners, however, point out that a supposed difference between contracting a loan and issuing bonds is that the
former creates a definite creditor-debtor relationship between the parties while the latter does not. 40 They explain that
a contract of loan enables the debtor to restructure or novate the loan, which benefit is lost upon the conversion of the
debts to bearer bonds such that "the Philippines surrenders the novatable character of a loan contract for the
irrevocable and unpostponable demandability of a bearer bond."41 Allegedly, the Constitution prohibits the President
from issuing bonds which are "far more onerous" than loans. 42

This line of thinking is flawed to say the least. The negotiable character of the subject bonds is not mutually exclusive
with the Republics freedom to negotiate with bondholders for the revision of the terms of the debt. Moreover, the
securities market provides some flexibilityif the Philippines wants to pay in advance, it can buy out its bonds in the
market; if interest rates go down but the Philippines does not have money to retire the bonds, it can replace the old
bonds with new ones; if it defaults on the bonds, the bondholders shall organize and bring about a re-negotiation or
settlement.43 In fact, several countries have restructured their sovereign bonds in view either of
inability and/or unwillingness to pay the indebtedness. 44 Petitioners have not presented a plausible reason that would
preclude the Philippines from acting in a similar fashion, should it so opt.

This theory may even be dismissed in a perfunctory manner since petitioners are merely expecting that the Philippines
would opt to restructure the bonds but with the negotiable character of the bonds, would be prevented from so doing.
This is a contingency which petitioners do not assert as having come to pass or even imminent. Consummated acts of
the executive cannot be struck down by this Court merely on the basis of petitioners anticipatory cavils.

On the Buyback Scheme

In their Comment, petitioners assert that the power to pay public debts lies with Congress and was deliberately

withheld by the Constitution from the President. 45 It is true that in the balance of power between the three branches of
government, it is Congress that manages the countrys coffers by virtue of its taxing and spending powers. However,
the law-making authority has promulgated a law ordaining an automatic appropriations provision for debt
servicing46 by virtue of which the President is empowered to execute debt payments without the need for further
appropriations. Regarding these legislative enactments, this Court has held, viz:

Congress deliberates or acts on the budget proposals of the President, and Congress in the exercise of its own
judgment and wisdom formulates an appropriation act precisely following the process established by the Constitution,
which specifies that no money may be paid from the Treasury except in accordance with an appropriation made by law.

Debt service is not included in the General Appropriation Act, since authorization therefor already exists under RA Nos.
4860 and 245, as amended, and PD 1967. Precisely in the light of this subsisting authorization as embodied in said
Republic Acts and PD for debt service, Congress does not concern itself with details for implementation by the
Executive, but largely with annual levels and approval thereof upon due deliberations as part of the whole obligation
program for the year. Upon such approval, Congress has spoken and cannot be said to have delegated its wisdom to
the Executive, on whose part lies the implementation or execution of the legislative wisdom. 47

Specific legal authority for the buyback of loans is established under Section 2 of Republic Act (R.A.) No. 240, viz:

Sec. 2. The Secretary of Finance shall cause to be paid out of any moneys in the National Treasury not
otherwise appropriated, or from any sinking funds provided for the purpose by law, any interest falling
due, or accruing, on any portion of the public debt authorized by law. He shall also cause to be paid out
of any such money, or from any such sinking funds the principal amount of any obligations which have
matured, or which have been called for redemption or for which redemption has been demanded in accordance with
terms prescribed by him prior to date of issue: Provided, however, That he may, if he so chooses and if the holder is
willing, exchange any such obligation with any other direct or guaranteed obligation or obligations of the Philippine
Government of equivalent value. In the case of interest-bearing obligations, he shall pay not less than their face value;
in the case of obligations issued at a discount he shall pay the face value at maturity; or, if redeemed prior to
maturity, such portion of the face value as is prescribed by the terms and conditions under which such
obligations were originally issued. (Emphasis supplied.)

The afore-quoted provisions of law specifically allow the President to pre-terminate debts without further action from
Congress.

Petitioners claim that the buyback scheme is neither a guarantee nor a loan since its underlying intent is to extinguish
debts that are not yet due and demandable. 48 Thus, they suggest that contracts entered pursuant to the buyback
scheme are unconstitutional for not being among those contemplated in Sec. 20, Art. VII of the Constitution.

Buyback is a necessary power which springs from the grant of the foreign borrowing power. Every statute is
understood, by implication, to contain all such provisions as may be necessary to effectuate its object and purpose, or
to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary
consequences as may be fairly and logically inferred from its terms. 49 The President is not empowered to borrow
money from foreign banks and governments on the credit of the Republic only to be left bereft of authority to
implement the payment despite appropriations therefor.

Even petitioners concede that "[t]he Constitution, as a rule, does not enumeratelet alone enumerate allthe acts
which the President (or any other public officer) may not

do,"50 and "[t]he fact that the Constitution does not explicitly bar the President from exercising a power does not mean
that he or she does not have that power." 51 It is inescapable from the standpoint of reason and necessity that the
authority to contract foreign loans and guarantees without restrictions on payment or manner thereof coupled with the
availability of the corresponding appropriations, must include the power to effect payments or to make payments
unavailing by either restructuring the loans or even refusing to make any payment altogether.

More fundamentally, when taken in the context of sovereign debts, a buyback is simply the purchase by the sovereign
issuer of its own debts at a discount. Clearly then, the objection to the validity of the buyback scheme is without basis.

Second Issue: Delegation of Power

Petitioners stress that unlike other powers which may be validly delegated by the President, the power to incur foreign
debts is expressly reserved by the Constitution in the person of the President. They argue that the gravity by which the
exercise of the power will affect the Filipino nation requires that the President alone must exercise this power. They
submit that the requirement of prior concurrence of an entity specifically named by the Constitutionthe Monetary
Boardreinforces the submission that not respondents but the President "alone and personally" can validly bind the
country.

Petitioners position is negated both by explicit constitutional 52 and legal53 imprimaturs, as well as the doctrine of
qualified political agency.

The evident exigency of having the Secretary of Finance implement the decision of the President to execute the debt-
relief contracts is made manifest by the fact that the process of establishing and executing a strategy for managing
the governments debt is deep within the realm of the expertise of the Department of Finance, primed as it is to raise
the required amount of funding, achieve its risk and cost objectives, and meet any other sovereign debt management
goals.54

If, as petitioners would have it, the President were to personally exercise every aspect of the foreign borrowing power,
he/she would have to pause from running the country long enough to focus on a welter of time-consuming detailed
activitiesthe propriety of incurring/guaranteeing loans, studying and choosing among the many methods that may be
taken toward this end, meeting countless times with creditor representatives to negotiate, obtaining the concurrence
of the Monetary Board, explaining and defending the negotiated deal to the public, and more often than not, flying to
the agreed place of execution to sign the documents. This sort of constitutional interpretation would negate the very
existence of cabinet positions and the respective expertise which the holders thereof are accorded and would unduly
hamper the Presidents effectivity in running the government.

Necessity thus gave birth to the doctrine of qualified political agency, later adopted in Villena v. Secretary of the
Interior55 from American jurisprudence, viz:

With reference to the Executive Department of the government, there is one purpose which is crystal-clear and is
readily visible without the projection of judicial searchlight, and that is the establishment of a single, not plural,
Executive. The first section of Article VII of the Constitution, dealing with the Executive Department, begins with the
enunciation of the principle that "The executive power shall be vested in a President of the Philippines." This means
that the President of the Philippines is the Executive of the Government of the Philippines, and no other. The heads of
the executive departments occupy political positions and hold office in an advisory capacity, and, in the language of
Thomas Jefferson, "should be of the President's bosom confidence" (7 Writings, Ford ed., 498), and, in the language of
Attorney-General Cushing (7 Op., Attorney-General, 453), "are subject to the direction of the President." Without
minimizing the importance of the heads of the various departments, their personality is in reality but the projection of
that of the President. Stated otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme Court of the
United States, "each head of a department is, and must be, the President's alter ego in the matters of that department
where the President is required by law to exercise authority" (Myers vs. United States, 47 Sup. Ct. Rep., 21 at 30; 272
U. S., 52 at 133; 71 Law. ed., 160).56

As it was, the backdrop consisted of a major policy determination made by then President Aquino that sovereign debts
have to be respected and the concomitant reality that the Philippines did not have enough funds to pay the debts.
Inevitably, it fell upon the Secretary of Finance, as the alter ego of the President regarding "the sound and efficient
management of the financial resources of the Government," 57 to formulate a scheme for the implementation of the
policy publicly expressed by the President herself.

Nevertheless, there are powers vested in the President by the Constitution which may not be delegated to or exercised
by an agent or alter ego of the President. Justice Laurel, in his ponencia in Villena, makes this clear:

Withal, at first blush, the argument of ratification may seem plausible under the circumstances, it should be observed
that there are certain acts which, by their very nature, cannot be validated by subsequent approval or ratification by
the President. There are certain constitutional powers and prerogatives of the Chief Executive of the Nation which must
be exercised by him in person and no amount of approval or ratification will validate the exercise of any of those
powers by any other person. Such, for instance, in his power to suspend the writ of habeas corpus and proclaim
martial law (PAR. 3, SEC. 11, Art. VII) and the exercise by him of the benign prerogative of mercy (par. 6, sec. 11,
idem).58

These distinctions hold true to this day. There are certain presidential powers which arise out of exceptional
circumstances, and if exercised, would involve the suspension of fundamental freedoms, or at least call for the
supersedence of executive prerogatives over those exercised by co-equal branches of government. The declaration of
martial law, the suspension of the writ of habeas corpus, and the exercise of the pardoning power notwithstanding the
judicial determination of guilt of the accused, all fall within this special class that demands the exclusive exercise by
the President of the constitutionally vested power. The list is by no means exclusive, but there must be a showing that
the executive power in question is of similar gravitas and exceptional import.

We cannot conclude that the power of the President to contract or guarantee foreign debts falls within the same
exceptional class. Indubitably, the decision to contract or guarantee foreign debts is of vital public interest, but only

akin to any contractual obligation undertaken by the sovereign, which arises not from any extraordinary incident, but
from the established functions of governance.

Another important qualification must be made. The Secretary of Finance or any designated alter ego of the President is
bound to secure the latters prior consent to or subsequent ratification of his acts. In the matter of contracting or
guaranteeing foreign loans, the repudiation by the President of the very acts performed in this regard by the alter
ego will definitely have binding effect. Had petitioners herein succeeded in demonstrating that the President actually
withheld approval and/or repudiated the Financing Program, there could be a cause of action to nullify the acts of
respondents. Notably though, petitioners do not assert that respondents pursued the Program without prior
authorization of the President or that the terms of the contract were agreed upon without the Presidents authorization.
Congruent with the avowed preference of then President Aquino to honor and restructure existing foreign debts, the
lack of showing that she countermanded the acts of respondents leads us to conclude that said acts carried
presidential approval.

With constitutional parameters already established, we may also note, as a source of suppletory guidance, the
provisions of R.A. No. 245. The afore-quoted Section 1 thereof empowers the Secretary of Finance with the approval of
the President and after consultation 59 of the Monetary Board, "to borrow from time to time on the credit of the Republic
of the Philippines such sum or sums as in his judgment may be necessary, and to issue therefor evidences of
indebtedness of the Philippine Government." Ineluctably then, while the President wields the borrowing power it is the
Secretary of Finance who normally carries out its thrusts.

In our recent rulings in Southern Cross Cement Corporation v. The Philippine Cement Manufacturers Corp.,60 this Court
had occasion to examine the authority granted by Congress to the Department of Trade and Industry (DTI) Secretary to
impose safeguard measures pursuant to the Safeguard Measures Act. In doing so, the Court was impelled to construe
Section 28(2), Article VI of the Constitution, which allowed Congress, by law, to authorize the President to "fix within
specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development
program of the Government."61

While the Court refused to uphold the broad construction of the grant of power as preferred by the DTI Secretary, it
nonetheless tacitly acknowledged that Congress could designate the DTI Secretary, in his capacity as alter ego of the
President, to exercise the authority vested on the chief executive under Section 28(2), Article VI. 62 At the same time,
the Court emphasized that since Section 28(2), Article VI authorized Congress to impose limitations and restrictions on
the authority of the President to impose tariffs and imposts, the DTI Secretary was necessarily subjected to the same
restrictions that Congress could impose on the President in the exercise of this taxing power.

Similarly, in the instant case, the Constitution allocates to the President the exercise of the foreign borrowing power
"subject to such limitations as may be provided under law." Following Southern Cross, but in line with the limitations as
defined in Villena, the presidential prerogative may be exercised by the Presidents alter ego, who in this case is the
Secretary of Finance.

It bears emphasis that apart from the Constitution, there is also a relevant statute, R.A. No. 245, that establishes the
parameters by which the alter ego may act in behalf of the President with respect to the borrowing power. This law
expressly provides that the Secretary of Finance may enter into foreign borrowing contracts. This law neither amends
nor goes contrary to the Constitution but merely implements the subject provision in a manner consistent with the
structure of the Executive Department and the alter ego doctine. In this regard, respondents have declared that they
have followed the restrictions provided under R.A. No. 245, 63 which include the requisite presidential authorization and
which, in the absence of proof and even allegation to the contrary, should be regarded in a fashion congruent with the
presumption of regularity bestowed on acts done by public officials.

Moreover, in praying that the acts of the respondents, especially that of the Secretary of Finance, be nullified as being
in violation of a restrictive constitutional interpretation, petitioners in effect would have this Court declare R.A. No. 245
unconstitutional. We will not strike

down a law or provisions thereof without so much as a direct attack thereon when simple and logical statutory
construction would suffice.

Petitioners also submit that the unrestricted character of the Financing Program violates the framers intent behind
Section 20, Article VII to restrict the power of the President. This intent, petitioners note, is embodied in the proviso in
Sec. 20, Art. VII, which states that said power is "subject to such limitations as may be provided under law." However,
as previously discussed, the debt-relief contracts are governed by the terms of R.A. No. 245, as amended by P.D. No.
142 s. 1973, and therefore were not developed in an unrestricted setting.

Third Issue: Grave Abuse of Discretion and

Violation of Constitutional Policies

We treat the remaining issues jointly, for in view of the foregoing determination, the general allegation of grave abuse
of discretion on the part of respondents would arise from the purported violation of various state policies as expressed
in the Constitution.

Petitioners allege that the Financing Program violates the constitutional state policies to promote a social order that
will "ensure the prosperity and independence of the nation" and free "the people from poverty, 64 foster "social justice
in all phases of national development," 65 and develop a self-reliant and independent national economy effectively
controlled by Filipinos;"66 thus, the contracts executed or to be executed pursuant thereto were or would be tainted by
a grave abuse of discretion amounting to lack or excess of jurisdiction.

Respondents cite the following in support of the propriety of their acts: 67 (1) a Department of Finance study showing
that as a result of the implementation of voluntary debt reductions schemes, the countrys debt stock was reduced by
U.S. $4.4 billion as of December 1991; 68 (2) revelations made by independent individuals made in a hearing before the
Senate Committee on Economic Affairs indicating that the assailed agreements would bring about substantial benefits
to the country;69 and (3) the Joint Legislative-Executive Foreign Debt Councils endorsement of the approval of the
financing package containing the debt-

relief agreements and issuance of a Motion to Urge the Philippine Debt Negotiating Panel to continue with the
negotiation on the aforesaid package.70

Even with these justifications, respondents aver that their acts are within the arena of political questions which, based
on the doctrine of separation of powers, 71 the judiciary must leave without interference lest the courts substitute their
judgment for that of the official concerned and decide a matter which by its nature or law is for the latter alone to
decide.72

On the other hand, in furtherance of their argument on respondents violation of constitutional policies, petitioners cite
an article of Jude Esguerra, The 1992 Buyback and Securitization Agreement with Philippine Commercial Bank
Creditors,73 in illustrating a best-case scenario in entering the subject debt-relief agreements. The computation results
in a yield of $218.99 million, rather

than the $2,041.00 million claimed by the debt negotiators. 74 On the other hand, the worst-case scenario allegedly is
that a net amount of $1.638 million will flow out of the country as a result of the debt package. 75

Assuming the accuracy of the foregoing for the nonce, despite the watered-down parameters of petitioners
computations, we can make no conclusion other than that respondents efforts were geared towards debt-relief with
marked positive results and towards achieving the constitutional policies which petitioners so hastily declare as having
been violated by respondents. We recognize that as with other schemes dependent on volatile market and economic
structures, the contracts entered into by respondents may possibly have a net outflow and therefore negative result.
However, even petitioners call this latter event the worst-case scenario. Plans are seldom foolproof. To ask the Court to
strike down debt-relief contracts, which, according to independent third party evaluations using historically-suggested
rates would result in "substantial debt-relief," 76 based merely on the possibility of petitioners worst-case scenario
projection, hardly seems reasonable.
Moreover, the policies set by the Constitution as litanized by petitioners are not a panacea that can annul every
governmental act sought to be struck down. The gist of petitioners arguments on violation of constitutional policies
and grave abuse of discretion boils down to their allegation that the debt-relief agreements entered into by
respondents do not deliver the kind of debt-relief that petitioners would want. Petitioners cite the aforementioned
article in stating that that "the agreement achieves little that cannot be gained through less complicated means like
postponing (rescheduling) principal payments," 77 thus:

[T]he price of success in putting together this "debt-relief package" (indicates) the possibility that a simple
rescheduling agreement may well turn out to be less expensive than this comprehensive "debt-relief" package. This
means that in the next six years the humble and simple rescheduling process may well be the lesser evil because
there is that distinct possibility that less money will flow out of the country as a result.

Note must be taken that from these citations, petitioners submit that there is possibly a better way to go about debt
rescheduling and, on that basis, insist that the acts of respondents must be struck down. These are rather tenuous
grounds to condemn the subject agreements as violative of constitutional principles.

Conclusion

The raison d etre of the Financing Program is to manage debts incurred by the Philippines in a manner that will lessen
the burden on the Filipino taxpayersthus the term "debt-relief agreements." The measures objected to by petitioners
were not aimed at incurring more debts but at terminating pre-existing debts and were backed by the know-how of the
countrys economic managers as affirmed by third party empirical analysis.

That the means employed to achieve the goal of debt-relief do not sit well with petitioners is beyond the power of this
Court to remedy. The exercise of the power of judicial review is merely to checknot supplantthe Executive, or to
simply ascertain whether he has gone beyond the constitutional limits of his jurisdiction but not to exercise the power
vested in him or to determine the wisdom of his act. 78 In cases where the main purpose is to nullify governmental acts
whether as unconstitutional or done with grave abuse of discretion, there is a strong presumption in favor of the
validity of the assailed acts. The heavy onus is in on petitioners to overcome the presumption of regularity.

We find that petitioners have not sufficiently established any basis for the Court to declare the acts of respondents as
unconstitutional.

WHEREFORE the petition is hereby DISMISSED. No costs.

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

PLARIDEL M. ABAYA, COMMODORE PLARIDEL C. GARCIA (retired) and PMA 59 FOUNDATION, INC., rep. by
its President, COMMODORE CARLOS L. AGUSTIN (retired), Petitioners,
vs.
HON. SECRETARY HERMOGENES E. EBDANE, JR., in his capacity as Secretary of the DEPARTMENT OF
PUBLIC WORKS and HIGHWAYS, HON. SECRETARY EMILIA T. BONCODIN, in her capacity as Secretary of the
DEPARTMENT OF BUDGET and MANAGEMENT, HON. SECRETARY CESAR V. PURISIMA, in his capacity as
Secretary of the DEPARTMENT OF FINANCE, HON. TREASURER NORMA L. LASALA, in her capacity as
Treasurer of the Bureau of Treasury, and CHINA ROAD and BRIDGE CORPORATION, Respondents.

DECISION

CALLEJO, SR., J.:

Before the Court is the petition for certiorari and prohibition under Rule 65 of the Rules of Court seeking to set aside
and nullify Resolution No. PJHL-A-04-012 dated May 7, 2004 issued by the Bids and Awards Committee (BAC) of the
Department of Public Works and Highways (DPWH) and approved by then DPWH Acting Secretary Florante Soriquez.
The assailed resolution recommended the award to private respondent China Road & Bridge Corporation of the
contract for the implementation of civil works for Contract Package No. I (CP I), which consists of the
improvement/rehabilitation of the San Andres (Codon)-Virac-Jct. Bago-Viga road, with the length of 79.818 kilometers,
in the island province of Catanduanes.

The CP I project is one of the four packages comprising the project for the improvement/rehabilitation of the
Catanduanes Circumferential Road, covering a total length of about 204.515 kilometers, which is the main highway in
Catanduanes Province. The road section (Catanduanes Circumferential Road) is part of the Arterial Road Links
Development Project (Phase IV) funded under Loan Agreement No. PH-P204 dated December 28, 1999 between the
Japan Bank for International Cooperation (JBIC) and the Government of the Republic of the Philippines.

Background

Based on the Exchange of Notes dated December 27, 1999, 1 the Government of Japan and the Government of the
Philippines, through their respective representatives, namely, Mr. Yoshihisa Ara, Ambassador Extraordinary and
Plenipotentiary of Japan to the Republic of the Philippines, and then Secretary of Foreign Affairs Domingo L. Siazon,
have reached an understanding concerning Japanese loans to be extended to the Philippines. These loans were aimed
at promoting our countrys economic stabilization and development efforts.

The Exchange of Notes consisted of two documents: (1) a Letter from the Government of Japan, signed by Ambassador
Ara, addressed to then Secretary of Foreign Affairs Siazon, confirming the understanding reached between the two
governments concerning the loans to be extended by the Government of Japan to the Philippines; and (2) a document
denominated as Records of Discussion where the salient terms of the loans as set forth by the Government of Japan,
through the Japanese delegation, were reiterated and the said terms were accepted by the Philippine delegation. Both
Ambassador Ara and then Secretary Siazon signed the Records of Discussion as representatives of the Government of
Japan and Philippine Government, respectively.

The Exchange of Notes provided that the loans to be extended by the Government of Japan to the Philippines consisted
of two loans: Loan I and Loan II. The Exchange of Notes stated in part:

1. A loan in Japanese yen up to the amount of seventy-nine billion eight hundred and sixty-one million yen
(Y79,861,000,000) (hereinafter referred to as "the Loan I") will be extended, in accordance with the relevant laws and
regulations of Japan, to the Government of the Republic of the Philippines (hereinafter referred to as "the Borrower I")
by the Japan Bank for International Cooperation (hereinafter referred to as "the Bank") to implement the projects
enumerated in the List A attached hereto (hereinafter referred to as "the List A") according to the allocation for each
project as specified in the List A.

2. (1) The Loan I will be made available by loan agreements to be concluded between the Borrower I and the Bank. The
terms and conditions of the Loan I as well as the procedure for its utilization will be governed by said loan agreements
which will contain, inter alia, the following principles:

...
(2) Each of the loan agreements mentioned in sub-paragraph (1) above will be concluded after the Bank is satisfied of
the feasibility, including environmental consideration, of the project to which such loan agreement relates.

3. (1) The Loan I will be made available to cover payments to be made by the Philippine executing agencies to
suppliers, contractors and/or consultants of eligible source countries under such contracts as may be entered into
between them for purchases of products and/or services required for the implementation of the projects enumerated in
the List A, provided that such purchases are made in such eligible source countries for products produced in and/or
services supplied from those countries.

(2) The scope of eligible source countries mentioned in sub-paragraph (1) above will be agreed upon between the
authorities concerned of the two Governments.

(3) A part of the Loan I may be used to cover eligible local currency requirements for the implementation of the
projects enumerated in the List A.

4. With regard to the shipping and marine insurance of the products purchased under the Loan I, the Government of
the Republic of the Philippines will refrain from imposing any restrictions that may hinder fair and free competition
among the shipping and marine insurance companies.

x x x x2 1awphi1.net

Pertinently, List A, which specified the projects to be financed under the Loan I, includes the Arterial Road Links
Development Project (Phase IV), to wit:

LIST A

Maximum amount in million yen)

1. Secondary Education Development and Improvement Project 7,210

2. Rural Water Supply Project (Phase V) 951

3. Bohol Irrigation Project (Phase II) 6,078

4. Agrarian Reform Infrastructure Support Project (Phase II) 16,990

5. Arterial Road Links Development Project (Phase IV) 15,384

6. Cordillera Road Improvement Project 5,852

7. Philippines-Japan Friendship Highway Mindanao Section Rehabilitation Project (Phase II) 7,434

8. Rehabilitation and Maintenance of Bridges Along Arterial Roads Project (Phase IV) 5,068

9. Maritime Safety Improvement Project (Phase C) 4,714

10. Pinatubo Hazard Urgent Mitigation Project (Phase II) 9,013

11. Pasig-Marikina River Channel Improvement Project (Phase I) 1,167

Total 79,8613

The Exchange of Notes further provided that:

III

xxxx

3. The Government of the Republic of the Philippines will ensure that the products and/or services mentioned in sub-
paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of paragraph 4 of Part II are procured in accordance with
the guidelines for procurement of the Bank, which set forth, inter alia, the procedures of international tendering to be
followed except where such procedures are inapplicable or inappropriate.

x x x x4

The Records of Discussion, which formed part of the Exchange of Notes, also stated in part, thus:

xxxx
1. With reference to sub-paragraph (3) of paragraph 3 of Part I of the Exchange of Notes concerning the financing of
eligible local currency requirements for the implementation of the projects mentioned in the said sub-paragraph, the
representative of the Japanese delegation stated that:

(1) such requirement of local currency as general administrative expenses, interest during construction, taxes and
duties, expenses concerning office, remuneration to employees of the executing agencies and housing, not directly
related to the implementation of the said projects, as well as purchase of land properties, compensation and the like,
however, will not be considered as eligible for financing under the Loan I; and

(2) the procurement of products and/or services will be made in accordance with the procedures of international
competitive tendering except where such procedures are inapplicable and inappropriate.

x x x x5

Thus, in accordance with the agreement reached by the Government of Japan and the Philippine Government, as
expressed in the Exchange of Notes between the representatives of the two governments, the Philippines obtained
from and was granted a loan by the JBIC. Loan Agreement No. PH-P204 dated December 28, 1999, in particular, stated
as follows:

Loan Agreement No. PH-P204, dated December 28, 1999, between JAPAN BANK FOR INTERNATIONAL COOPERATION
and the GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES.

In the light of the contents of the Exchange of Notes between the Government of Japan and the Government of the
Republic of the Philippines dated December 27, 1999, concerning Japanese loans to be extended with a view to
promoting the economic stabilization and development efforts of the Republic of the Philippines.

JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the BANK") and THE GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES (hereinafter referred to as "the Borrower") herewith conclude the following Loan
Agreement (hereinafter referred to as "the Loan Agreement", which includes all agreements supplemental hereto).

x x x x6

Under the terms and conditions of Loan Agreement No. PH-P204, JBIC agreed to lend the Philippine Government an
amount not exceeding FIFTEEN BILLION THREE HUNDRED EIGHTY-FOUR MILLION Japanese Yen (Y 15,384,000,000) as
principal for the implementation of the Arterial Road Links Development Project (Phase IV) on the terms and conditions
set forth in the Loan Agreement and in accordance with the relevant laws and regulations of Japan. 7 The said amount
shall be used for the purchase of eligible goods and services necessary for the implementation of the above-mentioned
project from suppliers, contractors or consultants.8

Further, it was provided under the said loan agreement that other terms and conditions generally applicable thereto
shall be set forth in the General Terms and Conditions, dated November 1987, issued by the Overseas Economic
Cooperation Fund (OECF) and for the purpose, reference to "the OECF" and "Fund" therein (General Terms and
Conditions) shall be substituted by "the JBIC" and "Bank," respectively. 9 Specifically, the guidelines for procurement of
all goods and services to be financed out of the proceeds of the said loan shall be as stipulated in the Guidelines for
Procurement under OECF Loans dated December 1997 (herein referred to as JBIC Procurement Guidelines). 10

As mentioned earlier, the proceeds of Loan Agreement No. PH-P204 was to be used to finance the Arterial Road Links
Development Project (Phase IV), of which the Catanduanes Circumferential Road was a part. This road section, in turn,
was divided into four contract packages (CP):

CP I: San Andres (Codon)-Virac-Jct. Bato- Viga Road - 79.818 kms

CP II: Viga-Bagamanoc Road - 10.40 kms.

CP III: Bagamanoc-Pandan Road - 47.50 kms.

CP IV: Pandan-Caramoran-Codon Road - 66.40 kms.11

Subsequently, the DPWH, as the government agency tasked to implement the project, caused the publication of the
"Invitation to Prequalify and to Bid" for the implementation of the CP I project in two leading national newspapers,
namely, the Manila Times and Manila Standard on November 22 and 29, and December 5, 2002.

A total of twenty-three (23) foreign and local contractors responded to the invitation by submitting their accomplished
prequalification documents on January 23, 2003. In accordance with the established prequalification criteria, eight
contractors were evaluated or considered eligible to bid as concurred by the JBIC. One of them, however, withdrew;
thus, only seven contractors submitted their bid proposals.

The bid documents submitted by the prequalified contractors/bidders were examined to determine their compliance
with the requirements as
stipulated in Article 6 of the Instruction to Bidders. 12 After the lapse of the deadline for the submission of bid proposals,
the opening of the bids commenced immediately. Prior to the opening of the respective bid proposals, it was
announced that the Approved Budget for the Contract (ABC) was in the amount of P738,710,563.67.

The result of the bidding revealed the following three lowest bidders and their respective bids vis--vis the ABC: 13

Original Bid As Read As-Corrected Bid Amount Varian

Name of Bidder
(Pesos) (Pesos) ce

1) China Road And Bridge 28.95

P 993,183,904.98 P952,564,821.71
Corporation %

2) Cavite Ideal Intl Const. Devt. 48.90

P1,099,926,598.11 P1,099,926,598.11
Corp. %

3) Italian Thai Devt. Public 52.35

P1,125,022,075.34 P1,125,392,475.36
Company, Ltd. %

The bid of private respondent China Road & Bridge Corporation was corrected from the original P993,183,904.98 (with
variance of 34.45% from the ABC) to P952,564,821.71 (with variance of 28.95% from the ABC) based on their letter
clarification dated April 21, 2004.14

After further evaluation of the bids, particularly those of the lowest three bidders, Mr. Hedifume Ezawa, Project
Manager of the Catanduanes Circumferential Road Improvement Project (CCRIP), in his Contractors Bid Evaluation
Report dated April 2004, recommended the award of the contract to private respondent China Road & Bridge
Corporation:

In accordance with the Guidelines for the Procurements under ODA [Official Development Assistance] Loans, the
Consultant hereby recommends the award of the contract for the construction of CP I, San Andres (Codon) Virac Jct.
Bato Viga Section under the Arterial Road Links Development Projects, Phase IV, JBIC Loan No. PH-P204 to the Lowest
Complying Bidder, China Road and Bridge Corporation, at its total corrected bid amount of Nine Hundred Fifty-Two
Million Five Hundred Sixty-Four Thousand Eight Hundred Twenty-One & 71/100 Pesos. 15

The BAC of the DPWH, with the approval of then Acting Secretary Soriquez, issued the assailed Resolution No. PJHL-A-
04-012 dated May 7, 2004 recommending the award in favor of private respondent China Road & Bridge Corporation of
the contract for the implementation of civil works for CP I, San Andres (Codon) Virac Jct. Bato Viga Road
(Catanduanes Circumferential Road Improvement Project) of the Arterial Roads Links Development Project, Phase IV,
located in Catanduanes Province, under JBIC Loan Agreement No. PH-P204. 16 On September 29, 2004, a Contract of
Agreement was entered into by and between the DPWH and private respondent China Road & Bridge Corporation for
the implementation of the CP I project.

The Parties

Petitioner Plaridel M. Abaya claims that he filed the instant petition as a taxpayer, former lawmaker, and a Filipino
citizen. Petitioner Plaridel C. Garcia likewise claims that he filed the suit as a taxpayer, former military officer, and a
Filipino citizen. Petitioner PMA 59 Foundation, Inc., on the other hand, is a non-stock, non-profit corporation organized
under the existing Philippine laws. It claims that its members are all taxpayers and alumni of the Philippine Military
Academy. It is represented by its President, Carlos L. Agustin.

Named as public respondents are the DPWH, as the government agency tasked with the implementation of
government infrastructure projects; the Department of Budget and Management (DBM) as the government agency
that authorizes the release and disbursement of public funds for the implementation of government infrastructure
projects; and the Department of Finance (DOF) as the government agency that acts as the custodian and manager of
all financial resources of the government. Also named as individual public respondents are Hermogenes E. Ebdane, Jr.,
Emilia T. Boncodin and Cesar V. Purisima in their capacities as former Secretaries of the DPWH, DBM and DOF,
respectively. On the other hand, public respondent Norma L. Lasala was impleaded in her capacity as Treasurer of the
Bureau of Treasury.

Private respondent China Road & Bridge Corporation is a duly organized corporation engaged in the business of
construction.

The Petitioners Case

The petitioners mainly seek to nullify DPWH Resolution No. PJHL-A-04-012 dated May 7, 2004, which recommended the
award to private respondent China Road & Bridge Corporation of the contract for the implementation of the civil works
of CP I. They also seek to annul the contract of agreement subsequently entered into by and between the DPWH and
private respondent China Road & Bridge Corporation pursuant to the said resolution.

They pose the following issues for the Courts resolution:

I. Whether or not Petitioners have standing to file the instant Petition.

II. Whether or not Petitioners are entitled to the issuance of a Writ of Certiorari reversing and setting aside DPWH
Resolution No. PJHL-A-04-012, recommending the award of the Contract Agreement for the implementation of civil
works for CPI, San Andres (CODON)-VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD
IMPROVEMENT PROJECT) of the Arterial Road Links Development Project, Phase IV, located in Catanduanes Province,
under JBIC L/A No. PH-P204, to China Road & Bridge Corporation.

III. Whether or not the Contract Agreement executed by and between the Republic of the Philippines, through the
Department of Public Works and Highways, and the China Road & Bridge Corporation, for the implementation of civil
works for CPI, San Andres (CODON)-VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD
IMPROVEMENT PROJECT) of the Arterial Road Links Development Project, Phase IV, located in Catanduanes Province,
under JBIC L/A No. PH-P204, is void ab initio.

IV. Whether or not Petitioners are entitled to the issuance of a Writ of Prohibition permanently prohibiting the
implementation of DPWH Resolution No. PJHL-A-04-012 and the Contract Agreement executed by and between the
Republic of the Philippines (through the Department of Public Works and Highways) and the China Road & Bridge
Corporation, and the disbursement of public funds by the [D]epartment of [B]udget and [M]anagement for such
purpose.

V. Whether or not Petitioners are entitled to a Preliminary Injunction and/or a Temporary Restraining Order immediately
enjoining the implementation of DPWH Resolution No. PJHL-A-04-012 and the Contract Agreement executed by and
between the Republic of the Philippines (through the Department of Public Works and Highways) and the China Road &
Bridge Corporation, and the disbursement of public funds by the Department of Budget and Management for such
purpose, during the pendency of this case.17

Preliminarily, the petitioners assert that they have standing or locus standi to file the instant petition. They claim that
as taxpayers and concerned citizens, they have the right and duty to question the expenditure of public funds on
illegal acts. They point out that the Philippine Government allocates a peso-counterpart for CP I, which amount is
appropriated by Congress in the General Appropriations Act; hence, funds that are being utilized in the implementation
of the questioned project also partake of taxpayers money. The present action, as a taxpayers suit, is thus allegedly
proper.

They likewise characterize the instant petition as one of transcendental importance that warrants the Courts adoption
of a liberal stance on the issue of standing. It cited several cases where the Court brushed aside procedural
technicalities in order to resolve issues involving paramount public interest and transcendental importance. 18 Further,
petitioner Abaya asserts that he possesses the requisite standing as a former member of the House of Representatives
and one of the principal authors of Republic Act No. 9184 (RA 9184) 19 known as the Government Procurement Reform
Act, the law allegedly violated by the public respondents.

On the substantive issues, the petitioners anchor the instant petition on the contention that the award of the contract
to private respondent China Road & Bridge Corporation violates RA 9184, particularly Section 31 thereof which reads:

SEC. 31. Ceiling for Bid Prices. The ABC shall be the upper limit or ceiling for the Bid prices. Bid prices that exceed
this ceiling shall be disqualified outright from further participating in the bidding. There shall be no lower limit to the
amount of the award.

In relation thereto, the petitioners cite the definition of the ABC, thus:
SEC. 5. Definition of Terms.

xxx

(a) Approved Budget for the Contract (ABC). refers to the budget for the contract duly approved by the Head of the
Procuring Entity, as provided for in the General Appropriations Act and/or continuing appropriations, in the case of
National Government Agencies; the Corporate Budget for the contract approved by the governing Boards, pursuant to
E.O. No. 518, series of 1979, in the case of Government-Owned and/or Controlled Corporations, Government Financial
Institutions and State Universities and Colleges; and the Budget for the contract approved by the respective
Sanggunian, in the case of Local Government Units.

xxx

The petitioners theorize that the foregoing provisions show the mandatory character of ceilings or upper limits of every
bid. Under the above-quoted provisions of RA 9184, all bids or awards should not exceed the ceilings or upper limits;
otherwise, the contract is deemed void and inexistent.

Resolution No. PJHL-A-04-012 was allegedly issued with grave abuse of discretion because it recommended the award
of the contract to private respondent China Road & Bridge Corporation whose bid was more than P200 million
overpriced based on the ABC. As such, the award is allegedly illegal and unconscionable.

In this connection, the petitioners opine that the contract subsequently entered into by and between the DPWH and
private respondent China Road & Bridge Corporation is void ab initio for being prohibited by RA 9184. They stress that
Section 31 thereof expressly provides that "bid prices that exceed this ceiling shall be disqualified outright from
participating in the bidding." The upper limit or ceiling is called the ABC and since the bid of private respondent China
Road & Bridge Corporation exceeded the ABC for the CP I project, it should have been allegedly disqualified from the
bidding process and should not, by law, have been awarded the said contract. They invoke Article 1409 of the Civil
Code:

ART. 1409. The following contracts are inexistent and void from the beginning:

(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy;

(2) Those which are absolutely simulated or fictitious;

(3) Those whose cause or object did not exist at the time of the transaction;

(4) Those whose object is outside the commerce of men;

(5) Those which contemplate an impossible service;

(6) Those where the intention of the parties relative to the principal object of the contract cannot be ascertained;

(7) Those expressly prohibited or declared void by law.

For violating the above provision, the contract between the DPWH and private respondent China Road & Bridge
Corporation is allegedly inexistent and void ab initio and can produce no effects whatsoever.

It is the contention of the petitioners that RA 9184 is applicable to both local- and foreign-funded procurement
contracts. They cite the following excerpt of the deliberations of the Bicameral Conference Committee on the
Disagreeing Provisions of Senate Bill No. 2248 and House Bill No. 4809: 20

REP. ABAYA. Mr. Chairman, can we just propose additional amendments? Can we go back to Section 4, Mr. Chairman?

THE CHAIRMAN (SEN. ANGARA). Section? Section ano, Del, 4? Definition definition of terms.

REP. ABAYA. Sa House bill, it is sa scope and application.

THE CHAIRMAN (SEN. ANGARA). Okay.

REP. ABAYA. It should read as follows: "This Act shall apply to the procurement of goods, supplies and materials,
infrastructure projects and consulting services regardless of funding source whether local or foreign by the
government."

THE CHAIRMAN (SEN. ANGARA). Okay, accepted. We accept. The Senate accepts it. 21

xxx xxx xxx

THE CHAIRMAN (SEN ANGARA). Just take note of that ano. Medyo nga problematic yan eh. Now, just for the record Del,
can you repeat again the justification for including foreign funded contracts within the scope para malinaw because
the World Bank daw might raise some objection to it.

REP. ABAYA. Well, Mr. Chairman, we should include foreign funded projects kasi these are the big projects. To give an
example, if you allow bids above government estimate, lets say take the case of 500 million project, included in that
500 million is the 20 percent profit. If you allow them to bid above government estimate, they will add another say 28
percent of (sic) 30 percent, 30 percent of 500 million is another 150 million. Ito, this is a rich source of graft money,
aregluhan na lang, 150 million, five contractors will gather, "O eto 20 million, 20 million, 20 million." So, it is rigged.
Yun ang practice na nangyayari. If we eliminate that, if we have a ceiling then, it will not be very tempting kasi walang
extra money na pwedeng ibigay sa ibang contractor. So this promote (sic) collusion among bidders, of course, with the
cooperation of irresponsible officials of some agencies. So we should have a ceiling to include foreign funded
projects.22

The petitioners insist that Loan Agreement No. PH-P204 between the JBIC and the Philippine Government is neither a
treaty, an international nor an executive agreement that would bar the application of RA 9184. They point out that to
be considered a treaty, an international or an executive agreement, the parties must be two sovereigns or States
whereas in the case of Loan Agreement No. PH-P204, the parties are the Philippine Government and the JBIC, a
banking agency of Japan, which has a separate juridical personality from the Japanese Government.

They further insist on the applicability of RA 9184 contending that while it took effect on January 26, 2003 23 and Loan
Agreement No. PH-P204 was executed prior thereto or on December 28, 1999, the actual procurement or award of the
contract to private respondent China Road & Bridge Corporation was done after the effectivity of RA 9184. The said law
is allegedly specific as to its application, which is on the actual procurement of infrastructure and other projects only,
and not on the loan agreements attached to such projects. Thus, the petition only prays for the annulment of
Resolution No. PJHL-A-04-012 as well as the contract between the DPWH and private respondent China Road & Bridge
Corporation. The petitioners clarify that they do not pray for the annulment of Loan Agreement No. PH-P204. Since the
subject procurement and award of the contract were done after the effectivity of RA 9184, necessarily, the
procurement rules established by that law allegedly apply, and not Presidential Decree No. 1594 (PD 1594) 24 and
Executive Order No. 40 (EO 40), series of 2001, 25 as contended by the respondents. The latter laws, including their
implementing rules, have allegedly been repealed by RA 9184. Even RA 4860, as amended, known as the Foreign
Borrowings Act, the petitioners posit, may have also been repealed or modified by RA 9184 insofar as its provisions are
inconsistent with the latter.

The petitioners also argue that the "Implementing Rules and Regulations (IRR) of RA 9184, Otherwise Known as the
Government Procurement Reform Act, Part A" (IRR-A) cited by the respondents is not applicable as these rules only
govern domestically-funded procurement contracts. They aver that the implementing rules to govern foreign-funded
procurement, as in the present case, have yet to be drafted and in fact, there are concurrent resolutions drafted by
both houses of Congress for the Reconvening of the Joint Congressional Oversight Committee for the formulation of the
IRR for foreign-funded procurements under RA 9184.

The petitioners maintain that disbursement of public funds to implement a patently void and illegal contract is itself
illegal and must be enjoined. They bring to the Courts attention the fact that the works on the CP I project have
already commenced as early as October 2004. They thus urge the Court to issue a writ of certiorari to set aside
Resolution No. PJHL-A-04-012 as well as to declare null and void the contract entered into between the DPWH and
private respondent China Road & Bridge Corporation. They also pray for the issuance of a temporary restraining order
and, eventually, a writ of prohibition to permanently enjoin the DPWH from implementing Resolution No. PJHL-A-04-012
and its contract with private respondent China Road & Bridge Corporation as well as the DBM from disbursing funds for
the said purpose.

The Respondents Counter-Arguments

The public respondents, namely the DPWH, DBM and DOF, and their respective named officials, through the Office of
the Solicitor General, urge the Court to dismiss the petition on grounds that the petitioners have no locus standi and,
in any case, Resolution No. PJHL-A-04-012 and the contract between the DPWH and private respondent China Road &
Bridge Corporation are valid.

According to the public respondents, a taxpayers locus standi was recognized in the following cases: (a) where a tax
measure is assailed as unconstitutional;26 (b) where there is a question of validity of election laws; 27 (c) where
legislators questioned the validity of any official action upon the claim that it infringes on their prerogatives as
legislators;28 (d) where there is a claim of illegal disbursement or wastage of public funds through the enforcement of
an invalid or unconstitutional law;29 (e) where it involves the right of members of the Senate or House of
Representatives to question the validity of a presidential veto or condition imposed on an item in an appropriation
bill;30 or (f) where it involves an invalid law, which when enforced will put the petitioner in imminent danger of
sustaining some direct injury as a result thereof, or that he has been or is about to be denied some right or privilege to
which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute
complained of.31 None of the above considerations allegedly obtains in the present case.

It is also the view of the public respondents that the fact that petitioner Abaya was a former lawmaker would not
suffice to confer locus standi on himself. Members of Congress may properly challenge the validity of an official act of
any department of the government only upon showing that the assailed official act affects or impairs their rights and
prerogatives as legislators.

The public respondents further assail the standing of the petitioners to file the instant suit claiming that they failed to
allege any specific injury suffered nor an interest that is direct and personal to them. If at all, the interest or injuries
claimed by the petitioners are allegedly merely of a general interest common to all members of the public. Their
interest is allegedly too vague, highly speculative and uncertain to satisfy the requirements of locus standi.

The public respondents find it noteworthy that the petitioners do not raise issues of constitutionality but only of
contract law, which the petitioners not being privies to the agreement cannot raise. This is following the principle that
a stranger to a contract cannot sue either or both the contracting parties to annul and set aside the same except when
he is prejudiced on his rights and can show detriment which would positively result to him from the implementation of
the contract in which he has no intervention. There being no particularized interest or elemental substantial injury
necessary to confer locus standi, the public respondents implore the Court to dismiss the petition.

On the merits, the public respondents maintain that the imposition of ceilings or upper limits on bid prices in RA 9184
does not apply because the CP I project and the entire Catanduanes Circumferential Road Improvement Project,
financed by Loan Agreement No. PH-P204 executed between the Philippine Government and the JBIC, is governed by
the latters Procurement Guidelines which precludes the imposition of ceilings on bid prices. Section 5.06 of the JBIC
Procurement Guidelines reads:

Section 5.06. Evaluation and Comparison of Bids.

xxx

(e) Any procedure under which bids above or below a predetermined bid value assessment are automatically
disqualified is not permitted.

It was explained that other foreign banks such as the Asian Development Bank (ADB) and the World Bank (WB)
similarly prohibit the bracketing or imposition of a ceiling on bid prices.

The public respondents stress that it was pursuant to Loan Agreement No. PH-P204 that the assailed Resolution No.
PJHL-A-04-012 and the subsequent contract between the DPWH and private respondent China Road & Bridge
Corporation materialized. They likewise aver that Loan Agreement No. PH-P204 is governed by RA 4860, as amended,
or the Foreign Borrowings Act. Section 4 thereof states:

SEC. 4. In the contracting of any loan, credit or indebtedness under this Act, the President of the Philippines may, when
necessary, agree to waive or modify, the application of any law granting preferences or imposing restrictions on
international competitive bidding, including among others [Act No. 4239, Commonwealth Act No. 138], the provisions
of [CA 541], insofar as such provisions do not pertain to constructions primarily for national defense or security
purposes, [RA 5183]; Provided, however, That as far as practicable, utilization of the services of qualified domestic
firms in the prosecution of projects financed under this Act shall be encouraged: Provided, further, That in case where
international competitive bidding shall be conducted preference of at least fifteen per centum shall be granted in favor
of articles, materials or supplies of the growth, production or manufacture of the Philippines: Provided, finally, That the
method and procedure in comparison of bids shall be the subject of agreement between the Philippine Government
and the lending institution.

DOJ Opinion No. 46, Series of 1987, is relied upon by the public respondents as it opined that an agreement for the
exclusion of foreign assisted projects from the coverage of local bidding regulations does not contravene existing
legislations because the statutory basis for foreign loan agreements is RA 4860, as amended, and under Section 4
thereof, the President is empowered to waive the application of any law imposing restrictions on the procurement of
goods and services pursuant to such loans.

Memorandum Circular Nos. 104 and 108, issued by the President, to clarify RA 4860, as amended, and PD 1594,
relative to the award of foreign-assisted projects, are also invoked by the public respondents, to wit:
Memorandum Circular No. 104:

In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known as the "Foreign
Borrowings Act"

xxx

It is hereby clarified that foreign-assisted infrastructure projects may be exempted from the application for the
pertinent provisions of the Implementing Rules and Regulations (IRR) of Presidential Decree (P.D.) No. 1594 relative to
the method and procedure in the comparison of bids, which matter may be the subject of agreement between the
infrastructure agency concerned and the lending institution. It should be made clear however that public bidding is still
required and can only be waived pursuant to existing laws.

Memorandum Circular No. 108:

In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known as the "Foreign
Borrowings Act", it is hereby clarified that, for projects supported in whole or in part by foreign assistance awarded
through international or local competitive bidding, the government agency concerned may award the contract to the
lowest evaluated bidder at his bid price consistent with the provisions of the applicable loan/grant agreement.

Specifically, when the loan/grant agreement so stipulates, the government agency concerned may award the contract
to the lowest bidder even if his/its bid exceeds the approved agency estimate.

It is understood that the concerned government agency shall, as far as practicable, adhere closely to the implementing
rules and regulations of Presidential Decree No. 1594 during loan/grant negotiation and the implementation of the
projects.32

The public respondents characterize foreign loan agreements, including Loan Agreement No. PH-P204, as executive
agreements and, as such, should be observed pursuant to the fundamental principle in international law of pacta sunt
servanda.33 They cite Section 20 of Article VII of the Constitution as giving the President the authority to contract
foreign loans:

SEC. 20. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the
prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary
Board shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete
report of its decisions on applications for loans to be contracted or guaranteed by the Government or Government-
owned and Controlled Corporations which would have the effect of increasing the foreign debt, and containing other
matters as may be provided by law.

The Constitution, the public respondents emphasize, recognizes the enforceability of executive agreements in the
same way that it recognizes generally accepted principles of international law as forming part of the law of the
land.34 This recognition allegedly buttresses the binding effect of executive agreements to which the Philippine
Government is a signatory. It is pointed out by the public respondents that executive agreements are essentially
contracts governing the rights and obligations of the parties. A contract, being the law between the parties, must be
faithfully adhered to by them. Guided by the fundamental rule of pacta sunt servanda, the Philippine Government
bound itself to perform in good faith its duties and obligations under Loan Agreement No. PH-P204.

The public respondents further argue against the applicability of RA 9184 stating that it was signed into law on January
10, 2003.35 On the other hand, Loan Agreement No. PH-P204 was executed on December 28, 1999, where the laws
then in force on government procurements were PD 1594 and EO 40. The latter law (EO 40), in particular, excluded
from its application "any existing and future government commitments with respect to the bidding and award of
contracts financed partly or wholly with funds from international financing institutions as well as from bilateral and
other similar foreign sources."

The applicability of EO 40, not RA 9184, is allegedly bolstered by the fact that the "Invitation to Prequalify and to Bid"
for the implementation of the CP I project was published in two leading national newspapers, namely, the Manila Times
and Manila Standard on November 22, 29 and December 5, 2002, or before the signing into law of RA 9184 on January
10, 2003. In this connection, the public respondents point to Section 77 of IRR-A, which reads:

SEC. 77. Transitory Clause.

In all procurement activities, if the advertisement or invitation for bids was issued prior to the effectivity of the Act, the
provisions of EO 40 and its IRR, PD 1594 and its IRR, RA 7160 and its IRR, or other applicable laws as the case may be,
shall govern.
In cases where the advertisements or invitations for bids were issued after the effectivity of the Act but before the
effectivity of this IRR-A, procuring entities may continue adopting the procurement procedures, rules and regulations
provided in EO 40 and its IRR, or other applicable laws, as the case may be.

Section 4 of RA 9184 is also invoked by the public respondents as it provides:

SEC. 4. Scope and Applications. This Act shall apply to the Procurement of Infrastructure Projects, Goods and
Consulting Services, regardless of source of funds, whether local or foreign, by all branches and instrumentalities of
government, its departments, offices and agencies, including government-owned and/or controlled corporations and
local government units, subject to the provisions of Commonwealth Act No. 138. Any treaty or international or
executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be
observed.

It is also the position of the public respondents that even granting arguendo that Loan Agreement No. PH-P204 were
an ordinary loan contract, still, RA 9184 is inapplicable under the non-impairment clause 36 of the Constitution. The said
loan agreement expressly provided that the procurement of goods and services for the project financed by the same
shall be governed by the Guidelines for Procurement under OECF Loans dated December 1997. Further, Section 5.06 of
the JBIC Procurement Guidelines categorically provides that "[a]ny procedure under which bids above or below a
predetermined bid value assessment are automatically disqualified is not permitted."

The public respondents explain that since the contract is the law between the parties and Loan Agreement No. PH-
P204 states that the JBIC Procurement Guidelines shall govern the parties relationship and further dictates that there
be no ceiling price for the bidding, it naturally follows that any subsequent law passed contrary to the letters of the
said contract would have no effect with respect to the parties rights and obligations arising therefrom.

To insist on the application of RA 9184 on the bidding for the CP I project would, notwithstanding the terms and
conditions of Loan Agreement No. PH-P204, allegedly violate the constitutional provision on non-impairment of
obligations and contracts, and destroy vested rights duly acquired under the said loan agreement.

Lastly, the public respondents deny that there was illegal disbursement of public funds by the DBM. They asseverate
that all the releases made by the DBM for the implementation of the entire Arterial Road Links Project Phase IV,
which includes the Catanduanes Circumferential Road Improvement Project, were covered by the necessary
appropriations made by law, specifically the General Appropriations Act (GAA). Further, the requirements and
procedures prescribed for the release of the said funds were duly complied with.

For its part, private respondent China Road & Bridge Corporation similarly assails the standing of the petitioners, either
as taxpayers or, in the case of petitioner Abaya, as a former lawmaker, to file the present suit. In addition, it is also
alleged that, by filing the petition directly to this Court, the petitioners failed to observe the hierarchy of courts.

On the merits, private respondent China Road & Bridge Corporation asserts that the applicable law to govern the
bidding of the CP I project was EO 40, not RA 9184, because the former was the law governing the procurement of
government projects at the time that it was bidded out. EO 40 was issued by the Office of the President on October 8,
2001 and Section 1 thereof states that:

SEC. 1. Scope and Application. This Executive Order shall apply to the procurement of: (a) goods, supplies, materials
and related services; (b) civil works; and (c) consulting services, by all National Government agencies, including State
Universities and Colleges (SUCs), Government-Owned or Controlled Corporations (GOCCs) and Government Financial
Institutions (GFIs), hereby referred to as the Agencies. This Executive Order shall cover the procurement process from
the pre-procurement conference up to the award of contract.

xxx

The Invitation to Prequalify and to Bid was first published on November 22, 2002. On the other hand, RA 9184 was
signed into law only on January 10, 2003. Since the law in effect at the time the procurement process was initiated was
EO 40, private respondent China Road & Bridge Corporation submits that it should be the said law which should govern
the entire procurement process relative to the CP I project.

EO 40 expressly recognizes as an exception from the application of the provisions thereof on approved budget ceilings,
those projects financed by international financing institutions (IFIs) and foreign bilateral sources. Section 1 thereof,
quoted in part earlier, further states:

SEC. 1. Scope and Application. x x x

Nothing in this Order shall negate any existing and future government commitments with respect to the bidding and
award of contracts financed partly or wholly with funds from international financing institutions as well as from
bilateral and other similar foreign sources.

Section 1.2 of the Implementing Rules and Regulations of EO 40 is likewise invoked as it provides:

For procurement financed wholly or partly from Official Development Assistance (ODA) funds from International
Financing Institutions (IFIs), as well as from bilateral and other similar foreign sources, the corresponding loan/grant
agreement governing said funds as negotiated and agreed upon by and between the Government and the concerned
IFI shall be observed.

Private respondent China Road & Bridge Corporation thus postulates that following EO 40, the procurement of goods
and services for the CP I project should be governed by the terms and conditions of Loan Agreement No. PH-P204
entered into between the JBIC and the Philippine Government. Pertinently, Section 5.06 of the JBIC Procurement
Guidelines prohibits the setting of ceilings on bid prices.

Private respondent China Road & Bridge Corporation claims that when it submitted its bid for the CP I project, it relied
in good faith on the provisions of EO 40. It was allegedly on the basis of the said law that the DPWH awarded the
project to private respondent China Road & Bridge Coporation even if its bid was higher than the ABC. Under the
circumstances, RA 9184 could not be applied retroactively for to do so would allegedly impair the vested rights of
private respondent China Road & Bridge Corporation arising from its contract with the DPWH.

It is also contended by private respondent China Road & Bridge Corporation that even assuming arguendo that RA
9184 could be applied retroactively, it is still the terms of Loan Agreement No. PH-P204 which should govern the
procurement of goods and services for the CP I project. It supports its theory by characterizing the said loan
agreement, executed pursuant to the Exchange of Notes between the Government of Japan and the Philippine
Government, as an executive agreement.

Private respondent China Road & Bridge Corporation, like the public respondents, cites RA 4860 as the basis for the
Exchange of Notes and Loan Agreement No. PH-P204. As an international or executive agreement, the Exchange of
Notes and Loan Agreement No. PH-P204 allegedly created a legally binding obligation on the parties.

The following excerpt of the deliberations of the Bicameral Conference Committee on the Disagreeing Provision of
Senate Bill No. 2248 and House Bill No. 4809 is cited by private respondent China Road & Bridge Corporation to
support its contention that it is the intent of the lawmakers to exclude from the application of RA 9184 those foreign-
funded projects:

xxx

REP. MARCOS. Yes, Mr. Chairman, to respond and to put into the record, a justification for the inclusion of foreign
contracts, may we just state that foreign contracts have, of course, been brought into the ambit of the law because of
the Filipino counterpart for this foreign projects, they are no longer strictly foreign in nature but fall under the laws of
the Philippine government.

THE CHAIRMAN (SEN. ANGARA). Okay. I think thats pretty clear. I think the possible concern is that some ODA are with
strings attached especially the Japanese. The Japanese are quite strict about that, that they are (sic) even provide the
architect and the design, etcetera, plus, of course, the goods that will be supplied.

Now, I think weve already provided that this is open to all and we will recognize our international agreements so that
this bill will not also restrict the flow of foreign funding, because some countries now make it a condition that they
supply both services and goods especially the Japanese.

So I think we can put a sentence that we continue to honor our international obligations, di ba Laura?

MR. ENCARNACION. Actually, subject to any treaty.

THE CHAIRMAN (SEN. ANGARA). Yun pala eh. That should allay their anxiety and concern. Okay, buti na lang for the
record para malaman nila na we are conscious sa ODA. 37

Private respondent China Road & Bridge Corporation submits that based on the provisions of the Exchange of Notes
and Loan Agreement No. PH-P204, it was rightfully and legally awarded the CP I project. It urges the Court to dismiss
the petition for lack of merit.

The Courts Rulings

Petitioners, as taxpayers, possess locus standi to file the present suit

Briefly stated, locus standi is "a right of appearance in a court of justice on a given question." 38 More particularly, it is a
partys personal and substantial interest in a case such that he has sustained or will sustain direct injury as a result of
the governmental act being challenged. It calls for more than just a generalized grievance. The term "interest" means
a material interest, an interest in issue affected by the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest. 39 Standing or locus standi is a peculiar concept in constitutional law 40 and the
rationale for requiring a party who challenges the constitutionality of a statute to allege such a personal stake in the
outcome of the controversy is "to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions." 41

Locus standi, however, is merely a matter of procedure 42 and it has been recognized that in some cases, suits are not
brought by parties who have been personally injured by the operation of a law or any other government act but by
concerned citizens, taxpayers or voters who actually sue in the public interest. 43 Consequently, the Court, in a catena
of cases,44 has invariably adopted a liberal stance on locus standi, including those cases involving taxpayers.

The prevailing doctrine in taxpayers suits is to allow taxpayers to question contracts entered into by the national
government or government- owned or controlled corporations allegedly in contravention of law. 45 A taxpayer is allowed
to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to any
improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional
law.46 Significantly, a taxpayer need not be a party to the contract to challenge its validity. 47

In the present case, the petitioners are suing as taxpayers. They have sufficiently demonstrated that, notwithstanding
the fact that the CP I project is primarily financed from loans obtained by the government from the JBIC, nonetheless,
taxpayers money would be or is being spent on the project considering that the Philippine Government is required to
allocate a peso-counterpart therefor. The public respondents themselves admit that appropriations for these foreign-
assisted projects in the GAA are composed of the loan proceeds and the peso-counterpart. The counterpart funds, the
Solicitor General explains, refer to the component of the project cost to be financed from government-appropriated
funds, as part of the governments commitment in the implementation of the project. 48 Hence, the petitioners correctly
asserted their standing since a part of the funds being utilized in the implementation of the CP I project partakes of
taxpayers money.

Further, the serious legal questions raised by the petitioners, e.g., whether RA 9184 applies to the CP I project, in
particular, and to foreign-funded government projects, in general, and the fact that public interest is indubitably
involved considering the public expenditure of millions of pesos, warrant the Court to adopt in the present case its
liberal policy on locus standi.

In any case, for reasons which will be discussed shortly, the substantive arguments raised by the petitioners fail to
persuade the Court as it holds that Resolution No. PJHL-A-04-012 is valid. As a corollary, the subsequent contract
entered into by and between the DPWH and private respondent China Road & Bridge Corporation is likewise valid.

History of Philippine Procurement Laws

It is necessary, at this point, to give a brief history of Philippine laws pertaining to procurement through public bidding.
The United States Philippine Commission introduced the American practice of public bidding through Act No. 22,
enacted on October 15, 1900, by requiring the Chief Engineer, United States Army for the Division of the Philippine
Islands, acting as purchasing agent under the control of the then Military Governor, to advertise and call for a
competitive bidding for the purchase of the necessary materials and lands to be used for the construction of highways
and bridges in the Philippine Islands. 49 Act No. 74, enacted on January 21, 1901 by the Philippine Commission, required
the General Superintendent of Public Instruction to purchase office supplies through competitive public bidding. 50 Act
No. 82, approved on January 31, 1901, and Act No. 83, approved on February 6, 1901, required the municipal and
provincial governments, respectively, to hold competitive public biddings in the making of contracts for public works
and the purchase of office supplies.51

On June 21, 1901, the Philippine Commission, through Act No. 146, created the Bureau of Supply and with its creation,
public bidding became a popular policy in the purchase of supplies, materials and equipment for the use of the
national government, its subdivisions and instrumentalities. 52 On February 3, 1936, then President Manuel L. Quezon
issued Executive Order No. 16 declaring as a matter of general policy that government contracts for public service or
for furnishing supplies, materials and equipment to the government should be subjected to public bidding. 53 The
requirement of public bidding was likewise imposed for public works of construction or repair pursuant to the Revised
Administrative Code of 1917.
Then President Diosdado Macapagal, in Executive Order No. 40 dated June 1, 1963, reiterated the directive that no
government contract for public service or for furnishing supplies, materials and equipment to the government or any of
its branches, agencies or instrumentalities, should be entered into without public bidding except for very extraordinary
reasons to be determined by a Committee constituted thereunder. Then President Ferdinand Marcos issued PD 1594
prescribing guidelines for government infrastructure projects and Section 4 54 thereof stated that they should generally
be undertaken by contract after competitive public bidding.

Then President Corazon Aquino issued Executive Order No. 301 (1987) prescribing guidelines for government
negotiated contracts. Pertinently, Section 62 of the Administrative Code of 1987 reiterated the requirement of
competitive public bidding in government projects. In 1990, Congress passed RA 6957, 55 which authorized the
financing, construction, operation and maintenance of infrastructure by the private sector. RA 7160 was likewise
enacted by Congress in 1991 and it contains provisions governing the procurement of goods and locally-funded civil
works by the local government units.

Then President Fidel Ramos issued Executive Order No. 302 (1996), providing guidelines for the procurement of goods
and supplies by the national government. Then President Joseph Ejercito Estrada issued Executive Order No. 201
(2000), providing additional guidelines in the procurement of goods and supplies by the national government.
Thereafter, he issued Executive Order No. 262 (2000) amending EO 302 (1996) and EO 201 (2000).

On October 8, 2001, President Gloria Macapagal-Arroyo issued EO 40, the law mainly relied upon by the respondents,
entitled Consolidating Procurement Rules and Procedures for All National Government Agencies, Government-Owned or
Controlled Corporations and Government Financial Institutions, and Requiring the Use of the Government Procurement
System. It accordingly repealed, amended or modified all executive issuances, orders, rules and regulations or parts
thereof inconsistent therewith.56

On January 10, 2003, President Arroyo signed into law RA 9184. It took effect on January 26, 2004, or fifteen days after
its publication in two newspapers of general circulation. 57 It expressly repealed, among others, EO 40, EO 262 (2000),
EO 302(1996) and PD 1594, as amended:

SEC. 76. Repealing Clause. This law repeals Executive Order No. 40, series of 2001, entitled "Consolidating
Procurement Rules and Procedures for All National Government Agencies, Government Owned or Controlled
Corporations and/or Government Financial Institutions, and Requiring the Use of the Government Electronic
Procurement System"; Executive Order No. 262, series of 1996, entitled "Amending Executive Order No. 302, series of
1996, entitled Providing Policies, Guidelines, Rules and Regulations for the Procurement of Goods/Supplies by the
National Government" and Section 3 of Executive Order No. 201, series of 2000, entitled "Providing Additional Policies
and Guidelines in the Procurement of Goods/Supplies by the National Government"; Executive Order No. 302, series of
1996, entitled "Providing Policies, Guidelines, Rules and Regulations for the Procurement of Goods/Supplies by the
National Government" and Presidential Decree No. 1594 dated June 11, 1978, entitled "Prescribing Policies, Guidelines,
Rules and Regulations for Government Infrastructure Contracts." This law amends Title Six, Book Two of Republic Act
No. 7160, otherwise known as the "Local Government Code of 1991"; the relevant provisions of Executive Order No.
164, series of 1987, entitled "Providing Additional Guidelines in the Processing and Approval of Contracts of the
National Government"; and the relevant provisions of Republic Act No. 7898 dated February 23, 1995, entitled "An Act
Providing for the Modernization of the Armed Forces of the Philippines and for Other Purposes." Any other law,
presidential decree or issuance, executive order, letter of instruction, administrative order, proclamation, charter, rule
or regulation and/or parts thereof contrary to or inconsistent with the provisions of this Act is hereby repealed,
modified or amended accordingly.

In addition to these laws, RA 4860, as amended, must be mentioned as Section 4 thereof provides that "[i]n the
contracting of any loan, credit or indebtedness under this Act, the President of the Philippines may, when necessary,
agree to waive or modify the application of any law granting preferences or imposing restrictions on international
competitive bidding x x x Provided, finally, That the method and procedure in the comparison of bids shall be the
subject of agreement between the Philippine Government and the lending institution."

EO 40, not RA 9184, is applicable to the procurement

process undertaken for the CP I project. RA 9184

cannot be given retroactive application.

It is not disputed that with respect to the CP I project, the Invitation to Prequalify and to Bid for its implementation was
published in two leading national newspapers, namely, the Manila Times and Manila Standard on November 22, 29 and
December 5, 2002. At the time, the law in effect was EO 40. On the other hand, RA 9184 took effect two months later
or on January 26, 2003. Further, its full implementation was even delayed as IRR-A was only approved by President
Arroyo on September 18, 2003 and subsequently published on September 23, 2003 in the Manila Times and Malaya
newspapers.58

The provisions of EO 40 apply to the procurement process pertaining to the CP I project as it is explicitly provided in
Section 1 thereof that:

SEC. 1. Scope and Application. This Executive Order shall apply to see procurement of (a) goods, supplies, materials
and related service; (b) civil works; and (c) consulting services, by all National Government agencies, including State
Universities and Colleges (SUCs), Government-Owned or Controlled Corporations (GOCCs) and Government Financial
Institutions (GFIs), hereby referred to as "Agencies." This Executive Order shall cover the procurement process from
the pre-procurement conference up to the award of the contract.

Nothing in this Order shall negate any existing and future government commitments with respect to the bidding and
award of contracts financed partly or wholly with funds from international financing institutions as well as from
bilateral and similar foreign sources.

The procurement process basically involves the following steps: (1) pre-procurement conference; (2) advertisement of
the invitation to bid; (3) pre-bid conference; (4) eligibility check of prospective bidders; (5) submission and receipt of
bids; (6) modification and withdrawal of bids; (7) bid opening and examination; (8) bid evaluation; (9) post
qualification; (10) award of contract and notice to proceed. 59 Clearly then, when the Invitation to Prequalify and to Bid
for the implementation of the CP I project was published on November 22, 29 and December 5, 2002, the procurement
process thereof had already commenced and the application of EO 40 to the procurement process for the CP I project
had already attached.

RA 9184 cannot be applied retroactively to govern the procurement process relative to the CP I project because it is
well settled that a law or regulation has no retroactive application unless it expressly provides for retroactivity. 60Indeed,
Article 4 of the Civil Code is clear on the matter: "[l]aws shall have no retroactive effect, unless the contrary is
provided." In the absence of such categorical provision, RA 9184 will not be applied retroactively to the CP I project
whose procurement process commenced even before the said law took effect.

That the legislators did not intend RA 9184 to have retroactive effect could be gleaned from the IRR-A formulated by
the Joint Congressional Oversight Committee (composed of the Chairman of the Senate Committee on Constitutional
Amendments and Revision of Laws, and two members thereof appointed by the Senate President and the Chairman of
the House Committee on Appropriations, and two members thereof appointed by the Speaker of the House of
Representatives) and the Government Procurement Policy Board (GPPB). Section 77 of the IRR-A states, thus:

SEC. 77. Transitory Clause

In all procurement activities, if the advertisement or invitation for bids was issued prior to the effectivity of the Act, the
provisions of E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7160 and its IRR, or other applicable laws, as the case may
be, shall govern.

In cases where the advertisements or invitations for bids were issued after the effectivity of the Act but before the
effectivity of this IRR-A, procuring entities may continue adopting the procurement procedures, rules and regulations
provided in E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7160 and its IRR, or other applicable laws, as the case may
be.

In other words, under IRR-A, if the advertisement of the invitation for bids was issued prior to the effectivity of RA
9184, such as in the case of the CP I project, the provisions of EO 40 and its IRR, and PD 1594 and its IRR in the case of
national government agencies, and RA 7160 and its IRR in the case of local government units, shall govern.

Admittedly, IRR-A covers only fully domestically-funded procurement activities from procurement planning up to
contract implementation and that it is expressly stated that IRR-B for foreign-funded procurement activities shall be
subject of a subsequent issuance.61 Nonetheless, there is no reason why the policy behind Section 77 of IRR-A cannot
be applied to foreign-funded procurement projects like the CP I project. Stated differently, the policy on the prospective
or non-retroactive application of RA 9184 with respect to domestically-funded procurement projects cannot be any
different with respect to foreign-funded procurement projects like the CP I project. It would be incongruous, even
absurd, to provide for the prospective application of RA 9184 with respect to domestically-funded procurement projects
and, on the other hand, as urged by the petitioners, apply RA 9184 retroactively with respect to foreign- funded
procurement projects. To be sure, the lawmakers could not have intended such an absurdity.
Thus, in the light of Section 1 of EO 40, Section 77 of IRR-A, as well as the fundamental rule embodied in Article 4 of
the Civil Code on prospectivity of laws, the Court holds that the procurement process for the implementation of the CP
I project is governed by EO 40 and its IRR, not RA 9184.

Under EO 40, the award of the contract to private

respondent China Road & Bridge Corporation is valid

Section 25 of EO 40 provides that "[t]he approved budget of the contract shall be the upper limit or ceiling of the bid
price. Bid prices which exceed this ceiling shall be disqualified outright from further participating in the bidding. There
shall be no lower limit to the amount of the award. x x x" It should be observed that this text is almost similar to the
wording of Section 31 of RA 9184, relied upon by the petitioners in contending that since the bid price of private
respondent China Road & Bridge Corporation exceeded the ABC, then it should not have been awarded the contract for
the CP I project.

Nonetheless, EO 40 expressly recognizes as an exception to its scope and application those government commitments
with respect to bidding and award of contracts financed partly or wholly with funds from international financing
institutions as well as from bilateral and other similar foreign sources. The pertinent portion of Section 1 of EO 40 is
quoted anew:

SEC. 1. Scope and Application. x x x

Nothing in this Order shall negate any existing and future government commitments with respect to the bidding and
award of contracts financed partly or wholly with funds from international financing institutions as well as from
bilateral and similar foreign sources.

In relation thereto, Section 4 of RA 4860, as amended, was correctly cited by the respondents as likewise authorizing
the President, in the contracting of any loan, credit or indebtedness thereunder, "when necessary, agree to waive or
modify the application of any law granting preferences or imposing restrictions on international competitive bidding x x
x." The said provision of law further provides that "the method and procedure in the comparison of bids shall be the
subject of agreement between the Philippine Government and the lending institution."

Consequently, in accordance with these applicable laws, the procurement of goods and services for the CP I project is
governed by the corresponding loan agreement entered into by the government and the JBIC, i.e., Loan Agreement No.
PH-P204. The said loan agreement stipulated that the procurement of goods and services for the Arterial Road Links
Development Project (Phase IV), of which CP I is a component, is to be governed by the JBIC Procurement Guidelines.
Section 5.06, Part II (International Competitive Bidding) thereof quoted earlier reads:

Section 5.06. Evaluation and Comparison of Bids

xxx

(e) Any procedure under which bids above or below a predetermined bid value assessment are automatically
disqualified is not permitted.62

It is clear that the JBIC Procurement Guidelines proscribe the imposition of ceilings on bid prices. On the other hand, it
enjoins the award of the contract to the bidder whose bid has been determined to be the lowest evaluated bid. The
pertinent provision, quoted earlier, is reiterated, thus:

Section 5.09. Award of Contract

The contract is to be awarded to the bidder whose bid has been determined to be the lowest evaluated bid and who
meets the appropriate standards of capability and financial resources. A bidder shall not be required as a condition of
award to undertake responsibilities or work not stipulated in the specifications or to modify the bid. 63

Since these terms and conditions are made part of Loan Agreement No. PH-P204, the government is obliged to observe
and enforce the same in the procurement of goods and services for the CP I project. As shown earlier, private
respondent China Road & Bridge Corporations bid was the lowest evaluated bid, albeit 28.95% higher than the ABC. In
accordance with the JBIC Procurement Guidelines, therefore, it was correctly awarded the contract for the CP I project.

Even if RA 9184 were to be applied retroactively, the terms of the Exchange of Notes dated December 27, 1999 and
Loan Agreement No. PH-P204 would still govern the procurement for the CP I project

For clarity, Section 4 of RA 9184 is quoted anew, thus:

SEC. 4. Scope and Applications. This Act shall apply to the Procurement of Infrastructure Projects, Goods and
Consulting Services, regardless of source of funds, whether local or foreign, by all branches and instrumentalities of
government, its departments, offices and agencies, including government-owned and/or controlled corporations and
local government units, subject to the provisions of Commonwealth Act No. 138. Any treaty or international or
executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be
observed.

The petitioners, in order to place the procurement process undertaken for the CP I project within the ambit of RA 9184,
vigorously assert that Loan Agreement No. PH-P204 is neither a treaty, an international agreement nor an executive
agreement. They cite Executive Order No. 459 dated November 25, 1997 where the three agreements are defined in
this wise:

a) International agreement shall refer to a contract or understanding, regardless of nomenclature, entered into
between the Philippines and another government in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments.

b) Treaties international agreements entered into by the Philippines which require legislative concurrence after
executive ratification. This term may include compacts like conventions, declarations, covenants and acts.

c) Executive agreements similar to treaties except that they do not require legislative concurrence. 64

The petitioners mainly argue that Loan Agreement No. PH-P204 does not fall under any of the three categories
because to be any of the three, an agreement had to be one where the parties are the Philippines as a State and
another State. The JBIC, the petitioners maintain, is a Japanese banking agency, which presumably has a separate
juridical personality from the Japanese Government.

The petitioners arguments fail to persuade. The Court holds that Loan Agreement No. PH-P204 taken in conjunction
with the Exchange of Notes dated December 27, 1999 between the Japanese Government and the Philippine
Government is an executive agreement.

To recall, Loan Agreement No. PH-P204 was executed by and between the JBIC and the Philippine Government
pursuant to the Exchange of Notes executed by and between Mr. Yoshihisa Ara, Ambassador Extraordinary and
Plenipotentiary of Japan to the Philippines, and then Foreign Affairs Secretary Siazon, in behalf of their respective
governments. The Exchange of Notes expressed that the two governments have reached an understanding concerning
Japanese loans to be extended to the Philippines and that these loans were aimed at promoting our countrys
economic stabilization and development efforts.

Loan Agreement No. PH-P204 was subsequently executed and it declared that it was so entered by the parties "[i]n the
light of the contents of the Exchange of Notes between the Government of Japan and the Government of the Republic
of the Philippines dated December 27, 1999, concerning Japanese loans to be extended with a view to promoting the
economic stabilization and development efforts of the Republic of the Philippines." 65 Under the circumstances, the JBIC
may well be considered an adjunct of the Japanese Government. Further, Loan Agreement No. PH-P204 is indubitably
an integral part of the Exchange of Notes. It forms part of the Exchange of Notes such that it cannot be properly taken
independent thereof.

In this connection, it is well to understand the definition of an "exchange of notes" under international law. The term is
defined in the United Nations Treaty Collection in this wise:

An "exchange of notes" is a record of a routine agreement that has many similarities with the private law contract. The
agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed
by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering
State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental
heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or,
sometimes, to avoid the process of legislative approval. 66

It is stated that "treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding,
modus vivendi and exchange of notes" all refer to "international instruments binding at international law." 67 It is further
explained that-

Although these instruments differ from each other by title, they all have common features and international law has
applied basically the same rules to all these instruments. These rules are the result of long practice among the States,
which have accepted them as binding norms in their mutual relations. Therefore, they are regarded as international
customary law. Since there was a general desire to codify these customary rules, two international conventions were
negotiated. The 1969 Vienna Convention on the Law of Treaties ("1969 Vienna Convention"), which entered into force
on 27 January 1980, contains rules for treaties concluded between States. The 1986 Vienna Convention on the Law of
Treaties between States and International Organizations ("1986 Vienna Convention"), which has still not entered into
force, added rules for treaties with international organizations as parties. Both the 1969 Vienna Convention and the
1986 Vienna Convention do not distinguish between the different designations of these instruments. Instead, their
rules apply to all of those instruments as long as they meet the common requirements. 68

Significantly, 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. The following disquisition by Francis B. Sayre,
former United States High Commissioner to the Philippines, entitled "The Constitutionality of Trade Agreement Acts,"
quoted in Commissioner of Customs v. Eastern Sea Trading, 69 is apropos:

Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements
and are no less common in our scheme of government than are the more formal instruments treaties and
conventions. They sometimes take the form of exchange of notes and at other times that of more formal documents
denominated "agreements" or "protocols". The point where ordinary correspondence between this and other
governments ends and agreements whether denominated executive agreements or exchange of notes or otherwise
begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the large
variety of executive agreements as such, concluded from time to time. Hundreds of executive agreements, other than
those entered into under the trade-agreements act, have been negotiated with foreign governments. x x x 70

The Exchange of Notes dated December 27, 1999, stated, inter alia, that the Government of Japan would extend loans
to the Philippines with a view to promoting its economic stabilization and development efforts; Loan I in the amount
of Y79,8651,000,000 would be extended by the JBIC to the Philippine Government to implement the projects in the List
A (including the Arterial Road Links Development Project - Phase IV); and that such loan (Loan I) would be used to
cover payments to be made by the Philippine executing agencies to suppliers, contractors and/or consultants of
eligible source countries under such contracts as may be entered into between them for purchases of products and/or
services required for the implementation of the projects enumerated in the List A. 71With respect to the procurement of
the goods and services for the projects, it bears reiterating that as stipulated:

3. The Government of the Republic of the Philippines will ensure that the products and/or services mentioned in sub-
paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of paragraph 4 of Part II are procured in accordance with
the guidelines for procurement of the Bank, which set forth, inter alia, the procedures of international tendering to be
followed except where such procedures are inapplicable or inappropriate. 72

The JBIC Procurements Guidelines, as quoted earlier, forbids any procedure under which bids above or below a
predetermined bid value assessment are automatically disqualified. Succinctly put, it absolutely prohibits the
imposition of ceilings on bids.

Under the fundamental principle of international law of pacta sunt servanda, 73 which is, in fact, embodied in Section 4
of RA 9184 as it provides that "[a]ny treaty or international or executive agreement affecting the subject matter of this
Act to which the Philippine government is a signatory shall be observed," the DPWH, as the executing agency of the
projects financed by Loan Agreement No. PH-P204, rightfully awarded the contract for the implementation of civil
works for the CP I project to private respondent China Road & Bridge Corporation.

WHEREFORE, premises considered, the petition is DISMISSED.

SO ORDERED

G.R. No. 159618 February 1, 2011

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L.
MAZA,Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity as Secretary
of Foreign Affairs, Respondents.

DECISION

VELASCO, JR., J.:

The Case
This petition1 for certiorari, mandamus and prohibition under Rule 65 assails and seeks to nullify the Non-Surrender
Agreement concluded by and between the Republic of the Philippines (RP) and the United States of America (USA).

The Facts

Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society.
Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to this case.
Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary. 2

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute 3 establishing the International Criminal Court
(ICC) with "the power to exercise its jurisdiction over persons for the most serious crimes of international concern x x
x and shall be complementary to the national criminal jurisdictions."4 The serious crimes adverted to cover those
considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of
aggression.5

On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed the Rome Statute which, by its
terms, is "subject to ratification, acceptance or approval" by the signatory states. 6 As of the filing of the instant
petition, only 92 out of the 139 signatory countries appear to have completed the ratification, approval and
concurrence process. The Philippines is not among the 92.

RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the Department of Foreign
Affairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement, hereinafter) between the USA
and the RP.

Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, represented by
then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note adverted
to and put in effect the Agreement with the US government. In esse, the Agreement aims to protect what it refers to
and defines as "persons" of the RP and US from frivolous and harassment suits that might be brought against them in
international tribunals.8 It is reflective of the increasing pace of the strategic security and defense partnership between
the two countries. As of May 2, 2003, similar bilateral agreements have been effected by and between the US and 33
other countries.9

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, "persons" are current or former Government officials, employees (including
contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not, absent the express consent of the first Party,

(a) be surrendered or transferred by any means to any international tribunal for any purpose, unless such tribunal has
been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for
the purpose of surrender to or transfer to any international tribunal, unless such tribunal has been established by the
UN Security Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third country, the [US]
will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such
tribunal has been established by the UN Security Council, absent the express consent of the Government of the
Republic of the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third country, the [GRP] will
not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such
tribunal has been established by the UN Security Council, absent the express consent of the Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one party notifies the other of its intent
to terminate the Agreement. The provisions of this Agreement shall continue to apply with respect to any act
occurring, or any allegation arising, before the effective date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender agreement,
Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic notes constituted a
legally binding agreement under international law; and that, under US law, the said agreement did not require the
advice and consent of the US Senate.10

In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying
the Agreement and prays that it be struck down as unconstitutional, or at least declared as without force and effect.

For their part, respondents question petitioners standing to maintain a suit and counter that the Agreement, being in
the nature of an executive agreement, does not require Senate concurrence for its efficacy. And for reasons detailed in
their comment, respondents assert the constitutionality of the Agreement.

The Issues

I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY ABUSED THEIR DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION FOR CONCLUDING THE RP-US NON SURRENDER AGREEMENT BY MEANS OF
[E/N] BFO-028-03 DATED 13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS ALREADY SIGNED THE ROME
STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE PHILIPPINE SENATE.

A. Whether by entering into the x x x Agreement Respondents gravely abused their discretion when they capriciously
abandoned, waived and relinquished our only legitimate recourse through the Rome Statute of the [ICC] to prosecute
and try "persons" as defined in the x x x Agreement, x x x or literally any conduit of American interests, who have
committed crimes of genocide, crimes against humanity, war crimes and the crime of aggression, thereby abdicating
Philippine Sovereignty.

B. Whether after the signing and pending ratification of the Rome Statute of the [ICC] the [RP] President and the [DFA]
Secretary x x x are obliged by the principle of good faith to refrain from doing all acts which would substantially impair
the value of the undertaking as signed.

C. Whether the x x x Agreement constitutes an act which defeats the object and purpose of the Rome Statute of the
International Criminal Court and contravenes the obligation of good faith inherent in the signature of the President
affixed on the Rome Statute of the International Criminal Court, and if so whether the x x x Agreement is void and
unenforceable on this ground.

D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave abuse of discretion
amounting to lack or excess of jurisdiction in connection with its execution.

II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR CONTRACTING OBLIGATIONS
THAT ARE EITHER IMMORAL OR OTHERWISE AT VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF
INTERNATIONAL LAW.

III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT THE CONCURRENCE BY AT LEAST
TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE x x x.11

The foregoing issues may be summarized into two: first, whether or not the Agreement was contracted validly, which
resolves itself into the question of whether or not respondents gravely abused their discretion in concluding it;
and second, whether or not the Agreement, which has not been submitted to the Senate for concurrence, contravenes
and undermines the Rome Statute and other treaties. But because respondents expectedly raised it, we shall first
tackle the issue of petitioners legal standing.

The Courts Ruling

This petition is bereft of merit.

Procedural Issue: Locus Standi of Petitioner

Petitioner, through its three party-list representatives, contends that the issue of the validity or invalidity of
the Agreement carries with it constitutional significance and is of paramount importance that justifies its standing.
Cited in this regard is what is usually referred to as the emergency powers cases, 12 in which ordinary citizens and
taxpayers were accorded the personality to question the constitutionality of executive issuances.

Locus standi is "a right of appearance in a court of justice on a given question." 13 Specifically, it is "a partys personal
and substantial interest in a case where he has sustained or will sustain direct injury as a result" 14 of the act being
challenged, and "calls for more than just a generalized grievance." 15 The term "interest" refers to material interest, as
distinguished from one that is merely incidental. 16 The rationale for requiring a party who challenges the validity of a
law or international agreement to allege such a personal stake in the outcome of the controversy is "to assure the
concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions."17

Locus standi, however, is merely a matter of procedure and it has been recognized that, in some cases, suits are not
brought by parties who have been personally injured by the operation of a law or any other government act, but by
concerned citizens, taxpayers, or voters who actually sue in the public interest. 18 Consequently, in a catena of
cases,19 this Court has invariably adopted a liberal stance on locus standi.

Going by the petition, petitioners representatives pursue the instant suit primarily as concerned citizens raising issues
of transcendental importance, both for the Republic and the citizenry as a whole.

When suing as a citizen to question the validity of a law or other government action, a petitioner needs to meet certain
specific requirements before he can be clothed with standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol
ng mga Manggagawang Pilipino, Inc. 20 expounded on this requirement, thus:

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been
met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and
personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained
or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers
thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some
right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of. In fine, when the proceeding involves the assertion of a public right, the
mere fact that he is a citizen satisfies the requirement of personal interest. 21

In the case at bar, petitioners representatives have complied with the qualifying conditions or specific requirements
exacted under the locus standi rule. As citizens, their interest in the subject matter of the petition is direct and
personal. At the very least, their assertions questioning the Agreement are made of a public right, i.e., to ascertain
that the Agreement did not go against established national policies, practices, and obligations bearing on the States
obligation to the community of nations.

At any event, the primordial importance to Filipino citizens in general of the issue at hand impels the Court to brush
aside the procedural barrier posed by the traditional requirement of locus standi, as we have done in a long line of
earlier cases, notably in the old but oft-cited emergency powers cases 22 and Kilosbayan v. Guingona, Jr.23In cases of
transcendental importance, we wrote again in Bayan v. Zamora,24 "The Court may relax the standing requirements and
allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review."

Moreover, bearing in mind what the Court said in Taada v. Angara, "that it will not shirk, digress from or abandon its
sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it
in appropriate cases, committed by any officer, agency, instrumentality or department of the government," 25 we
cannot but resolve head on the issues raised before us. Indeed, where an action of any branch of government is
seriously alleged to have infringed the Constitution or is done with grave abuse of discretion, it becomes not only the
right but in fact the duty of the judiciary to settle it. As in this petition, issues are precisely raised putting to the fore
the propriety of the Agreement pending the ratification of the Rome Statute.

Validity of the RP-US Non-Surrender Agreement

Petitioners initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO-028-03
cannot be a valid medium for concluding the Agreement.

Petitioners contentionperhaps taken unaware of certain well-recognized international doctrines, practices, and
jargonsis untenable. One of these is the doctrine of incorporation, as expressed in Section 2, Article II of the
Constitution, wherein the Philippines adopts the generally accepted principles of international law and international
jurisprudence as part of the law of the land and adheres to the policy of peace, cooperation, and amity with all
nations.26 An exchange of notes falls "into the category of inter-governmental agreements," 27 which is an
internationally accepted form of international agreement. The United Nations Treaty Collections (Treaty Reference
Guide) defines the term as follows:

An "exchange of notes" is a record of a routine agreement, that has many similarities with the private law contract.
The agreement consists of the exchange of two documents, each of the parties being in the possession of the one
signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the
offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or
departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy
procedure, or, sometimes, to avoid the process of legislative approval. 28

In another perspective, the terms "exchange of notes" and "executive agreements" have been used interchangeably,
exchange of notes being considered a form of executive agreement that becomes binding through executive
action.29 On the other hand, executive agreements concluded by the President "sometimes take the form of exchange
of notes and at other times that of more formal documents denominated agreements or protocols." 30 As former US
High Commissioner to the Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement
Acts:

The point where ordinary correspondence between this and other governments ends and agreements whether
denominated executive agreements or exchange of notes or otherwise begin, may sometimes be difficult of ready
ascertainment.31 x x x

It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as the Non-Surrender Agreement
itself, or as an integral instrument of acceptance thereof or as consent to be boundis a recognized mode of
concluding a legally binding international written contract among nations.

Senate Concurrence Not Required

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an international agreement concluded
between states in written form and governed by international law, whether embodied in a single instrument or in two
or more related instruments and whatever its particular designation." 32 International agreements may be in the form of
(1) treaties that require legislative concurrence after executive ratification; or (2) executive agreements that are
similar to treaties, except that they do not require legislative concurrence and are usually less formal and deal with a
narrower range of subject matters than treaties.33

Under international law, there is no difference between treaties and executive agreements in terms of their binding
effects on the contracting states concerned,34 as long as the negotiating functionaries have remained within their
powers.35 Neither, on the domestic sphere, can one be held valid if it violates the Constitution. 36Authorities are,
however, agreed that one is distinct from another for accepted reasons apart from the concurrence-requirement
aspect.37 As has been observed by US constitutional scholars, a treaty has greater "dignity" than an executive
agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President,
the Senate, and the people;38 a ratified treaty, unlike an executive agreement, takes precedence over any prior
statutory enactment.39

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature of a treaty;
hence, it must be duly concurred in by the Senate. Petitioner takes a cue from Commissioner of Customs v. Eastern
Sea Trading, in which the Court reproduced the following observations made by US legal scholars: "[I]nternational
agreements involving political issues or changes of national policy and those involving international arrangements of a
permanent character usually take the form of treaties [while] those embodying adjustments of detail carrying out well
established national policies and traditions and those involving arrangements of a more or less temporary nature take
the form of executive agreements." 40

Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the subject-
categories that are enumerated in the Eastern Sea Trading case, and that may be covered by an executive agreement,
such as commercial/consular relations, most-favored nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and settlement of claims.

In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and Merchant,41holding
that an executive agreement through an exchange of notes cannot be used to amend a treaty.

We are not persuaded.

The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea
Trading is not cast in stone. There are no hard and fast rules on the propriety of entering, on a given subject, into a
treaty or an executive agreement as an instrument of international relations. The primary consideration in the choice
of the form of agreement is the parties intent and desire to craft an international agreement in the form they so wish
to further their respective interests. Verily, the matter of form takes a back seat when it comes to effectiveness and
binding effect of the enforcement of a treaty or an executive agreement, as the parties in either international
agreement each labor under the pacta sunt servanda42 principle.
As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea Trading. Since
then, the conduct of foreign affairs has become more complex and the domain of international law wider, as to include
such subjects as human rights, the environment, and the sea. In fact, in the US alone, the executive agreements
executed by its President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation, aviation,
atomic energy, environmental cooperation, peace corps, arms limitation, and nuclear safety, among others. 43 Surely,
the enumeration in Eastern Sea Trading cannot circumscribe the option of each state on the matter of which the
international agreement format would be convenient to serve its best interest. As Francis Sayre said in his work
referred to earlier:

x x x It would be useless to undertake to discuss here the large variety of executive agreements as such concluded
from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreement act,
have been negotiated with foreign governments. x x x They cover such subjects as the inspection of vessels,
navigation dues, income tax on shipping profits, the admission of civil air craft, custom matters and commercial
relations generally, international claims, postal matters, the registration of trademarks and copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement is a treaty-authorized 44 or a treaty-implementing executive
agreement,45 which necessarily would cover the same matters subject of the underlying treaty.

But over and above the foregoing considerations is the fact thatsave for the situation and matters contemplated in
Sec. 25, Art. XVIII of the Constitution 46when a treaty is required, the Constitution does not classify any subject, like
that involving political issues, to be in the form of, and ratified as, a treaty. What the Constitution merely prescribes is
that treaties need the concurrence of the Senate by a vote defined therein to complete the ratification process.

Petitioners reliance on Adolfo47 is misplaced, said case being inapplicable owing to different factual milieus. There, the
Court held that an executive agreement cannot be used to amend a duly ratified and existing treaty, i.e., the Bases
Treaty. Indeed, an executive agreement that does not require the concurrence of the Senate for its ratification may not
be used to amend a treaty that, under the Constitution, is the product of the ratifying acts of the Executive and the
Senate. The presence of a treaty, purportedly being subject to amendment by an executive agreement, does not
obtain under the premises.

Considering the above discussion, the Court need not belabor at length the third main issue raised, referring to the
validity and effectivity of the Agreement without the concurrence by at least two-thirds of all the members of the
Senate. The Court has, in Eastern Sea Trading,48 as reiterated in Bayan,49 given recognition to the obligatory effect of
executive agreements without the concurrence of the Senate:

x x x [T]he right of the Executive to enter into binding agreements without the necessity of subsequent Congressional
approval has been confirmed by long usage. From the earliest days of our history, we have entered executive
agreements covering 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. The validity of
these has never been seriously questioned by our courts.

The Agreement Not in Contravention of the Rome Statute

It is the petitioners next contention that the Agreement undermines the establishment of the ICC and is null and void
insofar as it unduly restricts the ICCs jurisdiction and infringes upon the effectivity of the Rome Statute. Petitioner
posits that the Agreement was constituted solely for the purpose of providing individuals or groups of individuals with
immunity from the jurisdiction of the ICC; and such grant of immunity through non-surrender agreements allegedly
does not legitimately fall within the scope of Art. 98 of the Rome Statute. It concludes that state parties with non-
surrender agreements are prevented from meeting their obligations under the Rome Statute, thereby constituting a
breach of Arts. 27,50 86,51 8952 and 9053 thereof.

Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that those responsible for the
worst possible crimes are brought to justice in all cases, primarily by states, but as a last resort, by the ICC; thus, any
agreementlike the non-surrender agreementthat precludes the ICC from exercising its complementary function of
acting when a state is unable to or unwilling to do so, defeats the object and purpose of the Rome Statute.

Petitioner would add that the President and the DFA Secretary, as representatives of a signatory of the Rome Statute,
are obliged by the imperatives of good faith to refrain from performing acts that substantially devalue the purpose and
object of the Statute, as signed. Adding a nullifying ingredient to the Agreement, according to petitioner, is the fact
that it has an immoral purpose or is otherwise at variance with a priorly executed treaty.

Contrary to petitioners pretense, the Agreement does not contravene or undermine, nor does it differ from, the Rome
Statute. Far from going against each other, one complements the other. As a matter of fact, the principle of
complementarity underpins the creation of the ICC. As aptly pointed out by respondents and admitted by petitioners,
the jurisdiction of the ICC is to "be complementary to national criminal jurisdictions [of the signatory states]." 54 Art. 1
of the Rome Statute pertinently provides:

Article 1
The Court

An International Crimininal Court ("the Court") is hereby established. It x x x shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall
be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be
governed by the provisions of this Statute. (Emphasis ours.)

Significantly, the sixth preambular paragraph of the Rome Statute declares that "it is the duty of every State to
exercise its criminal jurisdiction over those responsible for international crimes." This provision indicates that primary
jurisdiction over the so-called international crimes rests, at the first instance, with the state where the crime was
committed; secondarily, with the ICC in appropriate situations contemplated under Art. 17, par. 1 55 of the Rome
Statute.

Of particular note is the application of the principle of ne bis in idem56 under par. 3 of Art. 20, Rome Statute, which
again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC. As far as relevant, the provision
states that "no person who has been tried by another court for conduct x x x [constituting crimes within its jurisdiction]
shall be tried by the [International Criminal] Court with respect to the same conduct x x x."

The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional conflict
between the Philippines, as party to the non-surrender agreement, and the ICC; or the idea of the Agreement
substantially impairing the value of the RPs undertaking under the Rome Statute. Ignoring for a while the fact that the
RP signed the Rome Statute ahead of the Agreement, it is abundantly clear to us that the Rome Statute expressly
recognizes the primary jurisdiction of states, like the RP, over serious crimes committed within their respective
borders, the complementary jurisdiction of the ICC coming into play only when the signatory states are unwilling or
unable to prosecute.

Given the above consideration, petitioners suggestionthat the RP, by entering into the Agreement, violated its duty
required by the imperatives of good faith and breached its commitment under the Vienna Convention 57 to refrain from
performing any act tending to impair the value of a treaty, e.g., the Rome Statutehas to be rejected outright. For
nothing in the provisions of the Agreement, in relation to the Rome Statute, tends to diminish the efficacy of the
Statute, let alone defeats the purpose of the ICC. Lest it be overlooked, the Rome Statute contains a proviso that
enjoins the ICC from seeking the surrender of an erring person, should the process require the requested state to
perform an act that would violate some international agreement it has entered into. We refer to Art. 98(2) of the Rome
Statute, which reads:

Article 98
Cooperation with respect to waiver of immunity
and consent to surrender

xxxx

2. The Court may not proceed with a request for surrender which would require the requested State to act
inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is
required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the
sending State for the giving of consent for the surrender.

Moreover, under international law, there is a considerable difference between a State-Party and a signatory to a treaty.
Under the Vienna Convention on the Law of Treaties, a signatory state is only obliged to refrain from acts which would
defeat the object and purpose of a treaty; 58 whereas a State-Party, on the other hand, is legally obliged to follow all the
provisions of a treaty in good faith.

In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and not a State-Party
for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts which would defeat the object and
purpose of the Rome Statute. Any argument obliging the Philippines to follow any provision in the treaty would be
premature.
As a result, petitioners argument that State-Parties with non-surrender agreements are prevented from meeting their
obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles are only legally
binding upon State-Parties, not signatories.

Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible with the Rome
Statute. Specifically, Art. 90(4) provides that "[i]f the requesting State is a State not Party to this Statute the requested
State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to
the request for surrender from the Court. x x x" In applying the provision, certain undisputed facts should be pointed
out: first, the US is neither a State-Party nor a signatory to the Rome Statute; and second, there is an international
agreement between the US and the Philippines regarding extradition or surrender of persons, i.e., the Agreement.
Clearly, even assuming that the Philippines is a State-Party, the Rome Statute still recognizes the primacy of
international agreements entered into between States, even when one of the States is not a State-Party to the Rome
Statute.

Sovereignty Limited by International Agreements

Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by bargaining away the
jurisdiction of the ICC to prosecute US nationals, government officials/employees or military personnel who commit
serious crimes of international concerns in the Philippines. Formulating petitioners argument a bit differently, the RP,
by entering into the Agreement, does thereby abdicate its sovereignty, abdication being done by its waiving or
abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans committing
international crimes in the country.

We are not persuaded. As it were, the Agreement is but a form of affirmance and confirmance of the Philippines
national criminal jurisdiction. National criminal jurisdiction being primary, as explained above, it is always the
responsibility and within the prerogative of the RP either to prosecute criminal offenses equally covered by the Rome
Statute or to accede to the jurisdiction of the ICC. Thus, the Philippines may decide to try "persons" of the US, as the
term is understood in the Agreement, under our national criminal justice system. Or it may opt not to exercise its
criminal jurisdiction over its erring citizens or over US "persons" committing high crimes in the country and defer to
the secondary criminal jurisdiction of the ICC over them. As to "persons" of the US whom the Philippines refuses to
prosecute, the country would, in effect, accord discretion to the US to exercise either its national criminal jurisdiction
over the "person" concerned or to give its consent to the referral of the matter to the ICC for trial. In the same breath,
the US must extend the same privilege to the Philippines with respect to "persons" of the RP committing high crimes
within US territorial jurisdiction.

In the context of the Constitution, there can be no serious objection to the Philippines agreeing to undertake the things
set forth in the Agreement. Surely, one State can agree to waive jurisdictionto the extent agreed uponto subjects
of another State due to the recognition of the principle of extraterritorial immunity. What the Court wrote in Nicolas v.
Romulo59a case involving the implementation of the criminal jurisdiction provisions of the RP-US Visiting Forces
Agreementis apropos:

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of
jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State, diplomats
and members of the armed forces contingents of a foreign State allowed to enter another States territory. x x x

To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate that some of its
provisions constitute a virtual abdication of its sovereignty. Almost every time a state enters into an international
agreement, it voluntarily sheds off part of its sovereignty. The Constitution, as drafted, did not envision a reclusive
Philippines isolated from the rest of the world. It even adheres, as earlier stated, to the policy of cooperation and amity
with all nations.60

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. 61 Such waiver does not amount to an unconstitutional
diminution or deprivation of jurisdiction of Philippine courts. 62

Agreement Not Immoral/Not at Variance

with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being at
variance with allegedly universally recognized principles of international law. The immoral aspect proceeds from the
fact that the Agreement, as petitioner would put it, "leaves criminals immune from responsibility for unimaginable
atrocities that deeply shock the conscience of humanity; x x x it precludes our country from delivering an American
criminal to the [ICC] x x x."63

The above argument is a kind of recycling of petitioners earlier position, which, as already discussed, contends that
the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the process undermined its treaty
obligations under the Rome Statute, contrary to international law principles. 64

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by
the Solicitor General, "is an assertion by the Philippines of its desire to try and punish crimes under its national law. x x
x The agreement is a recognition of the primacy and competence of the countrys judiciary to try offenses under its
national criminal laws and dispense justice fairly and judiciously."

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos and Americans
committing high crimes of international concern to escape criminal trial and punishment. This is manifestly incorrect.
Persons who may have committed acts penalized under the Rome Statute can be prosecuted and punished in the
Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming, for the nonce, that all the
formalities necessary to bind both countries to the Rome Statute have been met. For perspective, what
the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals, like the
ICC, without the consent of the other party, which may desire to prosecute the crime under its existing laws. With the
view we take of things, there is nothing immoral or violative of international law concepts in the act of the Philippines
of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered criminal by both
Philippine laws and the Rome Statute.

No Grave Abuse of Discretion

Petitioners final point revolves around the necessity of the Senates concurrence in the Agreement. And without
specifically saying so, petitioner would argue that the non-surrender agreement was executed by the President, thru
the DFA Secretary, in grave abuse of discretion.

The Court need not delve on and belabor the first portion of the above posture of petitioner, the same having been
discussed at length earlier on. As to the second portion, We wish to state that petitioner virtually faults the President
for performing, through respondents, a task conferred the President by the Constitutionthe power to enter into
international agreements.

By constitutional fiat and by the nature of his or her office, the President, as head of state and government, is the sole
organ and authority in the external affairs of the country. 65 The Constitution vests in the President the power to enter
into international agreements, subject, in appropriate cases, to the required concurrence votes of the Senate. But as
earlier indicated, executive agreements may be validly entered into without such concurrence. As the President wields
vast powers and influence, her conduct in the external affairs of the nation is, as Bayan would put it, "executive
altogether." The right of the President to enter into or ratify binding executive agreements has been confirmed by long
practice.66

In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria Macapagal-Arroyo,
represented by the Secretary of Foreign Affairs, acted within the scope of the authority and discretion vested in her by
the Constitution. At the end of the day, the Presidentby ratifying, thru her deputies, the non-surrender agreement
did nothing more than discharge a constitutional duty and exercise a prerogative that pertains to her office.

While the issue of ratification of the Rome Statute is not determinative of the other issues raised herein, it may
perhaps be pertinent to remind all and sundry that about the time this petition was interposed, such issue of
ratification was laid to rest in Pimentel, Jr. v. Office of the Executive Secretary. 67 As the Court emphasized in said case,
the power to ratify a treaty, the Statute in that instance, rests with the President, subject to the concurrence of the
Senate, whose role relative to the ratification of a treaty is limited merely to concurring in or withholding the
ratification. And concomitant with this treaty-making power of the President is his or her prerogative to refuse to
submit a treaty to the Senate; or having secured the latters consent to the ratification of the treaty, refuse to ratify
it.68 This prerogative, the Court hastened to add, is the Presidents alone and cannot be encroached upon via a writ of
mandamus. Barring intervening events, then, the Philippines remains to be just a signatory to the Rome Statute. Under
Art. 12569 thereof, the final acts required to complete the treaty process and, thus, bring it into force, insofar as the
Philippines is concerned, have yet to be done.

Agreement Need Not Be in the Form of a Treaty

On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851, otherwise known as the
"Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity."
Sec. 17 of RA 9851, particularly the second paragraph thereof, provides:

Section 17. Jurisdiction. x x x x

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a
crime punishable under this Act if another court or international tribunal is already conducting the investigation or
undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused
persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable
extradition laws and treaties. (Emphasis supplied.)

A view is advanced that the Agreement amends existing municipal laws on the States obligation in relation to grave
crimes against the law of nations, i.e., genocide, crimes against humanity and war crimes. Relying on the above-
quoted statutory proviso, the view posits that the Philippine is required to surrender to the proper international tribunal
those persons accused of the grave crimes defined under RA 9851, if it does not exercise its primary jurisdiction to
prosecute them.

The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national for violations of
RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to the proper international tribunal; or
(2) surrender the accused to another State if such surrender is "pursuant to the applicable extradition laws and
treaties." But the Philippines may exercise these options only in cases where "another court or international tribunal is
already conducting the investigation or undertaking the prosecution of such crime;" otherwise, the Philippines must
prosecute the crime before its own courts pursuant to RA 9851.

Posing the situation of a US national under prosecution by an international tribunal for any crime under RA 9851, the
Philippines has the option to surrender such US national to the international tribunal if it decides not to prosecute such
US national here. The view asserts that this option of the Philippines under Sec. 17 of RA 9851 is not subject to the
consent of the US, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the US before the
Philippines can exercise such option, requires an amendatory law. In line with this scenario, the view strongly argues
that the Agreement prevents the Philippineswithout the consent of the USfrom surrendering to any international
tribunal US nationals accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851.
Consequently, the view is strongly impressed that the Agreement cannot be embodied in a simple executive
agreement in the form of an exchange of notes but must be implemented through an extradition law or a treaty with
the corresponding formalities.

Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where the Philippines adopts, as
a national policy, the "generally accepted principles of international law as part of the law of the land," the Court is
further impressed to perceive the Rome Statute as declaratory of customary international law. In other words, the
Statute embodies principles of law which constitute customary international law or custom and for which reason it
assumes the status of an enforceable domestic law in the context of the aforecited constitutional provision. As a
corollary, it is argued that any derogation from the Rome Statute principles cannot be undertaken via a mere executive
agreement, which, as an exclusive act of the executive branch, can only implement, but cannot amend or repeal, an
existing law. The Agreement, so the argument goes, seeks to frustrate the objects of the principles of law or alters
customary rules embodied in the Rome Statute.

Prescinding from the foregoing premises, the view thus advanced considers the Agreement inefficacious, unless it is
embodied in a treaty duly ratified with the concurrence of the Senate, the theory being that a Senate- ratified treaty
partakes of the nature of a municipal law that can amend or supersede another law, in this instance Sec. 17 of RA
9851 and the status of the Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of the
Constitution.

We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not amend or is
repugnant to RA 9851. For another, the view does not clearly state what precise principles of law, if any,
the Agreement alters. And for a third, it does not demonstrate in the concrete how the Agreement seeks to frustrate
the objectives of the principles of law subsumed in the Rome Statute.

Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the former merely reinforces
the primacy of the national jurisdiction of the US and the Philippines in prosecuting criminal offenses committed by
their respective citizens and military personnel, among others. The jurisdiction of the ICC pursuant to the Rome Statute
over high crimes indicated thereat is clearly and unmistakably complementary to the national criminal jurisdiction of
the signatory states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian law, genocide
and other crimes against humanity; 70 (2) provides penal sanctions and criminal liability for their commission; 71 and (3)
establishes special courts for the prosecution of these crimes and for the State to exercise primary criminal
jurisdiction.72 Nowhere in RA 9851 is there a proviso that goes against the tenor of the Agreement.

The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the Philippine State to
surrender to the proper international tribunal those persons accused of crimes sanctioned under said law if it does not
exercise its primary jurisdiction to prosecute such persons. This view is not entirely correct, for the above quoted
proviso clearly provides discretion to the Philippine State on whether to surrender or not a person accused of the
crimes under RA 9851. The statutory proviso uses the word "may." It is settled doctrine in statutory construction that
the word "may" denotes discretion, and cannot be construed as having mandatory effect. 73 Thus, the pertinent second
pararagraph of Sec. 17, RA 9851 is simply permissive on the part of the Philippine State.1avvphi1

Besides, even granting that the surrender of a person is mandatorily required when the Philippines does not exercise
its primary jurisdiction in cases where "another court or international tribunal is already conducting the investigation or
undertaking the prosecution of such crime," still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851.
Said legal proviso aptly provides that the surrender may be made "to another State pursuant to the applicable
extradition laws and treaties." The Agreement can already be considered a treaty following this Courts decision in
Nicolas v. Romulo74 which cited Weinberger v. Rossi. 75 In Nicolas, We held that "an executive agreement is a treaty
within the meaning of that word in international law and constitutes enforceable domestic law vis--vis the United
States."76

Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US Extradition Treaty, which
was executed on November 13, 1994. The pertinent Philippine law, on the other hand, is Presidential Decree No. 1069,
issued on January 13, 1977. Thus, the Agreement, in conjunction with the RP-US Extradition Treaty, would neither
violate nor run counter to Sec. 17 of RA 9851.

The views reliance on Suplico v. Neda 77 is similarly improper. In that case, several petitions were filed questioning the
power of the President to enter into foreign loan agreements. However, before the petitions could be resolved by the
Court, the Office of the Solicitor General filed a Manifestation and Motion averring that the Philippine Government
decided not to continue with the ZTE National Broadband Network Project, thus rendering the petition moot. In
resolving the case, the Court took judicial notice of the act of the executive department of the Philippines (the
President) and found the petition to be indeed moot. Accordingly, it dismissed the petitions.

In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of an executive agreement.
He stated that "an executive agreement has the force and effect of law x x x [it] cannot amend or repeal prior
laws."78 Hence, this argument finds no application in this case seeing as RA 9851 is a subsequent law, not a prior one.
Notably, this argument cannot be found in the ratio decidendi of the case, but only in the dissenting opinion.

The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the reason that under par. 1,
Art. 2 of the RP-US Extradition Treaty, "[a]n offense shall be an extraditable offense if it is punishable under the laws in
both Contracting Parties x x x,"79 and thereby concluding that while the Philippines has criminalized under RA 9851 the
acts defined in the Rome Statute as war crimes, genocide and other crimes against humanity, there is no similar
legislation in the US. It is further argued that, citing U.S. v. Coolidge, in the US, a person cannot be tried in the federal
courts for an international crime unless Congress adopts a law defining and punishing the offense.

This view must fail.

On the contrary, the US has already enacted legislation punishing the high crimes mentioned earlier. In fact, as early
as October 2006, the US enacted a law criminalizing war crimes. Section 2441, Chapter 118, Part I, Title 18 of the
United States Code Annotated (USCA) provides for the criminal offense of "war crimes" which is similar to the war
crimes found in both the Rome Statute and RA 9851, thus:

(a) Offense Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances
described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if
death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances The circumstances referred to in subsection (a) are that the person committing such war crime or
the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States
(as defined in Section 101 of the Immigration and Nationality Act).

(c) Definition As used in this Section the term "war crime" means any conduct
(1) Defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any
protocol to such convention to which the United States is a party;

(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs
of War on Land, signed 18 October 1907;

(3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d]) when committed in the context
of and in association with an armed conflict not of an international character; or

(4) Of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or
Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as
amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to
civilians.801avvphi1

Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:

1091. Genocide

(a) Basic Offense Whoever, whether in the time of peace or in time of war and with specific intent to destroy, in
whole or in substantial part, a national, ethnic, racial or religious group as such

(1) kills members of that group;

(2) causes serious bodily injury to members of that group;

(3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or
similar techniques;

(4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or
in part;

(5) imposes measures intended to prevent births within the group; or

(6) transfers by force children of the group to another group;

shall be punished as provided in subsection (b). 81

Arguing further, another view has been advanced that the current US laws do not cover every crime listed within the
jurisdiction of the ICC and that there is a gap between the definitions of the different crimes under the US laws versus
the Rome Statute. The view used a report written by Victoria K. Holt and Elisabeth W. Dallas, entitled "On Trial: The US
Military and the International Criminal Court," as its basis.

At the outset, it should be pointed out that the report used may not have any weight or value under international law.
Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources of international law, as follows: (1)
international conventions, whether general or particular, establishing rules expressly recognized by the contesting
states; (2) international custom, as evidence of a general practice accepted as law; (3) the general principles of law
recognized by civilized nations; and (4) subject to the provisions of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
The report does not fall under any of the foregoing enumerated sources. It cannot even be considered as the
"teachings of highly qualified publicists." A highly qualified publicist is a scholar of public international law and the
term usually refers to legal scholars or "academic writers." 82 It has not been shown that the authors83 of this report are
highly qualified publicists.

Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the crimes are
nonexistent. To highlight, the table below shows the definitions of genocide and war crimes under the Rome Statute
vis--vis the definitions under US laws:

Rome Statute US Law

Article 6 1091. Genocide

Genocide
(a) Basic Offense Whoever, whether in the
For the purpose of this Statute, "genocide" time of peace or in time of war and with
means any of the following acts committed specific intent to destroy, in whole or in
with intent to destroy, in whole or in part, a substantial part, a national, ethnic, racial or
national, ethnical, racial or religious group, as religious group as such
such:
(1) kills members of that group;
(a) Killing members of the group;
(2) causes serious bodily injury to members of
(b) Causing serious bodily or mental harm to that group;
members of the group;
(3) causes the permanent impairment of the
(c) Deliberately inflicting on the group mental faculties of members of the group
conditions of life calculated to bring about its through drugs, torture, or similar techniques;
physical destruction in whole or in part;
(4) subjects the group to conditions of life that
(d) Imposing measures intended to prevent are intended to cause the physical destruction
births within the group; of the group in whole or in part;

(e) Forcibly transferring children of the group (5) imposes measures intended to prevent
to another group. births within the group; or

(6) transfers by force children of the group to

another group;

shall be punished as provided in subsection

(b).

Article 8 (d) Definition As used in this Section the term

War Crimes "war crime" means any conduct

2. For the purpose of this Statute, "war crimes" (1) Defined as a grave breach in any of the
means: international conventions signed at Geneva 12
August 1949, or any protocol to such
(a) Grave breaches of the Geneva Conventions convention to which the United States is a
of 12 August 1949, namely, any of the party;
following acts against persons or property
protected under the provisions of the relevant (2) Prohibited by Article 23, 25, 27 or 28 of the
Geneva Convention: x x x84 Annex to the Hague Convention IV, Respecting
the Laws and Customs of War on Land, signed
(b) Other serious violations of the laws and 18 October 1907;
customs applicable in international armed
conflict, within the established framework of (3) Which constitutes a grave breach of
international law, namely, any of the following common Article 3 (as defined in subsection
acts: [d]85) when committed in the context of and in
association with an armed conflict not of an
xxxx international character; or
(c) In the case of an armed conflict not of an (4) Of a person who, in relation to an armed
international character, serious violations of conflict and contrary to the provisions of the
article 3 common to the four Geneva Protocol on Prohibitions or Restrictions on the
Conventions of 12 August 1949, namely, any Use of Mines, Booby-Traps and Other Devices
of the following acts committed against as amended at Geneva on 3 May 1996
persons taking no active part in the hostilities, (Protocol II as amended on 3 May 1996), when
including members of armed forces who have the United States is a party to such Protocol,
laid down their arms and those placed hors de willfully kills or causes serious injury to
combat by sickness, wounds, detention or any civilians.86
other cause:

xxxx

(d) Paragraph 2 (c) applies to armed conflicts

not of an international character and thus does
not apply to situations of internal disturbances
and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a
similar nature.
 (e) Other serious violations of the laws and
customs applicable in armed conflicts not of an
international character, within the established
framework of international law, namely, any of
the following acts: x x x.

Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the report itself stated as
much, to wit:

Few believed there were wide differences between the crimes under the jurisdiction of the Court and crimes within the
Uniform Code of Military Justice that would expose US personnel to the Court. Since US military lawyers were
instrumental in drafting the elements of crimes outlined in the Rome Statute, they ensured that most of the crimes
were consistent with those outlined in the UCMJ and gave strength to complementarity for the US. Small areas of
potential gaps between the UCMJ and the Rome Statute, military experts argued, could be addressed through existing
military laws.87 x x x

The report went on further to say that "[a]ccording to those involved, the elements of crimes laid out in the Rome
Statute have been part of US military doctrine for decades."88 Thus, the argument proffered cannot stand.

Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine of incorporation. As
early as 1900, the esteemed Justice Gray in The Paquete Habana 89 case already held international law as part of the
law of the US, to wit:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate
jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this
purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had
to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators
who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of
which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning
what the law ought to be, but for the trustworthy evidence of what the law really is. 90(Emphasis supplied.)

Thus, a person can be tried in the US for an international crime despite the lack of domestic legislation. The cited
ruling in U.S. v. Coolidge,91 which in turn is based on the holding in U.S. v. Hudson, 92 only applies to common law and
not to the law of nations or international law. 93 Indeed, the Court in U.S. v. Hudson only considered the question,
"whether the Circuit Courts of the United States can exercise a common law jurisdiction in criminal cases." 94 Stated
otherwise, there is no common law crime in the US but this is considerably different from international law.

The US doubtless recognizes international law as part of the law of the land, necessarily including international crimes,
even without any local statute.95 In fact, years later, US courts would apply international law as a source of criminal
liability despite the lack of a local statute criminalizing it as such. So it was that in Ex Parte Quirin 96 the US Supreme
Court noted that "[f]rom the very beginning of its history this Court has recognized and applied the law of war as
including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of
enemy nations as well as of enemy individuals."97 It went on further to explain that Congress had not undertaken the
task of codifying the specific offenses covered in the law of war, thus:

It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that branch
of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law
condemns. An Act of Congress punishing the crime of piracy as defined by the law of nations is an appropriate
exercise of its constitutional authority, Art. I, s 8, cl. 10, to define and punish the offense since it has adopted by
reference the sufficiently precise definition of international law. x x x Similarly by the reference in the 15th Article of
War to offenders or offenses that x x x by the law of war may be triable by such military commissions. Congress has
incorporated by reference, as within the jurisdiction of military commissions, all offenses which are defined as such by
the law of war x x x, and which may constitutionally be included within that jurisdiction. 98 x x x (Emphasis supplied.)

This rule finds an even stronger hold in the case of crimes against humanity. It has been held that genocide, war
crimes and crimes against humanity have attained the status of customary international law. Some even go so far as
to state that these crimes have attained the status of jus cogens. 99

Customary international law or international custom is a source of international law as stated in the Statute of the
ICJ.100 It is defined as the "general and consistent practice of states recognized and followed by them from a sense of
legal obligation."101 In order to establish the customary status of a particular norm, two elements must concur: State
practice, the objective element; and opinio juris sive necessitates, the subjective element. 102
State practice refers to the continuous repetition of the same or similar kind of acts or norms by States. 103 It is
demonstrated upon the existence of the following elements: (1) generality; (2) uniformity and consistency; and (3)
duration.104 While, opinio juris, the psychological element, requires that the state practice or norm "be carried out in
such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law
requiring it."105

"The term jus cogens means the compelling law." 106 Corollary, "a jus cogens norm holds the highest hierarchical
position among all other customary norms and principles." 107 As a result, jus cogens norms are deemed "peremptory
and non-derogable."108 When applied to international crimes, "jus cogens crimes have been deemed so fundamental to
the existence of a just international legal order that states cannot derogate from them, even by agreement." 109

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state may exercise jurisdiction over
an individual who commits certain heinous and widely condemned offenses, even when no other recognized basis for
jurisdiction exists."110 "The rationale behind this principle is that the crime committed is so egregious that it is
considered to be committed against all members of the international community" 111 and thus granting every State
jurisdiction over the crime.112

Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the doctrine of
incorporation and universal jurisdiction to try these crimes.

Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the Rome Statute is not
declaratory of customary international law.

The first element of customary international law, i.e., "established, widespread, and consistent practice on the part of
States,"113 does not, under the premises, appear to be obtaining as reflected in this simple reality: As of October 12,
2010, only 114114 States have ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier, or
on July 1, 2002. The fact that 114 States out of a total of 194 115 countries in the world, or roughly 58.76%, have ratified
the Rome Statute casts doubt on whether or not the perceived principles contained in the Statute have attained the
status of customary law and should be deemed as obligatory international law. The numbers even tend to argue
against the urgency of establishing international criminal courts envisioned in the Rome Statute. Lest it be overlooked,
the Philippines, judging by the action or inaction of its top officials, does not even feel bound by the Rome Statute. Res
ipsa loquitur. More than eight (8) years have elapsed since the Philippine representative signed the Statute, but the
treaty has not been transmitted to the Senate for the ratification process.

And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring elements, thus:

Custom or customary international law means "a general and consistent practice of states followed by them from a
sense of legal obligation [opinio juris] x x x." This statement contains the two basic elements of custom: the material
factor, that is how the states behave, and the psychological factor or subjective factor, that is, why they behave the
way they do.

xxxx

The initial factor for determining the existence of custom is the actual behavior of states. This includes several
elements: duration, consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the consistency and the generality of the
practice. x x x

xxxx

Once the existence of state practice has been established, it becomes necessary to determine why states
behave the way they do. Do states behave the way they do because they consider it obligatory to behave thus or
do they do it only as a matter of courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is
what makes practice an international rule. Without it, practice is not law. 116 (Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the different countries in
the world that the prosecution of internationally recognized crimes of genocide, etc. should be handled by a particular
international criminal court.
Absent the widespread/consistent-practice-of-states factor, the second or the psychological element must be deemed
non-existent, for an inquiry on why states behave the way they do presupposes, in the first place, that they are
actually behaving, as a matter of settled and consistent practice, in a certain manner. This implicitly requires belief
that the practice in question is rendered obligatory by the existence of a rule of law requiring it. 117Like the first
element, the second element has likewise not been shown to be present.

Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated therein as
evidenced by it requiring State consent. 118 Even further, the Rome Statute specifically and unequivocally requires that:
"This Statute is subject to ratification, acceptance or approval by signatory States." 119 These clearly negate the
argument that such has already attained customary status.

More importantly, an act of the executive branch with a foreign government must be afforded great respect. The power
to enter into executive agreements has long been recognized to be lodged with the President. As We held in Neri v.
Senate Committee on Accountability of Public Officers and Investigations, "[t]he power to enter into an executive
agreement is in essence an executive power. This authority of the President to enter into executive agreements
without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence." 120 The
rationale behind this principle is the inviolable doctrine of separation of powers among the legislative, executive and
judicial branches of the government. Thus, absent any clear contravention of the law, courts should exercise utmost
caution in declaring any executive agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US Non-Surrender Agreement ought to
be in the form of a treaty, to be effective, has to be rejected.

WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack of merit. No costs.

SO ORDERED.
G.R. No. 185572 February 7, 2012

CHINA NATIONAL MACHINERY & EQUIPMENT CORP. (GROUP), Petitioner,

vs.
HON. CESAR D. SANTAMARIA, in his official capacity as Presiding Judge of Branch 145, Regional Trial
Court of Makati City, HERMINIO HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROGER R. RAYEL, ROMEL R.
BAGARES, CHRISTOPHER FRANCISCO C. BOLASTIG, LEAGUE OF URBAN POOR FOR ACTION (LUPA),
KILUSAN NG MARALITA SA MEYCAUAYAN (KMM-LUPA CHAPTER), DANILO M. CALDERON, VICENTE C.
ALBAN, MERLYN M. VAAL, LOLITA S. QUINONES, RICARDO D. LANOZO, JR., CONCHITA G. GOZO, MA.
TERESA D. ZEPEDA, JOSEFINA A. LANOZO, and SERGIO C. LEGASPI, JR., KALIPUNAN NG DAMAYANG
MAHIHIRAP (KADAMAY), EDY CLERIGO, RAMMIL DINGAL, NELSON B. TERRADO, CARMEN DEUNIDA, and
EDUARDO LEGSON, Respondents.

DECISION

SERENO, J.:

This is a Petition for Review on Certiorari with Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or
Preliminary Injunction assailing the 30 September 2008 Decision and 5 December 2008 Resolution of the Court of
Appeals (CA) in CAG.R. SP No. 103351.1

On 14 September 2002, petitioner China National Machinery & Equipment Corp. (Group) (CNMEG), represented by its
chairperson, Ren Hongbin, entered into a Memorandum of Understanding with the North Luzon Railways Corporation
(Northrail), represented by its president, Jose L. Cortes, Jr. for the conduct of a feasibility study on a possible railway
line from Manila to San Fernando, La Union (the Northrail Project). 2

On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the Department of Finance of the Philippines
(DOF) entered into a Memorandum of Understanding (Aug 30 MOU), wherein China agreed to extend Preferential
Buyers Credit to the Philippine government to finance the Northrail Project. 3 The Chinese government designated EXIM
Bank as the lender, while the Philippine government named the DOF as the borrower. 4 Under the Aug 30 MOU, EXIM
Bank agreed to extend an amount not exceeding USD 400,000,000 in favor of the DOF, payable in 20 years, with a 5-
year grace period, and at the rate of 3% per annum.5

On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui (Amb. Wang), wrote a letter to DOF
Secretary Jose Isidro Camacho (Sec. Camacho) informing him of CNMEGs designation as the Prime Contractor for the
Northrail Project.6

On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for the construction of Section I, Phase I
of the North Luzon Railway System from Caloocan to Malolos on a turnkey basis (the Contract Agreement). 7 The
contract price for the Northrail Project was pegged at USD 421,050,000. 8

On 26 February 2004, the Philippine government and EXIM Bank entered into a counterpart financial agreement
Buyer Credit Loan Agreement No. BLA 04055 (the Loan Agreement). 9 In the Loan Agreement, EXIM Bank agreed to
extend Preferential Buyers Credit in the amount of USD 400,000,000 in favor of the Philippine government in order to
finance the construction of Phase I of the Northrail Project. 10

On 13 February 2006, respondents filed a Complaint for Annulment of Contract and Injunction with Urgent Motion for
Summary Hearing to Determine the Existence of Facts and Circumstances Justifying the Issuance of Writs of
Preliminary Prohibitory and Mandatory Injunction and/or TRO against CNMEG, the Office of the Executive Secretary, the
DOF, the Department of Budget and Management, the National Economic Development Authority and Northrail. 11 The
case was docketed as Civil Case No. 06-203 before the Regional Trial Court, National Capital Judicial Region, Makati
City, Branch 145 (RTC Br. 145). In the Complaint, respondents alleged that the Contract Agreement and the Loan
Agreement were void for being contrary to (a) the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184), otherwise
known as the Government Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise known as the
Government Auditing Code; and (d) Executive Order No. 292, otherwise known as the Administrative Code. 12

RTC Br. 145 issued an Order dated 17 March 2006 setting the case for hearing on the issuance of injunctive
reliefs.13 On 29 March 2006, CNMEG filed an Urgent Motion for Reconsideration of this Order. 14 Before RTC Br. 145 could
rule thereon, CNMEG filed a Motion to Dismiss dated 12 April 2006, arguing that the trial court did not have jurisdiction
over (a) its person, as it was an agent of the Chinese government, making it immune from suit, and (b) the subject
matter, as the Northrail Project was a product of an executive agreement. 15
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEGs Motion to Dismiss and setting the case for
summary hearing to determine whether the injunctive reliefs prayed for should be issued. 16 CNMEG then filed a Motion
for Reconsideration,17 which was denied by the trial court in an Order dated 10 March 2008. 18Thus, CNMEG filed before
the CA a Petition for Certiorari with Prayer for the Issuance of TRO and/or Writ of Preliminary Injunction dated 4 April
2008.19

In the assailed Decision dated 30 September 2008, the appellate court dismissed the Petition for
Certiorari.20Subsequently, CNMEG filed a Motion for Reconsideration, 21 which was denied by the CA in a Resolution
dated 5 December 2008.22 Thus, CNMEG filed the instant Petition for Review on Certiorari dated 21 January 2009,
raising the following issues: 23

Whether or not petitioner CNMEG is an agent of the sovereign Peoples Republic of China.

Whether or not the Northrail contracts are products of an executive agreement between two sovereign states.

Whether or not the certification from the Department of Foreign Affairs is necessary under the foregoing
circumstances.

Whether or not the act being undertaken by petitioner CNMEG is an act jure imperii.

Whether or not the Court of Appeals failed to avoid a procedural limbo in the lower court.

Whether or not the Northrail Project is subject to competitive public bidding.

Whether or not the Court of Appeals ignored the ruling of this Honorable Court in the Neri case.

CNMEG prays for the dismissal of Civil Case No. 06-203 before RTC Br. 145 for lack of jurisdiction. It likewise requests
this Court for the issuance of a TRO and, later on, a writ of preliminary injunction to restrain public respondent from
proceeding with the disposition of Civil Case No. 06-203.

The crux of this case boils down to two main issues, namely:

1. Whether CNMEG is entitled to immunity, precluding it from being sued before a local court.

2. Whether the Contract Agreement is an executive agreement, such that it cannot be questioned by or before a local
court.

First issue: Whether CNMEG is entitled to immunity

This Court explained the doctrine of sovereign immunity in Holy See v. Rosario,24 to wit:

There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the
classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of
another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized
only with regard to public acts or acts jure imperii of a state, but not with regard to private acts or
acts jure gestionis. (Emphasis supplied; citations omitted.)

xxx xxx xxx

The restrictive theory came about because of the entry of sovereign states into purely commercial activities remotely
connected with the discharge of governmental functions. This is particularly true with respect to the Communist states
which took control of nationalized business activities and international trading.

In JUSMAG v. National Labor Relations Commission, 25 this Court affirmed the Philippines adherence to the restrictive
theory as follows:

The doctrine of state immunity from suit has undergone further metamorphosis. The view evolved that the existence
of a contract does not, per se, mean that sovereign states may, at all times, be sued in local courts. The complexity of
relationships between sovereign states, brought about by their increasing commercial activities, mothered a
more restrictive application of the doctrine.

xxx xxx xxx

As it stands now, the application of the doctrine of immunity from suit has been restricted to sovereign or
governmental activities (jure imperii). The mantle of state immunity cannot be extended to commercial, private and
proprietary acts (jure gestionis).26 (Emphasis supplied.)
Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature of the act involved
whether the entity claiming immunity performs governmental, as opposed to proprietary, functions. As held in United
States of America v. Ruiz 27

The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions
of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may be said to have
descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when
it enters into business contracts. It does not apply where the contract relates to the exercise of its sovereign
functions.28

A. CNMEG is engaged in a proprietary activity.

A threshold question that must be answered is whether CNMEG performs governmental or proprietary functions. A
thorough examination of the basic facts of the case would show that CNMEG is engaged in a proprietary activity.

The parties executed the Contract Agreement for the purpose of constructing the Luzon Railways, viz: 29

WHEREAS the Employer (Northrail) desired to construct the railways form Caloocan to Malolos, section I, Phase I of
Philippine North Luzon Railways Project (hereinafter referred to as THE PROJECT);

AND WHEREAS the Contractor has offered to provide the Project on Turnkey basis, including design, manufacturing,
supply, construction, commissioning, and training of the Employers personnel;

AND WHEREAS the Loan Agreement of the Preferential Buyers Credit between Export-Import Bank of China and
Department of Finance of Republic of the Philippines;

NOW, THEREFORE, the parties agree to sign this Contract for the Implementation of the Project.

The above-cited portion of the Contract Agreement, however, does not on its own reveal whether the construction of
the Luzon railways was meant to be a proprietary endeavor. In order to fully understand the intention behind and the
purpose of the entire undertaking, the Contract Agreement must not be read in isolation. Instead, it must be construed
in conjunction with three other documents executed in relation to the Northrail Project, namely: (a) the Memorandum
of Understanding dated 14 September 2002 between Northrail and CNMEG; 30 (b) the letter of Amb. Wang dated 1
October 2003 addressed to Sec. Camacho;31 and (c) the Loan Agreement.32

1. Memorandum of Understanding dated 14 September 2002

The Memorandum of Understanding dated 14 September 2002 shows that CNMEG sought the construction of the
Luzon Railways as a proprietary venture. The relevant parts thereof read:

WHEREAS, CNMEG has the financial capability, professional competence and technical expertise to assess the state of
the [Main Line North (MLN)] and recommend implementation plans as well as undertake its rehabilitation and/or
modernization;

WHEREAS, CNMEG has expressed interest in the rehabilitation and/or modernization of the MLN from Metro Manila to
San Fernando, La Union passing through the provinces of Bulacan, Pampanga, Tarlac, Pangasinan and La Union (the
Project);

WHEREAS, the NORTHRAIL CORP. welcomes CNMEGs proposal to undertake a Feasibility Study (the "Study") at no cost
to NORTHRAIL CORP.;

WHEREAS, the NORTHRAIL CORP. also welcomes CNMEGs interest in undertaking the Project with Suppliers Credit and
intends to employ CNMEG as the Contractor for the Project subject to compliance with Philippine and Chinese laws,
rules and regulations for the selection of a contractor;

WHEREAS, the NORTHRAIL CORP. considers CNMEGs proposal advantageous to the Government of the Republic of the
Philippines and has therefore agreed to assist CNMEG in the conduct of the aforesaid Study;

xxx xxx xxx

II. APPROVAL PROCESS

2.1 As soon as possible after completion and presentation of the Study in accordance with Paragraphs 1.3 and 1.4
above and in compliance with necessary governmental laws, rules, regulations and procedures required from both
parties, the parties shall commence the preparation and negotiation of the terms and conditions of the Contract (the
"Contract") to be entered into between them on the implementation of the Project. The parties shall use their best
endeavors to formulate and finalize a Contract with a view to signing the Contract within one hundred twenty (120)
days from CNMEGs presentation of the Study.33 (Emphasis supplied)

Clearly, it was CNMEG that initiated the undertaking, and not the Chinese government. The Feasibility Study was
conducted not because of any diplomatic gratuity from or exercise of sovereign functions by the Chinese government,
but was plainly a business strategy employed by CNMEG with a view to securing this commercial enterprise.

2. Letter dated 1 October 2003

That CNMEG, and not the Chinese government, initiated the Northrail Project was confirmed by Amb. Wang in his letter
dated 1 October 2003, thus:

1. CNMEG has the proven competence and capability to undertake the Project as evidenced by the ranking of 42 given
by the ENR among 225 global construction companies.

2. CNMEG already signed an MOU with the North Luzon Railways Corporation last September 14, 2000 during the visit
of Chairman Li Peng. Such being the case, they have already established an initial working relationship with your North
Luzon Railways Corporation. This would categorize CNMEG as the state corporation within the Peoples Republic of
China which initiated our Governments involvement in the Project.

3. Among the various state corporations of the Peoples Republic of China, only CNMEG has the advantage of being
fully familiar with the current requirements of the Northrail Project having already accomplished a Feasibility Study
which was used as inputs by the North Luzon Railways Corporation in the approvals (sic) process required by the
Republic of the Philippines.34 (Emphasis supplied.)

Thus, the desire of CNMEG to secure the Northrail Project was in the ordinary or regular course of its business as a
global construction company. The implementation of the Northrail Project was intended to generate profit for CNMEG,
with the Contract Agreement placing a contract price of USD 421,050,000 for the venture. 35 The use of the term "state
corporation" to refer to CNMEG was only descriptive of its nature as a government-owned and/or -controlled
corporation, and its assignment as the Primary Contractor did not imply that it was acting on behalf of China in the
performance of the latters sovereign functions. To imply otherwise would result in an absurd situation, in which all
Chinese corporations owned by the state would be automatically considered as performing governmental activities,
even if they are clearly engaged in commercial or proprietary pursuits.

3. The Loan Agreement

CNMEG claims immunity on the ground that the Aug 30 MOU on the financing of the Northrail Project was signed by
the Philippine and Chinese governments, and its assignment as the Primary Contractor meant that it was bound to
perform a governmental function on behalf of China. However, the Loan Agreement, which originated from the same
Aug 30 MOU, belies this reasoning, viz:

Article 11. xxx (j) Commercial Activity The execution and delivery of this Agreement by the Borrower constitute, and
the Borrowers performance of and compliance with its obligations under this Agreement will constitute, private and
commercial acts done and performed for commercial purposes under the laws of the Republic of the
Philippines and neither the Borrower nor any of its assets is entitled to any immunity or privilege
(sovereign or otherwise) from suit, execution or any other legal process with respect to its obligations
under this Agreement, as the case may be, in any jurisdiction. Notwithstanding the foregoing, the Borrower
does not waive any immunity with respect of its assets which are (i) used by a diplomatic or consular mission of the
Borrower and (ii) assets of a military character and under control of a military authority or defense agency and (iii)
located in the Philippines and dedicated to public or governmental use (as distinguished from patrimonial assets or
assets dedicated to commercial use). (Emphasis supplied.)

(k) Proceedings to Enforce Agreement In any proceeding in the Republic of the Philippines to enforce this Agreement,
the choice of the laws of the Peoples Republic of China as the governing law hereof will be recognized and such law
will be applied. The waiver of immunity by the Borrower, the irrevocable submissions of the Borrower to the non-
exclusive jurisdiction of the courts of the Peoples Republic of China and the appointment of the Borrowers Chinese
Process Agent is legal, valid, binding and enforceable and any judgment obtained in the Peoples Republic of China will
be if introduced, evidence for enforcement in any proceedings against the Borrower and its assets in the Republic of
the Philippines provided that (a) the court rendering judgment had jurisdiction over the subject matter of the action in
accordance with its jurisdictional rules, (b) the Republic had notice of the proceedings, (c) the judgment of the court
was not obtained through collusion or fraud, and (d) such judgment was not based on a clear mistake of fact or law. 36

Further, the Loan Agreement likewise contains this express waiver of immunity:
15.5 Waiver of Immunity The Borrower irrevocably and unconditionally waives, any immunity to which it or its property
may at any time be or become entitled, whether characterized as sovereign immunity or otherwise, from any suit,
judgment, service of process upon it or any agent, execution on judgment, set-off, attachment prior to judgment,
attachment in aid of execution to which it or its assets may be entitled in any legal action or proceedings with respect
to this Agreement or any of the transactions contemplated hereby or hereunder. Notwithstanding the foregoing, the
Borrower does not waive any immunity in respect of its assets which are (i) used by a diplomatic or consular mission of
the Borrower, (ii) assets of a military character and under control of a military authority or defense agency and (iii)
located in the Philippines and dedicated to a public or governmental use (as distinguished from patrimonial assets or
assets dedicated to commercial use).37

Thus, despite petitioners claim that the EXIM Bank extended financial assistance to Northrail because the bank was
mandated by the Chinese government, and not because of any motivation to do business in the Philippines, 38 it is clear
from the foregoing provisions that the Northrail Project was a purely commercial transaction.

Admittedly, the Loan Agreement was entered into between EXIM Bank and the Philippine government, while the
Contract Agreement was between Northrail and CNMEG. Although the Contract Agreement is silent on the
classification of the legal nature of the transaction, the foregoing provisions of the Loan Agreement, which is an
inextricable part of the entire undertaking, nonetheless reveal the intention of the parties to the Northrail Project to
classify the whole venture as commercial or proprietary in character.

Thus, piecing together the content and tenor of the Contract Agreement, the Memorandum of Understanding dated 14
September 2002, Amb. Wangs letter dated 1 October 2003, and the Loan Agreement would reveal the desire of
CNMEG to construct the Luzon Railways in pursuit of a purely commercial activity performed in the ordinary course of
its business.

B. CNMEG failed to adduce evidence that it is immune from suit under Chinese law.

Even assuming arguendo that CNMEG performs governmental functions, such claim does not automatically vest it with
immunity. This view finds support in Malong v. Philippine National Railways, in which this Court held that "(i)mmunity
from suit is determined by the character of the objects for which the entity was organized." 39

In this regard, this Courts ruling in Deutsche Gesellschaft Fr Technische Zusammenarbeit (GTZ) v. CA 40 must be
examined. In Deutsche Gesellschaft, Germany and the Philippines entered into a Technical Cooperation Agreement,
pursuant to which both signed an arrangement promoting the Social Health InsuranceNetworking and Empowerment
(SHINE) project. The two governments named their respective implementing organizations: the Department of Health
(DOH) and the Philippine Health Insurance Corporation (PHIC) for the Philippines, and GTZ for the implementation of
Germanys contributions. In ruling that GTZ was not immune from suit, this Court held:

The arguments raised by GTZ and the [Office of the Solicitor General (OSG)] are rooted in several indisputable facts.
The SHINE project was implemented pursuant to the bilateral agreements between the Philippine and German
governments. GTZ was tasked, under the 1991 agreement, with the implementation of the contributions of the
German government. The activities performed by GTZ pertaining to the SHINE project are governmental in nature,
related as they are to the promotion of health insurance in the Philippines. The fact that GTZ entered into employment
contracts with the private respondents did not disqualify it from invoking immunity from suit, as held in cases such as
Holy See v. Rosario, Jr., which set forth what remains valid doctrine:

Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an
act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in the activity in
the regular course of business. If the foreign state is not engaged regularly in a business or trade, the particular act or
transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then
it is an act jure imperii, especially when it is not undertaken for gain or profit.

Beyond dispute is the tenability of the comment points (sic) raised by GTZ and the OSG that GTZ was not performing
proprietary functions notwithstanding its entry into the particular employment contracts. Yet there is an equally
fundamental premise which GTZ and the OSG fail to address, namely: Is GTZ, by conception, able to enjoy the Federal
Republics immunity from suit?

The principle of state immunity from suit, whether a local state or a foreign state, is reflected in Section 9, Article XVI
of the Constitution, which states that "the State may not be sued without its consent." Who or what consists of "the
State"? For one, the doctrine is available to foreign States insofar as they are sought to be sued in the courts of the
local State, necessary as it is to avoid "unduly vexing the peace of nations."
If the instant suit had been brought directly against the Federal Republic of Germany, there would be no doubt that it is
a suit brought against a State, and the only necessary inquiry is whether said State had consented to be sued.
However, the present suit was brought against GTZ. It is necessary for us to understand what precisely are the
parameters of the legal personality of GTZ.

Counsel for GTZ characterizes GTZ as "the implementing agency of the Government of the Federal
Republic of Germany," a depiction similarly adopted by the OSG. Assuming that the characterization is correct, it
does not automatically invest GTZ with the ability to invoke State immunity from suit. The distinction lies in
whether the agency is incorporated or unincorporated.

xxx xxx xxx

State immunity from suit may be waived by general or special law. The special law can take the form of the original
charter of the incorporated government agency. Jurisprudence is replete with examples of incorporated government
agencies which were ruled not entitled to invoke immunity from suit, owing to provisions in their charters manifesting
their consent to be sued.

xxx xxx xxx

It is useful to note that on the part of the Philippine government, it had designated two entities, the Department of
Health and the Philippine Health Insurance Corporation (PHIC), as the implementing agencies in behalf of the
Philippines. The PHIC was established under Republic Act No. 7875, Section 16 (g) of which grants the corporation the
power "to sue and be sued in court." Applying the previously cited jurisprudence, PHIC would not enjoy immunity from
suit even in the performance of its functions connected with SHINE, however, (sic) governmental in nature as (sic) they
may be.

Is GTZ an incorporated agency of the German government? There is some mystery surrounding that
question. Neither GTZ nor the OSG go beyond the claim that petitioner is "the implementing agency of
the Government of the Federal Republic of Germany." On the other hand, private respondents asserted before
the Labor Arbiter that GTZ was "a private corporation engaged in the implementation of development projects." The
Labor Arbiter accepted that claim in his Order denying the Motion to Dismiss, though he was silent on that point in his
Decision. Nevertheless, private respondents argue in their Comment that the finding that GTZ was a private
corporation "was never controverted, and is therefore deemed admitted." In its Reply, GTZ controverts that finding,
saying that it is a matter of public knowledge that the status of petitioner GTZ is that of the "implementing agency,"
and not that of a private corporation.

In truth, private respondents were unable to adduce any evidence to substantiate their claim that GTZ was a "private
corporation," and the Labor Arbiter acted rashly in accepting such claim without explanation. But neither has GTZ
supplied any evidence defining its legal nature beyond that of the bare descriptive "implementing
agency." There is no doubt that the 1991 Agreement designated GTZ as the "implementing agency" in
behalf of the German government. Yet the catch is that such term has no precise definition that is
responsive to our concerns. Inherently, an agent acts in behalf of a principal, and the GTZ can be said to
act in behalf of the German state. But that is as far as "implementing agency" could take us. The term by
itself does not supply whether GTZ is incorporated or unincorporated, whether it is owned by the German
state or by private interests, whether it has juridical personality independent of the German government
or none at all.

xxx xxx xxx

Again, we are uncertain of the corresponding legal implications under German law surrounding "a private
company owned by the Federal Republic of Germany." Yet taking the description on face value, the
apparent equivalent under Philippine law is that of a corporation organized under the Corporation Code
but owned by the Philippine government, or a government-owned or controlled corporation without
original charter. And it bears notice that Section 36 of the Corporate Code states that "[e]very
corporation incorporated under this Code has the power and capacity x x x to sue and be sued in its
corporate name."

It is entirely possible that under German law, an entity such as GTZ or particularly GTZ itself has not been vested or
has been specifically deprived the power and capacity to sue and/or be sued. Yet in the proceedings below and before
this Court, GTZ has failed to establish that under German law, it has not consented to be sued despite it
being owned by the Federal Republic of Germany. We adhere to the rule that in the absence of evidence
to the contrary, foreign laws on a particular subject are presumed to be the same as those of the
Philippines, and following the most intelligent assumption we can gather, GTZ is akin to a governmental
owned or controlled corporation without original charter which, by virtue of the Corporation Code, has
expressly consented to be sued. At the very least, like the Labor Arbiter and the Court of Appeals, this Court has
no basis in fact to conclude or presume that GTZ enjoys immunity from suit. 41(Emphasis supplied.)

Applying the foregoing ruling to the case at bar, it is readily apparent that CNMEG cannot claim immunity from suit,
even if it contends that it performs governmental functions. Its designation as the Primary Contractor does not
automatically grant it immunity, just as the term "implementing agency" has no precise definition for purposes of
ascertaining whether GTZ was immune from suit. Although CNMEG claims to be a government-owned corporation, it
failed to adduce evidence that it has not consented to be sued under Chinese law. Thus, following this Courts ruling in
Deutsche Gesellschaft, in the absence of evidence to the contrary, CNMEG is to be presumed to be a government-
owned and -controlled corporation without an original charter. As a result, it has the capacity to sue and be sued under
Section 36 of the Corporation Code.

C. CNMEG failed to present a certification from the Department of Foreign Affairs.

In Holy See,42 this Court reiterated the oft-cited doctrine that the determination by the Executive that an entity is
entitled to sovereign or diplomatic immunity is a political question conclusive upon the courts, to wit:

In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a
foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is
entitled to immunity.

xxx xxx xxx

In the Philippines, the practice is for the foreign government or the international organization to first secure an
executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office conveys
its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990),
the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment, informing the
latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity. In World Health
Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that
effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to request the
Solicitor General to make, in behalf of the Commander of the United States Naval Base at Olongapo City, Zambales, a
"suggestion" to respondent Judge. The Solicitor General embodied the "suggestion" in a Manifestation and
Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court to be
allowed to intervene on the side of petitioner. The Court allowed the said Department to file its memorandum in
support of petitioners claim of sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents
through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus Command, 80
Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644 [1990] and companion cases). In cases where the
foreign states bypass the Foreign Office, the courts can inquire into the facts and make their own determination as to
the nature of the acts and transactions involved.43 (Emphasis supplied.)

The question now is whether any agency of the Executive Branch can make a determination of immunity from suit,
which may be considered as conclusive upon the courts. This Court, in Department of Foreign Affairs (DFA) v. National
Labor Relations Commission (NLRC),44 emphasized the DFAs competence and authority to provide such necessary
determination, to wit:

The DFAs function includes, among its other mandates, the determination of persons and institutions covered by
diplomatic immunities, a determination which, when challenge, (sic) entitles it to seek relief from the court so as not to
seriously impair the conduct of the country's foreign relations. The DFA must be allowed to plead its case whenever
necessary or advisable to enable it to help keep the credibility of the Philippine government before the international
community. When international agreements are concluded, the parties thereto are deemed to have likewise accepted
the responsibility of seeing to it that their agreements are duly regarded. In our country, this task falls principally of
(sic) the DFA as being the highest executive department with the competence and authority to so act in this aspect of
the international arena.45 (Emphasis supplied.)

Further, the fact that this authority is exclusive to the DFA was also emphasized in this Courts ruling in Deutsche
Gesellschaft:
It is to be recalled that the Labor Arbiter, in both of his rulings, noted that it was imperative for petitioners to secure
from the Department of Foreign Affairs "a certification of respondents diplomatic status and entitlement to diplomatic
privileges including immunity from suits." The requirement might not necessarily be imperative. However, had GTZ
obtained such certification from the DFA, it would have provided factual basis for its claim of immunity that would, at
the very least, establish a disputable evidentiary presumption that the foreign party is indeed immune which the
opposing party will have to overcome with its own factual evidence. We do not see why GTZ could not have secured
such certification or endorsement from the DFA for purposes of this case. Certainly, it would have been highly
prudential for GTZ to obtain the same after the Labor Arbiter had denied the motion to dismiss. Still, even at this
juncture, we do not see any evidence that the DFA, the office of the executive branch in charge of our diplomatic
relations, has indeed endorsed GTZs claim of immunity. It may be possible that GTZ tried, but failed to secure such
certification, due to the same concerns that we have discussed herein.

Would the fact that the Solicitor General has endorsed GTZs claim of States immunity from suit before this Court
sufficiently substitute for the DFA certification? Note that the rule in public international law quoted in Holy See
referred to endorsement by the Foreign Office of the State where the suit is filed, such foreign office in the Philippines
being the Department of Foreign Affairs. Nowhere in the Comment of the OSG is it manifested that the DFA has
endorsed GTZs claim, or that the OSG had solicited the DFAs views on the issue. The arguments raised by the OSG
are virtually the same as the arguments raised by GTZ without any indication of any special and distinct perspective
maintained by the Philippine government on the issue. The Comment filed by the OSG does not inspire the same
degree of confidence as a certification from the DFA would have elicited. 46 (Emphasis supplied.)

In the case at bar, CNMEG offers the Certification executed by the Economic and Commercial Office of the Embassy of
the Peoples Republic of China, stating that the Northrail Project is in pursuit of a sovereign activity. 47Surely, this is not
the kind of certification that can establish CNMEGs entitlement to immunity from suit, as Holy See unequivocally
refers to the determination of the "Foreign Office of the state where it is sued."

Further, CNMEG also claims that its immunity from suit has the executive endorsement of both the OSG and the Office
of the Government Corporate Counsel (OGCC), which must be respected by the courts. However, as expressly
enunciated in Deutsche Gesellschaft, this determination by the OSG, or by the OGCC for that matter, does not inspire
the same degree of confidence as a DFA certification. Even with a DFA certification, however, it must be remembered
that this Court is not precluded from making an inquiry into the intrinsic correctness of such certification.

D. An agreement to submit any dispute to arbitration may be construed as an implicit waiver of immunity from suit.

In the United States, the Foreign Sovereign Immunities Act of 1976 provides for a waiver by implication of state
immunity. In the said law, the agreement to submit disputes to arbitration in a foreign country is construed as an
implicit waiver of immunity from suit. Although there is no similar law in the Philippines, there is reason to apply the
legal reasoning behind the waiver in this case.

The Conditions of Contract,48 which is an integral part of the Contract Agreement,49 states:

33. SETTLEMENT OF DISPUTES AND ARBITRATION

33.1. Amicable Settlement

Both parties shall attempt to amicably settle all disputes or controversies arising from this Contract before the
commencement of arbitration.

33.2. Arbitration

All disputes or controversies arising from this Contract which cannot be settled between the Employer and the
Contractor shall be submitted to arbitration in accordance with the UNCITRAL Arbitration Rules at present in force and
as may be amended by the rest of this Clause. The appointing authority shall be Hong Kong International Arbitration
Center. The place of arbitration shall be in Hong Kong at Hong Kong International Arbitration Center (HKIAC).

Under the above provisions, if any dispute arises between Northrail and CNMEG, both parties are bound to submit the
matter to the HKIAC for arbitration. In case the HKIAC makes an arbitral award in favor of Northrail, its enforcement in
the Philippines would be subject to the Special Rules on Alternative Dispute Resolution (Special Rules). Rule 13 thereof
provides for the Recognition and Enforcement of a Foreign Arbitral Award. Under Rules 13.2 and 13.3 of the Special
Rules, the party to arbitration wishing to have an arbitral award recognized and enforced in the Philippines must
petition the proper regional trial court (a) where the assets to be attached or levied upon is located; (b) where the acts
to be enjoined are being performed; (c) in the principal place of business in the Philippines of any of the parties; (d) if
any of the parties is an individual, where any of those individuals resides; or (e) in the National Capital Judicial Region.
From all the foregoing, it is clear that CNMEG has agreed that it will not be afforded immunity from suit. Thus, the
courts have the competence and jurisdiction to ascertain the validity of the Contract Agreement.

Second issue: Whether the Contract Agreement is an executive agreement

Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna Convention) defines a treaty as follows:

[A]n international agreement concluded between States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and whatever its particular designation.

In Bayan Muna v. Romulo, this Court held that an executive agreement is similar to a treaty, except that the former (a)
does not require legislative concurrence; (b) is usually less formal; and (c) deals with a narrower range of subject
matters.50

Despite these differences, to be considered an executive agreement, the following three requisites provided under the
Vienna Convention must nevertheless concur: (a) the agreement must be between states; (b) it must be written; and
(c) it must governed by international law. The first and the third requisites do not obtain in the case at bar.

A. CNMEG is neither a government nor a government agency.

The Contract Agreement was not concluded between the Philippines and China, but between Northrail and
CNMEG.51 By the terms of the Contract Agreement, Northrail is a government-owned or -controlled corporation, while
CNMEG is a corporation duly organized and created under the laws of the Peoples Republic of China. 52Thus, both
Northrail and CNMEG entered into the Contract Agreement as entities with personalities distinct and separate from the
Philippine and Chinese governments, respectively.

Neither can it be said that CNMEG acted as agent of the Chinese government. As previously discussed, the fact that
Amb. Wang, in his letter dated 1 October 2003, 53 described CNMEG as a "state corporation" and declared its
designation as the Primary Contractor in the Northrail Project did not mean it was to perform sovereign functions on
behalf of China. That label was only descriptive of its nature as a state-owned corporation, and did not preclude it from
engaging in purely commercial or proprietary ventures.

B. The Contract Agreement is to be governed by Philippine law.

Article 2 of the Conditions of Contract, 54 which under Article 1.1 of the Contract Agreement is an integral part of the
latter, states:

APPLICABLE LAW AND GOVERNING LANGUAGE

The contract shall in all respects be read and construed in accordance with the laws of the Philippines.

The contract shall be written in English language. All correspondence and other documents pertaining to the Contract
which are exchanged by the parties shall be written in English language.

Since the Contract Agreement explicitly provides that Philippine law shall be applicable, the parties have effectively
conceded that their rights and obligations thereunder are not governed by international law.

It is therefore clear from the foregoing reasons that the Contract Agreement does not partake of the nature of an
executive agreement. It is merely an ordinary commercial contract that can be questioned before the local courts.

WHEREFORE, the instant Petition is DENIED. Petitioner China National Machinery & Equipment Corp. (Group) is not
entitled to immunity from suit, and the Contract Agreement is not an executive agreement. CNMEGs prayer for the
issuance of a TRO and/or Writ of Preliminary Injunction is DENIED for being moot and academic. This case is
REMANDED to the Regional Trial Court of Makati, Branch 145, for further proceedings as regards the validity of the
contracts subject of Civil Case No. 06-203.

No pronouncement on costs of suit.

SO ORDERED.