Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-10500 June 30, 1959

USAFFE VETERANS ASSOCIATION, INC., plaintiff-appellant,

vs.
THE TREASURER OF THE PHILIPPINES, ET AL., defendants-appellees.

Lorenzo B. Camins, Castor C. Ames and Alberto M. K. Jamir for appellant.

Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General Jose
P. Alejandro and Solicitor Jorge R. Coquia for appellees.

BENGZON, J.:

The central issue in this litigation concerns the validity of the Romulo-Snyder
Agreement (1950) whereby the Philippine Government undertook to return to the
United States Government in ten annual installments, a total of about 35-million
dollars advanced by the United States to, but unexpanded by, the National
Defense Forces of the Philippines.

In October 1954, the USAFFE Veterans Associations Inc., hereafter called

Usaffe Veterans, for itself and for many other Filipino veterans of World War II,
ex-members of the United States Armed Forces in the Far East (USAFFE)
prayed in its complaint before the Manila court of first instance that said
Agreement be annulled, that payments thereunder be declared illegal and that
defendants as officers of the Philippine Republic be restrained from disbursing
any funds in the National Treasury in pursuance of said Agreement. Said Usaffe
Veterans further asked that the moneys available, instead of being remitted to
the United States, should be turned over to the Finance Service of the Armed
Forces of the Philippines for the payment of all pending claims of the veterans
represented by plaintiff.

The complaint rested on plaintiff's three propositions: first, that the funds to be
"returned" under the Agreement were funds appropriated by the American
Congress for the Philippine army, actually delivered to the Philippine
Government and actually owned by said Government; second, that U.S.
Secretary Snyder of the Treasury, had no authority to retake such funds from the
P.I. Government; and third, that Philippine foreign Secretary Carlos P. Romulo
had no authority to return or promise to return the aforesaid sums of money
through the so-called Romulo-Snyder Agreement.

The defendants moved to dismiss, alleging Governmental immunity from suit. But
the court required an answer, and then heard the case merits. Thereafter, it
dismissed the complaint, upheld the validity of the Agreement and dissolved the
preliminary injunction i had previously issued. The plaintiff appealed.

On July 26, 1941, foreseeing the War in the Pacific, President Franklin D.
Roosevelt, called into the service of the Armed Forces of the United States, for
the duration of the emergency, all the organized military forces of the Philippine
Commonwealth. His order was published here by Proclamation No. 740 of
President Quezon on August 10, 1941. In October 1941, by two special orders,
General Douglas MacArthur, Commanding General of the United States Army
Forces in the Far East (known as USAFFE) placed under his command all the
Philippine Army units including the Philippine Constabulary, about 100,000
officers and soldiers.

For the expenses incident to such incorporation, mobilization and activities, the
Congress of the United States provided in its Appropriation Act of December 17,
1941 (Public Law No. 353, 77th Congress) as follows:

For all expenses necessary for the mobilization, operation and

maintenance of the Army of the Philippines, including expenses connected
with calling into the service of the armed forces of the United States the
organized military forces of the Government of the Commonwealth of the
Philippines, . . . but shall be expanded and accounted for in the manner
prescribed by the President of the United States, S269,000.00; to remain
available until June 30, 1943, which shall be available for payment to the
Government of the Commonwealth of the Philippines upon its written
request, either in advance of or in reimbursement for all or any part of the
estimated or actual costs, as authorized by the Commanding General,
United States Army Forces in the Far East, of necessary expenses for the
purposes aforesaid. . . . (Emphasis Ours.)

In subsequent Acts, the U.S. Congress appropriated moneys in language

identical to the above: S28,313,000.00 for the fiscal year ending June 30, 1943;
and S100,000,000 each year, for the fiscal years ending June 30, 1944, June 30,
1945, and June 30, 1946.1 The last pertinent appropriation was Public law No.
301 (79th Congress) known as the Rescission Act. It simply set aside 200 million
dollars for the Army for the fiscal year ending June 30, 1946.
Now, pursuant to the power reserved to him under Public Law 353 above-quoted,
President Roosevelt issued on January 3, 1942, his executive Order No. 9011
prescribing partly as follows:

2. (a) Necessary expenditures from funds in the Philippine Treasury for the
purposes authorized by the Act of December 17, 1941, will be made by
disbursing officers of the Army of the Philippines on the approval of
authority of the Commanding General, United States Army Forces in the
Far East, and such purposes as he may deem proper, and his
determination thereon shall be final and conclusive upon the accounting
officers of the Philippine Government, and such expenditures will be
accounted for in accordance with procedures established by the Philippine
Commonwealth Laws and regulations. (Emphasis Ours.)

Out of the total amounts thus appropriated by the United States Congress as
above itemized, P570,863,000.00 was transferred directly to the Philippines
Armed Forces by means of vouchers which stated "Advance of Funds under
Public law 353-77th Congress and Executive Order No. 9011". This amount was
used (mostly) to discharge in the Philippine Islands the monetary obligations
assumed by the U.S. Government as a result of the induction of the Philippine
Armed Forces into the U.S. Army, and of its operations beginning in 1941. Part of
these obligations consisted in the claims of Filipino USAFFE soldiers for arrears
in pay and in the charges for supplies used by them and the guerrillas.

Of the millions so transferred, there remained unexpended and uncommitted in

the possession of the Philippine Armed Forces as of December 31, 1949 about
35 million dollars. As at that time, the Philippine Government badly needed funds
for its activities, President Quirino, through Governor Miguel Cuaderno of the
Central Bank proposed to the corresponding officials of the U.S. Government the
retention of the 35-million dollars as a loan, and for its repayment in ten annual
installments. After protracted negotiations the deal was concluded, and the
Romulo-Snyder Agreement was signed in Washington on November 6, 1950, by
the then Philippine Secretary of Foreign Affairs, Carlos P. Romulo, and the then
American Secretary of the Treasury, John W. Snyder.

Principal stipulation therein was this paragraph:

3. The Government of the Republic of the Philippines further agrees to pay

the dollar amount payable hereunder to the Secretary of the Treasury of
the United States in ten annual installments, the first nine payments to be
in the amount of S3,500,000.00 and the final residual payment to be in the
amount determined by deducting the total of the previous principal
payments from the total amount of dollars to be paid to the Secretary of the
 Treasury of the United States, the latter amount to be determined as
provided in Article II hereof. . . .

It should be added that the agreement, made on the basis of the parties' belief
that S35-million was the outstanding balance, provided in its article II for an audit
by appropriate officers to compute the exact amount due.

In compliance with the Agreement, this Government has appropriated by law and
paid to the United States up to and including 1954, yearly installments totaling of
P33,187,663.24. There is no reason to doubt that subsequent budgets failed to
make the corresponding appropriations for other installments.

In this appeal, the Usaffe Veterans reiterated with extended arguments, their
basic propositions. They insists: first, the money delivered to the U.S. to the
Armed Forces of the Philippine Island were straight payments for military
services; ownership thereof vested in the Philippine Government upon delivery,
and consequently, there was nothing to return, nothing to consider as a loan; and
second, the Romulo-Snyder Agreement was void because it was not binding on
the Philippine Government for lack of authority of the officers who concluded the
same.

With regard to the first point, it must be remembered that the first Congressional
Act of December 17, 1941 (Public Law No. 353) appropriating S269-million
expressly said the amount "shall be available for payment to the Government of
the Commonwealth of the Philippines upon its written request, either in advance
of or in reimbursement for all or any part of the estimated or actual costs" of
operation, mobilization and maintenance of the Philippine Army. Note carefully,
the money is to handled to the Philippine Government either in advance of
expenditures or in reimbursement thereof. All the vouchers signed upon receipt
of the money state clearly, " Advance of funds under Public law 353-7th
Congress and Executive Order No. 9011".

In any system of accounting, advances of funds for expenditures contemplate

disbursements to be reported, and credited if approved, against such advances,
the unexpended sums to be returned later. In fact, the Congressional law itself
required accounting "in the manner prescribed by the President of the U.S." and
said President in his Executive Order No. 9011, outlined the procedure whereby
advanced funds shall be accounted for. Furthermore, it requires as a
condition sine qua non that all expenditures shall first be approved by the
Commanding General, United States Army Forces Army Forces in the Far East.

Now, these ideas of "funds advanced" to meet such expenditures of the

Philippine Army as may be approved by the USAFFE Commanding-General, in
connection with the requirement of accounting therefor evidently contradict
appellant's thesis that the moneys represented straight payments to the
Philippine Government for its armed services, and passed into the absolute
control of such Government.

In fact, the respective army officers of both nations,2 who are presumed to know
their business, have consistently regarded the money as funds advanced, to be
subsequently accounted for — which means submission of expenditures, and if
approved, return of unexpended balance.

Now then, it is undeniable that upon a final rendition of accounts by the Philippine
Government, a superabit resulted of at least 35 million dollars in favor of the U.
S. Instead of returning such amount in one lump sum, our Executive Department
arranged for its repayment in ten annual installments. Prima facie such
arrangement should raise no valid objection, given the obligation to return-which
we know exists.

Yet plaintiff attempts to block such repayment because many alleged claims of
veterans have not been processed and paid, December 31, 1949, having been
fixed as the deadline for the presentation and/or payment of such claims. Plaintiff
obviously calculates that if the return is prevented and the money kept here, it
might manage to persuade the powers-that-be extend the deadline anew. Hence
the two-pronged attack: (a) no obligation to repay; (b) the officers who promised
to repay had no authority to bind this Government.

The first ground has proved untenable.

On the second, there is no doubt that President Quirino approved the

negotiations. And he had power to contract budgetary loans under Republic Act
No. 213, amending the Republic Act No. 16. The most important argument,
however, rests on the lack of ratification of the Agreement by the Senate of the
Philippines to make it binding on this Government. On this matter, the defendants
explain as follows:

That the agreement is not a "treaty" as that term is used in the

Constitution, is conceded. The agreement was never submitted to the
Senate for concurrence (Art. VII, Sec. 10 (7). However, it must be noted
that treaty is not the only form that an international agreement may
assume. For the grant of the treaty-making power to the Executive and the
Senate does not exhaust the power of the government over international
relations. Consequently, executive agreements may be entered with other
states and are effective even without the concurrence of the Senate
(Sinco, Philippine Political Law, 10th ed., 303; Tañada and Fernando,
Constitution of the Philippines, 4th ed., Vol. II, 1055). It is observed in this
connection that from the point of view of the 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 (Hackworth, Digest of International Law, Vol.
5, 395, citing U. S. vs. Belmont, 301 U. S. 342, State of Russia vs. National
City Bank of New York, 69 F. (2d) 44; United States vs. Pink, 315 U. S.
203; Altman & Co., vs. United States, 224 U. S. 583. See also McDougal
and Lans, "Treaties and Executive Agreements 54 Yale Law Journal 181,
318, et seg.; and Sinco; Op. cit. 305) "The distinction between so-called
executive agreements" and "treaties" is purely a constitutional one and has
no international legal significance" (Research in International Law Draft
Convention on the Law of Treaties (Harvard Law School), Comment, 29
Am. J. Int.) Law Supp. 653, 897. See also Hackworth, op. cit. 391).

There are now various forms of such pacts or agreements entered into by
and between sovereign states which do not necessarily come under the
strict sense of a treaty and which do not require ratification or consent of
the legislative body of the State, but nevertheless, are considered valid
international agreements. In a survey of the practice of States made by
Harvard Research in the Draft Convention in the Law of Treaties (1935,
pp. 711-713) it has been shown that there had been more executive
agreements entered into by States than treaties (Hudson, International
Legislation, I, p. ixii-xcvii).

In the leading case of Altman vs, U. S., 224, U. S. 583, it was held that "an
international compact negotiated between the representatives of two
sovereign nations and made in the name and or behalf of the contracting
parties and dealing with important commercial relations between the two
countries, is a treaty both internationally although as an executive
agreement it is not technically a treaty requiring the advice and consent of
the Senate. (Herbert Briggs, The Law of Nations, 1947 ed., p. 489).

Nature of Executive Agreements.

Executive Agreements fall into two classes: (1) agreements made purely
as executive acts affecting external relations and independent of or without
legislative authorization, which may be termed as presidential agreements
and (2) agreements entered into in pursuants of acts of Congress, which
have been designated as Congressional-Executive Agreements
(Sinco, supra, 304; Hackworth, supra, 390; McDougal and Lans, supra,
204-205; Hyke, International Law, 2nd ed., Vol. II; et seq.)
 The Romulo-Snyder Agreement may fall under any of these two classes,
for precisely on September 18, 1946, Congress of the Philippines
specifically authorized the President of the Philippines to obtain such loans
or incur such indebtedness with the Government of the United States, its
agencies or instrumentalities (Republic Act No. 16, September 18, 1946,
amended by Republic Act No. 213, June 1, 1948). . . .

Even granting, arguendo, that there was no legislative authorization, it is

hereby maintained that the Romulo-Snyder Agreement was legally and
validly entered into to conform to the second category, namely,
"agreements entered into purely as executive acts without legislative
authorization." This second category usually includes money agreements
relating to the settlement of pecuniary claims of citizens. It may be said
that this method of settling such claims has come to be the usual way of
dealing with matters of this kind (Memorandum of the Solicitor of the
Department of State (Nielson) sent to Senator Lodge by the Under-
Secretary of State (Philip), August 23, 1922, MS Dept. of State, file
711.00/98a).

Such considerations seems persuasive; indeed, the Agreement was not

submitted to the U.S. Senate either; but we do not stop to check the authorities
above listed nor test the conclusions derived therefrom in order to render a
definite pronouncement, for the reason that our Senate Resolution No.
153 practically admits the validity and binding force of such Agreement.
Furthermore, the acts of Congress Appropriating funds for the yearly installments
necessary to comply with such Agreements constitute a ratification thereof, which
places the question the validity out of the Court's reach, no constitutional
principle having been invoked to restrict Congress' plenary power to appropriate
funds-loan or no loan.

In conclusion, plaintiff, to say the least, failed to make a clear case for the relief
demanded; its petition was therefore, properly denied.

Paras, C.J., Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion,

Endencia and Barrera, JJ., concur.

Footnotes
1
Public Laws 649 (77th Congress), 108 (78th Congress), 374 (78th
Congress), and 126 (79th Congress).
2
The Commanding General, United States Forces Philippines-Ryukus
Command and the Chief of Staff, Philippine Army. See their agreements of
June 30, 1948 and July 29, 1949.
3
Dated May 19, 1954.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-14279 October 31, 1961

THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF

CUSTOMS, petitioners,
vs.
EASTERN SEA TRADING, respondent.

Office of the Solicitor General for petitioners.

Valentin Gutierrez for respondent.

CONCEPCION, J.:

Petition for review of a judgment of the Court of Tax Appeals reversing a decision
of the Commissioner of Customs.

Respondent Eastern Sea Trading was the consignee of several shipments of

onion and garlic which arrived at the Port of Manila from August 25 to September
7, 1954. Some shipments came from Japan and others from Hong Kong. In as
much as none of the shipments had the certificate required by Central Bank
Circulars Nos. 44 and 45 for the release thereof, the goods thus imported were
seized and subjected to forfeiture proceedings for alleged violations of section
1363(f) of the Revised Administrative Code, in relation to the aforementioned
circulars of the Central Bank. In due course, the Collector of Customs of Manila
rendered a decision on September 4, 1956, declaring said goods forfeited to the
Government and — the goods having been, in the meantime, released to the
consignees on surety bonds, filed by the same, as principal, and the Alto Surety
& Insurance Co., Inc., as surety, in compliance with orders of the Court of First
Instance of Manila, in Civil Cases Nos. 23942 and 23852 thereof — directing that
the amounts of said bonds be paid, by said principal and surety, jointly and
severally, to the Bureau of Customs, within thirty (30) days from notice.

On appeal taken by the consignee, said decision was affirmed by the

Commissioner of Customs on December 27, 1956. Subsequently, the consignee
sought a review of the decision of said two (2) officers by the Court of Tax
Appeals, which reversed the decision of the Commissioner of Customs and
ordered that the aforementioned bonds be cancelled and withdrawn. Hence, the
present petition of the Commissioner of Customs for review of the decision of the
Court of Tax Appeals.

The latter is based upon the following premises, namely: that the Central Bank
has no authority to regulate transactions not involving foreign exchange; that the
shipments in question are in the nature of "no-dollar" imports; that, as such, the
aforementioned shipments do not involve foreign exchange; that, insofar as a
Central Bank license and a certificate authorizing the importation or release of
the goods under consideration are required by Central Bank Circulars Nos. 44
and 45, the latter are null and void; and that the seizure and forfeiture of the
goods imported from Japan cannot be justified under Executive Order No.
328,1 not only because the same seeks to implement an executive agreement2 —
extending the effectivity of our3 Trades and Financial Agreements4 with Japan —
which (executive agreement), it believed, is of dubious validity, but, also,
because there is no governmental agency authorized to issue the import license
required by the aforementioned executive order.

The authority of the Central Bank to regulate no-dollar imports and the validity of
the aforementioned Circulars Nos. 44, and 45 have already been passed upon
and repeatedly upheld by this Court (Pascual vs. Commissioner of Customs, L-
10979 [June 30, 1959]; Acting Commissioner of Customs vs. Leuterio, L-9142
[October 17, 1959] Commissioner of Customs vs. Pascual, L-9836 [November
18, 1959]; Commissioner of Customs vs. Serree Investment Co., L-12007 [May
16, 1960]; Commissioner of Customs vs. Serree Investment Co., L-14274
[November 29, 1960]), for the reason that the broad powers of the Central Bank,
under its charter, to maintain our monetary stability and to preserve the
international value of our currency, under section 2 of Republic Act No. 265, in
relation to section 14 of said Act — authorizing the bank to issue such rules and
regulations as it may consider necessary for the effective discharge of the
responsibilities and the exercise of the powers assigned to the Monetary Board
and to the Central Bank — connote the authority to regulate no-dollar imports,
owing to the influence and effect that the same may and do have upon the
stability of our peso and its international value.

The Court of Tax Appeals entertained doubts on the legality of the executive
agreement sought to be implemented by Executive Order No. 328, owing to the
fact that our Senate had not concurred in the making of said executive
agreement. The concurrence of said House of Congress is required by our
fundamental law in the making of "treaties" (Constitution of the Philippines,
Article VII, Section 10[7]), which are, however, distinct and different from
"executive agreements," which may be validly entered into without such
concurrence.
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.

xxx xxx xxx

. . . 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.

xxx xxx xxx

Agreements with respect to the registration of trade-marks have been

concluded by the Executive with various countries under the Act of
Congress of March 3, 1881 (21 Stat. 502). Postal conventions regulating
the reciprocal treatment of mail matters, money orders, parcel post, etc.,
have been concluded by the Postmaster General with various countries
under authorization by Congress beginning with the Act of February 20,
1792 (1 Stat. 232, 239). Ten executive agreements were concluded by the
President pursuant to the McKinley Tariff Act of 1890 (26 Stat. 567, 612),
and nine such agreements were entered into under the Dingley Tariff Act
1897 (30 Stat. 151, 203, 214). A very much larger number of agreements,
along the lines of the one with Rumania previously referred to, providing
for most-favored-nation treatment in customs and related matters have
been entered into since the passage of the Tariff Act of 1922, not by
direction of the Act but in harmony with it.

xxx xxx xxx

International agreements involving political issues or changes of national

policy and those involving international arrangements of a permanent
character usually take the form of treaties. But international agreements
embodying adjustments of detail carrying out well-established national
policies and traditions and those involving arrangements of a more or less
temporary nature usually take the form of executive agreements.

xxx xxx xxx

 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. Constitutional 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). (Emphasis supplied.)

In this connection, Francis B. Sayre, former U.S. High Commissioner to the

Philippines, said in his work on "The Constitutionality of Trade Agreement Acts":

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 exchanges of
notes and at other times that of more formal documents denominated
"agreements" time or "protocols". The point where ordinary
correspondence between this and other governments ends and
agreements — whether denominated executive agreements or exchanges
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.
. . . It would seem to be sufficient, in order to show that the trade
agreements under the act of 1934 are not anomalous in character, that
they are not treaties, and that they have abundant precedent in our history,
to refer to certain classes of agreements heretofore entered into by the
Executive without the approval of the Senate. They cover such subjects as
the inspection of vessels, navigation dues, income tax on shipping profits,
the admission of civil aircraft, customs matters, and commercial relations
generally, international claims, postal matters, the registration of
trademarks and copyrights, etcetera. Some of them were concluded not by
specific congressional authorization but in conformity with policies declared
in acts of Congress with respect to the general subject matter, such as
tariff acts; while still others, particularly those with respect of the settlement
of claims against foreign governments, were concluded independently of
any legislation." (39 Columbia Law Review, pp. 651, 755.)
The validity of the executive agreement in question is thus patent. In fact, the so-
called Parity Rights provided for in the Ordinance Appended to our Constitution
were, prior thereto, the subject of an executive agreement, madewithout the
concurrence of two-thirds (2/3) of the Senate of the United States.

Lastly, the lower court held that it would be unreasonable to require from
respondent-appellee an import license when the Import Control Commission was
no longer in existence and, hence, there was, said court believed, no agency
authorized to issue the aforementioned license. This conclusion is untenable, for
the authority to issue the aforementioned licenses was not vested exclusively
upon the Import Control Commission or Administration. Executive Order No. 328
provided for export or import licenses "from the Central Bank of the Philippines or
the Import Control Administration" or Commission. Indeed, the latter was created
only to perform the task of implementing certain objectives of the Monetary Board
and the Central Bank, which otherwise had to be undertaken by these two (2)
agencies. Upon the abolition of said Commission, the duty to provide means and
ways for the accomplishment of said objectives had merely to be discharged
directly by the Monetary Board and the Central Bank, even if the aforementioned
Executive Order had been silent thereon.

WHEREFORE, the decision appealed from is hereby reversed and another one
shall be entered affirming that of the Commissioner of Customs, with cost against
respondents defendant-appellee, Eastern Sea Trading. It is so ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Paredes, Dizon
and De Leon, JJ., concur.
Barrera, J., took no part.

Footnotes
1
Dated June 22, 1950. It provides, inter alia, that from and after said date,
no commodity may be exported to or imported from Occupied Japan
without an export or import license from the Central Bank of the Philippines
or the Import Control Administration, and that the annual exports and
imports to the Philippines and from Occupied Japan, as contained in the
Trade Plan shall be allocated and the licenses therefor shall be issued only
to bona fide Philippine exporters and importers, subject to the provisions of
section 9 of said Executive Order and to such rules and regulations as may
be prescribed by the Import Control Administration and the Central Bank of
the Philippines.
2
According to a communication dated April 24, 1957 of the then Acting
Secretary of Foreign Affairs (Exhibit F), Japan was subrogated into the
rights, obligations and interests of the SCAP and Japan on March 19,
1952, and since then the agreements have been extended mutatis
mutandis 18 times, the current one to expire at the end of April, 1957.
3
The Trade Agreement, dated May 18, 1950, provides, inter alia, for the
adoption of a trade plan, on an annual basis, between the Philippines and
Occupied Japan; that, subject to exceptions, all trade shall be conducted in
accordance with the Financial Agreement between the two countries, and
through specified channels; that subject to exchange, import and export
control restrictions, both countries would permit the importation from and
exportation to each other of the commodities specified in the trade plan,
within specified limits; that consultations would be held for necessary
modifications of the trade plan; that a machinery would be established to
ensure accurate and up-to-date information regarding the operation of the
agreement and to insure the implementation of the trade plan; and that the
parties would do everything feasible to ensure compliance with the export-
import control, exchange control and such other controls pertaining to
international trade as may be in force in their respective territories from
time to time. The agreement, likewise, specifies the method of revision or
cancellation thereof, the procedure for the review of the trading position
between the parties and the time of its effectivity (upon "exchange of
formal ratification", pending which, "it shall take effect upon signature by
authorized representatives as modus vivendi between the parties").
4
The Financial Agreement, dated May 18, 1950, provides, inter alia, that
all transactions covered by the Trade Agreement shall be invoiced in
U.S.A. dollars and shall be entered into the account of each party to be
maintained in the books of the principal financial agent banks designated
by each party; that debits and credits shall be offset against each other in
said accounts and payments shall be made on the net balance only; that
the Agreement may be revised in the manner therein stated; that the
representatives of both parties may negotiate and conclude of the
agreement; and that the same shall be effective upon exchange of formal
ratification, pending which it shall take effect upon signature of the
agreement as a modus vivendibetween the parties.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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.

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G.R. No. 138587 October 10, 2000

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEÑA

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 TAÑADA, ZENAIDA QUEZON-

AVENCEÑA, 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 President6 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.

4438 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) vote9of 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 other’s 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 petitioner’s 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 taxpayer’s 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 Tañada, 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 andBasco 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 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 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 partyaccepts 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 nation’s 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 servandawhich 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 nation’s 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 Court’s 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 Tribunal’s 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 power…It 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. Thus, once the Senate56 performs that power, or exercises its
1âw phi 1

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
nation’s 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.

Davide, Jr., C.J., Bellosillo, Kapunan, Quisumbing, Purisima, Pardo, Gonzaga-

Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Melo, and Vitug, JJ., join the dissent of J. Puno.
Puno , J., see dissenting opinion.
Mendoza, J., in the result.
Panganiban, J., no part due to close personal and former professional relations
with a petitioner, Sen. J.R. Salonga.

Footnotes
1
Article V. Any such armed attack and all measures taken as a result
thereof shall be immediately reported to the Security Council of the United
Nations. Such measures shall be terminated when the Security Council
has taken the measure necessary to restore and maintain international
peace and security.
2
Joint Report of the Senate Committee on Foreign Relation and the
Committee on National Defense and Security on the Visiting Forces
Agreement.
3
Joint Committee Report.
4
Petition, G.R. No. 138698, Annex "B", Rollo, pp. 61-62.

"INSTRUMENT OF RATIFICATION

TO ALL TO WHOM THESE PRESENTS SHALL COME,

GREETINGS:

KNOW YE, that whereas, the Agreement between the government

of the Republic of the Philippines and the Government of the United
States of America Regarding the Treatment of the United States
Armed Forces Visiting the Philippines, hereinafter referred to as
VFA, was signed in Manila on 10 February 1998;

WHEREAS, the VFA is essentially a framework to promote bilateral

defense cooperation between the Republic of the Philippines and
the United States of America and to give substance to the 1951 RP-
US Mutual Defense Treaty (RP-US MDT). To fulfill the objectives of
the RP-US MDT, it is necessary that regular joint military exercises
are conducted between the Republic of the Philippines and the
United States of America;

WHEREAS, the VFA seeks to provide a conducive setting for the

successful conduct of combined military exercises between the
Philippines and the United States armed forces to ensure
interoperability of the RP-US MDT;

WHEREAS, in particular, the VFA provides the mechanism for

regulating the circumstances and conditions under which US armed
forces and defense personnel may be present in the Philippines
such as the following inter alia:
 (a) specific requirements to facilitate the admission of United
States personnel and their departure from the Philippines in
connection with activities covered by the agreement;

(b) clear guidelines on the prosecution of offenses committed

by any member of the United States armed forces while in the
Philippines;

(c) precise directive on the importation and exportation of

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 covered by the Agreement; and

(d) explicit regulations on the entry of United States vessels,

aircraft, and vehicles;

WHEREAS, Article IX of the Agreement provides that it shall enter

into force on the date on which the Parties have notified each other
in writing, through diplomatic channels, that they have completed
their constitutional requirements for its entry into force. It shall
remain in force until the expiration of 180 days from the date on
which either Party gives the other Party written notice to terminate
the Agreement.

NOW, THEREFORE, be it known that I, JOSEPH EJERCITO

ESTRADA, President of the Republic of the Philippines, after having
seen and considered the aforementioned Agreement between the
Government of the United States of America Regarding the
Treatment of the United States Armed Forces Visiting the
Philippines, do hereby ratify and confirm the same and each and
every Article and Clause thereof.

IN TESTIMONY WHEREOF, I have hereunto set my hand and

caused the seal of the Republic of the Philippines to be affixed.

GIVEN under my hand at the City of Manila, this 5th day of October,
in the year of Our Lord one thousand nine hundred and ninety-eight.
5
Petition, G.R. No. 138587, Annex "C", Rollo, p. 59.

The Honorable Senate President and

Member of the Senate
 Senate of the Philippines
Pasay City

Gentlemen and Ladies of the Senate:

I have the honor to transmit herewith the Instrument of Ratification

duly signed by H.E. President Joseph Ejercito Estrada, his message
to the Senate and a draft Senate Resolution of Concurrence in
connection with the ratification of the AGREEMENT BETWEEN THE
GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES AND
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
REGARDING THE TREATMENT OF THE UNITED STATES
ARMED FORCES VISITING THE PHILIPPINES.

With best wishes.

Very truly yours,

RONALDO B. ZAMORA
Executive Secretary
6
Petition, G.R. No. 138698, Annex "C".
7
Between January 26 and March 11, 1999, the two Committees jointly
held six public hearings-three in Manila and one each in General Santos,
Angeles City and Cebu City.
8
Petition , G.R. No. 138570, Annex "C", Rollo, pp. 88-95.

"WHEREAS, the VFA is essentially a framework for promoting the

common security interest of the two countries; and for strengthening
their bilateral defense partnership under the 1951 RP-US Mutual
Defense Treaty;

"x x x x x x x x x

"WHEREAS, the VFA does not give unrestricted access or

unhampered movement to US Forces in the Philippines; in fact, it
recognizes the Philippine government as the sole authority to
approve the conduct of any visit or activity in the country by US
Forces, hence the VFA is not a derogation of Philippine sovereignty;

"WHEREAS, the VFA is not a basing arrangement; neither does it

pave way for the restoration of the American bases and facilities in
the Philippines, in contravention of the prohibition against foreign
bases and permanent stationing of foreign troops under Article XVIII,
Section 25 of the 1987 Constitution-because the agreement
envisions only temporary visits of US personnel engaged in joint
military exercises or other activities as may be approved by the
Philippine Government;

"WHEREAS, the VFA gives Philippine courts primary jurisdiction

over offenses that may be committed by US personnel within
Philippine territory, with the exception of those incurred solely
against the security or property of the Us or solely against the
person or property of US personnel, and those committed in the
performance of official duty;

"x x x x x x x x x

"WHEREAS, by virtue of Article II of the VFA, the United States

commits to respect the laws of the Republic of the Philippines,
including the Constitution, which declares in Article II, Section 8
thereof, a policy of freedom from nuclear weapons consistent with
the national interest;

"WHEREAS, the VFA shall serve as the legal mechanism to

promote defense cooperation between two countries-enhancing the
preparedness of the Armed Forces of the Philippines against
external threats; and enabling the Philippines to bolster the stability
of the Pacific area in a shared effort with its neighbor-states;

"WHEREAS, the VFA will enhance our political, economic and

security partnership and cooperation with the United States-which
has helped promote the development of our country and improved
the lives of our people;

"WHEREAS, in accordance with the powers and functions of Senate

as mandated by the Constitution, this Chamber, after holding several
public hearings and deliberations, concurs in the President’s
ratification of the VFA, for the following reasons:

(1) The Agreement will provide the legal mechanism to

promote defense cooperation between the Philippines and the
U.S. and thus enhance the tactical, strategic, and
technological capabilities of our armed forces;
 (2) The Agreement will govern the treatment of U.S., military
and defense personnel within Philippine territory, while they
are engaged in activities covered by the Mutual Defense
Treaty and conducted with the prior approval of the Philippine
government; and

(3) The Agreement will provide the regulatory mechanism for

the circumstances and conditions under which U.S. military
forces may visit the Philippines; x x x

"x x x x x x x x x

"WHEREAS, in accordance with Article IX of the VFA, the Philippine

government reserves the right to terminate the agreement
unilaterally once it no longer redounds to our national interest: Now,
therefore, be it

"Resolved, that the Senate concur, as it hereby concurs, in the

Ratification of the Agreement between the Government of the
Republic of the Philippines and the United States of America
Regarding the Treatment of United States Armed Forces visiting the
Philippines. x x x"
9
The following voted for concurrence: (1) Senate President Marcelo
Fernan, (2) Senate President Pro Tempore Blas Ople, (3) Senator Franklin
Drilon, (4) Senator Rodolfo Biazon, (5) Senator Francisco Tatad, (6)
Senator Renato Cayetano, (7) Senator Teresa Aquino-Oreta, (8) Senator
Robert Barbers, (9) Senator Robert Jaworski, (10) Senator Ramon
Magsaysay, Jr., (11) Senator John Osmeña, (12) Senator Juan Flavier,
(13) Senator Mirriam Defensor-Santiago, (14) Senator Juan Ponce-Enrile,
(15) Senator Vicente Sotto III, (16) Senator Ramon Revilla, (17) Senator
Anna Dominique Coseteng, and (18) Senator Gregorio Honasan.

Only the following voted to reject the ratification of the VFA: (1)
Senator Teofisto Guingona, Jr., (2) Senator Raul Roco, (3) Senator
Sergio Osmena III, (4) Senator Aquilino Pimentel, Jr., and (5)
Senator Loren Legarda-Leviste.
10
See Petition, G.R. No. 138570, Rollo, pp. 105.
11
Minute Resolution dated June 8, 1999.
12
See Consolidated Comment.
13
Reply to Consolidated Comment, G.R. No. 138698; G.R. No. 138587.
14
Valmonte vs. Philippine Charity Sweepstakes Office, (Res.) G.R. No.
78716, September 22, 1987, cited in Telecommunications and Broadcast
Attorneys of the Philippines, Inc. vs. COMELEC, 289 SCRA 337, 343
[1998]; Valley Forge College vs. Americans United, 454 US 464, 70 L. Ed.
2d 700 [1982]; Bugnay Const. And Dev. Corp. vs. Laron, 176 SCRA 240,
251-252 [1989]; Tatad vs. Garcia, Jr. 243 SCRA 436, 473 [1995].
15
See Article VI, Sections 24, 25 and 29 of the 1987 Constitution.
16
Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]; Maceda vs.
Macaraig, 197 SCRA 771 [1991]; Lozada vs. COMELEC, 120 SCRA 337
[1983]; Dumlao vs. COMELEC, 95 SCRA 392 [1980]; Gonzales vs.
Marcos, 65 SCRA 624 [1975].
17
176 SCRA 240, 251-252 [1989].
18
235 SCRA 506 [1994].
19
Consolidated Memorandum, p. 11.

Araneta vs. Dinglasan, 84 Phil. 368 [1949]; Iloilo Palay & Corn Planters
20

Association vs. Feliciano, 121 Phil. 358 [1965]; Philippine Constitution

Association vs. Gimenez, 122 Phil. 894 [1965].
21
21 SCRA 774 [1967].
22
180 SCRA 496, 502 [1988] cited in Kilosbayan, Inc. vs. Guingona, Jr.,
232 SCRA 110 [1994].
23
197 SCRA 52, 60 [1991].
24
232 SCRA 110 [1994].
25
J. Santos vs. Northwest Orient Airlines, 210 SCRA 256, 261 [1992].
26
Manila Railroad Co. vs. Collector of Customs, 52 Phil. 950.
27
157 SCRA 282 [1988] cited in Republic vs. Sandiganbayan, 173 SCRA
72, 85 [1989].
28
Castillo-co v. Barbers, 290 SCRA 717, 723 (1998).
 Records of the Constitutional Commission, September 18, 1986
29

Deliberation, p. 782.
30
1987 Constitution, Article VI, Section 2. - the Senate shall be composed
of twenty-four Senators who shall be elected at large by the qualified
voters of the Philippines, as may be provided by law.
31
The 24th member (Gloria Macapagal-Arroyo) of the Senate whose term
was to expire in 2001 was elected Vice-President in the 1998 national
elections.
32
Ballentine’s Legal Dictionary, 1995.
33
Article 2, Section 2, paragraph 2 of the United States Constitution,
speaking of the United States President provides: "He shall have power, by
and with the advice and consent of the Senate to make treaties, provided
two-thirds of the senators present concur."
34
J.M. Tuason & Co., Inc. vs. Land Tenure Association, 31 SCRA 413
[1970].

Altman Co. vs. United States, 224 US 263 [1942], cited in Coquia and
35

Defensor-Santiago, International Law, 1998 Ed. P. 497.

36
Vienna Convention, Article 2.
37
Gerhard von Glahn, Law among Nations, an Introduction to Public
International Law, 4th Ed., p. 480.
38
Hackworth, Digest of International Law, Vol. 5, p. 395, cited in USAFE
Veterans Association Inc. vs. Treasurer of the Philippines, 105 Phil. 1030,
1037 [1959].
39
Richard J. Erickson, "The Making of Executive Agreements by the United
States Department of Defense: An agenda for Progress," 13 Boston U. Intl.
L.J. 58 [1995], citing Restatement [third] of Foreign Relations Law pt. III,
introductory note [1987] and Paul Reuter, Introduction to the Law of
Treaties 22 [Jose Mico & Peter Haggemacher trans., 1989] cited in
Consolidated Memorandum, p. 32.
40
3 SCRA 351, 356-357 [1961].
41
4 Record of the Constitutional Commission 782 [Session of September
18, 1986].
42
Letter of Ambassador Hubbard to Senator Miriam Defensor-Santiago:

"Dear Senator Santiago:

I am happy to respond to your letter of April 29, concerning the way

the US Government views the Philippine-US Visiting Forces
Agreement in US legal terms. You raise an important question and I
believe this response will help in the Senate deliberations.

As a matter of both US and international law, an international

agreement like the Visiting Forces Agreement is legally binding on
the US Government, In international legal terms, such an agreement
is a ‘treaty.’ However, as a matter of US domestic law, an agreement
like the VFA is an ‘executive agreement,’ because it does not require
the advice and consent of the senate under Article II, section 2 of
our Constitution.

The President’s power to conclude the VFA with the Philippines, and
other status of forces agreements with the other countries, derives
from the President’s responsibilities for the conduct of foreign
relations (Art. II, Sec. 1) and his constitutional powers as
Commander in Chief of the Armed Forces. Senate advice and
consent is not needed, inter alia, because the VFA and similar
agreements neither change US domestic nor require congressional
appropriation of funds. It is important to note that only about five
percent of the international agreement entered into by the US
Governments require Senate advice and consent. However, in terms
of the US Government’s obligation to adhere to the terms of the
VFA, there is no difference between a treaty concurred in by our
Senate and an executive agreement. Background information on
these points can be found in the ‘Restatement 3rd of the Foreign
Relations Law of the United States,’ Sec. 301, et seq. [1986].

I hope you find this answer helpful. As the President’s representative

to the Government of the Philippines, I can assure you that the
United States Government is fully committed to living up to the terms
of the VFA.

Sincerely yours,

THOMAS C. HUBBARD
Ambassador"
43
Gerhard von Glahn, Law Among Nations, An Introduction to Public
International Law, 4th Ed., p. 486.

Article 14 of the Vienna Convention, cited in Coquia and Defensor-

44

Santiago, Intenational Law, 1998 Ed., pp. 506-507.

45
Cruz, Isagani, "International Law", 1985 Ed., p. 175.
46
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.
47
Louis Henkin, Richard C. Pugh, Oscar Schachter, Hans Smit,
International Law, Cases and Materials, 2nd Ed American Casebook
Series, p. 136.
48
Gerhard von Glah, supra, p. 487.
49
Harris, p. 634 cited in Coquia, International Law, supra, p. 512.
50
Cuison vs. CA, 289 SCRA 159 [1998]. See also Jardine vs. NLRC, G.R.
No. 119268, Feb 23, 2000 citing Arroyo vs. De Venecia, 277 SCRA 268
[1997].

Cortes, "The Philippine Presidency a study of Executive Power, 2nd

51

Ed.," p. 195.
52
Cruz, Phil. Political Law, 1995 Ed., p. 223.

United States vs. Curtis Wright Corp., 299 U.S. 304 (1934), per Justice
53

Sutherland.
54
Arroyo vs. De Venecia, 277 SCRA 269 [1997].
55
Co vs. Electoral Tribunal of the House of Representatives, 199 SCRA
692, 701 (1991); Llamas vs. Orbos, 202 SCRA 849, 857 (1991);
Lansang vs. Garcia, 42 SCRA at 480-481 [1971].
56
1987 Constitution, Article VI, Section 1. - The legislative power shall be
vested in the Congress of the Philippines which shall consist of a Senate
and a House of Representatives, except to the extent reserved to the
people by the provision on initiative and referendum.
 57
See Akehurst, Michael: Modern Introduction to International Law,
(London: George Allen and Unwin) 5th ed., p. 45; United States vs.
Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

PUNO, J.:

The cases at bar offer a smorgasbord of issues. As summed up by the Solicitor

General, they are:

"I

DO PETITIONERS HAVE STANDING AS CONCERNED CITIZENS,

TAXPAYERS, OR LEGISLATORS?

II

IS THE VFA CONSISTENT WITH THE GENERAL WELFARE CLAUSE OF THE

CONSTITUTION?

III

IS THE VFA GOVERNED BY THE PROVISIONS OF SECTION 21, ARTICLE VII

OR SECTION 25, ARTICLE XVIII OF THE CONSTITUTION?

IV

DOES THE VFA CONSTITUTE AN ABDICATION OF PHILIPPINE

SOVEREIGNTY?

(a) DOES THE VFA DEPRIVE PHILIPPINE COURTS OF THEIR

JURISDICTION TO HEAR AND TRY OFFENSES COMMITTED BY U.S.
MILITARY PERSONNEL?

(b) IS THIS COURT DEPRIVED OF ITS JURISDICTION OVER OFFENSES

PUNISHABLE BY RECLUSIONPERPETUA OR HIGHER?
(c) IS THE GRANT OF TAX EXEMPTIONS UNDER THE VFA
UNCONSTITUTIONAL?

DOES THE VFA VIOLATE THE EQUAL PROTECTION CLAUSE UNDER

SECTION 1, ARTICLE III OF THE CONSTITUTION?

VI

IS THE NUCLEAR BAN UNDER SECTION 8, ARTICLE II OF THE

CONSITUTION VIOLATED BY THE VFA?

VII

ARE FILIPINOS DENIED THEIR PERSONAL AND PROPERTY RIGHT TO SUE

FOR TORTS AND DAMAGES?

VIII

WAS THERE UNDUE DELEGATION OF LEGISLATIVE POWER IN THE

APPROVAL OF THE VFA?

IX

DOES THE VFA CONTRAVENE THE POLICY OF NEUTRALITY UNDER

SECTION 7, ARTICLE II OF THE CONSTITUTION?

IS THE TERM "ACTIVITIES" UNDER THE COVERAGE OF THE VFA VAGUE,

UNQUALIFIED OR UNCERTAIN?"

I like to think that the most significant issue is whether the Visiting Forces
Agreement (VFA) violates Sec. 25, Art. XVIII of the Constitution. I shall therefore
limit my opinion on this jugular issue.

The 1987 Constitution provides in Sec. 25, Art. XVIII, viz:

"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."

This provision lays down three constitutional requisites that must be complied
with before foreign military bases, troops, or facilities can be allowed in Philippine
territory, namely: (1) their presence should be allowed by a treaty duly concurred
in by the Philippine Senate; (2) when Congress so requires, such treaty should
be ratified by a majority of the votes cast by the Filipino people in a national
referendum held for that purpose; and (3) such treaty should be recognized as
a treaty by the other contracting party.

To start with, respondents, with unrelenting resolve, claim that these

constitutional requirements are not applicable to the VFA. They contend that the
VFA, as its title implies, contemplates merely temporary visits of U.S. military
troops in Philippine territory, and thus does not come within the purview of Sec.
25, Art. XVIII of the Constitution. They assert that this constitutional provision
applies only to the stationing or permanent presence of foreign military troops on
Philippine soil since the word "troops" is mentioned along with "bases" and
"facilities" which are permanent in nature.1 This assertion would deserve serious
attention if the temporary nature of these visits were indeed borne out by the
provisions of the VFA. If we turn, however, a heedful eye on the provisions of the
VFA as well as the interpretation accorded to it by the government officials
charged with its negotiation and implementation, the temporary nature of the
visits would turn out to be a mirage in a desert of vague provisions of the VFA.
Neither the VFA nor the Mutual Defense Treaty between the Republic of the
Philippines and the United States of America2 to which the VFA refers in its
preamble,3 provides the slightest suggestion on the duration of visits of U.S.
forces in Philippine territory. The joint public hearings on the VFA conducted by
the Senate Committee on Foreign Relations and the Senate Committee on
National Defense and Security give us a keyhole to the time frame involved in
these visits.

Secretary of Foreign Affairs Domingo L. Siazon, the Philippine’s signatory to the

VFA, testified before the said committees that even before the signing of the
VFA, Philippine and U.S. troops conducted joint military exercises in Philippine
territory for two days to four weeks at the frequency of ten to twelve exercises a
year. The "Balikatan", the largest combined military exercise involving about
3,000 troops, lasted at an average of three to four weeks and occurred once
every year or one and a half years.4 He further declared that the VFA
contemplates the same time line for visits of U.S. troops, but argued that even if
these troops conduct ten to twelve exercises a year with each exercise lasting for
two to three weeks, their stay will not be uninterrupted, hence, not
permanent.5 Secretary of National Defense Orlando S. Mercado further testified
that the VFA will allow joint military exercises between the Philippine and U.S.
troops on a larger scale than those we had been undertaking since 1994.6 As the
joint military exercises will be conducted on a larger scale, it would be reasonable
to project an escalation of the duration as well as frequency of past joint military
exercises between Philippine and U.S. troops.

These views on the temporary nature of visits of U.S. troops cannot stand for,
clearly, the VFA does not provide for a specific and limited period of effectivity. It
instead provides an open-ended term in Art. IX, viz: ". . . (t)his 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." No magic of semantics will blur the truth that the VFA could be in
force indefinitely. The following exchange between Senator Aquilino Q.
Pimentel, Jr. and Secretary Siazon in the public hearings on the VFA is apropos
to the issue:

"SEN. PIMENTEL. . . . In other words, this kind of activities are not designed to
last only within one year, for example, the various visits, but can cover eternity
until the treaty is abrogated?

MR. SIAZON. Well, Your Honor, this is an exercise for the protection of our
national security, and until conditions are such that there is no longer a possible
threat to our national security, then you will have to continue exercising, Your
Honor, because we cannot take a chance on it.

SEN. PIMENTEL. So, this will be temporarily permanent, or permanently

temporary?

MR. SIAZON. Permanently temporary, Your Honor."7

The worthiest of wordsmiths cannot always manipulate the meaning of words.

Black’s Law Dictionary defines "temporary" as "that which is to last for a limited
time only, as distinguished from that which is perpetual or indefinite in its
duration"8 and states that "permanent" is "generally opposed to ‘temporary’ but
not always meaning perpetual."9 The definitions of "temporary" and "permanent"
in Bouvier’s Law Dictionary are of similar import: temporary is "that which is to
last for a limited time"10 while permanent "does not always embrace the idea of
absolute perpetuity."11 By these definitions, even the contingency that the
Philippines may abrogate the VFA when there is no longer any threat to our
national security does not make the visits of U.S. troops temporary, nor do short
interruptions in or gaps between joint military exercises carve them out from the
definition of "permanent" as permanence does not necessarily contemplate
absolute perpetuity.
It is against this tapestry woven from the realities of the past and a vision of the
future joint military exercises that the Court must draw a line between temporary
visits and permanent stay of U.S. troops. The absence in the VFA of the
slightest suggestion as to the duration of visits of U.S. troops in Philippine
territory, coupled with the lack of a limited term of effectivity of the VFA
itself justify the interpretation that the VFA allows permanent, not merely
temporary, presence of U.S. troops on Philippine soil. Following Secretary
Siazon’s testimony, if the visits of U.S. troops could last for four weeks at the
most and at the maximum of twelve times a year for an indefinite number of
years, then by no stretch of logic can these visits be characterized as temporary
because in fact, the U.S. troops could be in Philippine territory 365 days a year
for 50 years -- longer than the duration of the 1947 RP-US Military Bases
Agreement12 which expired in 1991 and which, without question, contemplated
permanent presence of U.S. bases, facilities, and troops.

To be sure, even former Secretary of Justice, Serafin Cuevas, admitted in the

same public hearings that the subject matter of the VFA, i.e., the visits and
activities of U.S. troops in Philippine territory, partakes of a permanent character.
He declared with clarity:

"MR. CUEVAS. . . . Why we considered this as a treaty is because the subject

therein treated had some character of permanence; and secondly, there is a
change insofar as some of our laws are concerned."13

Thus, regardless of whether Sec. 25, Art. XVIII of the Constitution contemplates
permanent presence of foreign military troops alone, or temporary presence as
well, the VFA comes within its purview as it allows the permanent presence of
U.S. troops on Philippine soil. Contrary to respondents’ allegation, the
determination of the permanent nature of visits of U.S. troops under the VFA is
an issue ripe for adjudication since Sec. 25 of Art. XVIII speaks of the manner by
which U.S. troops may be allowed to enter Philippine territory. We need not wait
and see, therefore, whether the U.S. troops will actually conduct military
exercises on Philippine soil on a permanent basis before adjudicating this issue.
What is at issue is whether the VFA allows such permanent presence of U.S.
troops in Philippine territory.

To determine compliance of the VFA with the requirements of Sec. 25, Art. XVIII
of the Constitution, it is necessary to ascertain the intent of the framers of the
Constitution as well as the will of the Filipino people who ratified the fundamental
law. This exercise would inevitably take us back to the period in our history when
U.S. military presence was entrenched in Philippine territory with the
establishment and operation of U.S. Military Bases in several parts of the
archipelago under the 1947 R.P.-U.S. Military Bases Agreement. As articulated
by Constitutional Commissioner Blas F. Ople in the 1986 Constitutional
Commission deliberations on this provision, the 1947 RP-US Military Bases
Agreement was ratified by the Philippine Senate, but not by the United States
Senate. In the eyes of Philippine law, therefore, the Military Bases
Agreement was a treaty, but by the laws of the United States, it was a mere
executive agreement.14 This asymmetry in the legal treatment of the Military
Bases Agreement by the two countries was believed to be a slur to our
sovereignty. Thus, in the debate among the Constitutional Commissioners, the
unmistakable intention of the commission emerged that thisanomalous
asymmetry must never be repeated.15 To correct this historical aberration, Sec.
25, Art. XVIII of the Constitution requires that the treaty allowing the presence of
foreign military bases, troops, and facilities should also be "recognized as a
treaty by the other contracting party." In plain language, recognition of the
United States as the other contracting party of the VFA should be by the
U.S. President with the advice and consent of the U.S. Senate.16 The
following exchanges manifest this intention:

"MR. OPLE. Will either of the two gentlemen yield to just one question for
clarification? Is there anything in this formulation, whether that of Commissioner
Bernas or of Commissioner Romulo, that will prevent the Philippine government
from abrogating the existing bases agreement?

FR. BERNAS. To my understanding, none.

MR. ROMULO. I concur with Commissioner Bernas.

MR. OPLE. I was very keen to put this question because I had taken the position
from the beginning - and this is embodied in a resolution filed by Commissioners
Natividad, Maambong and Regalado - that it is very important that the
government of the Republic of the Philippines be in a position to terminate or
abrogate the bases agreement as one of the options. . . . we have acknowledged
starting at the committee level that the bases agreement was ratified by our
Senate; it is a treaty under Philippine law. But as far as the Americans are
concerned, the Senate never took cognizance of this and therefore, it is an
executive agreement. That creates a wholly unacceptable asymmetry between
the two countries. Therefore, in my opinion, the right step to take, if the
government of our country will deem it in the national interest to terminate this
agreement or even to renegotiate it, is that we must begin with a clean slate; we
should not be burdened by the flaws of the 1947 Military Bases Agreement.
..

MR. ROMULO. Madam President, I think the two phrases in the Bernas
formulation take care of Commissioner Ople’s concerns.
The first says "EXCEPT UNDER THE TERMS OF A TREATY." That means that
if it is to be renegotiated, it must be under the terms of a new treaty. The second
is the concluding phrase which says: "AND RECOGNIZED AS A TREATY BY
THE OTHER CONTRACTING STATE."

xxx

MR. SUAREZ. Is the proposal prospective and not retroactive in character?

FR. BERNAS. Yes, it is prospective because it does not touch the validity of the
present agreement. However, if a decision should be arrived at that the present
agreement is invalid, then even prior to 1991, this becomes operative right away.

MR. SUAREZ. In other words, we do not impress the previous agreements with a
valid character, neither do we say that they are null and void ab initio as claimed
by many of us here.

FR. BERNAS. The position I hold is that it is not the function of this Commission
to pass judgment on the validity or invalidity of the subsisting agreement.

MR. SUAREZ. . . . the proposal requires recognition of this treaty by the other
contracting nation. How would that recognition be expressed by that other
contracting nation? That is in accordance with their constitutional or
legislative process, I assume.

FR. BERNAS. As Commissioner Romulo indicated, since this certainly would

refer only to the United States, because it is only the United States that would
have the possibility of being allowed to have treaties here, then we would have
to require that the Senate of the United States concur in the treaty because
under American constitutional law, there must be concurrence on the part
of the Senate of the United States to conclude treaties.

xxx

FR. BERNAS. When I say that the other contracting state must recognize it as a
treaty, by that I mean it must perform all the acts required for the agreement
to reach the status of a treaty under their jurisdiction." (emphasis supplied)17

In ascertaining the VFA’s compliance with the constitutional requirement that it

be "recognized as a treaty by the other contracting state," it is crystal clear from
the above exchanges of the Constitutional Commissioners that the yardstick
should be U.S. constitutional law. It is therefore apropos to make a more in
depth study of the U.S. President’s power to enter into executive agreements
under U.S. constitutional law.

Sec. 2, Art. II, Clause 2 of the U.S. Constitution provides that the President "shall
have Power, by and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur." The U.S.
Constitution does not define "treaties". Nevertheless, the accepted definition of a
"treaty" is that of "an agreement between two or more states or international
organizations that is intended to be legally binding and is governed by
international law."18 Although the United States did not formally ratify the Vienna
Convention on the Law of Treaties, its definition of a treaty has been applied by
U.S. courts and the State Department has stated that the Vienna Convention
represents customary international law.19 The Vienna Convention defines a treaty
as "an international agreement concluded between States in written form and
governed by international law."20 It has been observed that this definition is
broader than the sense in which "treaty" is used in the U.S. Constitution.In U.S.
practice, a "treaty" is only one of four types of international agreements,
namely: Article II treaties, executive agreements pursuant to a treaty,
congressional-executive agreements, and sole executive agreements.21

The term "executive agreement" is used both colloquially and in scholarly and
governmental writings as a convenient catch-all to subsume all international
agreements intended to bind the United States and another government, other
than those which receive consent of two-thirds of the U.S. Senate.22 The U.S.
Constitution does not expressly confer authority to make these executive
agreements, hence the authority to make them, their scope, and legal force
have been the subject of a long-ongoing debate.23 This,
notwithstanding,executive agreements have grown to be a primary
instrument of foreign policy in the United States. In 1789-1839, the United
States concluded 60 treaties and only 27 executive agreements. In 1930-1939,
the United States entered into 142 treaties and 144 executive agreements. In
1940-1949, 116 treaties and 919 executive agreements were concluded by the
United States. From 1980-1988, the United States entered into 136 treaties and
3,094 executive agreements. In sum, by 1988, there were 12,778 executive
agreements as opposed to 1,476 treaties, accounting for about 90% of the
international agreements concluded by the United States.24

The upsurge in the use of executive agreements in the post World War II period
may be attributed to several factors. President Franklin Roosevelt set a
precedent for the more recent presidents by, for instance, completing the
Destroyer-for-Bases deal of 1940 with an executive agreement. President Harry
S. Truman likewise concluded the Potsdam Agreement by executive agreement.
The U.S. Presidents also committed military missions in Honduras and El
Salvador in the 1950’s; pledged security to Turkey, Iran, and Pakistan; acquired
permission from the British to use the island of Diego Garcia for military purposes
in the 1960’s; and established a military mission in Iran in 1974, all by way of
executive agreements.25 U.S. Supreme Court decisions affirming the validity of
executive agreements have also contributed to the explosive growth in their
usage.26 Another factor that accelerated its use was the foreign policy
cooperation between Congress and the executive as expressed in the postwar
refrain that "politics must end at the water’s edge."27 The fourth factor is the
expansion of executive institutions including foreign policy machinery and
information.28 The fifth factor is the Cold War which put the United States in a
"constant state of emergency" which required expediency in decisions and
actions regarding the use of force or diplomacy. Last but not the least, the
nuclear weapons race and instantaneous global communication made
centralized foreign policy machinery under the U.S. President necessary.29

These executive agreements which have grown to be the primary

instrument of U.S. foreign policy may be classified into three types,
namely:

(1) Treaty-authorized executive agreements, i.e., agreements made by the

President pursuant to authority conferred in a prior treaty;30

(2) Congressional-executive agreements, i.e., agreements either (a)

negotiated by the President with prior Congressional authorization or enactment
or (b) confirmed by both Houses of Congress after the fact of negotiation;31 and

(3) Presidential or sole executive agreements, i.e., agreements made by the

President based on his exclusive presidential powers, such as the power
as commander-in-chief of the armed forces pursuant to which he conducts
military operations with U.S. allies, or his power to receive ambassadors
and recognize foreign governments.32

This classification is important as the different types of executive

agreements bear distinctions in terms of constitutional basis, subject
matter, and legal effects in the domestic arena. For instance, treaty-
authorized executive agreements do not pose constitutional problems as
they are generally accepted to have been pre-approved by the Senate when the
Senate consented to the treaty which authorized the executive to enter into
executive agreements; another view supporting its acceptance is that the Senate
delegated to the President the authority to make the executive agreement.33 In
comparison, the constitutionality of congressional-executive agreements
has provoked debate among legal scholars. One view, espoused
byinterpretivists such as Edwin Borchard, holds that all international
agreements must be strictly in accordance with Sec. 2, Art. II of the U.S.
Constitution, and thus congressional-executive agreements are constitutionally
invalid. According to them, allowing congressional-executive agreements would
enhance the power of the President as well as of the House of Representatives,
in utter violation of the intent of the framers of the U.S. Constitution.34 The
opposite school of thought, led by Myer S. McDougal and Asher Lans, holds that
congressional-executive agreements and treaties are interchangeable, thus,
such agreements are constitutional. These non-interpretivists buttress their
stance by leaning on the constitutional clause that prohibits States, without
consent of Congress, from "enter(ing) into any Agreement or Compact with
another State, or with a Foreign Power." By making reference to international
agreements other than treaties, these scholars argue that the framers of the
Constitution intended international agreements, other than treaties, to exist. This
school of thought generally opposes the "mechanical, filiopietistic theory, (which)
purports to regard the words of the Constitution as timeless absolutes"35 and
gives emphasis to the necessity and expediency of congressional-executive
agreements in modern foreign affairs.36 Finally, sole executive
agreements which account for a relatively small percentage of executive
agreements are the most constitutionally problematic since the system of
checks and balances is inoperative when the President enters into an executive
agreement with neither the Senate’s or Congress’ consent. This last type of
executive agreement draws authority upon the President’s enumerated powers
under Article II of the U.S. Constitution, such as the President’s power as
Commander-in-Chief of the U.S. army and navy.37

I respectfully submit that, using these three types of executive agreements as

bases for classification, the VFA would not fall under the category of an executive
agreement made by the president pursuant to authority conferred in a prior treaty
because although the VFA makes reference to the Mutual Defense Treaty in its
Preamble,38 the Mutual Defense Treaty itself does not confer authority upon the
U.S. President to enter into executive agreements in implementation of the
Treaty. Issues have occasionally arisen about whether an executive agreement
was entered into pursuant to a treaty. These issues, however, involved mere
treaty interpretation.39 In Wilson v. Girard, 354 US 524 (1957), the U.S.
Supreme Court had occasion to interpret Art. III of the Security Treaty Between
the United States of America and Japan which stated that, "(t)he conditions
which shall govern the disposition of armed forces of the United States of
America in and about Japan shall be determined by administrative agreements
between the two Governments."40 Pursuant to this provision in the treaty, the
executive entered into an administrative agreement covering, among other
matters, jurisdiction of the United States over offenses committed in Japan by
members of the U.S. armed forces. The U.S. Supreme Court recognized the
validity of the Administrative Agreement as it was concluded by the President
pursuant to the authority conferred upon him by Art. III of the Security Treaty
between Japan and the United States to make administrative agreements
between the two governments concerning "(t)he conditions which shall govern
the disposition of armed forces of the United States of America in and about
Japan."

Respondents boldly claim that the VFA is authorized by Art. II of the RP-US
Mutual Defense Treaty which provides that, "(i)n order more effectively to
achieve the objective of this Treaty, the Parties separately and jointly by self-help
and mutual aid will maintain and develop their individual and collective capacity
to resist armed attack."41The alleged authorization is not as direct and
unequivocal as Art. III of the Security Treaty Between the U.S. and Japan, hence
it would be precarious to assume that the VFA derives authorization from the
Mutual Defense Treaty. The precariousness is heightened by the fact that when
the U.S. Senate ratified the Agreement Between the Parties to the North Atlantic
Treaty Regarding the Status of Their Forces42 which was concluded pursuant to
the North Atlantic Treaty (NATO),43 the Senate included in its instrument of
ratification statements on matters of jurisdiction over U.S. forces stationed
abroad, among which was an admonition that the Agreement’s provisions on
criminal jurisdiction which have similar features as the VFA, do not constitute a
precedent for future agreements. We can reasonably gather from the U.S.
Senate’s statements that criminal jurisdiction over U.S. forces stationed abroad is
a matter of Senate concern, and thus Senate authorization for the President to
enter into agreements touching upon such jurisdictional matters cannot so easily
be assumed.

Neither does the VFA fall under the category of a Congressional-Executive

Agreement as it was not concluded by the U.S. President pursuant to
Congressional authorization or enactment nor has it been confirmed by the U.S.
Congress.

At best, the VFA would be more akin to a sole or presidential executive

agreement which would be valid if concluded on the basis of the U.S.
President’s exclusive power under the U.S. Constitution. Respondents argue
that except for the Status of Forces Agreement (SOFA) entered into pursuant to
the NATO, the United States, by way of executive agreements, has entered into
78 Status of Forces Agreements (SOFA) which extend privileges and immunities
to U.S. forces stationed abroad,44 similar to the provisions of the VFA.
Respondents have failed, however, to qualify whether these executive
agreements are sole executive agreements or were concluded pursuant to
Congressional authorization or were authorized by treaty. This detail is important
in view of the above discussion on the sense of the Senate on criminal
jurisdiction over U.S. forces stationed abroad.
It will contribute to the elucidation of the legal status of the VFA under U.S. law if
we compare the legal force of sole executive agreements and of treaties.
Under international law, treaties and executive agreements equally bind the
United States.45 If there is any distinction between treaties and executive
agreements, it must be found in U.S. constitutional law.46 The distinctions, if
any, between the legal force of treaties and executive agreements on the
domestic plane may be treated on three levels, namely, vis-a-vis: (1) state
law; (2) acts of Congress and treaties; and (3) the U.S. Constitution.

The Supremacy Clause of the U.S. Constitution provides:

"This Constitution, and the Law of the United States which shall be made in
pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding."47

It is well-settled that this clause provides the constitutional basis for

the superiority of a treaty over state law. Thus, the Warsaw Convention to
which the United States is a signatory preempts the California law on airline
liability.48 The U.S. Supreme Court has ruled in unmistakable terms that a treaty
enjoys supremacy over state law, viz:

"Plainly, the external powers of the United States are to be exercised

without regard to state laws or policies. The supremacy of a treaty in this
respect has been recognized from the beginning. Mr. Madison, in the Virginia
Convention, said that if a treaty does not supersede existing state laws, as far as
they contravene its operation, the treaty would be ineffective. "To counter-act it
by the supremacy of the state laws, would bring on the Union the just charge of
national perfidy, and involve us in war." 3 Elliot, Debates, 515. . . . this rule in
respect of treaties is established by the express language of cl. 2, Art. 6, of
the Constitution. . . ."(emphasis supplied)49

It is also generally conceded that sole executive agreements are supreme

over state law and policy. Two cases decided by the U.S. Supreme Court
support this view.

The first of these two cases, United States v. Belmont,50 involved the Litvinov
Assignment, a sole executive agreement executed between the United States
and the Soviet Government. In 1918, the Soviet government, by laws and
decrees, nationalized, among others, a Russian corporation, and appropriated its
assets including a sum of money deposited with Belmont, a private banker doing
business in New York. The sum of money remained Russian property until 1933,
at which time the Soviet government released and assigned to the United States
all amounts due the Soviet government from American nationals, including the
deposit account of the Russian corporation with Belmont. The assignment, better
known as the Litvinov Assignment, was effected by an exchange of diplomatic
correspondence between the Soviet government and the United States to bring
about a final settlement of the claims and counter-claims between the Soviet
government and the United States. Coincident with the assignment, the U.S.
President recognized the Soviet Government and normal diplomatic relations
were established between the two governments.51

Upon demand duly made by the United States, the executors of Belmont’s will
failed and refused to pay the sum of money deposited by the Russian corporation
with Belmont. The United States thus filed a suit in a federal district court to
recover the sum of money. The court below held that the situs of the bank
deposit was within the State of New York and not within Soviet territory. Thus,
the nationalization decree, if enforced, would amount to an act of confiscation
which was contrary to the controlling public policy of New York. The U.S.
Supreme Court, however, held that no state policy could prevail against the
Litvinov Assignment.52 It ruled as follows:

"The assignment and the agreements in connection therewith did not, as in

the case of treaties, as that term is used in the treaty making clause of the
Constitution (Sec. 2, Art. 2), require the advice and consent of the Senate.

A treaty signifies "a compact made between two or more independent nations
with a view to the public welfare." B. Altman & Co. v. United States, 224 U.S.
583, 600, 56 L. ed. 894, 910, 32 S. Ct. 593. But an international compact, as
this was, is not always a treaty which requires the participation of the
Senate. There are many such compacts, of which a protocol, a modus vivendi, a
postal convention, and agreements like that now under consideration are
illustrations." (emphasis supplied)53

On the supremacy of executive agreements over state law, it ruled as follows:

"Plainly, the external powers of the United States are to be exercised

without regard to state laws or policies. The supremacy of a treaty in this
respect has been recognized from the beginning. Mr. Madison, in the Virginia
Convention, said that if a treaty does not supersede existing state laws, as far as
they contravene its operation, the treaty would be ineffective. "To counter-act it
by the supremacy of the state laws, would bring on the Union the just charge of
national perfidy, and involve us in war." 3 Elliot, Debates, 515. . . And while this
rule in respect of treaties is established by the express language of cl. 2, Art. 6,
of the Constitution, the same rule would result in the case of all international
compacts and agreements from the very fact that complete power over
international affairs is in the national government and is not and cannot be
subjected to any curtailment or interference on the part of the several
states." (emphasis supplied)54

The other case, United States v. Pink,55 likewise involved the Litvinov
Assignment. The U.S. Supreme Court here reiterated its ruling in the Belmont
case and held that the Litvinov Assignment was an international compact or
agreement having similar dignity as a treaty under the supremacy clause of the
U.S. Constitution.56

While adherents of sole executive agreements usually point to these two cases
as bearing judicial imprimatur of sole executive agreements, the validity of sole
executive agreements seems to have been initially dealt with by the U.S.
Supreme Court in 1933 in Monaco v. Mississippi wherein Chief Justice Hughes
stated that, "(t)he National Government, by virtue of its control of our foreign
relations is entitled to employ the resources of diplomatic negotiations and to
effect such an international settlement as may be found to be
appropriate, through treaty, agreement of arbitration, or otherwise."57

Subsequent to the Belmont and Pink cases, the U.S. Supreme Court once
again upheld the validity of a sole executive agreement in Dames & Moore v.
Regan.58 This case involved the Algiers Accord, an executive agreement
negotiated and concluded by President Carter and confirmed by President
Reagan to resolve the Iran Hostage Crisis in 1981. That agreement provided,
among others, that the United States and Iran agreed to cancel certain claims
between them and to establish a special tribunal to resolve other claims,
including those by U.S. nationals against Iran. The United States also agreed to
close its courts to those claims, as well as to suits by U.S. citizens against the
government of Iran for recovery of damages arising from the Hostage Crisis.
Although the agreement was entered into by the President pursuant to
Congressional authorization, the Court found that the President’s action with
regard to claims was not so authorized. Nevertheless, the U.S. Supreme Court,
noting the power of presidents in foreign affairs which includes the power to
settle claims, as well as Congressional acquiescence to such practice, upheld
the validity of the Algiers Accord.

Upon the other hand, those opposed to sole executive agreements argue that the
pronouncements of the Court in the Belmont and Pink cases mean that sole
executive agreements override state legislation only when founded upon the
President’s constitutional power to recognize foreign governments.59
While treaties and sole executive agreements have the same legal effect on
state law, sole executive agreements pale in comparison to treaties when
pitted against prior inconsistent acts of Congress. The U.S. Supreme Court
has long ago declared that the Constitution mandates that a treaty and an act of
legislation are both "supreme law of the land." As such, no supreme efficacy is
given to one over the other. If the two relate to the same subject matter and are
inconsistent, the one later in date will prevail, provided the treaty is self-
executing,60 i.e., "whenever it operates of itself without aid of legislation."61 In The
Cherokee Tobacco (Boudinot v. United States),62 the U.S. Supreme Court also
held that where there is repugnance between a treaty and an Act of Congress,
"(a) treaty may supersede a prior Act of Congress . . . and an Act of Congress
may supersede a prior treaty. . . ."63 Settled is the rule, therefore, that a treaty
supersedes an earlier repugnant Act of Congress, and an Act of Congress
supersedes an earlier contradictory treaty.64 As a corollary, a treaty, being placed
on the same footing as an act of legislation,65 can repeal or modify a prior
inconsistent treaty.

In the case of sole executive agreements, commentators have been in general

agreement that unlike treaties,sole executive agreements cannot prevail over
prior inconsistent federal legislation. Even proponents of sole executive
agreements admit that while a self-executing treaty can supersede a prior
inconsistent statute, it is very doubtful whether a sole executive agreement, in the
absence of appropriate legislation, will be given similar effect.66 Wallace McClure,
a leading proponent of the interchangeability of treaties and executive
agreements, opined that it would be contrary to "the entire tenor of the
Constitution" for sole executive agreements to supersede federal law.67 The
Restatement (Third) of the Foreign Relations Law of the United States postulates
that a sole executive agreement could prevail at least over state law, and
(only) possibly federal law without implementing legislation.68 Myer S. McDougal
and Asher Lans who are staunch advocates of executive agreements also
concede that sole executive agreements will not ordinarily be valid if repugnant to
existing legislation.69

In United States v. Guy W. Capps, Inc.,70 a leading lower court decision

discussing the issue of supremacy of executive agreements over federal
legislation, the Fourth Circuit held that, "the executive agreement was void
because it was not authorized by Congress and contravened provisions of a
statute dealing with the very matter to which it related..."71 The U.S. Supreme
Court itself has "intimated that the President might act in external affairs without
congressional authority, but not that he might act contrary to an Act of
Congress."72 The reason for this is that the U.S. President’s power to enter into
international agreements derives from his position as Chief Executive. By Sec. 7,
Art. 1 of the U.S. Constitution, the president does not have power to repeal
existing federal laws. Consequently, he cannot make an indirect repeal by
means of a sole executive agreement.73

On the other side of the coin, it is argued, that when the U.S. President enters
into a sole executive agreement pursuant to his exclusive presidential authority in
the field of foreign relations, such agreement may prevail over prior inconsistent
federal legislation.74 In this situation, the doctrine of separation of powers may
permit the U.S. President to disregard the prior inconsistent Act of Congress as
an "unconstitutional invasion of his power."75However, aside from lacking firm
legal support, this view has to contend with the problem of determining which
powers are exclusively executive and which powers overlap with the powers of
Congress.76

Again, although it is doubtful whether sole executive agreements can supersede

prior inconsistent federal legislation, proponents of sole executive agreements
interpret the Pink case to mean that sole executive agreements are on equal
footing with a treaty, having been accorded the status of "law of the land" under
the supremacy clause and the Litvinov Assignment having been recognized to
have similar dignity as a treaty.77 As such, it is opined that a sole executive
agreement may supersede a prior inconsistent treaty. Treaties of the United
States have in fact been terminated on several occasions by the President on his
own authority.78President Roosevelt terminated at least two treaties under his
independent constitutional powers: the extradition treaty with Greece, in 1933,
and the Treaty of Commerce and Navigation with Japan, in 1939.79 That sole
executive agreements may repeal or terminate a treaty is impliedly recognized
in Charlton v. Kelly80 as follows: "The executive department having thus elected
to waive any right to free itself from the obligation [of the treaty], it is the plain
duty of the court to recognize the obligation.81

As against the U.S. Constitution, treaties and sole executive agreements

are in equal footing as they are subject to the same limitations. As early as
1870, the U.S. Supreme Court declared that, "a treaty cannot change the
Constitution or be held valid if it be in violation of that instrument."82 In Missouri
v. Holland,83 it was held that treaties must not violate the Constitution.84 The U.S.
Supreme Court also discussed the constitutionally implied limitations on the
treaty making power in Reid v. Covert,85 where Justice Black stated that "(n)o
agreement with a foreign nation can confer power on the Congress, or any other
branch of Government, which is free from the restraints of the Constitution."86 He
concluded that the U.S. Constitution provides limits to the acts of the president,
the joint action of the president and the Senate, and consequently limits the
treaty making power.87
There is no dispute that the constitutional limitations relating to treaties also apply
to sole executive agreements. It is well-settled that the due process clause of the
Fifth Amendment and other substantive provisions of the U.S. Constitution
constitute limitations on both treaties and executive agreements.88 Numerous
decisions have also held that both treaties and sole executive agreements
cannot contravene private rights protected by the U.S. Constitution.89

In conclusion, after a macro view of the landscape of U.S. foreign relations vis-
a-vis U.S. constitutional law, with special attention on the legal status of sole
executive agreements, I respectfully submit that the Court will be standing
on unstable ground if it places a sole executive agreement like the VFA on
the same constitutional plateau as a treaty. Questions remain and the
debate continues on the constitutional basis as well as the legal effects of
sole executive agreements under U.S. law. The observation of Louis Henkin, a
noted international and U.S. constitutional law scholar, captures the sentiments
of the framers of the Philippine Constitution and of the Filipinos in crafting Sec.
25, Art. XVIII of the 1987 Constitution -- "(o)ften the treaty process will be used at
the insistence of other parties to an agreement because they believe that a treaty
has greater ‘dignity’ than an executive agreement, because its constitutional
effectiveness is beyond doubt, because a treaty will ‘commit’ the Senate and the
people of the United States and make its subsequent abrogation or violation less
likely."90

With the cloud of uncertainty still hanging on the exact legal force of sole
executive agreements under U.S. constitutional law, this Court must strike
a blow for the sovereignty of our country by drawing a bright line between
the dignity and status of a treaty in contrast with a sole executive
agreement. However we may wish it, the VFA, as a sole executive
agreement, cannot climb to the same lofty height that the dignity of a treaty
can reach. Consequently, it falls short of the requirement set by Sec. 25,
Art. XVIII of the 1987 Constitution that the agreement allowing the presence
of foreign military troops on Philippine soil must be "recognized as a treaty
by the other contracting state."

I vote to grant the petitions.

Footnotes
1
Rollo, pp. 140-141; Consolidated Comment, pp. 20-21.
2
Entered into force on August 27, 1952.
3
The Preamble of the VFA states in relevant part as follows:

The Government of the Republic of the Philippines and the Government of

the United States of America,

Reaffirming their obligations under the Mutual Defense Treaty of August

30, 1951; xxx
4
Transcript of Committee Meeting, Committee on Foreign Relations,
January 26, 1999 [hereinafter referred to as Transcript], p. 21.
5
Id., pp. 103-104.
6
Id., p. 34.
7
Id., p. 104.
8
Black’s Law Dictionary (6th ed.), p. 1464.
9
Id., p. 1139.
10
Bouvier’s Law Dictionary (Third Revision), p. 3254.
11
Id., p. 2568.
12
Entered into force on March 26, 1947.
13
Transcript, p. 139.
14
IV Record of the Constitutional Commission (1986) [hereinafter referred
to as the Record], p. 780.
15
Bernas, Constitution Explicit on VFA, Today, May 5, 1999.
16
Record, p. 781.
17
Record, pp. 780-783.
18
Henkin, Foreign Affairs and the United States Constitution, 2nd ed., pp.
184-185 (1996), citing Restatement (Third) of the Foreign Relations Law of
the United States, sec. 301, adopting Article 1 of the Vienna Convention on
the Law of Treaties.
19
Knaupp, Classifying International Agreements Under U.S. Law: The
Beijing Platform as a Case Study, Brigham Young University Law Review,
vol. 1998 (1), p. 244, citing Carter and Trimble, International Law, p. 110
(1995).
20
Vienna Convention on the Law of Treaties, U.N. Doc. A/C.39/27 (1969),
sec. 1, art. II.
21
Knaupp, op cit. supra note 19, citing Carter and Trimble, op. cit.
supra note 19 at 165-166.
22
McDougal and Lans, Treaties and Congressional-Executive or
Presidential Agreements: Interchangeable Instruments of National Policy:
1, The Yale Law Journal, vol. 54 (2), pp. 197-198 (1945).
23
Henkin, op. cit. supra note 18 at 215.
24
McCormick, American Foreign Policy and Process, 2nd ed., p. 276
(1992), citing Nelson, Congressional Quarterly’s Guide to the Presidency
(Washington, D.C.: Congressional Quarterly, Inc., 1989), p. 1104.
25
Id., pp. 277-278.
26
Id., p. 278.
27
Id., p. 288.
28
Id., p. 298.
29
Id., p. 300.
30
Rotunda, Nowak, and Young, Treatise on Constitutional Law -
Substance and Procedure [hereinafter referred to as Treatise], p. 394
(1986), citing Restatement of the Law, 2d, Foreign Relations of the United
States, sec. 119 (1965).
31
Id., sec. 120.
32
Id., sec. 121.
33
Randall, The Treaty Power, 51 Ohio St. L.J., p. 6 (1990).
34
Id., p. 7.
35
Id., citing McDougal and Lans, supra note 22 at 212.
36
Randall, op. cit. supra note 33 at 8, citing McDougal and
Lans, supra note 22 at 261-306.
37
Randall, op. cit. supra note 33 at 10-11.
38
Supra, note 3.
39
Randall, op. cit. supra note 33 at 6.
40
136 UNTS 216 (1952).
41
Consolidated Memorandum, p. 29.
42
199 UNTS 67 (1954).
43
34 UNTS 244 (1949).
44
Consolidated Memorandum, p. 33.
45
Randall, op. cit. supra note 33 at 4.
46
Weston, Falk, D’Amato, International Law and World Order, p. 926
(1980).
47
U.S. Const., Art. VI, sec. 2.
48
Maris, International Law, An Introduction (1984), p. 224, citing In re
Aircrash in Bali, 1982.
49
United States v. Belmont, 81 L. Ed. 1134 (1937).
50
Ibid.
51
Id., p. 1139.
52
Id., at 1137.
53
See note 51, supra.
54
Id., p. 1140.
55
315 U.S. 203, 62 S. Ct. 552, 86 L. Ed. 796 (1942).
56
Id., p. 818.

McDougal and Lans, op. cit. supra note 22 at 310, citing Monaco v.
57

Mississippi, 292 U.S. 313, 331 (1934) (emphasis supplied).

58
453 U.S. 654 (1981).
59
For criticism of such view, see Mathews, The Constitutional Power of the
President to Conclude International Agreements, The Yale Law Journal,
vol. 64, p. 376 (1954-1955) and McCormick, American Foreign Policy and
Process, 2nd ed., p. 282 (1992), citing Henkin, "Foreign Affairs and the
Constitution," Foreign Affairs 66 (Winter 1987/88), p. 185.
60
Henkin, Foreign Affairs and the United States Constitution, 2nd ed., p.
209 (1996), citing Whitney v. Robertson, 124 U.S. 190, 194 (1888).
61
Id., p. 199, quoting Chief Justice Marshall.
62
11 Wallace 616 (1870).

Byrd, Jr., Treaties and Executive Agreements in the United States, Their
63

Separate Roles and Limitations, p. 82 (1960).

64
Id., p. 83.
65
Supra, note 60, p. 209.
66
Mathews, op. cit. supra note 59 at p. 381, citing Lissitzyn, The Legal
Status of Executive Agreements on Air Transportation, 17 J. Air L. &
Comm. 436, 444 (1950); Corwin, The President’s Control of Foreign
Relations 120 (1917); Hearings before Subcommittee of Senate
Committee on the Judiciary on S.J. Res. 1 & S.J. Res. 43, 83d Cong., 1st
sess. 224, 247 & n.57 (1953); MacChesney, et al., The Treaty Power and
the Constitution: The Case Against Amendment, 40 A.B.A.J. 203, 205
(1954).

Paul, The Geopolitical Constitution: Executive Expediency and Executive

67

Agreements, 86(4) California Law Review, Note 287 (1998), citing

McClure, International Executive Agreements, p. 343 (1967).

Id., p. 729, citing Restatement (Third) of the Foreign Relations Law of the
68

United States, sec. 303 cmt.j.

69
McDougal and Lans, Treaties and Congressional-Executive or
Presidential Agreements: Interchangeable Instruments of National Policy:
1, The Yale Law Journal, vol. 54 (1), p. 317 (1945).
70
204 F.2d 655 (4th Cir. 1953), affirmed on other grounds, 348 U.S. 296,
75 S. Ct. 326, 99 L.Ed. 329 (1955).
71
Treatise, p. 399.

Mathews, op. cit. supra note 59 at 381, citing Youngstown & Tube Co. v.
72

Sawyer, 343 U.S. 579, 635-36 n.2 (1952) (concurring opinion of Jackson).
73
Mathews, op. cit. supra note 59 at 381.
74
Treatise, p. 401.
75
See note 69, supra.
76
See Powell, The President’s Authority over Foreign Affairs: An Executive
Branch Perspective, 67 The George Washington Law Review, p. 550
(1999).
77
Mathews, op. cit. supra note 59 at 381.

Note 154, Mathews, op. cit. supra note 59, citing Corwin, The President:
78

Office and Powers 243 (2nd ed. 1941).

79
Id., p. 376, citing Corwin op. cit. supra note 66 at 417.
80
229 U.S. 447, 474, 476 (1913).
81
Note 154, Mathews, op. cit. supra note 59 at 376.
82
Byrd, Treaties and Executive Agreements in the United States, Their
separate roles and limitations, p. 84 (1960), citing The Cherokee Tobacco
(Boudinot v. United States), 11 Wallace 616 at 620 (1870).
83
252 U.S. 416 (1920).
84
Maris, International Law, An Introduction, p. 224 (1984).
85
354 U.S. at 16, 77 S.Ct. at 1230.
86
Treatise, p. 387. See also, Geofrey v. Riggs, 133 U.S. 258, 267, 10 S.Ct.
295, 297, 33 L. Ed. 642 (1890); Holden v. Joy, 84 U.S. (17 Wall.) 211, 242-
43, 21 L. Ed. 523 (1872); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616,
620-21, 20 L. Ed. 227 (1870); Doe v. Braden, 57 U.S. (16 How.) 635, 657,
14 L. Ed. 1090 (1853); New Orleans v. United States, 35 U.S. (10 Pet.)
662, 736, 9 L. Ed. 573 (1836).
87
Ibid.
88
McDougal and Lans, op. cit. supra note 69 at 315.
89
Mathews, op. cit. supra note 59, p. 377, citing Missouri v. Holland, 252
U.S. 416, 433 (1920) (dictum); Geoffrey v. Riggs, 133 U.S. 258, 267
(1890) (same); The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 620-21
(1870) (same). See also Henkin, op. cit. supra note 60 at 185.
90
Henkin, Foreign Affairs and the United States Constitution, 2nd ed., p.
224 (1996).
 Republic of the Philippines
SUPREME COURT

EN BANC

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’ AffairsEnrique 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 country’s sole
representative with foreign nations.12 As the chief architect of foreign policy, the
President acts as the country’s 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 nation’s 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 state’s 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 state’s
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 ofmandamus. 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.

REYNATO S. PUNO

Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

Chief Justice

ARTEMIO V. PANGANIBAN LEONARDO A. QUISUMBING

Associate Justice Associate Justice

(on official leave)

CONSUELO YNARES-SANTIAGO ANGELINA SANDOVAL-GUTIERREZ

Associate Justice Associate Justice

(on official leave)

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

(on official leave)

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice Associate Justice

ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

CANCIO C. GARCIA

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court.

HILARIO G. DAVIDE, JR.

Chief Justice

Footnotes
*
On official leave.
1
Article 1, Rome Statute.
2
Article 5, Rome Statute.
3
Annex "B" of Petition, Rollo, p. 101.
4
Article 25, Rome Statute.
5
Article 18, Vienna Convention on the Law of Treaties reads:
 Article 18
Obligation not to defeat the object and purpose of a treaty prior to its
entry into force

A State is obliged to refrain from acts which would defeat the object and
purpose of a treaty when:

(a) it has signed the treaty or has exchanged instruments constituting the
treaty subject to ratification, acceptance or approval, until it shall have
made its intention clear not to become a party to the treaty; or

(b) it has expressed its consent to be bound by the treaty, pending the
entry into force of the treaty and provided that such entry into force is not
unduly delayed.
6
Section 3, Rule 65, 1997 Rules of Civil Procedure.
7
Legaspi vs. Civil Service Commission, 150 SCRA 530 (1987).
8
Joya vs. Presidential Commission on Good Government, 225 SCRA 568
(1993).
9
224 SCRA 792 (1993).
10
Gonzales vs. Narvasa, 337 SCRA 733 (2000).
11
Del Mar vs. Philippine Amusement and Gaming Corporation, 346 SCRA
485 (2000).
12
Cortes, The Philippine Presidency: A Study of Executive Power (1966),
p. 187.
13
Cruz, Philippine Political Law (1996 Ed.), p. 223.
14
Cortes, supra note 12, p. 189.
15
Bayan vs. Zamora, 342 SCRA 449 (2000).
16
Cruz, International Law (1998 Ed.), pp. 172-174.
17
Bayan vs. Zamora, supra note 15.
18
Salonga and Yap, Public International Law (5th Edition), p. 138.
19
Cruz, International Law, supra note 16, p.174.
20
Bayan vs. Zamora, supra note 15.
21
Cruz, International Law, supra note 16, p.174.
22
Salonga and Yap, supra note 18.
23
See Severino vs. Governor-General, 16 Phil. 366 (1910).
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

Statute3 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 d’Affaires 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 theAgreement and prays that it be struck down as
unconstitutional, or at least declared as without force and effect.

For their part, respondents question petitioner’s 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
theRome 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 theRome 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 petitioner’s legal standing.
 The Court’s 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 theAgreement 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 party’s 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, petitioner’s 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, petitioner’s 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 State’s 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 cases22 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 Tañada 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

Petitioner’s 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’ contention––perhaps taken unaware of certain well-recognized

international doctrines, practices, and jargons––is 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-028-03––be it

viewed as the Non-Surrender Agreement itself, or as an integral instrument of
acceptance thereof or as consent to be bound––is 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-

authorized44 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 that––save for the
situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution46––
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.

Petitioner’s 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 petitioner’s next contention that the Agreement undermines the

establishment of the ICC and is null and void insofar as it unduly restricts the
ICC’s 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
agreement—like the non-surrender agreement—that 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 petitioner’s 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. 155 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 RP’s 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, petitioner’s suggestion––that the RP, by entering

into the Agreement, violated its duty required by the imperatives of good faith and
breached its commitment under the Vienna Convention57 to refrain from
performing any act tending to impair the value of a treaty, e.g., the Rome
Statute––has 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, petitioner’s 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
petitioner’s 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 jurisdiction—to the extent agreed upon—to
subjects of another State due to the recognition of the principle of extraterritorial
immunity. What the Court wrote in Nicolas v. Romulo59—a case involving the
implementation of the criminal jurisdiction provisions of the RP-US Visiting
Forces Agreement—is 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 State’s 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 petitioner’s 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 country’s
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

Petitioner’s final point revolves around the necessity of the Senate’s 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
Constitution—the 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 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.

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 latter’s consent to the ratification of the treaty, refuse to ratify
it.68 This prerogative, the Court hastened to add, is the President’s 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
State’s 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
Philippines—without the consent of the US—from 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,
theAgreement 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 theAgreement.

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. 1avv phi 1

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 Court’s 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-à-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 view’s reliance on Suplico v. Neda77 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.80
1avv phi1

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-à-vis the
definitions under US laws:

Rome Statute US Law

Article 6
Genocide
For the purpose of this Statute,
"genocide" means any of the
following acts committed with intent
to destroy, in whole or in part, a
national, ethnical, racial or religious
group, as such:
§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–

(a) Killing members of the (1) kills members of that

group; group;

(b) Causing serious bodily or (2) causes serious

mental harm to members of
the group;
(c) Deliberately inflicting on the
group conditions of life
calculated to bring about its
physical destruction in whole
or in part;
(d) Imposing measures
intended to prevent births
within the group;
(e) Forcibly transferring
children of the group to
another group.
Article 8
War Crimes
2. For the purpose of this
Statute, "war crimes" means:
(a) Grave breaches of
the Geneva
Conventions of 12
August 1949, namely,
any of the following acts
against persons or
property protected
under the provisions of
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).
(d) 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 relevant Geneva the Hague Convention IV,
Convention: x x x84 Respecting the Laws and
Customs of War on Land,
(b) Other serious signed 18 October 1907;
violations of the laws
and customs applicable (3) Which constitutes a grave
in international armed breach of common Article 3
conflict, within the (as defined in subsection [d]85)
established framework when committed in the context
of international law, of and in association with an
namely, any of the armed conflict not of an
following acts: international character; or

xxxx (4) Of a person who, in

relation to an armed conflict
(c) In the case of an and contrary to the provisions
armed conflict not of an of the Protocol on Prohibitions
international character, or Restrictions on the Use of
serious violations of Mines, Booby-Traps and Other
article 3 common to the Devices as amended at
four Geneva Geneva on 3 May 1996
Conventions of 12 (Protocol II as amended on 3
August 1949, namely, May 1996), when the United
any of the following acts States is a party to such
committed against Protocol, willfully kills or
persons taking no active causes serious injury to
part in the hostilities, civilians.86
including members of
armed forces who have
laid down their arms and
those placed hors de
combat by sickness,
wounds, detention or
any 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 Habana89 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 Quirin96 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 194115 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.

PRESBITERO J. VELASCO, JR.

Associate Justice
WE CONCUR:

RENATO C. CORONA
Chief Justice

ANTONIO T. CARPIO CONCHITA CARPIO MORALES

Associate Justice Associate Justice

ANTONIO EDUARDO B. TERESITA J. LEONARDO-DE

NACHURA CASTRO
Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

Footnotes
1
Rollo, pp. 241-265.
2
He is now the DFA Secretary.
3
Rollo, pp. 74-145.
4
Rome Statute, Art. 1.
5
Id., Art. 5.
6
ROME STATUTE, Article 125.
7
Rollo, pp. 68-69.
8
Id. at 72, Paper on the RP-US Non-Surrender Agreement.
9
Id. at 70.
10
Id. at 175.
11
Id. at 25-27.
12
Philconsa v. Gimenez, No. L-23326, December 18, 1965, 15 SCRA
479; Iloilo Palay & Corn Planters Association, No. L-24022, March 3, 1965,
13 SCRA 377; Araneta v. Dinglasan, 84 Phil. 368 (1949).
13
David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA
160.
14
Jumamil v. Café, G.R. No. 144570, September 21, 2005, 470 SCRA 475;
citing Integrated Bar of the Philippines v. Zamora, G.R. No. 141284,
August 15, 2000, 338 SCRA 81.
15
Id.
16
Id.
17
Fariñas v. Executive Secretary, G.R. Nos. 147387 & 152161, December
10, 2003, 417 SCRA 503; citing Baker v. Carr, 369 U.S. 186 (1962). See
also Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000, 337 SCRA
733.
18
Agan, Jr. v. Philippine International Air Terminals Co., Inc., G.R. Nos.
155001, 155547 & 155661, May 5, 2003, 402 SCRA 612.
19
Constantino, Jr. v. Cuisia, G.R. No. 106064, October 13, 2005, 472
SCRA 515; Agan, Jr., supra note 18; Del Mar v. Philippine Amusement
and Gaming Corporation, G.R. No. 138298, November 29, 2000, 346
SCRA 485; Tatad v. Garcia, G.R. No. 114222, April 6, 1995, 243 SCRA
436; Kilosbayan v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232
SCRA 110.
20
G.R. No. 160261, November 10, 2003, 415 SCRA 45.
21
Id. at 136-137.
22
Supra note 12.
23
Supra note 19.
24
G.R. No. 138587, October 10, 2000, 342 SCRA 2000.
25
G.R. No. 118295, May 2, 1997, 272 SCRA 18, 48-49.
26
Cruz, Philippine Political Law 55 (1995).
27
Harris, Cases and Materials on International Law 801 (2004).
28
Official Website of the UN <http://untreaty.un.org/English/guide.asp.>;
cited in Abaya v. Ebdane, G.R. No. 167919, February 14, 2007, 515 SCRA
720.
29
Abaya v. Ebdane, supra.

Id.; citing The Constitutionality of Trade Agreement Acts by Francis

30

Sayre.
31
Cited in Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333
(1961).
32
Executive Order No. 459, dated November 25, 1997, contains a similar
definition.
33
B.A. Boczek, International Law: A Dictionary 346 (2005).
34
Bayan v. Zamora, supra note 24; citing Richard Erickson, "The Making of
Executive Agreements by the US Department of Defense," 13 Boston U.
Intl. L. J. 58 (1955); Randall, The Treaty Power, 51 Ohio St. L.J., p. 4; see
also Restatement (Third) of Foreign Relations Law § 301 (1987), which
states that "[t]he terminology used for international agreements is varied.
Among the terms used are: treaty, convention, agreement, protocol,
covenant, charter, statute, act, declaration, concordat, exchange of notes,
agreed minute, memorandum of agreement, memorandum of
understanding, and modus vivendi. Whatever their designation, all
agreements have the same legal status, except as their provisions or the
circumstances of their conclusion indicate otherwise." (Emphasis
supplied.)
35
Id. at 489; citing 5 Hackworth, Digest of International Law 395; cited
in USAFE Veterans Association Inc. v. Treasurer of the Philippines, 105
Phil. 1030, 1037 (1959).
36
Reid v. Covert, 354 U.S. 77 S. Ct.1230.
37
In the US constitutional system, it is the legal force of treaties and
executive agreements on the domestic plane.
38
Henkin, Foreign Affairs and the United States Constitution 224 (2nd ed.,
1996).
39
Prof. Edwin Borchard, Treaties and Executive Agreements – Reply, Yale
Law Journal, June 1945; cited in Justice Antonio T. Carpio’s Dissent in
Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222, February 11,
2009, 578 SCRA 438.
40
No. L-14279, October 31, 1961, 3 SCRA 351, 356.
41
No. L-30650, July 31, 1970, 34 SCRA 166.
42
Latin for "agreements must be kept," Black’s Law Dictionary (8th ed.,
2004). The principle of pacta sunt servanda, in its most common sense,
refers to private contracts, stressing that these pacts and clauses are
the law between the parties, and implying that the non-fulfilment of
respective obligations is a breach of the pact.

With regard to international agreements, Art. 26 of the Vienna Convention

on the Law of Treaties (signed on May 23, 1969 and entered into force
on January 27, 1980) states that "every treaty in force is binding upon the
parties to it and must be performed by them in good faith." Pacta sunt
servanda is based on good faith. This entitles states to require
that obligations be respected and to rely upon the obligations being
respected. This good-faith basis of treaties implies that a party to the treaty
cannot invoke provisions of itsdomestic law as justification for a failure to
perform. The only limit to pacta sunt servanda is jus cogens(Latin for
"compelling law"), the peremptory norm of general international law.

Oona A. Hathaway, Presidential Power Over International Law:

43

Restoring the Balance, 119 YLJ 140, 152 (2009).

44
Rotunda, Nowak and Young, Treatise on Constitutional Law 394; cited in
then Chief Justice Puno’s dissent in Bayan v. Zamora, supra.
45
Nicolas, supra note 39.
46
Sec. 25. After the expiration in 1991 of the [RP-US Military Bases
Agreement] 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 Congress so requires, ratified x x x in a national referendum
held for that purpose, and recognized as a treaty by the contracting state.
47
Supra note 39.
48
Supra note 41.
49
Supra note 31.
50
Article 27 Irrelevance of official capacity
51
. This Statue shall apply equally to all persons without any distinction
based on official capacity. In particular, official capacity as a Head of State
or Government, a member of a Government or parliament, an elected
representative or a government official shall in no case exempt a person
from criminal responsibility under this Statute, nor shall it, in and of itself,
constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the

official capacity of a person, whether under national or international
law, shall not bar the Court from exercising its jurisdiction over such
a person.

[51] Article 86
General Obligation to Cooperate

States Parties shall, in accordance with the provisions of this

Statute, cooperate fully with the Court in its investigation and
prosecution of crimes within the jurisdiction of the Court.
52
Article 89

Surrender of persons to the Court

1. The Court may transmit a request for the arrest and

surrender of a person, together with the material supporting
the request outlined in article 91, to any State on the territory
of which that person may be found and shall request the
cooperation of that State in the arrest and surrender of such a
person. States Parties shall, in accordance with the provisions
of this Part and the procedure under their national law, comply
with requests for arrest and surrender.

2. Where the person sought for surrender brings a challenge

before a national court on the basis of the principle of neb is in
idem as provided in article 20, the requested State shall
immediately consult with the Court to determine if there has
been a relevant ruling on admissibility. If the case is
admissible, the requested State shall proceed with the
execution of the request. If an admissibility ruling is pending,
the requested State may postpone the execution of the
request for surrender of the person until the Court makes a
determination on admissibility.

3. (a) A State Party shall authorize, in accordance with its

national procedural law, transportation through its territory of a
person being surrendered to the Court by another State,
except where transit through that State would impede or delay
the surrender.

(b) A request by the Court for transit shall be transmitted

in accordance with article 87. The request for transit
shall contain:

(i) A description of the person being transported;

(ii) A brief statement of the facts of the case and

their legal characterization; and

(iii) The warrant for arrest and surrender;

(c) A person being transported shall be detained in

custody during the period of transit;
 (d) No authorization is required if the person is
transported by air and no landing is scheduled on the
territory of the transit State;

(e) If an unscheduled landing occurs on the territory of

the transit State, that State may require a request for
transit from the Court as provided for in subparagraph
(b). The transit State shall detain the person being
transported until the request for transit is received and
the transit is effected, provided that detention for
purposes of this subparagraph may not be extended
beyond 96 hours from the unscheduled landing unless
the request is received within that time.

4. If the person sought is being proceeded against or is

serving a sentence in the requested State for a crime different
from that for which surrender to the Court is sought, the
requested State, after making its decision to grant the request,
shall consult with the Court.
53
Article 90 Competing requests

1. A State Party which receives a request from the Court for the
surrender of a person under article 89 shall, if it also receives a
request from any other State for the extradition of the same person
for the same conduct which forms the basis of the crime for which
the Court seeks the person’s surrender, notify the Court and the
requesting State of that fact.

2. Where the requesting State is a State Party, the requested State

shall give priority to the request from the Court if:

(a) The Court has, pursuant to article 18 or 19, made a

determination that the case in respect of which surrender is
sought is admissible and that determination takes into account
the investigation or prosecution conducted by the requesting
State in respect of its request for extradition; or

(b) The Court makes the determination described in

subparagraph (a) pursuant to the requested State’s
notification under paragraph 1.
3. Where a determination under paragraph 2 (a) has not been made,
the requested State may, at its discretion, pending the determination
of the Court under paragraph 2 (b), proceed to deal with the request
for extradition from the requesting State but shall not extradite the
person until the Court has determined that the case is inadmissible.
The Court’s determination shall be made on an expedited basis.

4. If 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, if the Court has determined
that the case is inadmissible.

5. Where a case under paragraph 4 has not been determined to be

admissible by the Court, the requested State may, at its discretion,
proceed to deal with the request for extradition from the requesting
State.

6. In cases where paragraph 4 applies except that the requested

State is under an existing international obligation to extradite the
person to the requesting State not Party to this Statute, the
requested State shall determine whether to surrender the person to
the Court or extradite the person to the requesting State. In making
its decision, the requested State shall consider all the relevant
factors, including but not limited to:

(a) The respective dates of the requests;

(b) The interests of the requesting State including, where

relevant, whether the crime was committed in its territory and
the nationality of the victims and of the person sought; and

(c) The possibility of subsequent surrender between the Court

and the requesting State.

7. Where a State Party which receives a request from the Court for
the surrender of a person also receives a request from any State for
the extradition of the same person for conduct other than that which
constitutes the crime for which the Court seeks the person’s
surrender:
 (a) The requested State shall, if it is not under an existing
international obligation to extradite the person to the
requesting State, give priority to the request from the Court;

(b) The requested State shall, if it is under an existing

international obligation to extradite the person to the
requesting State, determine whether to surrender the person
to the Court or to extradite the person to the requesting State.
In making its decision, the requested State shall consider all
the relevant factors, including but not limited to those set out in
paragraph 6, but shall give special consideration to the relative
nature and gravity of the conduct in question.

8. Where pursuant to a notification under this article, the Court has

determined a case to be inadmissible, and subsequently extradition
to the requesting State is refused, the requested State shall notify
the Court of this decision.
54
Tenth preambular paragraph of the ICC Statute.

1. Having regard to paragraph 10 of the Preamble and Article 1, the

55

Court shall determine that a case is inadmissible where:

(a) The case is being investigated or prosecuted by a State which

has jurisdiction over it, unless the State is unwilling or unable
genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction
over it and the State has decided not to prosecute the person
concerned, unless the decision resulted from the unwillingness or
inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which
is the subject of the complaint, and a trial by the Court is not
permitted under article 20, paragraph 3;

(d) The case is not of sufficient gravity to justify further action by the
Court.
56
Latin for "not twice for the same," a legal principle that means no legal
action can be instituted twice for the same cause of action. In gist, it is a
legal concept substantially the same as or synonymous to double
jeopardy.
57
A state is obliged to refrain from acts that would defeat the object and
purpose of a treaty when: (a) it has signed the treaty or has exchanged
instruments constituting the treaty subject to ratification, acceptance or
approval, until it shall have made its intention clear not to become a party
to the treaty; or (b) it has expressed its consent to be bound by the treaty,
pending the entry into force of the treaty and provided that such entry into
force is not unduly delayed.
58
Vienna Convention on the Law of Treaties, Art. 18.
59
Supra note 39.
60
Constitution, Art. II, Sec. 2.
61
Tañada v. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA 18.

Dizon v. Phil. Ryubus Command, 81 Phil. 286 (1948); cited in Agpalo,

62

Public International Law 222-223 (2006).

63
Rollo, pp. 53-54.
64
Under Vienna Convention on the Law of Treaties, Art. 18, a State has
the obligations not to defeat the object and purpose of a treaty prior to its
entry into force when (a) it has signed the treaty or has exchanged
instruments constituting the treaty subject to ratification, acceptance or
approval, until it shall have made its intention clear not to become a party
to the treaty; or (b) it has expressed its consent to be bound by the treaty,
pending the entry into force of the treaty and provided that such entry into
force is not unduly delayed.
65
Bayan v. Zamora, supra.
66
Id.; citing Commissioner of Customs, supra.
67
G.R. No. 158088, July 6, 2005, 462 SCRA 622.
68
Id. at 637-638; citing Cruz, International Law 174 (1998).
69
Signature, ratification, acceptance, approval or accession.

1. This Statute shall be open for signature by all States in Rome, at

the headquarters of the Food and Agriculture Organization of the
United Nations, on 17 July 1998. Thereafter, it shall remain open for
signature in Rome at the Ministry of Foreign Affairs of Italy until 17
 October 1998. After that date, the Statute shall remain open for
signature in New York, at United Nations Headquarters, until 31
December 2000.

2. This Statute is subject to ratification, acceptance or approval by

signatory States. Instruments of ratification, acceptance or approval
shall be deposited with the Secretary-General of the United Nations.

3. This Statute shall be open to accession by all States. Instruments

of accession shall be deposited with the Secretary-General of the
United Nations.
70
RA 9851, Secs. 4-6.
71
Id., Secs. 7-12.
72
Id., Secs. 17-18.

Republic Planters Bank v. Agana, Sr., G.R. No. 51765, May 3, 1997, 269
73

SCRA 1, 12.
74
Supra note 39.
75
456 U.S. 25 (1982).
76
Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222, February 11,
2009, 578 SCRA 438, 467.
77
G.R. No. 178830, July 14, 2008, 558 SCRA 329.
78
Id. at 376. (Emphasis supplied.)

Par. 1, Art. 2, RP-US Extradition Treaty, Senate Resolution No. 11,

79

November 27, 1995 (emphasis supplied).

80
18 U.S.C.A. § 2441.
81
18 U.S.C.A. § 1091.
82
Malcolm Shaw, International Law 112 (2008).
83
Victoria K. Holt and Elisabeth W. Dallas, "On Trial: The US Military and
the International Criminal Court," The Henry L. Stimson Center, Report No.
55, March 2006, p. 92; available at
<http://www.stimson.org/images/uploads/research-
pdfs/US_Military_and_the_ICC_FINAL_website.pdf> last visited January
27, 2011. We quote Holt and Dallas’ profiles from the report:

Victoria K. Holt is a senior associate at the Henry L. Stimson Center,

where she co-directs the Future of Peace Operations program. She
has co-authored a study of peacekeeping reforms at the United
Nations, analyzing the implementation of the 2000 Brahimi Report
recommendations, and recently completed reports on African
capacity for peace operations and the protection of civilians by
military forces. Ms. Holt joined the Stimson Center in 2001, bringing
policy and political expertise on UN and peacekeeping issues from
her work at the US Department of State, in the NGO community and
on Capitol Hill. She served as Senior Policy Advisor at the US State
Department (Legislative Affairs), where she worked with Congress
on issues involving UN peacekeeping and international
organizations. Prior to joining State, she was Executive Director of
the Emergency Coalition for US Financial Support of the United
Nations, and also directed the Project on Peacekeeping and the UN
at the Center for Arms Control and Nonproliferation in Washington,
DC. From 1987 to 1994, Ms. Holt worked as a senior Congressional
staffer, focusing on defense and foreign policy issues for the House
Armed Services Committee. She served as Legislative Director for
Rep. Thomas H. Andrews and as Senior Legislative Assistant to
Rep. George J. Hochbrueckner. Ms. Holt is a graduate of the Naval
War College and holds a B.A. with honors from Wesleyan University.

Elisabeth W. Dallas is a research associate with the Henry L.

Stimson Center’s Future of Peace Operations program and is
focusing her work on the restoration of the rule of law in post-conflict
settings. In particular, she is analyzing what legal mechanisms are
required to allow for international criminal jurisdiction within UN
peace operations. Prior to working at the Stimson Center, Ms. Dallas
was a Senior Fellow with the Public International Law & Policy
Group in Washington, DC, where she served as a political and legal
advisor for parties during international peace negotiations taking
place in the Middle East, the Balkans and South Asia. Ms. Dallas
earned an MA from Tufts University’s Fletcher School of Law &
Diplomacy with a concentration in International Negotiation &
Conflict Resolution and Public International Law, as well as a
Certificate in Human Security and Rule of Law. She earned her BA
from Haverford College. (Emphasis supplied.)
84
( i) Wilful killing;

(ii) Torture or inhuman treatment, including biological experiments;

(iii) Wilfully causing great suffering, or serious injury to body or

health;

(iv) Extensive destruction and appropriation of property, not justified

by military necessity and carried out unlawfully and wantonly;

(v) Compelling a prisoner of war or other protected person to serve

in the forces of a hostile Power;

(vi) Wilfully depriving a prisoner of war or other protected person of

the rights of fair and regular trial;

(vii) Unlawful deportation or transfer or unlawful confinement;

(viii) Taking of hostages.

85
(d) Common Article 3 violations. –

(1) Prohibited conduct – In subsection (c)(3), the term "grave breach

of common Article 3" means any conduct (such conduct constituting
a grave breach of common Article 3 of the international conventions
done at Geneva August 12, 1949), as follows:

(A) Torture. – The act of a person who commits, or conspires

or attempts to commit, an act specifically intended to inflict
severe physical or mental pain or suffering (other than pain or
suffering incidental to lawful sanctions) upon another person
within his custody or physical control for the purpose of
obtaining information or a confession, punishment,
intimidation, coercion, or any reason based on discrimination
of any kind.

(B) Cruel or inhuman treatment. – The act of a person who

commits, or conspires or attempts to commit, an act intended
to inflict severe or serious physical or mental pain or suffering
(other than pain or suffering incidental to lawful sanction),
including serious physical abuse, upon another within his
custody or control.
(C) Performing biological experiments. – The act of a person
who subjects, or conspires or attempts to subject, one or more
person within his custody or physical control to biological
experiments without a legitimate medical or dental purpose
and in so doing endangers the body or health of such person
or persons.

(D) Murder. – The act of a person who intentionally or

unintentionally in the course of committing any other offense
under this subsection, one or more persons taking no active
part in the hostilities, including those placed out of combat by
sickness, wounds, detention, or any other cause.

(E) Mutilation or maiming.— The act of a person who

intentionally injures, or conspires or attempts to injure, or
injures whether intentionally or unintentionally in the course of
committing any other offense under this subsection, one or
more persons taking no active part in the hostilities, including
those placed out of combat by sickness, wounds, detention, or
any other cause, by disfiguring the person or persons by any
mutilation thereof or by permanently disabling any member,
limb, or organ of his body, without any legitimate medical or
dental purpose.

(F) Intentionally causing serious bodily injury.— The act of a

person who intentionally causes, or conspires or attempts to
cause, serious bodily injury to one or more persons, including
lawful combatants, in violation of the law of war.

(G) Rape.— The act of a person who forcibly or with coercion

or threat of force wrongfully invades, or conspires or attempts
to invade, the body of a person by penetrating, however
slightly, the anal or genital opening of the victim with any part
of the body of the accused, or with any foreign object.

(H) Sexual assault or abuse.— The act of a person who

forcibly or with coercion or threat of force engages, or
conspires or attempts to engage, in sexual contact with one or
more persons, or causes, or conspires or attempts to cause,
one or more persons to engage in sexual contact.

(I) Taking hostages.— The act of a person who, having

knowingly seized or detained one or more persons, threatens
 to kill, injure, or continue to detain such person or persons with
the intent of compelling any nation, person other than the
hostage, or group of persons to act or refrain from acting as
an explicit or implicit condition for the safety or release of such
person or persons.

(2) Definitions.— In the case of an offense under subsection (a) by

reason of subsection (c)(3)—

(A) the term "severe mental pain or suffering" shall be applied

for purposes of paragraphs (1)(A) and (1)(B) in accordance
with the meaning given that term in section 2340 (2) of this
title;

(B) the term "serious bodily injury" shall be applied for

purposes of paragraph (1)(F) in accordance with the meaning
given that term in section 113 (b)(2) of this title;

(C) the term "sexual contact" shall be applied for purposes of

paragraph (1)(G) in accordance with the meaning given that
term in section 2246 (3) of this title;

(D) the term "serious physical pain or suffering" shall be

applied for purposes of paragraph (1)(B) as meaning bodily
injury that involves—

(i) a substantial risk of death;

(ii) extreme physical pain;

(iii) a burn or physical disfigurement of a serious nature

(other than cuts, abrasions, or bruises); or

(iv) a significant loss or impairment of the function of a

bodily member, organ, or mental faculty; and

(E) the term "serious mental pain or suffering" shall be applied

for purposes of paragraph (1)(B) in accordance with the
meaning given the term "severe mental pain or suffering" (as
defined in section 2340(2) of this title), except that —

(i) the term "serious shall replace the term "sever"

where it appears; and
 (ii) as to conduct occurring after the date of the
enactment of the Military Commissions Act of 2006, the
term "serious and non-transitory mental harm (which
need not be prolonged)" shall replace the term
"prolonged mental harm" where it appears.

(3) Inapplicability of certain provisions with respect to collateral

damage or incident of lawful attack.— The intent specified for
the conduct stated in subparagraphs (D), (E), and (F) or
paragraph (1) precludes the applicability of those
subparagraphs to an offense under subsection (A) by reasons
of subsection (C)(3) with respect to —

(A) collateral damage; or

(B) death, damage, or injury incident to a lawful attack.

(4) Inapplicability of taking hostages to prisoner exchange.—

Paragraph (1)(I) does not apply to an offense under
subsection (A) by reason of subsection (C)(3) in the case of a
prisoner exchange during wartime.

(5) Definition of grave breaches. – The definitions in this

subsection are intended only to define the grave breaches of
common Article 3 and not the full scope of United States
obligations under that Article.
86
18 U.S.C.A. § 2441.
87
Victoria K. Holt and Elisabeth W. Dallas, supra note 83, at 7.
88
Id. at 35.
89
175 U.S. 677, 20 S.Ct. 290 (1900).
90
Id. at 700; citing Hilton v. Guyot, 159 U.S. 113, 163, 164, 214, 215, 40 L.
ed. 95, 108, 125, 126, 16 Sup. Ct. Rep. 139.
91
14 U.S. 415, 1816 WL 1770 (U.S.Mass.) (1816).
92
11 U.S. (7 Cranch) 32 (1812).
93
Jordan J. Paust, Customary International Law and Human Rights
Treaties are Law of the United States, 20 MIJIL 301, 309 (1999).
94
11 U.S. (7 Cranch) 32, 32 (1812).
95
"x x x [C]ustomary international law is part of the law of the United States
to the limited extent that, 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." U.S. v. Yousef, 327 F.3d 56, 92
(2003).
96
317 U.S. 1 (1942).
97
Id. at 27-28; citing Talbot v. Jansen, 3 Dall. 133, 153, 159, 161, 1 L.Ed.
540; Talbot v. Seeman, 1 Cranch 1, 40, 41, 2 L.Ed. 15; Maley v. Shattuck,
3 Cranch 458, 488, 2 L.Ed. 498; Fitzsimmons v. Newport Ins. Co., 4
Cranch 185, 199, 2 L.Ed. 591; The Rapid, 8 Cranch 155, 159-164, 3 L.Ed.
520; The St. Lawrence, 9 Cranch 120, 122, 3 L.Ed. 676; Thirty Hogsheads
of Sugar v. Boyle, 9 Cranch 191, 197, 198, 3 L.Ed. 701; The Anne, 3
Wheat. 435, 447, 448, 4 L.Ed. 428; United States v. Reading, 18 How. 1,
10, 15 L.Ed. 291; Prize Cases (The Amy Warwick), 2 Black 635, 666, 667,
687, 17 L.Ed. 459; The Venice, 2 Wall. 258, 274, 17 L.Ed. 866; The
William Bagaley, 5 Wall. 377, 18 L.Ed. 583; Miller v. United States, 11
Wall. 268, 20 L.Ed. 135; Coleman v. Tennessee, 97 U.S. 509, 517, 24
L.Ed. 1118; United States v. Pacific R.R., 120 U.S. 227, 233, 7 S.Ct. 490,
492, 30 L.Ed. 634; Juragua Iron Co. v. United States, 212 U.S. 297, 29
S.Ct. 385, 53 L.Ed. 520.
98
Id. at 29-30.
99
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Merits, I.C.J. judgment, February 26, 2007, § 161; M. Cherif Bassiouni,
International Crimes: Jus Cogens and Obligatio Erga Omnes, 59-AUT Law
& Contemp. Probs. 63, 68.

I.C.J. Statute, art. 38, ¶ 1 (b) international custom, as evidence of a

100

general practice accepted as law.

North Sea Continental Shelf, 1969 I.C.J. ¶ 77; cited in Patrick Simon S.
101

Perillo, Transporting the Concept of Creeping Expropriation from De Lege

Ferenda to De Lege Lata: Concretizing the Nebulous Under International
Law, 53 Ateneo L.J. 434, 509-510 (2008).

North Sea Continental Shelf, 1969 I.C.J. ¶ 77; D.J. Harris, Cases and
102

Materials on International Law, 22 (2004).

103
North Sea Continental Shelf, 1969 I.C.J. at 175 (Tanaka, J., dissenting).

Fisheries Jurisdiction (U.K. v. Ice) (Merits), 1974 I.C.J. 3, 89-90 (de

104

Castro, J., separate opinion).

105
North Sea Continental Shelf, 1969 I.C.J. ¶ 77.

M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio

106

Erga Omnes, 59-AUT Law & Contemp. Probs. 63, 67.

107
Id.
108
Id.

Carlee M. Hobbs, The Conflict Between the Alien Tort Statute Litigation
109

and Foreign Amnesty Laws, 43 Vand. J. Transnat’l L. 505, 521 (2009-

2010); citing Jeffrey L. Dunoff, et al., International Law: Norms, Actors
Process 58-59 (2d ed., 2006).

Id.; citing Jeffrey L. Dunoff et al., International Law: Norms, Actors

110

Process 380 (2d ed., 2006).

111
Id.
112
Id.
113
Pharmaceutical and Health Care Association of the Philippines v. Duque
III, G.R. No. 173034, October 9, 2007, 535 SCRA 265.

See <http://www.icc-cpi.int/Menus/ASP/states+parties/> (last visited

114

January 26, 2011).

<http://www.nationsonline.org oneworld /states.org> (last visited

115

October 18, 2010). The list does not include dependent territories.

Joaquin G. Bernas, S.J., An Introduction to Public International Law 10-

116

13 (2002); cited inPharmaceutical and Health Care Association of the

Philippines v. Duque III, supra note 113, at 292.

Pharmaceutical and Health Care Association of the Philippines, supra

117

note 113, at 290-291; citation omitted.

118
Article 12. Preconditions to the exercise of jurisdiction.
 1. A State which becomes a Party to this Statute thereby accepts the
jurisdiction of the Court with respect to the crimes referred to in
article 5.

2. In the case of Article 13, paragraph (a) or (c), the Court may
exercise its jurisdiction if one or more of the following States are
Parties to this Statute or have accepted the jurisdiction of the Court
in accordance with paragraph 3:

(a) The State on the territory of which the conduct in question

occurred or, if the crime was committed on board a vessel or
aircraft, the State of registration of that vessel or aircraft.

(b) The State of which the person accused of the crime is a

national.
119
Rome Statute of the International Criminal Court, Art. 25, par. 2.
120
G.R. No. 180643, September 4, 2003, 564 SCRA 152, 197-198.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

CARPIO, J.:

I dissent.

The RP-US Non-Surrender Agreement (Agreement) violates existing municipal

laws on the Philippine State’s obligation to prosecute persons responsible for any
of the international crimes of genocide, war crimes and other crimes against
humanity. Being a mere executive agreement that is indisputably inferior to
municipal law, the Agreement cannot prevail over a prior or subsequent
municipal law inconsistent with it.

First, under existing municipal laws arising from the incorporation doctrine in
Section 2, Article II of the Philippine Constitution,1 the State is required to
surrender to the proper international tribunal persons accused of grave
international crimes, if the State itself does not exercise its primary jurisdiction to
prosecute such persons.
Second, and more importantly, Republic Act No. 9851 (RA 9851) or
the Philippine Act on Crimes Against International Humanitarian Law, Genocide,
and Other Crimes Against Humanity requires that the RP-US Non-Surrender
Agreement, which is in derogation of the duty of the Philippines to prosecute
those accused of grave international crimes, should be ratified as a treaty by the
Senate before the Agreement can take effect.

Section 2 of RA 9851 adopts as a State policy the following:

Section 2. Declaration of Principles and State Policies. -

(a) x x x

xxx

(e) The most serious crimes of concern to the international community as a

whole must not go unpunished and their effective prosecution must be
ensured by taking measures at the national level, in order to put an end to
impunity for the perpetrators of these crimes and thus contribute to the
prevention of such crimes, it being the duty of every State to exercise
its criminal jurisdiction over those responsible for international
crimes. (Emphasis supplied)

To implement this State policy, Section 17 of RA 9851 provides:

Section 17. Jurisdiction. - The State shall exercise jurisdiction over persons,
whether military or civilian, suspected or accused of a crime defined and
penalized in this Act, regardless of where the crime is committed, provided, any
one of the following conditions is met:

(a) The accused is a Filipino citizen;

(b) The accused, regardless of citizenship or residence, is present in

the Philippines; or

(c) The accused has committed the said crime against a Filipino citizen.

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. (Boldfacing, italicization and
underscoring supplied)

Section 2(e) and Section 17 impose on the Philippines the "duty" to prosecute a
person present in the Philippines, "regardless of citizenship or residence" of such
person, who is accused of committing a crime under RA 9851 "regardless of
where the crime is committed." The Philippines is expressly mandated by law to
prosecute the accused before its own courts.

If the Philippines decides not to prosecute such accused, the Philippines has only
two options. First, it may surrender the accused to the "appropriate international
court" such as the International Criminal Court (ICC). Or second, it may
surrender the accused to another State if such surrender is "pursuant to the
applicable extradition laws and treaties." Under the second option, the
Philippines must have an applicable extradition law with the other State, or both
the Philippines and the other State must be signatories to an applicable treaty.
Such applicable extradition law or treaty must not frustrate the Philippine State
policy, which embodies a generally accepted principle of international law, that it
is "the duty of every State to exercise its criminal jurisdiction over those
responsible for international crimes."

In any case, the Philippines can exercise either option only if "another court or
international tribunal isalready conducting the investigation or undertaking
the prosecution of such crime." In short, the Philippines should surrender the
accused to another State only if there is assurance or guarantee by the other
State that the accused will be prosecuted under the other State's criminal justice
system. This assurance or guarantee springs from the principle of international
law that it is "the duty of every State to exercise its criminal jurisdiction over
those responsible for international crimes."

There is at present no "applicable" extradition law or treaty allowing the

surrender to the United States of U.S. nationals accused of crimes under
RA 9851, specifically, Crimes against International Humanitarian Law or
War Crimes,2 Genocide,3 and Other Crimes against Humanity.4

The RP-US Extradition Treaty cannot be considered an applicable extradition law

or treaty. Paragraph 1, Article 2 of the RP-US Extradition Treaty provides: "An
offense shall be an extraditable offense if it is punishable under the laws in
both Contracting Parties xxx."5

The rule in the United States is that a person cannot be tried in the federal courts
for an international crime unless the U.S. Congress adopts a law defining and
punishing the offense.6 In Medellin v. Texas,7 the U.S. Supreme Court held that
"while treaties ῾may comprise international commitments ... they are not
domestic law unless Congress has either enacted implementing statutes or
the treaty itself conveys an intention that it be self-executing’ and is ratified
on these terms." The U.S. Congress has not enacted legislation to implement
the Geneva Conventions of 1949 (Geneva Conventions)8 which is one of the
foundations of the principles of International Humanitarian Law. While the U.S.
Senate has ratified the Geneva Conventions,9 the ratification was not intended to
make the Geneva Conventions self-executing under U.S. domestic law.10

The United States has not ratified the Rome Statute of International Criminal
Court (Rome Statute). While the Philippines has also not ratified the Rome
Statute, it has criminalized under RA 9851 all the acts defined in the Rome
Statute as Genocide, War Crimes and Other Crimes against Humanity. There is
no similar legislation in the United States.

Not all crimes punishable under the Rome Statute are considered crimes under
U.S. laws. A report11 based partly on interviews with representatives of the U.S.
delegation in Rome stated: "The domestic laws of the United States xxx do not
cover every crime listed within the jurisdiction of the [International Criminal]
Court."12 The report further explained the gap between the definitions of
Genocide, War Crimes and Other Crimes against Humanity, under the Rome
Statute and under U.S. domestic laws, in this wise:13

ICC Statute in Contrast to the US Code

In conversations with both proponents and opponents of the Court, many

suggested that while the US has objected to the Court’s potential authority

over US service members, what really lies behind that concern is the recognition
that those most vulnerable to the scrutiny of the Court are notably higher up in
the chain of command: the civilian and senior military leadership.

Legal experts, both in the military and outside, pointed out that there were more
likely to be "gaps" between the US Code and the Rome Statute than gaps with
the Uniform Code of Military Justice. After retirement, military personnel are not
covered by the UCMJ, but instead would be held accountable to the US Code, in
particular Title 10 and Title 18. For some retired military personnel, this was an
area of some concern.

These individuals offered that former leaders, in particular the "Henry

Kissingers of the world," are most at risk. Indeed, they stressed that as the
main concern for the US: that the Court will take up cases of former senior
civilian leadership and military officials who, acting under the laws of war,
are no longer covered by the UCMJ and therefore, potentially open to gaps
in federal law where the US ability to assert complementarity is nebulous.
The fear is that they could be subject to ICC prosecution for actions they
did previously in uniform.

One legal scholar pointed out that several crimes defined within the Rome
Statute do not appear on the US books (e.g., apartheid, persecution,
enslavement, and extermination.) While similar laws exist, it would be
within the competency of the Chief Prosecutor to argue before the Pre-Trial
Chamber14 that in fact, the US does not have laws to prosecute for the
crimes that have been committed. A similar situation arose in 1996, when
Congressman Walter Jones (R-NC) determined through a series of investigations
that civilians serving overseas under a contract with the US military were not
covered under the UCMJ. It had been assumed that the US Code gave US
primacy over civilians serving in a military capacity, but instead it was discovered
that if a civilian serving with a military unit deployed overseas is accused of war
crime, the foreign state whose territory the crimes were committed in would in
fact have primary jurisdiction to try the case. Therefore, Rep. Jones authored the
"War Crimes Act of 1996," which was designed to cover civilian serving in a
military capacity.15

To ensure that no gaps exist between the US Code, the UCMJ, and the
crimes within the Court’s jurisdiction, a similar effort could be made. This
process would need to identify first where crimes exist in the Statute that
are not covered in some context through Title 10 and Title 18 of the US
Code and then draft legislation – modeled after the War Crimes Act –
designed to fill gaps. This would protect former US service members and
senior civilian leadership from ICC prosecution.

There is very little discussion today about the gaps in law. Scholars are aware of
the potential gaps and see this area as one where the US might be able to move
forward to clarify legal ambiguities that may exist, and to make corrections to US
laws. This exercise would strengthen the US assertion of complementarity.
(Emphasis supplied)

The same report added, "At Rome, the U.S. was concerned with the definition of
crimes, especially the definition of war crimes and, to lesser extent, the definition
of crimes against humanity xxx;"16 that the crime of genocide was acceptable to
the U.S. delegation; and that throughout the negotiations, the U.S. position was
to seek one hundred percent assurance that U.S. service members would only
be held accountable to U.S. systems of justice.17
With the existing gap between the crimes of Genocide, War Crimes and Other
Crimes against Humanity under the Rome Statute - now all criminalized in the
Philippines under RA 9851 on the one hand, and U.S. domestic laws on the
other, these crimes cannot be considered "punishable under the laws in both
Contracting Parties" as required under the RP-US Extradition Treaty, and
hence, cannot be considered as extraditable offenses under the treaty. The
crimes considered as Genocide, War Crimes, and Other Crimes against
Humanity under the Rome Statute and RA 9851 may not necessarily be
considered as such crimes under United States laws. Consequently, the RP-US
Extradition Treaty does not qualify as an "applicable"extradition law or
treaty under Section 17 of RA 9851, which allows the Philippines to surrender to
another state a person accused of Genocide, War Crimes and Other Crimes
against Humanity. In short, the Philippines cannot surrender to the United
States a U.S. national accused of any of these grave international crimes,
when the United States does not have the same or similar laws to
prosecute such crimes.

Neither is the RP-US Non-Surrender Agreement an "applicable" extradition law

or treaty as required in Section 17 of RA 9851. Thus, the Agreement cannot be
implemented by the Philippine Government in the absence of an applicable
extradition law or treaty allowing the surrender to the United States of U.S.
nationals accused of crimes under RA 9851.

If a U.S. national is under investigation or prosecution by an international tribunal

for any crime punishable under RA 9851, the Philippines has the option to
surrender such U.S. national to the international tribunal if the Philippines
decides not to prosecute such U.S. national in the Philippines. This option of the
Philippine Government under Section 17 of RA 9851 is not subject to the consent
of the United States. Any derogation from Section 17, such as requiring the
consent of the United States before the Philippines can exercise such
option, requires an amendment to RA 9851 by way of either an extradition
law or treaty. Such an amendment cannot be embodied in a mere executive
agreement or an exchange of notes such as the assailed Agreement.

Section 17 of RA 9851 has clearly raised to a statutory level the surrender to

another State of persons accused of any crime under RA 9851. Any agreement
in derogation of Section 17, such as the surrender to the U.S. of a U.S. national
accused of an act punishable under RA 9851 but not punishable under U.S.
domestic laws, or the non-surrender to an international tribunal, without U.S.
consent, of a U.S. national accused of a crime under RA 9851, cannot be made
in a mere executive agreement or an exchange of notes. Such surrender or
non-surrender, being contrary to Section 17 of RA 9851, can only be made
in an amendatory law, such as a subsequent extradition law or treaty.
Moreover, Section 17 of RA 9851 allows the surrender to another State only "if
another court xxx is alreadyconducting the investigation or undertaking the
prosecution of such crime." This means that only if the other State is already
investigating or prosecuting the crime can the Philippines surrender the accused
to such other State. The RP-US Non-Surrender Agreement does not require that
the United States must already be investigating or prosecuting the crime before
the Philippines can surrender the accused. In fact, a U.S. national accused of a
crime under RA 9851 may not even be chargeable of such crime in the U.S.
because the same act may not be a crime under U.S. domestic laws. In such a
case, the U.S. cannot even conduct an investigation of the accused, much less
prosecute him for the same act. Thus, the RP-US Non-Surrender Agreement
violates the condition in Section 17 of RA 9851 that the other State
must already be investigating or prosecuting the accused for the crime penalized
under RA 9851 before the Philippines can surrender such accused.

To repeat, the assailed Agreement prevents the Philippines, without the

consent of the United States, from surrendering to any international tribunal
U.S. nationals accused of crimes under RA 9851. Such consent is not required
under RA 9851which mandates that any non-surrender without the consent of
another State must be embodied in an extradition law or treaty. The assailed
Agreement also dispenses with the condition in Section 17 that before the
Philippines can surrender the accused to the United States, the accused must
already be under investigation or prosecution by the United States for the crime
penalized under RA 9851, a condition that may be impossible to fulfill because
not all crimes under RA 9851 are recognized as crimes in the United
States. Thus, the Agreement violates Section 17 of RA 9851 as well as
existing municipal laws arising from the incorporation doctrine of the
Constitution. The Agreement cannot be embodied in a simple executive
agreement or an exchange of notes, but must be implemented through an
extradition law or a treaty ratified with the concurrence of at least two-thirds of all
the members of the Senate.

In international law, there is no difference between treaties and executive

agreements on their binding effect upon party states, as long as the negotiating
functionaries have remained within their powers.18 However, while the differences
in nomenclature and form of various types of international agreements are
immaterial in international law, they have significance in the municipal law of the
parties.19 An example is the requirement of concurrence of the legislative body
with respect to treaties, whereas with respect to executive agreements, the head
of State may act alone to enforce such agreements.20

The 1987 Philippine Constitution provides: "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."21 This express constitutional requirement makes
treaties different from executive agreements, which require no legislative
concurrence.

An executive agreement can only implement, and not amend or repeal, an

existing law. As I have discussed inSuplico v. National Economic and
Development Authority,22 although an executive agreement has the force and
effect of law, just like implementing rules of executive agencies, it cannot amend
or repeal prior laws, but must comply with the laws it implements.23 An executive
agreement, being an exclusive act of the Executive branch, does not have the
status of a municipal law.24 Acting alone, the Executive has no law-making
power; and while it has rule-making power, such power must be exercised
consistent with the law it seeks to implement.25

Thus, an executive agreement cannot amend or repeal a prior law, but must
comply with State policy embodied in an existing municipal law.26 This also
means that an executive agreement, which at the time of its execution
complies with then existing law, is deemed amended or repealed by a
subsequent law inconsistent with such executive agreement. Under no
circumstance can a mere executive agreement prevail over a prior or
subsequent law inconsistent with such executive agreement.

This is clear from Article 7 of the Civil Code, which provides:

Article 7. x x x

Administrative or executive acts, orders and regulations shall be valid only

when they are not contrary to the laws or the Constitution. (Emphasis
supplied)

An executive agreement like the assailed Agreement is an executive act of

the President. Under Article 7 of the Civil Code, an executive agreement
contrary to a prior law is void. Similarly, an executive agreement contrary to a
subsequent law becomes void upon the effectivity of such subsequent law. Since
Article 7 of the Civil Code provides that "executive acts shall be valid only when
they are not contrary to the laws," once an executive act becomes contrary to law
such executive act becomes void even if it was valid prior to the enactment of
such subsequent law.

A treaty, on the other hand, acquires the status of a municipal law upon
ratification by the Senate. Hence, a treaty may amend or repeal a prior law
and vice-versa.27 Unlike an executive agreement, a treaty may change state
policy embodied in a prior and existing law.
In the United States, from where we adopted the concept of executive
agreements, the prevailing view is thatexecutive agreements cannot alter
existing law but must conform to all statutory requirements.28 The U.S. State
Department made a distinction between treaties and executive agreements in
this manner:

x x x it may be desirable to point out here the well-recognized distinction between

an executive agreement and a treaty. In brief, it is that the former cannot alter
the existing law and must conform to all statutory enactments, whereas a
treaty, if ratified by and with the advice and consent of two-thirds of the Senate,
as required by the Constitution, itself becomes the supreme law of the land and
takes precedence over any prior statutory enactments.29 (Emphasis supplied)

The Agreement involved in this case is an executive agreement entered into via
an exchange of notes.30 The parties to the Agreement (RP and US) agree not to
surrender each other’s nationals31 to any international tribunal or to a third party
for the purpose of surrendering to any international tribunal, without the other’s
consent, pursuant to the pronounced objective of "protect[ing] Philippine and
American personnel from frivolous and harassment suits that might be brought
against them in international tribunals."32 The Agreement amends existing
Philippine State policy as embodied in municipal law arising from generally
accepted principles of international law which form part of the law of the
land. The Agreement also runs counter to RA 9851 which criminalized wholesale
all acts defined as international crimes in the Rome Statute, an international
treaty which the Philippines has signed but has still to ratify.33 The Agreement
frustrates the objectives of generally accepted principles of international law
embodied in the Rome Statute. Thus, considering its nature, the Agreement
should be embodied not in an executive agreement, but in a treaty which, under
the Philippine Constitution, shall be valid and effective only if concurred in by at
least two-thirds of all the members of the Senate.

The 1987 Philippine Constitution states as one of its principles, as follows:

The Philippines x x x 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.34

This constitutional provision enunciates the doctrine of incorporation which

mandates that the Philippines is bound by generally accepted principles of
international law which automatically form part of Philippine law by operation of
the Constitution.35
In Kuroda v. Jalandoni,36 this Court held that this constitutional provision "is not
confined to the recognition of rules and principles of international law as
contained in treaties to which our government may have been or shall be a
signatory." The pertinent portion of Kuroda states:

It cannot be denied that the rules and regulation of The Hague and Geneva
Conventions form part of and are wholly based on the generally accepted
principles of international law. x x x Such rule and principles, therefore,
form part of the law of our nation even if the Philippines was not a
signatory to the conventions embodying them, for our Constitution has been
deliberately general and extensive in its scope and is not confined to the
recognition of rules and principles of international law as contained in treaties to
which our government may have been or shall be a signatory.37 (Emphasis
supplied)

Hence, generally accepted principles of international law form part of Philippine

laws even if they do not derive from treaty obligations of the Philippines.38

Generally accepted principles of international law, as referred to in the

Constitution, include customary international law.39 Customary international law is
one of the primary sources of international law under Article 38 of the Statute of
the International Court of Justice.40 Customary international law consists of acts
which, by repetition of States of similar international acts for a number of years,
occur out of a sense of obligation, and taken by a significant number of
States.41 It is based on custom, which is a clear and continuous habit of doing
certain actions, which has grown under the aegis of the conviction that these
actions are, according to international law, obligatory or right.42 Thus, customary
international law requires the concurrence of two elements: "[1] the established,
wide-spread, and consistent practice on the part of the States; and [2] a
psychological element known as opinion juris sive necessitatis (opinion as to law
or necessity). Implicit in the latter element is a belief that the practice in question
is rendered obligatory by the existence of a rule of law requiring it."43

Some customary international laws have been affirmed and embodied in treaties
and conventions. A treaty constitutes evidence of customary law if it is
declaratory of customary law, or if it is intended to codify customary law. In such
a case, even a State not party to the treaty would be bound thereby.44 A
treaty which is merely a formal expression of customary international law
is enforceable on all States because of their membership in the family of
nations.45 For instance, the Vienna Convention on Consular Relations is binding
even on non-party States because the provisions of the Convention are mostly
codified rules of customary international law binding on all States even before
their codification into the Vienna Convention.46 Another example is the Law of the
Sea, which consists mostly of codified rules of customary international law, which
have been universally observed even before the Law of the Sea was ratified by
participating States.47

Corollarily, treaties may become the basis of customary international law. While
States which are not parties to treaties or international agreements are not bound
thereby, such agreements, if widely accepted for years by many States, may
transform into customary international laws, in which case, they bind even non-
signatory States.48

In Republic v. Sandiganbayan,49 this Court held that even in the absence of the
Constitution,50 generally accepted principles of international law remain part of
the laws of the Philippines. During the interregnum, or the period after the actual
takeover of power by the revolutionary government in the Philippines, following
the cessation of resistance by loyalist forces up to 24 March 1986 (immediately
before the adoption of the Provisional Constitution), the 1973 Philippine
Constitution was abrogated and there was no municipal law higher than the
directives and orders of the revolutionary government. Nevertheless, this Court
ruled that even during this period, the provisions of the International Covenant on
Civil and Political Rights and the Universal Declaration of Human Rights, to
which the Philippines is a signatory, remained in effect in the country. The
Covenant and Declaration are based on generally accepted principles of
international law which are applicable in the Philippines even in the absence of a
constitution, as during the interregnum. Consequently, applying the provisions of
the Covenant and the Declaration, the Filipino people continued to enjoy almost
the same rights found in the Bill of Rights despite the abrogation of the 1973
Constitution.

The Rome Statute of the International Criminal Court was adopted by 120
members of the United Nations (UN) on 17 July 1998.51 It entered into force on 1
July 2002, after 60 States became party to the Statute through ratification or
accession.52 The adoption of the Rome Statute fulfilled the international
community’s long-time dream of creating a permanent international tribunal to try
serious international crimes. The Rome Statute, which established an
international criminal court and formally declared genocide, war crimes and other
crimes against humanity as serious international crimes, codified generally
accepted principles of international law, including customary international
laws. The principles of law embodied in the Rome Statute were already generally
accepted principles of international law even prior to the adoption of the Statute.
Subsequently, the Rome Statute itself has been widely accepted and, as of
November 2010, it has been ratified by 114 states, 113 of which are members of
the UN.53
There are at present 192 members of the UN. Since 113 member states have
already ratified the Rome Statute, more than a majority of all the UN members
have now adopted the Rome Statute as part of their municipal laws. Thus, the
Rome Statute itself is generally accepted by the community of nations as
constituting a body of generally accepted principles of international law. The
principles of law found in the Rome Statute constitute generally accepted
principles of international law enforceable in the Philippines under the
Philippine Constitution. The principles of law embodied in the Rome Statute
are binding on the Philippines even if the Statute has yet to be ratified by the
Philippine Senate. In short, the principles of law enunciated in the Rome Statute
are now part of Philippine domestic law pursuant to Section 2, Article II of the
1987 Philippine Constitution.

Article 89(1) of the Rome Statute provides as follows:

Surrender of persons to the Court

1. The Court may transmit a request for the arrest and surrender of a
person, together with the material supporting the request outlined in article
91, to any State on the territory of which that person may be found and
shall request the cooperation of that State in the arrest and surrender of
such a person. States Parties shall, in accordance with the provisions of
this Part and the procedure under their national law, comply with requests
for arrest and surrender.

xxxx

It is a principle of international law that a person accused of

genocide, war crimes and other crimes against humanity shall be
prosecuted by the international community. A State where such a
person may be found has the primary jurisdiction to prosecute such
person, regardless of nationality and where the crime was committed.
However, if a State does not exercise such primary jurisdiction, then
such State has the obligation to turn over the accused to the
international tribunal vested with jurisdiction to try such person. This
principle has been codified in Section 2(e) and Section 17 of RA 9851.

Moreover, Section 15 of RA 9851 has expressly adopted "[r]elevant and

applicable international human rights instruments" as sources of
international law in the application and interpretation of RA 9851, thus:
Section 15. Applicability of International Law. - In the application and
interpretation of this Act, Philippine courts shall be guided by the following
sources:

(a) x x x

xxx

(e) The rules and principles of customary international law;

xxx

(g) Relevant and applicable international human rights

instruments;

(h) Other relevant international treaties and conventions ratified or

acceded to by the Republic of the Philippines; and

x x x. (Emphasis supplied)

The Rome Statute is the most relevant and applicable international human
rights instrument in the application and interpretation of RA 9851. Section
15(g) of RA 9851 authorizes the use of the Rome Statute as a source of
international law even though the Philippines is not a party to the Rome
Statute. Section 15(g) does not require ratification by the Philippines to
such relevant and applicable international human rights instruments.
International human rights instruments to which the Philippines is a party
are governed by Section 15(h), referring to treaties or conventions "ratified
or acceded to" by the Philippines, which constitute a different category of
sources of international law under Section 15 of RA 9851. Thus, Section
15(g) and Section 15(h) refer to different instruments, the former to
international human rights instruments to which the Philippines is not a
party, and the latter to international human rights instruments to which the
Philippines is a party. By mandate of Section 15 of RA 9851, both
categories of instruments are sources of international law in the application
and interpretation of RA 9851.

However, paragraph 2 of the assailed RP-US Non-Surrender Agreement

provides as follows:

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.

Clearly, the Agreement is in derogation of Article 89(1) of the Rome Statute.

While Article 98(2) of the Rome Statute, which states as follows:

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."
(Emphasis supplied)

allows for derogation of Article 89(1) if there is an international

agreement between States allowing such derogation, such international
agreement, being in derogation of an existing municipal law insofar as the
Philippines is concerned, must be embodied in a treaty and ratified by the
Philippine Senate. Article 98(2) does not ipso facto allow a derogation of Article
89(1), but requires a further act, that is, the execution of an international
agreement. Since such international agreement is in derogation of Article
89(1) of the Rome Statute and Section 17 of RA 8951, such international
agreement must be ratified by the Senate to become valid and effective.

Incidentally, the RP-US Non-Surrender Agreement allows the Philippines to

surrender, even without U.S. consent, a U.S. national accused of a crime under
RA 9851 provided that the surrender is made to an "international tribunal xxx
established by the UN Security Council." The United States agrees to this
because it has a veto power in the UN Security Council, a blocking power which
it does not have, and cannot have, in the International Criminal Court.

The International Criminal Court created under the Rome Statute was designed
to complement the efforts of states to prosecute their own citizens domestically
while ensuring that those who violate international law would be brought to
justice.54 A state is given a chance to exercise complementarity55 by informing the
ICC of its choice to investigate and prosecute its own nationals through its own
domestic courts.56 Thus, the State has the primary jurisdiction to investigate and
prosecute its own nationals in its custody who may have committed the grave
international crimes specified in the Rome Statute. Under the same precept,
Article 98(2) of the Rome Statute allows the State of the accused to act
consistently with its obligations under international agreements, and the ICC
"may not proceed with a request for surrender" which would require such State to
act otherwise. The ICC steps in and assumes jurisdiction only if the State having
primary jurisdiction and custody of the accused refuses to fulfill its international
duty to prosecute those responsible for grave international crimes.

The United States has not ratified the Rome Statute, and instead, entered into
bilateral non-surrender agreements with countries, citing its ability to do so under
Article 98(2) of the Rome Statute.57 These agreements, also called Bilateral
Immunity Agreements (BIA),58 were intended as "means [to provide]
assurances that no U.S. citizen would be handed over to the (International
Criminal) Court for investigation and prosecution of alleged crimes that fell
within the Court’s jurisdiction. xxx"59 There is currently an argument within the
international community about the use of Article 98 agreements, as negotiated by
the U.S. after the adoption of the Rome Statute, and whether they should be
recognized as having precedent over ICC’s authority.60 When Article 98 was
originally included in the Rome Statute, it was intended to cover Status of Forces
Agreements (SOFAs) and Status of Missions Agreements (SOMAs),61 which
establish the responsibilities of a nation sending troops to another country, as
well as where jurisdiction lies between the U.S. and the host government over
criminal and civil issues involving the deployed personnel.62 However, under the
BIAs, the standard definition of "persons" covered is "current or former
Government officials, employees (including contractors), or military personnel
or nationals of one party."63 The Bush Administration64 contends that "such
bilateral non-surrender agreements are Article 98(2) agreements and that all US
citizens of whatever character are covered by any such agreement, xxx [and this]
US position on scope of the bilateral non-surrender agreements, namely that
itincludes US citizens acting in their private capacity, ῾is legally supported by
the text, the negotiating record, and precedent.’"65 Meanwhile, international
legal scholars and members of the US JAG Corps involved in the drafting
of the Rome Statute expressed frustration with the "expansive use of
Article 98 agreements to apply to all Americans, not just those individuals
usually covered in SOFAs and SOMAs."66 There are even those who contend
that since the BIAs do not deal solely with the conduct of official business, rather,
they apply to a wide variety of persons who may be on the territory of either party
for any purpose at any time, then "the Rome Statute does not authorize these
agreements and by adhering to them, the countries will violate their obligations to
the [ICC] under the Statute."67> Regardless of these contentions, however, the
ultimate judge as to what agreement qualifies under Article 98(2) of the Rome
Statute is the ICC itself.68
The assailed RP-US Non-Surrender Agreement covers "officials, employees,
military personnel, and nationals." Under the Agreement, the Philippines is not
allowed, without U.S. consent, to surrender to an international tribunal, including
the ICC, U.S. nationals — whether military personnel or plain civilians —
accused of genocide, war crimes and other crimes against humanity, that is, the
crimes covered by the Rome Statute and RA 9851. Whether or not this
Agreement would be recognized by the ICC as an "international agreement"
qualified under Article 98(2) depends on the ICC itself. In the domestic sphere,
however, the Agreement, being in derogation of the generally accepted principles
of international law embodied in Article 89(1) of the Rome Statute, as well as
being contrary to the provisions of Section 17 of RA 9851, should be ratified by
the Philippine Senate to be valid and effective.

In sum, any derogation from the generally accepted principles of international law
embodied in the Rome Statute, which principles have the status of municipal law
in this country, cannot be undertaken through a mere executive agreement
because an executive agreement cannot amend existing laws. A law or a treaty
ratified by the Philippine Senate is necessary to amend, for purposes of domestic
law, a derogable principle of international law, such as Article 89(1) of the Rome
Statute, which has the status of municipal law.

Likewise, any derogation from the surrender option of the Philippines

under Section 17 of RA 9851 must be embodied in an applicable extradition
law or treaty and not in a mere executive agreement because such
derogation violates RA 9851, which is superior to, and prevails over, a prior
executive agreement allowing such derogation. Under no circumstance can
a mere executive agreement prevail over a prior or subsequent law
inconsistent with such executive agreement. Thus, the RP-US Non-Surrender
Agreement to be valid and effective must be ratified by the Philippine Senate,
and unless so ratified, the Agreement is without force and effect.

Accordingly, I vote to GRANT the petition and to DECLARE the RP-US Non-
Surrender Agreement ineffective and unenforceable unless and until ratified by
the Senate of the Philippines.

ANTONIO T. CARPIO
Associate Justice

Footnotes
1
CONSTITUTION (1987), Art. II, Sec. 2 provides: "The Philippines
xxx 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."
2
Section 4 of RA 9851 provides:

Section 4. War Crimes. - For the purpose of this Act, "war crimes" or
"crimes against International Humanitarian Law" means:

(a) In case of an international armed conflict , grave breaches of the

Geneva Conventions of 12 August 1949, namely, any of the
following acts against persons or property protected under
provisions of the relevant Geneva Convention:

(1) Willful killing;

(2) Torture or inhuman treatment, including biological

experiments;

(3) Willfully causing great suffering, or serious injury to body or

health;

(4) Extensive destruction and appropriation of property not

justified by military necessity and carried out unlawfully and
wantonly;

(5) Willfully depriving a prisoner of war or other protected

person of the rights of fair and regular trial;

(6) Arbitrary deportation or forcible transfer of population or

unlawful confinement;

(7) Taking of hostages;

(8) Compelling a prisoner a prisoner of war or other protected

person to serve in the forces of a hostile power; and

(9) Unjustifiable delay in the repatriation of prisoners of war or

other protected persons.

(b) In case of a non-international armed conflict, serious violations of

common Article 3 to the four (4) Geneva Conventions of 12 August
1949, namely, any of the following acts committed against persons
taking no active part in the hostilities, including member of the armed
forces who have laid down their arms and those placed hors de
combat by sickness, wounds, detention or any other cause;

(1) Violence to life and person, in particular, willful killings,

mutilation, cruel treatment and torture;

(2) Committing outrages upon personal dignity, in particular,

humiliating and degrading treatment;

(3) Taking of hostages; and

(4) The passing of sentences and the carrying out of

executions without previous judgment pronounced by a
regularly constituted court, affording all judicial guarantees
which are generally recognized as indispensable.

(c) Other serious violations of the laws and customs applicable in

armed conflict, within the established framework of international law,
namely:

(1) Intentionally directing attacks against the civilian population

as such or against individual civilians not taking direct part in
hostilities;

(2) Intentionally directing attacks against civilian objects, that

is, object which are not military objectives;

(3) Intentionally directing attacks against buildings, material,

medical units and transport, and personnel using the
distinctive emblems of the Geneva Conventions or Additional
Protocol III in conformity with intentional law;

(4) Intentionally directing attacks against personnel,

installations, material, units or vehicles involved in a
humanitarian assistance or peacekeeping mission in
accordance with the Charter of the United Nations, as long as
they are entitled to the protection given to civilians or civilian
objects under the international law of armed conflict;

(5) Launching an attack in the knowledge that such attack will

cause incidental loss of life or injury to civilians or damage to
civilian objects or widespread, long-term and severe damage
to the natural environment which would be excessive in
relation to the concrete and direct military advantage
anticipated;

(6) Launching an attack against works or installations

containing dangerous forces in the knowledge that such attack
will cause excessive loss of life, injury to civilians or damage
to civilian objects, and causing death or serious injury to body
or health.

(7) Attacking or bombarding, by whatever means, towns,

villages, dwellings or buildings which are undefended and
which are not military objectives, or making non-defended
localities or demilitarized zones the object of attack;

(8) Killing or wounding a person in the knowledge that he/she

is hors de combat, including a combatant who, having laid
down his/her arms or no longer having means of defense, has
surrendered at discretion;

(9) Making improper use of a flag of truce, of the flag or the

military insignia and uniform of the enemy or of the United
Nations, as well as of the distinctive emblems of the Geneva
Conventions or other protective signs under International
Humanitarian Law, resulting in death, serious personal injury
or capture;

(10) Intentionally directing attacks against buildings dedicated

to religion, education, art, science or charitable purposes,
historic monuments, hospitals and places where the sick and
wounded are collected, provided they are not military
objectives. In case of doubt whether such building or place
has been used to make an effective contribution to military
action, it shall be presumed not to be so used;

(11) Subjecting persons who are in the power of an adverse

party to physical mutilation or to medical or scientific
experiments of any kind, or to removal of tissue or organs for
transplantation, which are neither justified by the medical,
dental or hospital treatment of the person concerned nor
carried out in his/her interest, and which cause death to or
seriously endanger the health of such person or persons;
(12) Killing, wounding or capturing an adversary by resort to
perfidy;

(13) Declaring that no quarter will be given;

(14) Destroying or seizing the enemy’s property unless such

destruction or seizure is imperatively demanded by the
necessities of war;

(15) Pillaging a town or place, even when taken by assault;

(16) Ordering the displacement of the civilian population for

reasons related to the conflict, unless the security of the
civilians involved or imperative military reasons so demand;

(17) Transferring, directly or indirectly, by the occupying power

of parts of its own civilian population into the territory it
occupies, or the deportation or transfer of all or parts of the
population of the occupied territory within or outside this
territory;

(18) Committing outrages upon personal dignity, in particular,

humiliating and degrading treatment;

(19) Committing rape, sexual slavery, enforced prostitution,

forced pregnancy, enforced sterilization, or any other form of
sexual violence also constituting a grave breach of the
Geneva Conventions or a serious violation of common Article
3 to the Geneva Conventions;

(20) Utilizing the presence of a civilian or other protected

person to render certain points, areas or military forces
immune from military operations;

(21) Intentionally using starvation of civilians as a method of

warfare by depriving them of objects indispensable to their
survival, including willfully impeding relief supplies as provided
for under the Geneva Conventions and their Additional
Protocols;

(22) In an international armed conflict, compelling the

nationals of the hostile party to take part in the operations of
 war directed against their own country, even if they were in the
belligerent’s service before the commencement of the war;

(23) In an international armed conflict, declaring abolished,

suspended or inadmissible in a court of law the rights and
actions of the nationals of the hostile party;

(24) Committing any of the following acts:

(i) Conscripting, enlisting or recruiting children under the

age of fifteen (15) years into the national armed forces;

(ii) Conscripting, enlisting or recruiting children under

the age of eighteen (18) years into an armed force or
group other than the national armed forces; and

(iii) Using children under the age of eighteen (18) years

to participate actively in hostilities; and

(25) Employing means of warfare which are prohibited under

international law, such as:

(i) Poison or poisoned weapons;

(ii) Asphyxiating, poisonous or other gases, and all

analogous liquids, materials or devices;

(iii) Bullets which expand or flatten easily in the human

body, such as bullets with hard envelopes which do not
entirely cover the core or are pierced with incisions; and

(iv) Weapons, projectiles and material and methods of

warfare which are of the nature to cause superfluous
injury or unnecessary suffering or which are inherently
indiscriminate in violation of the international law of
armed conflict.

xxxx
3
Section 5 of RA 9851 provides:

Section 5. Genocide. - (a) For the purpose of this Act, "genocide"

means any of the following acts with intent to destroy, in whole or in
 part, a national, ethnic, racial, religious, social or any other similar
stable and permanent group as such:

(1) Killing members of the group;

(2) Causing serious bodily or mental harm to members of the

group;

(3) Deliberately inflicting on the group conditions of life

calculated to bring about its physical destruction in whole or in
part;

(4) Imposing measures intended to prevent births within the

group; and

(5) Forcibly transferring children of the group to another group.

(b) It shall be unlawful for any person to directly and publicly incite
others to commit genocide.

xxxx
4
Section 6 of RA 9851 provides:

Section 6. Other Crimes Against Humanity. - For the purpose of this

Act, "other crimes against humanity" means any of the following acts
when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the
attack:

(a) Willful killing;

(b) Extermination;

(c) Enslavement;

(d) Arbitrary deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty

in violation of fundamental rules of international law;

(f) Torture;
 (g) Rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual
violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on

political, racial, national, ethnic, cultural, religious, gender,
sexual orientation or other grounds that are universally
recognized as impermissible under international law, in
connection with any act referred to in this paragraph or any
crime defined in this Act;

(i) Enforced or involuntary disappearance of persons;

(j) Apartheid; and

(k) Other inhumane acts of a similar character intentionally

causing great suffering, or serious injury to body or to mental
or physical health.

xxxx
5
Emphasis supplied.
6
U.S. v. Coolidge, 14 U.S. 415, 1816 WL 1770 (U.S. Mass.) 4 L.Ed. 124, 1
Wheat. 415.
7
552 U.S. 491, 128 S. Ct. 1346 (2008).
8
The Geneva Conventions of 12 August 1949 consists of four Conventions
or International Agreements:

Convention I - for the Amelioration of the Condition of the Wounded

and Sick in Armed Forces in the Field. (1864); Convention II - for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea (1906); Convention III - Relative
to the Treatment of Prisoners of War (1929); and Convention IV -
Relative to the Protection of Civilian Persons in Time of War (1949).
There are three Protocols to the Geneva Conventions: Protocol I -
Relating to the Protection of Victims of International Armed Conflicts,
8 June 1977; Protocol II - Relating to the Protection of Victims of
Non-International Armed Conflicts, 8 June 1977; and Protocol III -
Relating to the Adoption of an Additional Distinctive Emblem, 8
December 2005.
 Seehttp://www.icrc.org/web/eng/siteeng0.nsf/html/genevaconvention
s; last visited on 21 July 2010.
9
The U.S. ratified the Geneva Conventions of 1949 on 02 August 1955;
the U.S. made Reservations on 02 August 1955, 04 March 1975, and 31
December 1974.
Seehttp://www.icrc.org/ihl.nsf/NORM/D6B53F5B5D14F35AC1256402003F
9920?OpenDocument;

last visited on 21 July 2010.

10
In Medellin v. Texas, supra note 7, the U.S. Supreme Court emphasized:

"This Court has long recognized the distinction between treaties that
automatically have effect as domestic law, and those that- while they
constitute international law commitments- do not by themselves
function as binding federal law. xxx a treaty is ῾equivalent to an act
of the legislature,’ and hence self-executing, when it ῾operates of
itself without the aid of any legislative provision.’ xxx When, in
contrast, ῾[treaty] stipulations are not self-executing they can only be
enforced pursuant to legislation to carry them into effect.’" (Citations
omitted)
11
Victoria K. Holt and Elisabeth W. Dallas, "On Trial: The US Military and
the International Criminal Court," The Henry L. Stimson Center, Report No.
55, March 2006; available at
http://www.stimson.org/fopo/pdf/US_Military_and_the_ICC_FINAL_website
.pdf; last visited on 02 August 2010.

This is a Report issued by the Henry Stimson Center which is

described as a nonprofit, nonpartisan institution devoted to
enhancing international peace and security through a unique
combination of rigorous analysis and outreach. It has a stated
mission of "urging pragmatic steps toward the ideal objectives of
international peace and security."
See http://www.stimson.org/ about/?sn=AB2001110512; last visited
on 11 August 2010.
12
Id. at 34-35.

The "Court" refers to the International Criminal Court.

13
Id. at 45-46.
14
The International Criminal Court has four organs: the Chambers, the
Presidency, the Registry and the Office of the Prosecutor. The Chambers
is composed of 18 judges divided into three divisions: the Pre-Trial
Chamber, the Trial Chamber and the Appeals Chamber. [Id. at 22.]

Report’s Footnote: "He amended Article 18 section 2441 of the US

15

Federal Code 2441. US Code, Title 18, Part 1, Chapter 118, Section 2441,
states... ῾(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).’" [Id. at 45.]
16
Id. at 34.
17
Id., citing Interviews with representatives of the US delegation in Rome,
28 June 2005 and 6 October 2005, and comments from the Stimson
Workshop.
18
Bayan v. Zamora, G.R. No. 138570, 10 October 2000, 342 SCRA 449,
489, citing Richard J. Erickson, "The Making of Executive Agreements by
the United States Department of Defense: An Agenda for Progress," 13
Boston U. Intl. L.J. 58 (1995).
19
Jorge R. Coquia and Miriam Defensor Santiago, Public International Law
(1984), p. 585.
20
Id.
21
CONSTITUTION (1987), Art. VII, Sec. 21.
22
Dissenting Opinion, G.R. No. 178830, 14 July 2008, 558 SCRA 329,
360-391.

Id. at 376, citing Land Bank of the Philippines v. Court of Appeals, 319
23

Phil. 246 (1995).

24
Id.
25
Id.
26
Id.
27
Id., citing Secretary of Justice v. Lantion, 379 Phil. 165 (2000).
28
Id. at 377.
29
Id., citing Prof. Edwin Borchard (Justus S. Hotchkiss Professor of Law,
Yale Law School), Treaties and Executive Agreements - A Reply, Yale
Law Journal, June 1945, citing Current Information Series, No. 1, 3 July
1934, quoted in 5 Hackworth, Digest of International Law (1943) pp. 425-
426.

E/N BFO-028-03; Paper on the RP-US Non-Surrender

30

Agreement, rollo, p. 72.

An "exchange of notes" is "an interchange of diplomatic notes

between a diplomatic representative and the minister of foreign
affairs of the State to which he is accredited. xxx" [Coquia and
Santiago, supra note 3, p. 584.] It is a record of routine agreement,
consisting of the exchange of two or more documents, each of the
parties being in the possession of the one signed by the
representative of the other, and is resorted to because of its speedy
procedure, or to avoid the process of legislative approval. [Ruben
Agpalo, Public International Law (2006), p. 379.]
31
The Agreement actually uses the term "persons" which refer to
"Government officials, employees (including contractors), or military
personnel or nationals of one Party." See rollo, p. 68.
32
Paper on the RP-US Non-Surrender Agreement, supra note 30.

The Philippines signed the Rome Statute of International Criminal

33

Court on 28 December 2000, but has yet to ratify the same.

See www.iccnow.org; last visited on 12 July 2010.
34
CONSTITUTION (1987), Art. II, Sec. 2.
35
Agpalo, supra note 30, p. 421.
36
83 Phil. 171, 178 (1949).
37
Id.
38
Mijares v. Ranada, G.R. No. 139325, 12 April 2005, 455 SCRA 397, 421
citing H. Thirlway, "The Sources of International Law," International Law
(ed. by M. Evans, 1st ed, 2003), p. 124.
39
Jovito Salonga and Pedro Yap, Public International Law, 5th ed. (1992),
p. 12.
40
Article 38 of the Statute of International Court of Justice reads:

1. The Court, whose function is to decide in accordance with

international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular,

establishing rules expressly recognized by the contesting
states;

b. international custom, as evidence of a general practice

accepted as law;

c. the general principles of law recognized by civilized nations;

d. 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.

xxxx
41
Agpalo, supra note 30, p. 6.
42
Id., citing Oppenheimer’s International Law, 9th ed., p. 27.
43
Id. at 7, citing Mijares v. Ranada, supra note 38.
44
Isagani Cruz, International Law (1998), p. 23.
45
Id. at 175.
46
Agpalo, supra note 30, p. 9.
47
Id.
48
Id. at 6.
49
G.R. No. 104768, 23 July 2003, 407 SCRA 10, 51, 56-57.
50
The 1973 Philippine Constitution also provides for the Doctrine of
Incorporation, to wit:
 Article II
Declaration of Principles and State Policies

xxxx

Section 3. 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.
51
http://www.un.org/News/facts/iccfact.htm; last visited on 1 November
2010.
52
Id.
53
See http://www.un.org/en/members/index.shtml and http://www.icc-
cpi.int/Menus/ASP/ states+parties;last visited on 1 November 2010.
54
Victoria K. Holt and Elisabeth W. Dallas, "On Trial: The US Military and
the International Criminal Court," The Henry L. Stimson Center, Report No.
55, supra note 11, pp. 21-22.
55
"Under the premise of complementarity, the primary jurisdiction for any
case lies first with the state’s national judicial systems." [Id. at 35.]
56
If the ICC Prosecutor believes that the crime committed is within the
ICC’s discretion and that investigations should be initiated, the Prosecutor
must seek authorization from the Pre-Trial Chamber, which is the judicial
body charged with evaluating and commencing investigations. If the Pre-
Trial Chamber believes there is a "reasonable basis to proceed with an
investigation," and the case "appears to fall within the jurisdiction of the
Court," the Prosecutor must inform the states and parties involved. "xxx [A]
state, whether or not a member of the ICC, can exercise complementarity
by informing the Court within one month of notification by the Prosecutor,
that it chooses to investigate the case and, if sufficient evidence exists, to
prosecute through its own national criminal justice systems. Under the
Rome Statute, the Prosecutor must defer to the state’s request to
investigate and prosecute at that national level unless the Pre-Trial
Chamber determines that the state is unable or unwilling to exercise
jurisdiction effectively and decides to authorize the Prosecutor to
investigate the claim. [Id. at 24-25, citing the Rome Statute, Articles 15(4),
18(1-3) and 19.]
57
Id. at 16.
58
Id. at 53.
59
Id. at 11.

As of May 2005, the U.S. Administration has signed bilateral

agreements with 100 countries, 42 of which are states parties to the
Rome Statute, in which they pledged not to turn American citizens
over to the Court. [Id. at 13 and 53.]
60
Id. at 54.
61
Id., citing AMICC, "Bilateral Immunity Agreements," available
at http://www.amicc.org/usinfo/administration_policy_BIAs.html.
62
Id., citing Global Security, "Status of Forces Agreements," available at
http://www.globalsecurity. org/military/facility/sofa.htm.

SOFAs define the legal status of U.S. personnel and property in the
territory of another country. Their purpose is to set forth rights and
responsibilities between the U.S. and the host country on such
matters as civil and criminal jurisdiction, the wearing of the uniform,
the carrying of arms, tax and customs relief, entry and exit of
personnel and property, and resolving damage claims. [Global
Security, "Status of Forces Agreements," id.; last visited on 11
August 2010.]
63
David Scheffer, "Article 98(2) of the Rome Statute: America’s Original
Intent," pp. 344-345; available at
http://jicj.oxfordjournals.org/cgi/reprint/3/2/333; last visited on 6 August
2010.
64
The administration of former U.S. President George W. Bush.
65
David Scheffer, "Article 98(2) of the Rome Statute: America’s Original
Intent," supra note 63, pp. 344-345; citing "Proposed Text of Article 98
Agreements with the United States," July 2002, available at
http://www.iccnow.org/documents/otherissues/impunityart98/USArticle98A
greement/ Aug02.pdf; and L. Bloomfield,"The U.S. Government and the
International Criminal Court," Remarks to the Parliamentarians for Global
Action, Consultative Assembly of Parliamentarians for the International
criminal Court and the Rule of Law, New York, 12 September 2003,
available at http://www.amicc.org/docs/ Bolton11_3_03.pdf.
66
Victoria K. Holt and Elisabeth W. Dallas, "On Trial: The US Military and
the International Criminal Court," The Henry L. Stimson Center, Report No.
55, supra note 11, citing the Stimson Workshop.
67
AMICC, "Bilateral Immunity Agreements," supra note 61; last visited on
11 August 2010.
68
The determination would be done by the ICC’s Chambers comprised of
18 judges. [Victoria K. Holt and Elisabeth W. Dallas, "On Trial: The US
Military and the International Criminal Court," The Henry L. Stimson
Center, Report No. 55; supra note 11, pp. 54 and 22; see also note 14.]
 January 12, 2016

G.R. No. 212426

RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, 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 CASIÑO, 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 Batas5

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 threats12 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
Philippine60 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 agreed70 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 arguments90 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 Representatives102 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 inAshwander 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, petitioners122 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 fundsauthorized 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, insists139 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 treaties167 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 Secretaryand 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 argue170 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 Dictionarydefines
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 legisconstruction 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 relations200 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 power203 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

agreementsmentioned 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 inEastern 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 therequirement 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 embodyingadjustments of detail, carrying out well established
national policies and traditions and those involving arrangements of a more
or less temporary natureusually 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, thatas 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, andexecutive 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 territory221

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 bancdiscussed 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 inEastern 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
theparties' 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 BalikatanTerms 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 1236 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 combinedmilitary 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 regulations262 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. contractors265 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 Act267and 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 byself-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
Philippinespromotes 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 Philippinesand 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 inimplementing 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 interpretation269 and the subsequent
practice270 of the parties show that the MDT independently allows joint military
exercises in the country. Lim v. Executive Secretary271 and Nicolas v.
Romulo272 recognized that Balikatanexercises, 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 theBalikatan 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 toacquire 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 conductedbetween 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 Parties279

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 agree280

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 contractors282

5. Use of water, electricity, and other public utilities283

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
Reference285 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 trainingof 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 countries293 that may affect how we conduct
our external affairs; and who has unrestricted access to highly classified military
intelligence data294 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 agree297

2. Prepositioning and storage of defense equipment, supplies, and

materiel, including delivery, management, inspection, use, maintenance,
and removal of such equipment, supplies and materiel298

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 security300 and
carrying, owning, and possessing firearms301 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 petitioners321 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

thePhilippines (hereinafter referred
to as the Philippines) grants to the
Government of theUnited States of
America (hereinafter 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
areerected by the United States in
the bases shall be the property of
the United Statesand 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
understanding for the United
States not to establish a
permanent military presence or
base in the territory of the
Philippines;
xxxx
Recognizing that all United States
accessto and use of facilities and
areas will be at the invitation of the
Philippines and withfull respect for
the Philippine Constitution and
Philippine laws;
xxxx
EDCA, Art. II(4):
"Agreed
Locations" means facilities and
 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.
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.

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 EDCA
Relations
1947 MBA, Art.I(3): EDCA, preamble:

The Philippines agree to enter into
negotiations with the United
States at the latter's request, to
permit the United Statesto 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.
Recognizing that all United States
accessto and use of facilities and
areas will be at the invitation of the
Philippines and withfull respect for
the Philippine Constitution and
Philippine laws;
xxxx
EDCA. Art. II(4):

1946 Treaty of Gen. Relations, Art. "Agreed

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

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
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.
1947 MBA, Art. III(1):
It is mutually agreed that the United
Statesshall have the rights, power
The Philippines hereby grants to the
United States, through bilateral
security mechanisms, such as the
MDB and SEB,operational
control of Agreed
Locationsfor construction
activities and authority toundertake
such activities on, and make
alterations and improvements to,
Agreed Locations. United States
forces shall consult on issues
 and authority within the
bases which are necessary for the
establishment, use, operation and
defense thereof or appropriate for
the control thereof and all the
rights, power and authority within
the limits of territorial waters and
air space adjacent to, or in the
vicinity of, the bases which
are necessary to provide access
to them, or appropriate for their
control.
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
1947 MBA, Art. VI:
The United States shall, subject to
previous agreement with the
Philippines, have theright 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
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.
EDCA
EDCA, Art. III(1):
With consideration of the views of
theParties,
the Philippines hereby authorizesand
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.
 the United States determines to
be required by military necessity.

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 When requested, the Designated

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

States may employ and use for
United States military forces any and
all public utilities, other services
and facilities, airfields, ports,
harbors, roads, highways, railroads,
bridges, viaducts, canals, lakes,
rivers and streams in the
Philippines under conditions no
less favorable than those that may
beapplicable from time to time to
the military forces of the
Philippines.
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).

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 1. "United States

States shall have the right to bring
into the Philippines members of the
United States military forces and
the United States nationals
employed by or under a contract
with the United States together
with their families, and technical
personnel of other
nationalities (not being persons
excluded by the laws of the
Philippines) in connection with the
construction, maintenance, or
operation of the bases. The United
States shall make suitable
arrangements so that such persons
may be readily identified and their
status established when necessary
personnel" means United
States military and civilian
personneltemporarily in the territory
of the Philippines in connection with
activities approved by the
Philippines, as those terms are
defined in the VFA.
x xx x
3. "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
 by the Philippine authorities. Such includedas part of
persons, other than members of the the definition of United States
United States armed forces in personnel in this
uniform, shall present their travel Agreement, including within the
documents to the appropriate context of the VFA.
Philippine authorities for visas, it
being understood thatno 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
personwithin 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 assales 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 befree 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 ALONTO349

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 Tañada 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. The essence of that independence is self-governance and self-
1âw phi1

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-à-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 targets428 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 Agreement432

2. 2009 U.S.-Colombia Defense Cooperation Agreement433

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

4. 2014 U.S.-Australia Force Posture Agreement435

5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement436

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 latter’s 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 02-1Terms 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.

MARIA LOURDES P. A. SERENO

Chief Justice

WE CONCUR:

See Separate Concurring Opinion

PRESBITERO J. VELASCO
ANTONIO T. CARPIO
Associate Justice
Associate Justice

I dissent:
I dissent:
See my dissenting opinion
See my Dissenting Opinion
TERESITA J. LEONARDO-CA
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice

I join the separate concurring of J.

I join J. carpio's opinion
Carpio
DIOSDADO M. PERALTA
LUCAS P. BERSAMIN
Associate Justice
Associate Justice

MARIANO C. DEL CASTILLO MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

I join the dissenting opinion

BIENVENIDO L. REYES
ESTELA M. PERLAS-BERNABE
Associate Justice
Associate Justice

I dissent. See separate opinion No Part

MARVIC M.V.F. LEONEN FRANCIS H. JARDELEZA*
Associate Justice Associate Justice
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

*
No part.
1
Petition ofSaguisag et al., rollo (G.R. No. 212426, Vol. I), pp. 3-66;
Petition of Bayan et al., rollo (G.R. No. 212444, Vol. I), pp. 3-101.

2
Petition of Saguisag et al., p. 5, ro/lo (G .R. No. 212426, Vol. I), p. 7;
Petition of Bayan et al., p. 5, rollo(G.R. No. 212444, Vol. I), p. 7.
3
Principally the following provisions under the Constitution: Art. VII, Sec.
21; Art. XVIII, Sec. 25; Art. I; Art. II, Secs. 2, 7, & 8; Art. VI, Sec. 28(4); and
Art. VIII, Sec. I. See Petition of Saguisag et al., pp. 23-59, rollo (G.R. No.
212426, Vol. I), pp. 25-61; Petition ofBayan et al., rollo, pp. 23-93, (G.R.
No. 212444, Vol. I), pp. 25-95.

4
Memorandum of the OSG, pp. 8-38, rol/o (G.R. No. 212426, Vol. I), pp.
438-468.

5
The Protocol, Ceremony, History, and Symbolism of the Presidential
Inauguration, THE PRESIDENTIAL MUSEUM AND LIBRARY, available at
<http://malacanang.gov.ph/1608-the-protocol-ceremony-history-and-
symbolism-of-the-presidential-inauguration> (last visited 5 Nov. 2015).
6
CONSTITUTION, Art. VII, Sec. 1.

7
CONSTITUTION, Art. II, Sec. 4.

8
CONSTITUTION, Art. I.
9
CONSTITUTION, Art. II, Sec. 3.
10
Id.
11
CONSTITUTION, Art. II, Sec. 5.
12
See CONSTITUTION, Art. VII, Sec. 18 in relation to Art. II, Secs. 3, 4 &
7; Executive Order No. 292 (Administrative Code of 1987), Book IV
(Executive Branch), Title VIII (National Defense), Secs. l, 15, 26 & 33
[hereinafter Administrative Code of 1987].

Administrative Code of 1987, Book IV (Executive Branch), Title XII (Local

13

Government), Sec. 3(5).

14
CONSTITUTION, Art. VII, Sec. 18.

15
See CONSTITUTION, Art. VII, Sec. 1 in relation to Administrative Code
of 1987, Book IV (Executive Branch), Title I (Foreign Affairs), Secs. 3(1)
and 20; Akbayan Citizens Action Party v. Aquino, 580 Phil. 422
(2008); Pimentel v. Office of the Executive Secretary, 501 Phil. 303
(2005); People's Movement for Press Freedom v. Manglapus, G.R. No.
84642, 13 September 1988 (unreported) (citing United States v. Curtiss-
Wright Export Corp., 299 U.S. 304 [1936]); JOAQUIN BERNAS, FOREIGN
RELATIONS IN CONSTITUTIONAL LAW, 101 (1995); IRENE R.
CORTES, THE PHILIPPINE PRESIDENCY: A STUDY OF EXECUTIVE
POWER 187 (1966); VICENTE G. SINCO, PHILIPPINE POLITICAL LAW:
PRINCIPLES AND CONCEPTS 297 (10th ed., 1954).

16
See 1933 Montevideo Convention on the Rights and Duties of States,
Art. 1, 165 LNTS 19; JAMES CRAWFORD, THE CREATION OF STA TES
IN INTERNATIONAL LAW 61 (2nd ed. 2007).

Vinuya v. Executive Secretary, 633 Phil. 538, 570 (2010) (quoting the
17

Dissenting Opinion of then Assoc. Justice Reynato S. Puno in Secretary of

Justice v. Lantion, 379 Phil. 165, 233-234 [2004]).

18
CONSTITUTION, Art. II, Sec. 7.
19
CONSTITUTION (1973, as amended), Art. VIII, Sec. 14(1).

20
CONSTITUTION (1973, as amended), Art. VIII, Sec. 16.

21
CONSTITUTION (1935), Art. VII, Sec. 10(7).
22
CONSTITUTION, Art. VII, Sec. 21.
23
Quoth the Court: "For the role of the Senate in relation to treaties is
essentially legislative in character; 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 nation's pursuit of political maturity and growth." Bayan v.
Zamora, 396 Phil. 623 (2000).
24
FOREIGN SERVICE INSTITUTE, AGREEMENTS ON UNITED STATES
MILITARY FACILITIES IN PHILIPPINE MILITARY BASES 1947-1985 ix
(Pacifico A. Castro revised ed. 1985).

25
Treaty of Peace Between the United States of America and the Kingdom
of Spain, 10 Dec. 1898, 30 US Stat. 1754, T.S. No. 343 (1898) (entered
into force 11 Apr. 1899).

26
FOREIGN SERVICE INSTITUTE, supra note 24 at ix.

27
Id.

28
Id.

29
Id.
30
Id.

Id.; ROLAND G. SIMBULAN, THE BASES OF OUR INSECURITY: A

31

STUDY OF THE US MILITARY BASES IN THE PHILIPPINES 13 (2nd ed.

1985).
32
Hare-Hawes-Cutting Act, ch. I I, Sec. 2(1), 47 US Stat. 761 (1933)
According to the law: "Sec. 2. Theconstitution formulated and
drafted shall be republican in form, shall contain a bill of rights, and shall,
either as a part thereof or in an ordinance appended thereto, contain
provisions to the effect that, pending the final and complete
withdrawal of the sovereignty of the United States over the Philippine
Islands -(1) The Philippine Islands recognizes the right of the United
States xx x to maintain military and other reservations and armed
forces in the Philippines xx x."

33
Hare-Hawes-Cutting Act, Secs. 5 & 10. According to the law: "Sec. 5. All
the property and rights which may have been acquired in the
Philippine Islands by the United States under the treaties mentioned in
the first section of this Act, except such land or other property as has
heretofore been designated by the President of the United States for
military and other reservations of the Government of the United
States x x x are hereby granted to the government of the Commonwealth
of the Philippine Islands when constituted.xx xx." "Sec. 10. On the 4th day
of July, immediately following the expiration of a period of ten years
from the date of the inauguration of the new government under the
constitution provided for in this Act, the President of the United States
shall by proclamation withdraw and surrender all right of possession,
supervision, jurisdiction, control, or sovereignty then existing and
exercised by the United States in and over the territory and people of
the Philippine Islands, including all military and other reservations of
the Government of the United States in the Philippines (except such land
or property reserved under section 5 as may be redesignated by the
President of the United States not later than two years after the date of
such proclamation)." See FOREIGN SERVICE INSTITUTE, supra note 24,
at ix; SIMBULAN, supra note 31.

34
Philippine Independence Act, US Pub. L. No. 73-127, Secs. 5 & 10, 48
US Stat. 456 (1934) [hereinafter Philippine Independence Act]. According
to the law: " SEC. 10. (a) On the 4th day of July immediately following
the expiration of a period of ten years from the date of the
inauguration of the new government under the constitution provided for
in this Act the President of the United States shall by proclamation
withdraw and surrender all right of possession, supervision, jurisdiction,
control, orsovereignty then existing and exercised by the United States in
and over the territory and people of the Philippine Islands, including all
military and other reservations of the Government of the United States
in the Philippines (except such naval reservations and fueling stations
as are reserved under section 5) xx x." See FOREIGN SERVICE
INSTITUTE, supra note 24.
35
Philippine Independence Act, Secs. 5 & IO; FOREIGN SERVICE
INSTITUTE, supra note 24.

36
Philippine Independence Act, Sec. 10.
 FOREIGN SERVICE INSTITUTE, supra note 24, at x; SIMBULAN, supra
37

note 31 at 13-14.

See Agreement Between the Republic of the Philippines and the United
38

States of America Concerning Military Bases, preamble, 14 Mar. 1947, 43

UNTS 271 (entered into force 26 Mar. 1947) [hereinafter 1947 Military
Bases Agreement]; FOREIGN SERVICE INSTITUTE, supra note 24, at x.
39
Treaty of General Relations between the Republic of the Philippines and
the United States of America, Art. I, 4 Jul. 1946, 7 UNTS 3 (1946) (entered
into force 22 Oct. 1946) [hereinafter 1946 Treaty of General Relations].
According to the treaty: "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." The
Philippine Senate concurred in this treaty (S. Res. 11, 1st Cong.
[1946]). See also: Nicolas v. Romulo, 598 Phil. 262 (2009).

FOREIGN SERVICE INSTITUTE, supra note 24, at x-xi; Bayan v.

40

Zamora, supra note 23.

41
194 7 Military Bases Agreement.

42
S. Res. 29, 1st Cong. (1946); Philippine instrument of ratification was
signed by the President on 21 Jan. 1948 and the treaty entered into force
on 26 Mar. 1947; Nicolas v. Romulo, supra note 39.

FOREIGN SERVICE INSTITUTE, supra note 24, at xi; SIMBULAN, supra

43

note 31, at 76-79.

44
1947 Military Bases Agreement, Art. 1 (3); FOREIGN SERVICE
INSTITUTE, supra note 24, at xii; SIMBULAN, supra note 31, at 78-79.

45
FOREIGN SERVICE INSTITUTE, supra note 24, at xii-xv.
46
Id., at xiii.
47
Id., at xii.
48
Id., at xiii.
49
Id.
50
Id.

51
Id., at xiii-xiv.

52
Id.
53
Id.

54
Republic Act No. 9 -Authority of President to Enter into Agreement with
US under Republic of the Phil. Military Assistance Act (1946). According to
Section 1 thereof: "The President of the Philippines is hereby authorized
to enter into agreement or agreements with the President of the United
States, or with any of the agencies or instrumentalities of the Government
of the United States, regarding military assistance to the armed forces
of the Republic of the Philippines, in the form of transfer of property and
information, giving of technical advice and lending of personnel to
instruct and train them, pursuant to the provisions of United States
Public Act Numbered Four hundred and fifty-four, commonly called the
'Republic of the Philippines Military Assistance Act,' under the terms and
conditions provided in this Act."

55
Agreement Between the Government of the Republic of the Philippines
and the Government of the United States of America on Military Assistance
to the Philippines, 45 UNTS 4 7 (entered into force 21 Mar. 1947)
[hereinafter 1947 Military Assistance Agreement].

FOREIGN SERVICE INSTITUTE, supra note 24, at xi; SIMBULAN, supra

56

note 31, at 79-89.

57
1947 Military Assistance Agreement, Sec. 6.

Exchange of Notes Constituting an Agreement Extending the Agreement

58

Between the Government of the Republic of the Philippines and the

Government of the United States of America on Military Assistance to the
Philippines, 26 Jun. 1953, 213 UNTS 77 (entered into force 5 Jul.
1953) reproduced in FOREIGN SERVICE INSTITUTE, supra note 24, at
197-203. See Mutual Logistics Support Agreement (21 Nov. 2007).

See generally: People v. Nazareno, 612 Phil. 753 (2009) (on the
continued effectivity of the agreement).
59
See Mutual Defense Treaty between the Republic of the Philippines and
the United States of America, 30 Aug. 1951, 177 UNTS 133 (entered into
force 27 Aug. 1952) [hereinafter 1951 MDT]. According to its preamble:
"The Parties to this Treaty x x x Desiring further to strengthen their present
efforts to collective defense for the preservation of peace and security
pending the development of a more comprehensive system of regional
security in the Pacific Area x x x hereby agreed as follows[.]" See: Bayan v.
Zamora,supra note 23.

60
S. Res. 84, 2°d Cong. (1952); FOREIGN SERVICE INSTITUTE, supra
note 24, at 193-194; The Philippine instrument of ratification was signed by
the President on 27 August 1952 and it entered into force on the same
date upon the exchange ofratification between the Parties (Philippines and
U.S.), and was proclaimed by the President by virtue of Proc. No. 341, S.
1952.

Nicolas v. Romulo, supra note 39 (citing U.S. Congressional Record,

61

82nd Congress, Second Session, Vol. 98 - Part 2, pp. 2594-2595).

62
1951 MDT, Art. II.

63
1951 MDT, Arts. IV-V.

COLONEL PATERNO C. PADUA, REPUBLIC OF THE PHILIPPINES

64

UNITED STATES DEFENSE COOPERATION: OPPORTUNITIES AND

CHALLENGES, A FILIPINO PERSPECTIVE 6 (20l 0).

65
Bayan v. Zamora, supra note 23; People's Movement for Press Freedom
v. Manglapus, supra note 15.

See Treaty of Friendship, Cooperation and Security Between the

66

Government of the Republic of the Philippines and the Government of the

United States of America, 27 Aug. 1991 (rejected by the Senate on 16
Sept. 1991).

Id., Art. VII; Supplementary Agreement Two to the Treaty of Friendship,

67

Cooperation and Security, Arts. I & II(9).

68
Bayan v. Zamora, supra note 23.

Bayan v. Zamora, supra note 23; Joint Report of the Committee on

69

Foreign Relations and the Committee oi1 National Defense and

Security reproduced in SENATE OF THE PHILIPPINES, THE VISITING
FORCES AGREEMENT: THE SENA TE DECISION 206 (1999); Lim v.
Executive Secretary, 430 Phil. 555 (2002).
70
Agreement regarding the status of U.S. military and civilian personnel,
Exchange of notes between the DFA and the U.S. Embassy in Manila on
Apr. 2, and June 11 and 21, 1993, Hein's No. KA V 3594 (entered into
force 21 June 1993) [hereinafter Status of Forces Agreement of 1993]. The
agreement was extended on 19 September 1994; on 28 April
1995 (See Hein's No. KAV 4245); and 8 December 1995 (See Hein's No.
KA v 4493). See also R. CHUCK MASON, STATUS OF FORCES
AGREEMENT (SOFA): WHAT Is IT, AND How HAS IT BEEN UTILIZED?
14 (2012).

Joint Report of the Committee on Foreign Relations and the Committee

71

on National Defense and Security reproduced in SENATE OF THE

PHILIPPINES, supra note 69; Lim v. Executive Secretary, supra note
69; Bayan v. Zamora, supra note 23.

72
Agreement Between the Government of the Republic of the Philippines
and the Government of the United States of America Regarding the
Treatment of United States Armed Forces Visiting the Philippines, Phil.-
U.S., 10 Feb. 1998, TIAS No. 12931 (entered into force 1 Jun. 1999)
[hereinafter VFA I], reproduced in SENATE OF THE PHILIPPINES, supra,
at 257-266 (1999); Lim v. Executive Secretary, supra note 69.

73
VFA I, preamble. See: Lim v. Executive Secretary, supra note 69.
In Lim, we explained that "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."
74
Bayan v. Zamora, supra note 23, at 637.
75
VFA I; Lim v. Executive Secretary, supra note 69.

76
Agreement between the Government of the United States of America and
the Government of the Republic of the Philippines Regarding the
Treatment of Republic of the Philippines Personnel Visiting the United
States of America, Phil.-U.S., 9 Oct. 1998, TIAS No. 12931 [hereinafter
VFA II].
 Senate Resolution No. 18, 27 May 1999 reproduced in SENATE OF THE
77

PHILIPPINES, supra note 63, at 185-190; Bayan v. Zamora, supra note

23.

78
Lim v. Executive Secretary, supra note 69.

79
Id.
80
Mutual Logistics Support Agreement Between the Department of
Defense of the United States of America and the Department of National
Defense of the Republic of the Philippines, Preamble, 21 Nov. 2002
[hereinafter 2002 MLSA]. According to the preamble thereof, the parties
"have resolved to conclude" the agreement in light of their "desir[ e] to
further the interoperability, readiness, and effectiveness of their respective
military forces through increased logistic cooperation in accordance with
the RP-US Mutual Defense Treaty, RP-US Visiting Forces Agreement or
the RP-US Military Assistance Agreement." Consequently, Article II of the
agreement provides that: "[it] shall be implemented, applied and
interpreted by the Parties in accordance with the provisions of the Mutual
Defense Treaty, the Visiting Forces Agreement or the Military Assistance
Agreement and their respective constitutions, national laws and
regulations."

81
2002 MLSA, Preamble.
82
2002 MLSA, Art. I.

83
2002 MLSA, Art. IV(l)(a); PADUA, supra note 64, at 1-2.

84
See Mutual Logistics Support Agreement Between the Department of
Defense of the United States of America and the Department of National
Defense of the Republic of the Philippines, Art. IX, 8 Nov. 2007 (applied
provisionally on 8 Nov. 2007; entered into force 14 Jan. 2009) [hereinafter
2007 MLSA]; Extension of the Mutual Logistics Support Agreement (RP-
US-01) Between the Department of Defense of the United States of
America and the Department of National Defense of the Republic of the
Philippines (entered into force 6 Nov. 2012).

Memorandum of the OSG, pp. 8, 24 rollo (G.R. No. 212426, Vol. I), pp.
85

438, 454.

See Note No. 1082 of the U.S. Embassy to the DFA dated 25 June 2014,
86

Annex B of the Memorandum of the OSG, rollo (G.R. No. 212426, Vol. I),
p. 477; Memorandum of the OSG, p. 8, rollo (G.R. No. 212426, Vol. I), p.
438.
87
Statement of Secretary Albert F. def Rosario On the signing of the PH-
U.S. EDCA, DEPARTMENT OF FOREIGN AFFAIRS (28 Apr. 2014)
available at
<https://www.dfa.gov.ph/index.php/newsroom/dfareleases/2694-statement-
of-secretary-albert-f-del-rosario-on-the-signing-of-the-philippines-us-
enhanced-defense-cooperation-agreement> (last visited 5 Nov.
2015);Frequently Asked Questions (FAQ) on the Enhanced Defense
Cooperation Agreement, DEPARTMENT OF FOREIGN AFFAIRS (28 Apr.
2014) available at <https://www.dfa.gov.ph/index.php/newsroom/dfa-
releases/2693-frequently-asked-questions-faqs-on-the-enhanced-defense-
cooperation-agreement> (last visited 5 Nov. 2015).

88
EDCA; Memorandum ofOSG, p. 3, rollo (G.R. No. 212426, Vol. I), p. 433
89
Instrument of Ratification, Annex of A of the Memorandum
ofOSG, rollo, p. 476.

90
Oral Arguments TSN, 25 November 2014, pp. 119-120.

91
Rollo pp.865-867, G.R. No. 212444

According to the Resolution: "Be it further resolved that this resolution

92

expressing the strong sense of the Senate be formally submitted to the

Supreme Court through the Chief Justice." Rollo (G.R. No. 212444), p.
867.

93
Francisco v. House of Representatives, 460 Phil. 830, 914 (2003).

94
See: Chavez v. Judicial and Bar Council, G.R. No. 202242, 17 July 2012,
676 SCRA 579; Tagolino v. House of Representatives Electoral
Tribunal, G.R. No. 202202, 19 March 2013, 693 SCRA 574; Gutierrez v.
House of Representatives Committee on Justice, 658 Phil. 322
(2011); Francisco v. House of Representatives, supra; Demetria v.
Alba, 232 Phil. 222 (1987).

95
The Constitution provides: "SECTION I. The judicial power shall be
vested in one Supreme Court and in such lower courts as may be
established by law. Judicial power includes the duty of the courts of
justice to settle actual controversies involving rights which are legally
demandable and enforceable, and 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."

96
Angara v. Electoral Commission, 63 Phil. 139, 156-158 (1936).

97
Gutierrez v. House of Representatives Committee on Justice, supra note
94; Francisco v. House of Representatives, supra note 94; Tanada v.
Angara, 338 Phil. 546 (1997); Oposa v. Factoran, G.R. No. 101083, 30
July 1993, 224 SCRA 792, 809-810 (citing Llamas v. Orbos, 279 Phil. 920
[1991]; Bengzon v. Senate Blue Ribbon Committee, G.R. No. 89914, 20
November 1991, 203 SCRA 767; Gonzales v. Macaraig, G.R. No. 87636,
19 November 1990, 191 SCRA 452; Coseteng v. Mitra, G.R. No. 86649,
12 July 1990, 187 SCRA 377; Daza v. Singson, 259 Phil. 980 [1989]; and I
RECORD, CONSTITUTIONAL COMMISSION 434-436 [1986]).
98
Oposa v. Factoran, supra, at 97.

Morfe v. Mutuc, 130 Phil. 415, 442 (1968); Angara v. Electoral

99

Commission, supra note 96, at 178.

See: Francisco v. House of Representatives, supra note 93; United

100

States v. Raines, 362 U.S. 17 (1960); and Angara v. Electoral

Commission, supra note 96.

101
Demetria v. Alba, supra note 94, at 226.
102
Francisco v. House of Representatives, supra note 93, at 922-923.

Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-348

103

(1936).
104
Francisco v. House of Representatives, supra note 93, at 923.
105
Id., at 922.

Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism

106

Council, 646 Phil. 452, 471 (2010);David v. Macapagal-Arroyo, 522 Phil.

705, 753 (2006); Francisco v. House of Representatives, supra note 93 at
892; Angara v. Electoral Commission, supra note 96, at 158.

107
Memorandum ofOSG, p. 6, rollo, p. 436.
108
Rollo (G.R. No. 212444), pp. 865-867.
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
109

Council, supra note 106, at 479.

Information Technology Foundation of the Philippines v. Commission on

110

Elections, 499 Phil. 281, 304-305 (2005) (citing Aetna Life Insurance Co. v.
Hayworth, 300 U.S. 227 (1937]); Southern Hemisphere Engagement
Network, Inc. v. Anti-Terrorism Council, supra note 106, at 480; David v.
Macapagal-Arroyo,supra note I 06, at 753 (2006); Francisco v. House of
Representatives, supra note 93, 879-880; Angara v. Electoral
Commission, supra note 96, at 158.

Information Technology Foundation of the Philippines v. Commission on

111

Elections, supra (citing Aetna Life Insurance Co. v. Hayworth, 300 U.S.
227 (1937]); Southern Hemisphere Engagement Network, Inc. v. Anti-
Terrorism Council, supra note 106, at 480; Lozano v. Nograles, 607 Phil.
334, 340 [2009]).
112
Angara v. Electoral Commission, supra note 96, at 158-159.

Memorandum of OSG, supra note 80. See also Note No. 1082, supra
113

note 86.

Almario v. Executive Secretary, G.R. No. 189028, 16 July 2013, 701

114

SCRA 269, 302; Bayan Muna v. Romulo, 656 Phil. 246 (2011).

115
Funa v. CSC Chairman, G.R. No. 191672, 25 November 2014; Almario
v. Executive Secretary, supra note 114, at 302; Bayan Muna v.
Romulo, supra note 114, at 265; Bayan v. Zamora supra note 23;Francisco
v. House of Representatives, supra note 93, 895-896.

Bayan Muna v. Romulo, supra note 114 at 265; Pimentel v. Office of the
116

Executive Secretary, supra note 15; Joya v. Presidential Commission on

Good Government, G.R. No. 96541, 24 August 1993, 225 SCRA 568.

117
Funa v. CSC Chairman, supra note 115 Almario v. Executive
Secretary, supra note 114 at 302; Southern Hemisphere Engagement
Network, Inc. v. Anti-Terrorism Council, supra note 106, at 472; Francisco
v. House of Representatives, supra note 93 at 895-896.

Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism

118

Council, supra note 106.

 Bayan Muna v. Romulo, supra note 114, at 265; Francisco v. House of
119

Representatives, supra note 93, at 893.

Bayan Muna v. Romulo, supra note 114, at 266-267; Akbayan Citizens

120

Action Party v. Aquino, supra note 15; Francisco v. House of

Representatives, supra note 93; Tanada v. Tuvera, 220 Phil. 422 (1985).

Petition of Saguisag et al., p. 20, rollo (G.R. No. 212426, Vol. I), p. 22;
121

Memorandum of Saguisag et al.,p. 15, rol/o (G.R. No. 212426, Vol. II), p.
985; Petition ofBayan et al., p. 9, rollo (G.R. No. 212444, Vol. I), p. 11;
Memorandum of Bayan et al., pp. 19, 23, rol/o (G.R. No. 212444, Vol. I),
pp. 583, 587.

Petition of Saguisag et al., p. 10, rollo (G.R. No. 212426, Vol. I), p. 12;
122

Petition of Bayan et al., pp. 9-10,rollo (G.R. No. 212444, Vol. I), pp. 11-12;
Memorandum ofBayan et al., pp. 19, 23, rollo (G.R. No. 212444, Vol. I),
pp. 583, 587.

123
Oral Arguments TSN, 18 November 2014, pp. 19-20.

124
Consolidated Comment of the OSG, p. 4, rollo (G.R. No. 212426, Vol. I),
p. 241; Memorandum of OSG, p. 7, rol/o (G.R. No. 212426, Vol. I), p. 437.

125
Bayan v. Zamora, supra note 23.

Bayan v. Zamora, supra note 23 (citing Pascual v. Secretary of Public

126

Works, 110 Phil. 331 [1960];Maceda v. Macaraig, G.R. No. 88291,

31May1991, 197 SCRA 771; Lozada v. Commission on Elections,205 Phil.
283 [1983]; Dumlao v. Commission on Elections, 184 Phil. 369
[1980]; Gonzales v. Marcos , 160 Phil. 637 [1975]).

See: Bayan v. Zamora, supra note 23 (citing Bugnay Const. &

127

Development Corp. v. Laron, 257 Phil. 245 [1989]).

128
Lozano v. Nograles, supra note 111, at 342-343.

Petition ofBayan et al., p. 10, ro/lo (G.R. No. 212444, Vol. I), p. 12;
129

Memorandum of Bayan et al., pp. 19-20, rollo (G.R. No. 212444, Vol. I),
pp. 583-584.

130
Consolidated Comment of the OSG, pp. 3-4, rollo (G.R. No. 212444, Vol.
I), pp. 240-241; Memorandum of the OSG, pp. 4-7, rollo (G.R. No. 212444,
Vol. I), pp. 434-437.
 Pimentel v. Office of the Executive Secretary, supra note 15; Bayan v.
131

Zamora, supra note 23; Philippine Constitution Association. v.

Enriquez, G.R. No. 113105, 113174, 113766, 113888, 19 August 1994,
235 SCRA 506; Gonzales v. Macaraig, supra note 97; Mabanag v. Lopez
Vito, 78 Phil. 1 (1947).

132
Philippine Constitution Association. v. Enriquez, supra.

Pimentel v. Office of the Executive Secretary, supra note 15; Philippine

133

Constitution Association. v. Enriquez, supra.

134
Mabanag v. Lopez Vito [Dis. Op., J. Perfecto], supra note 131, at 35.

Pimentel v. Office of the Executive Secretary, supra note 15; Bayan v.

135

Zamora, supra note 23; Philippine Constitution Association. v.

Enriquez, supra note 131.

136
Pimentel v. Office of the Executive Secretary, supra note 15.
137
Bayan v. Zamora, supra note 23.

Petition of Saguisag et al., pp. 21-22, rol/o (G.R. No. 212426, Vol. I), pp.
138

23-24; Memorandum of Saguisag et al., pp. 15-17, rollo (G.R. No. 212426,
Vol. II), pp. 985-987; Petition ofBayan et al., pp. 6, rollo(G.R. No. 212444,
Vol. I), pp. 8; Memorandum ofBayan et al., pp. 19, 23, rollo (G.R. No.
212444, Vol. I), pp. 583, 587.
139
Consolidated Comment of the OSG, pp. 4-5, rollo (G.R. No. 212444, Vol.
I), pp. 241-242; Memorandum of the OSG, pp. 7-8, rollo (G.R. No. 212444,
Vol. I), pp. 437-438.

Bayan Muna v. Romulo, supra note 114, at 265 (citing Constantino v.

140

Cuisia, 509 Phil. 486 [2005]; Agan v. Philippine International Air Terminals
Co., Inc., 450 Phil. 744 [2003]; Del Mar v. Philippine Amusement and
Gaming Corporation, 400 Phil. 307 [2000]; Tatad v. Garcia, 313 Phil. 296
[1995]; Kilosbayan v. Guingona, G.R. No. 113375, 5 May 1994, 232 SCRA
110); Integrated Bar of the Phil. v. Zamora, 392 Phil. 618 (2000).

141
Kilosbayan, Inc. v. Guingona [Con. Op., J. Feliciano], supra, at 155-156
(1995) (cited in Magallona v. Ermita, 671 Phil. 243 (2011); Paguia v. Office
of the President, 635 Phil. 568 [2010]; Francisco v. House of
Representatives, supra note 93, at 899).
 Memorandum ofOSG, supra note 80. See also Note No. 1082, supra
142

note 86.
143
Government of the Philippine Islands v. Springer, 50 Phil. 259 (1927).
144
Id.
145
Id.

CONSTITUTION, Art. VII, Sec. 5; CONSTITUTION (1973, as amended),

146

Art. VII, Sec. 7; CONSTITUTION (1935, as amended), Art. VII, Sec. 7.

147
CONSTITUTION, Art. VII, Sec. 5.

148
Almario v. Executive Secretary, supra note 114.

CONSTITUTION (1973, as amended), Art. VII, Sec. 10: "The President

149

shall have control of the ministries."

150
CONSTITUTION (1935, as amended), Art. VII, Sec. 10(1 ): "The
President shall have control of all executive departments, bureaus or
offices, exercise general supervision over all local governments as may be
provided by law, and take care that the laws be faithfully executed."

151
Administrative Code of 1987, Book III, Title I, Sec. 1.

CONSTITUTION, Art. X, Sec. 16: "The President shall exercise general

152

supervision over autonomous regions to ensure that the laws are faithfully
executed."

Ilusorio v. Ilusorio, 564 Phil. 746 (2007); Gonzalez v. Hongkong &

153

Shanghai Banking Corp., 562 Phil. 841 (2007).

Metropolitan Manila Development Authority v. Viron Transportation Co.,

154

Inc., 557 Phil. 121 (2007).

155
La Perla Cigar & Cigarette Factory v. Capapas, 139 Phil. 451 (1969).

156
In re: R. McCulloch Dick, 3 8 Phil. 211 (1918).
157
Almario v. Executive Secretary, supra note 114.

158
Administrative Code of 1987, Book IV, Sec. 38.
 Concurring Opinion of J. Carpio, Abakada Gura Party List v.
159

Purisima, 584 Phil. 246 (2008).

160
Id.
161
Id. at 297.
162
Philippine Constitution Association v. Enriquez, supra note 131.

163
Government of the Philippine Islands v. Springer, supra note 143.
164
See CONSTITUTION, Art. VII, Secs. 17 & 18.

165
Dissenting Opinion of Justice Arturo D. Brion, p. 17.

166
Id., at 18.
167
Id., at 17-19.

168
Dissenting Opinion of Justice Arturo D. Brion, pp. 19-20.

169
Vinuya v. Romulo, supra note 17.

Memorandum of Bayan et al., pp. 29-32, rol/o (G.R. No. 212444), pp.
170

593-596; Memorandum of Saguisag et al., pp. 17-29, 35-37, rol/o (G.R.

No. 212426, Vol. II), pp. 987-999, 1005-1007.

171
The pertinent text of SR 105 is reproduced below:

WHEREAS, the treaty known as RP-US EDCA (Enhanced Defense

Cooperation Agreement) is at present subject of Supreme Court
proceedings on the question of whether this treaty is valid and
effective, considering that the Senate has not concurred with the
treaty;

WHEREAS, the Office of the President argues that the document is

not a treaty but is instead an executive agreement that allegedly
does not require Senate concurrence;

WHEREAS, the only constitutional ground for the position taken by

the Executive is the mere inclusion of the term "executive
agreement" in the Constitution which provides: "All cases involving
the constitutionality of an ... executive agreement ... " (Article VIII,
Section 4, paragraph 2) as one of items included in the list of cases
which the Supreme Court has power to decide.

WHEREAS, there is no other provision in the Constitution

concerning a socalled executive agreement, and there is no mention
at all of its definition, its requirements, the role of the Senate, or any
other characteristic of, or protocol for, any such so-called "executive
agreement";

WHEREAS, "executive agreement" is a term wandering alone in the

Constitution, bereft of provenance and an unidentified constitutional
mystery;

WHEREAS, in stark contrast to the lone mention of the term

"executive agreement," the Constitution provides categorically:

(a) "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", (Article VII, Section 21);

(b) "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 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", (Article
XVIII, Section 25);

WHEREAS, on the one hand, the Constitution is clear and

categorical that Senate concurrence is absolutely necessary for the
validity and effectivity of any treaty, particularly any treaty that
promotes for foreign military bases, troops and facilities, such as the
EDCA;

WHEREAS, under the rules of constitutional and statutory

construction, the two constitutional provisions on Senate
concurrence are specific provisions, while the lone constitutional
provision merely mentioning an "executive agreement" is a general
provision, and therefore, the specific provisions on Senate
concurrence prevail over the general provision on "executive
agreement";
 WHEREAS, the Senate is aware of and obeys the ruling of the
Supreme Court in Pimentel v. Office of the Executive Secretary, 462
SCRA 622 (2005);

WHEREAS, the ruling cited above does not apply to the EDCA case,
because the Senate makes no attempt to force the President of the
Philippines to submit the EDCA treaty for concurrence by the
Senate, by this Resolution, the Senate merely takes a definitive
stand on the non-negotiable power of the Senate to decide whether
a treaty will be valid and effective, depending on the Senate
concurrence[;]

WHEREFORE, be it hereby resolved by the Senate that the RP-US

EDCA treaty requires Senate concurrence, in order to be valid and
effective;

Be it further resolved, That this Resolution expressing the strong

sense of the Senate be formally submitted to the Supreme Court
through the Chief Justice.

Arigo v. Swift, G.R. No. 206510, 16 September 2014, 735 SCRA

172

102; Land Bank v. Atlanta Industries, Inc., G.R. No. 193796, 2 July 2014,
729 SCRA 12; Roxas v. Ermita, G.R. No. 180030, June 10, 2014;Bayan
Muna v. Romulo, supra note 114; Vinuya v. Romulo, supra note
17; Nicolas v. Romulo, supra note 39; Akbayan Citizens Action Party v.
Aquino, supra note 15; Suplico v. NEDA, 580 Phil. 301 (2008); Neri v.
Senate Committee on Accountability of Public Officers and
Investigations, 572 Phil. 554 (2008); Abaya v. Ebdane, 544 Phil. 645
(2007); Senate of the Philippines v. Ermita, 522 Phil. I (2006); Pimentel v.
Office of the Executive Secretary, supra note 15; Bayan v. Zamora, supra
note note 23; Chavez v. PCGG, 360 Phil. 133 (1998).

Republic v. Quasha, 150-B Phil. 140 (1972); Adolfo v. Court of First

173

Instance o/Zambales, 145 Phil. 264 (1970); Commissioner of Internal

Revenue v. Guerrero, 128 Phil. 197 (1967); Gonzales v. Hechanova, 118
Phil. 1065 (1963); Commissioner of Customs v. Eastern Sea Trading, 113
Phil. 333 (1961); USAFFE Veterans Ass'n., Inc. v. Treasurer of the
Phil., 105 Phil. 1030 (1959); Uy Matiao & Co., Inc. v. City of Cebu,93 Phil.
300 (1953); Abbot Laboratories v. Agrava, 91 Phil. 328 (1952).
174
Nicolas v. Romulo, supra note 39.
175
Chavez v. Judicial and Bar Council, supra note 94; Francisco v. House
of Representatives, supra note 93 (quoting J.M Tuason & Co., Inc. v. Land
Tenure Administration, 142 Phil. 719 [1970]; citing Baranda v. Gustilo, 248
Phil. 205 [1988]; Luz Farms v. Secretary of the Department of Agrarian
Reform, 270 Phil. 151 [1990]; Ordillo v. Commission on Elections, 270 Phil.
183 [1990]).
176
Chavez v. Judicial and Bar Council, supra note 94; Ang Bagong Bayani-
OFW v. Commission on Elections, 412 Phil. 308 (2001) (citing J.M Tuason
& Co., Inc. v. Land Tenure Administration, supra; Gold Creek Mining Corp.
v. Rodriguez, 66 Phil 259, 264 [1938]; RUBEN C. AGPALO, STATUTORY
CONSTRUCTION 311 [ 1990]).

177
Chavez v. Judicial and Bar Council, supra note 94; Francisco v. House
of Representatives, supra note 93 (quoting J.M Tuason & Co., Inc. v. Land
Tenure Administration, supra; citing Baranda v. Gustila, supra, at 770; Luz
Farms v. Secretary of the Department of Agrarian Reform, supra; Ordillo v.
Commission on Elections, supra); Sarmiento v. Mison, 240 Phil. 505
(1987); Gold Creek Mining Corp. v. Rodriguez, supra.

Francisco v. House of Representatives, supra note 93 (quoting J.M

178

Tuason & Co., Inc. v. Land Tenure Administration, supra).

179
Ang Bagong Bayani-OFW v. Commission on Elections, supra note 176.
180
Ang Bagong Bayani-OFW v. Commission on Elections, supra note 176
(quoting the Separate Opinion of Justice Mendoza in Civil Liberties Union
v. Executive Secretary, 272 Phil. 147 [1991]).

OED Online, available at <http://www.oed.com/view/Entry/5460>,

181

accessed on 28 October 2015; See also Merriam-Webster Online

Dictionary, "allow," available at
<http://www.merriamwebster.com/dictionary/allow>, accessed on 28
October 2015.

182
BLACK'S LAW DICTIONARY (2nd ed).

OED Online, available at

183

<http://www.oed.com/view/Entry/92970?rskey=JDa01 Y &result=6>,
accessed on 28 October 2015; See also Merriam-Webster Online
Dictionary, available at <http://www.merriamwebster.com/dictionary/in>,
accessed on 28 October 2015.
184
G.R. No. 151445, 11April2002.

In the words of the Court: "The present Constitution contains key

185

provisions useful in determining the extent to which foreign military troops

are allowed in Philippine territory." Lim v. Executive Secretary, supra note
69.
186
Memorandum ofOSG, pp. 14-27, rollo, pp. 444-457.
187
Dissenting Opinion of Justice Arturo D. Brion, p. 29.

188
Id., at 31.

189
Id.

Francisco v. House of Representatives, supra note 93 (quoting JM

190

Tuason & Co., Inc. v. Land Tenure Administration, supra note 175).

See IV RECORD, CONSTITUTIONAL COMMISSION 759, (18 Sep.

191

1986): "By inequalities, is the Commissioner referring to the one-sided

provisions, the onerous conditions of the RP-US Bases
Agreement?," Nicolas v. Romulo, supra note 39, at 280 (2009).

See Treaty of General Relations between the Republic of the Philippines

192

and the United States of America, October 22, 1946, Art. 1 (1946);
Philippine Independence Act (Tydings-McDuffie Act), Pub.L. 73-127, 48
Stat. 456, (24 March 1934), Secs. 5 and 10; FOREIGN SERVICE
INSTITUTE, supra note 24, at ix-x.

193
Land Bank v. Atlanta Industries, Inc., supra note 172; Bayan Muna v.
Romulo, supra note 114; Nicolas v. Romulo, supra note 39; Neri v. Senate
Committee on Accountability of Public Officers and Investigations,supra
note 172; DBM-PS v. Kolonwel Trading, 551 Phil. 1030 (2007); Abaya v.
Ebdane, supra note 172;Republic v. Quasha, supra note 173; Adolfo v.
Court of First Instance of Zambales, supra note 173;Commissioner of
Internal Revenue v. Guerrero, supra note 173; Gonzales v.
Hechanova, supra note 173;Commissioner of Customs v. Eastern Sea
Trading, supra note 173; USAF FE Veterans Ass 'n., Inc. v. Treasurer of
the Phil., supra note 173; Uy Matiao & Co., Inc. v. City of Cebu, supra note
173; Abbot Laboratories v. Agrava, supra note 173; II RECORD,
CONSTITUTIONAL COMMISSION, 544-546 (31 July 1986); CORTES,
supra note 15, at 190; SINCO, supra note 15, at 303-305.
 CONSTITUTION, Art. VIII (Judicial Department), Secs. 4(2) & 5(2)(a);
194

CONSTITUTION (l 973, as amended), Art. X (The Judiciary), Secs. 2(2) &

5(2)(a), Art. XVII (Transitory Provisions), Sec. 12; CONSTITUTION (l 935),
Ordinance Appended to the Constitution or "Parity Amendment."

195
Republic Act No. 9184 (Government Procurement Reform Act) (2003),
Sec. 4; Administrative Code of 1987, Book II, Sec. 18(2)(a); Presidential
Decree No. 1464, as amended (Tariff and Customs Code of 1978), Sec.
402(f); Republic Act No. 1789 (Reparations Law) (1957), Sec. 18.;
Commonwealth Act No. 733 (Acceptance of Executive Agreement Under
Title IV of [United States] Public Law 371-79th Congress) (1946).

Neri v. Senate Committee on Accountability of Public Officers and

196

Investigations, supra note 172;Republic v. Quasha, supra note

173; Commissioner of Internal Revenue v. Guerrero, supra note
173;Gonzales v. Hechanova, supra note 173; Commissioner of Customs v.
Eastern Sea Trading, supra note 173; USAFFE Veterans Ass'n., Inc. v.
Treasurer of the Phil., supra note 173; Abbot Laboratories v. Agrava,supra
note 173.

197
II RECORD, CONSTITUTIONAL COMMISSION, supra note 184.

198
Bayan Muna v. Romulo, supra note I 14. See also SINCO supra note 15.

See generally: Nicolas v. Romulo, supra note 39; Lim v. Executive

199

Secretary, supra note 69.

200
See: Akbayan Citizens Action Party v. Aquino, supra note I 5; Pimentel
v. Office of the Executive Secretary, supra note 15. See CONSTITUTION,
Art. VII, Sec. I in relation to Administrative Code of 1987, Book IV
(Executive Branch), Title I (Foreign Affairs), Secs. 3(1) and 20; SINCO,
supra note 15, at 297.

201
Pimentel v. Office of the Executive Secretary, supra note
15. See CONSTITUTION, Art. VII, Sec. 1 in relation to Administrative Code
of 1987, Book IV (Executive Branch), Title I (Foreign Affairs), Secs. 3(1)
and 20; SINCO, supra note 15, at 298.

202
See: CONSTITUTION, Art. VII, Sec. 1 in relation to Administrative Code
of 1987, Book III (Office of the President), Title I (Powers of the President),
Sec. 1 and Book IV (Executive Branch), Title I (Foreign Affairs), Secs. 3(1)
and 20 and Title III (Justice), Sec. 35(10); Pimentel v. Office of the
Executive Secretary, supra note 15 (on ratification of treaties); Vinuya v.
Executive Secretary, supra note I 7 (on espousing claims against foreign
governments); Abaya v. Ebdane, supra note 172 (on contracting foreign
loans); People's Movement for Press Freedom v. Manglapus, supra note
15 (on treaty negotiations with foreign states); SINCO, supra note 15, at
298.

203
See SINCO, supra note 15, at 297-298.
204
Commissioner of Customs v. Eastern Sea Trading, supra note 173.

Bayan Muna v. Romulo, supra note 114. See also SINCO, supra note
205

15.

206
Commissioner of Customs v. Eastern Sea Trading, supra note 173.

II RECORD, CONSTITUTIONAL COMMISSION 544-546 (31 July

207

1986). See also Miriam Defensor Santiago, International Agreements in

Constitutional Law: The Suspended RP-China (ZTE) Loan Agreement, 53
ATENEO L.J. 537, 539 (2008).

Bayan Muna v. Romu/o, supra note 114, at 261; Gonzales v.

208

Hechanova, supra note 173; Commissioner of Customs v. Eastern Sea

Trading, supra note 173; II RECORD, CONSTITUTIONAL COMMISSION
544-546 (31 July 1986); CORTES, supra note 15; SINCO, supra note 15.

209
See, e.g.: Bayan Muna v. Romulo, supra note 114 (on the transfer or
surrender of US nationals in the Philippines who may be sued before
international tribunals); Nicolas v. Romulo, supra note 39 (on agreement
concerning the detention of a member of the U.S. Armed Forces, who was
accused of committing a crime in the Philippines); Adolfo v. Court of First
Instance ofZambales, supra note 173 (on exchange of notes pursuant to
the 1947 MBA); Treaty of General Relations Between the Republic of the
Philippines and the United States of America (1946).

210
See, e.g.: Republic v. Quasha, supra note 173; Commissioner of Internal
Revenue v. Guerrero, supra note 173; Abbot Laboratories v. Agrava, supra
note 173 (on the interpretation of the provision in the Philippine Patent Law
of 1947 concerning the reciprocity measure on priority rights to be granted
to U.S. nationals); Uy Matiao & Co., Inc. v. City of Cebu, supra note 173;
Republic Act No. 9 - Authority of President to Enter into Agreement with
US under Republic of the Phil. Military Assistance Act (1946).
211
See, e.g.: Land Bank v. Atlanta Industries, Inc., supra note 172 (on
foreign loan agreement); Bayan Muna v. Romulo, supra note 114; DBM-
PS v. Kolonwel Trading, supra note 193 (on foreign loan
agreement); Abaya v. Ebdane, supra note 172 (on foreign loan
agreement); Commissioner of Customs v. Eastern Sea Trading, supra note
173 (on foreign trade and financial agreements); USAFFE Veterans Ass'n.,
Inc. v. Treasurer of the Phil., supra note 173 (on conversion of unspent
fund as a foreign loan). But see on limitations: Gonzales v.
Hechanova, supra note 173.

See generally: Bayan v. Zamora, supra note 23; Philippe Gautier, 1969
212

Vienna Convention, Article 2 -Use of Terms, in THE VIENNA

CONVENTIONS ON THE LAW OF TREATIES: A COMMENTARY, VOL. I
35-36 (Olivier Corten & Pierre Klein eds. 2011).

See generally: Bayan v. Zamora, supra note 23; Philippe Gautier, 1969
213

Vienna Convention, Article 2 -Use of Terms, in THE VIENNA

CONVENTIONS ON THE LAW OF TREATIES: A COMMENTARY, VOL. I
37 (Olivier Corten & Pierre Klein eds. 2011) (quoting Customs regime
between Germany and Austria, Advisory Opinion, 1931 PCIJ, Ser. NB no.
41, p. 47).

214
Gonzales v. Hechanova, supra note 173.

Bayan Muna v. Romulo, supra note 114 (affirming Adolfo v. Court of

215

First Instance of Zambales, supra note 173).

216
See: Bayan Muna v. Romulo, supra note 114.

Pharmaceutical and Health Care Association v. Duque, 561 Phil. 386

217

(2007); Lim v. Executive Secretary,supra note 69; Secretary of Justice v.

Lantion, supra note 17; Philip Morris, Inc. v. Court of Appeals, G.R. No.
91332, 16 July 1993, 224 SCRA 576.

218
See: Bayan Muna v. Romulo, supra note 114 (affirming Adolfo v. Court
of First Instance of Zambales,supra note 173); CIVIL CODE, Art. 7.

See: Bayan Muna v. Romulo, supra note 114; Nicolas v. Romulo, supra
219

note 39; Gonzales v. Hechanova, supra note 173; CIVIL CODE, Art. 7.
220
See CONSTITUTION, Art. VIII, Sec. 5(2); CIVIL CODE, Art. 7.
221
CONSTITUTION, Art. II, Sec. 8.
222
CONSTITUTION, Art. VI, Sec. 28(2).
223
CONSTITUTION, Art. VI, Sec. 28(4).
224
CONSTITUTION, Art. VII, Sec. 20.

225
CONSTITUTION, Art. XVIII, Sec. 25

226
II RECORD, CONSTITUTIONAL COMMISSION 544 (3 I July 1986).
227
II RECORD, CONSTITUTIONAL COMMISSION 545 (31 July 1986).

228
II RECORD, CONSTITUTIONAL COMMISSION 545 (31 July 1986).

229
SINCO, supra note 15, at 297. See: Vinuya v. Executive
Secretary, supra note 17 (on espousal of the claims of Philippine nationals
against a foreign government); Pimentel v. Office of the Executive
Secretary,supra note 15 (on ratification of international
agreements); Secretary of Justice v. Lant ion, supra note 17 (on
temporarily withholding of the right to notice and hearing during the
evaluation stage of the extradition process); People's Movement/or Press
Freedom v. Manglapus, supra note 15 (on the imposition of secrecy in
treaty negotiations with foreign countries).

230
Vinuya v. Executive Secretary, supra note 17.

231
Lim v. Executive Secretary, supra note 69.

232
Nicolas v. Romulo, supra note 39.

233
Nicolas v. Romulo, supra note 39, at 291.

Bayan Muna v. Romulo, supra note 114, at 273. See also: Nicolas v.
234

Romulo, supra note 39; Adolfo v. Court of First Instance of

Zambales, supra note 173; Abbot Laboratories v. Agrava, supra note 173.
Senate Resolution No. 18, dated 27 May 1999, which embodies the
concurrence of the Senate in the VFA, stresses in its preamble that
"nothing in this Resolution or in the VFA shall be construed as
authorizing the President of the Philippines alone to bind the Philippines
to any amendment of any provision of the VFA." (Emphases Supplied)

235
Lim v. Executive Secretary, supra note 69, at 571.
236
The provision states: "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. x xx." (Emphases supplied)

The provision states: "It is the duty of United States personnel to respect
237

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."
(Emphases supplied)

238
Lim v. Executive Secretary, supra note 69, at 572.
239
Lim v. Executive Secretary, supra note 69, at 575.

240
According to the agreement: "(H]e will be detained at the first floor,
Rowe (JUSMAG) Building, U.S. Embassy Compound in a room of
approximately IO x 12 square feet. He will be guarded round the clock by
U.S. military personnel. The Philippine police and jail authorities, under the
direct supervision of the Philippine Department of Interior and Local
Government (DILG) will have access to the place of detention to ensure
the United States is in compliance with the terms of the VFA."

241
Nicolas v. Romulo, supra note 39, at 287.

242
Dissenting Opinion of Justice Marvic M.V.F. Leonen, p. 1.

243
EDCA, Art. V(l) and (4).

244
Dissenting Opinion of Justice Leonen, supra note 242, p.2.
245
Id.

Concurring and Dissenting Opinion of Justice Teresita J. Leonardo-De

246

Castro, p. 25.
247
Lim v. Executive Secretary, supra note 69, at 575.
248
Dissenting Opinion of Justice Leonen, supra note 242.

249
Id.
250
Memorandum ofOSG, pp. 14-27, rollo (G.R. No. 212426), pp. 444-457.
251
Memorandum of Saguisag et al., pp. 22-23, 38-49, rollo (G.R. No.
212426, Vol. II), pp. 992-993, 1008-1019; Memorandum of Bayan et
al., pp. 35-41, rollo (G.R. No. 212444), pp. 599-605.

252
EDCA, Art. II(l ).

253
EDCA, Art. II(2).
254
EDCA, Art. II(3).
255
EDCA, Art. VIII(l ).

According to this provision: "l. This Agreement deepens defense

256

cooperation between the Parties and maintains and develops their

individual and collective capacities, in furtherance of Article II of the MDT,
which states that 'the Parties separately and jointly by self-help and mutual
aid will maintain and develop their individual and collective capacity to
resist armed attack,' and within the context of the VFA. This includes: xxxx
(b) Authorizing access to Agreed Locations in the territory of the
Philippines by United States forces on a rotational basis, as mutually
determined by the Parties.

According to this provision: "Agreed Locations" means facilities and

257

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.
258
VFA I, Art. I.

259
See: Djumantan v. Domingo, 310 Phil. 848 (1995).

260
Djumantan v. Domingo, 310 Phil. 848, 854 (1995).

Commonwealth Act No. 613 (The Philippine Immigration Act of 1940, as

261

amended).

Commonwealth Act No. 613 (The Philippine Immigration Act of 1940, as

262

amended), Secs. 10 & 11.

Commonwealth Act No. 613 (The Philippine Immigration Act of 1940, as

263

amended), Sec. 29 & 30. Under Section 29, the following classes of aliens
shall be excluded from entry into the Philippines: (1) Idiots or insane
persons and persons who have been insane; (2) Persons afflicted with a
loathsome or dangerous contagious disease, or epilepsy; (3) Persons who
have been convicted of a crime involving moral turpitude; (4) Prostitutes, or
procurers, or persons coming for any immoral purposes; (5) Persons likely
to become, public charge; (6) Paupers, vagrants, and beggars; (7) Persons
who practice polygamy or who believe in or advocate the practice of
polygamy; (8) Persons who believe in or advocate the overthrow by
force and violence of the Government of the Philippines, or of
constituted lawful authority, or who disbelieve in or are opposed to
organized government, or who advocate the assault or assassination of
public officials because of their office, or who advocate or teach
principles, theories, or ideas contrary to the Constitution of the
Philippines or advocate or teach the unlawful destruction of property, or
who are members of or affiliated with any organization entertaining or
teaching such doctrines; (9) Persons over fifteen years of age, physically
capable of reading, who cannot read printed matter in ordinary use in any
language selected by the alien, but this provision shall not apply to the
grandfather, grandmother, father, mother, wife, husband or child of a
Philippine citizen or of an alien lawfully resident in the Philippines; (10)
Persons who are members of a family accompanying an excluded alien,
unless in the opinion of the Commissioner of Immigration no hardship
would result from their admission; (11) Persons accompanying an
excluded person who is helpless from mental or physical disability or
infancy, when the protection or guardianship of such accompanying person
or persons is required by the excluded person, as shall be determined by
the Commissioner oflmmigration; (12) Children under fifteen years of age,
unaccompanied by or not coming to a parent, except that any such
children may be admitted in the discretion of the Commissioner
oflmmigration, if otherwise admissible; (13) Stowaways, except that any
stowaway may be admitted in the discretion of the Commissioner of
Immigration, if otherwise admissible; (14) Persons coming to perform
unskilled manual labor in pursuance of a promise or offer of employment,
express or implied, but this provision shall not apply to persons bearing
passport visas authorized by Section Twenty of this Act; (15) Persons
who have been excluded or deported from the Philippines, but this
provision may be waived in the discretion of the Commissioner of
Immigration: Provided, however, That the Commissioner of Immigration
shall not exercise his discretion in favor of aliens excluded or deported on
the ground of conviction for any crime involving moral turpitude or for any
crime penalized under Sections [ 45] and [ 46] of this Act or on the ground
of having engaged in hoarding, black-marketing or profiteering unless such
aliens have previously resided in the Philippines immediately before his
exclusion or deportation for a period of ten years or more or are married to
native Filipino women; (16) Persons who have been removed from the
Philippines at the expense of the Government of the Philippines, as
indigent aliens, under the provisions of section [ 43] of this Act, and who
have not obtained the consent of the Board of Commissioners to apply for
readmission; and (17) Persons not properly documented for admission as
may be required under the provisions of this Act. (Emphasis supplied)

264
Djumantan v. Domingo, supra note 259.

Administrative Code of 1987, Book III (Office of the President), Title I

265

(Powers of the President), Secs. 8 & 11 in relation to Commonwealth Act

No. 613 (The Philippine Immigration Act of 1940), Sec. 52 and Act. No.
2711 (Revised Administrative Code of 1917), Sec. 69. See: Djumantan v.
Domingo, supra note 259;Teo Tungv. Mach/an, 60 Phil. 916 (1934).

See: Commonwealth Act No. 613 (The Philippine Immigration Act of

266

1940, as amended), Secs. 6, 12, 28 & 29; Djumantan v. Domingo, supra

note 259; Salazar v. Achacoso, 262 Phil. 160 (1990); RONALDO P.
LEDESMA, DEPORT A TI ON PROCEEDINGS: PRACTICE,
PRECEDENTS, AND PROCEDURES 96 (2013 ).

267
Commonwealth Act No. 613 (The Philippine Immigration Act of 1940, as
amended), Sec. 37. The provision enumerates as follows: (1) Any alien
who enters the Philippines xx x by means of false and misleading
statements or without inspection and admission by the immigration
authorities x x x; (2) Any alien who enters the Philippines xx x, who
was not lawfully admissible at the time of entry; (3) Any alien who, x x
x, is convicted in the Philippines and sentenced for a term of one year or
more for a crimeinvolving moral turpitude committed within five years
after his entry to the Philippines, or who, at any time after such entry, is so
convicted and sentenced more than once; (4) Any alien who is convicted
and sentenced for a violation of the law governing prohibited drugs; (5)
Any alien who practices prostitution or is an inmate of a house of
prostitution or is connected with the management of a house of
prostitution, or is a procurer; (6) Any alien who becomes a public charge
within five years after entry from causes not affirmatively shown to have
arisen subsequent to entry; (7) Any alien who remains in the Philippines
inviolation of any limitation or condition under which he was admitted
as a non-immigrant; (8) Any alien who believes in, advises, advocates
or teaches the overthrow by force and violence of the Government of
the Philippines, or of constituted law and authority, or who disbelieves in
or is opposed to organized government or who advises, advocates, or
teaches the assault or assassination of public officials because of their
office, or who advises, advocates, or teaches the unlawful destruction of
property, or who is a member of or affiliated with any organization
entertaining, advocating or teaching such doctrines, or who in any manner
whatsoever lends assistance, financial or otherwise, to the dissemination
of such doctrines; (9) Any alien who commits any of the acts described in
sections [ 45] and [ 46] of this Act, independent of criminal action which
may be brought against him: xx x; (10) Any alien who, at any time within
five years after entry, shall have been convicted of violating the
provisions of the Philippine Commonwealth Act [653], otherwise known as
the Philippine Alien Registration Act of 1941, or who, at any time after
entry, shall have been convicted more than once of violating the provisions
of the same Act;

(11) Any alien who engages in profiteering, hoarding, or

blackmarketing, independent of any criminal action which may be
brought against him; (12) Any alien who is convicted of any offense
penalized under Commonwealth Act [473], otherwise known as
the Revised Naturalization Laws of the Philippines, or any law
relating to acquisition of Philippine citizenship; (13) Any alien who
defrauds his creditor by absconding or alienating properties to
prevent them from, being attached or executed. (Emphasis supplied)

268
Republic Act No. 10173, Sec. 34. According to the provision, "[i]f the
offender is an alien, he or she shall,in addition to the penalties herein
prescribed, be deported without further proceedings after serving the
penalties prescribed."

See: Secretary of Justice v. Lantion, supra note 17. According to the

269

Court: "An equally compelling factor to consider is the understanding of the

parties themselves to the RP-US Extradition Treaty x x x. The rule is
recognized that while courts have the power to interpret treaties, the
meaning given them by the departments of government particularly
charged with their negotiation and enforcement is accorded great weight. x
x x This interpretation by the two governments cannot be given scant
significance. It will be presumptuous for the Court to assume that both
governments did not understand the terms of the treaty they concluded."
(Emphasis supplied)

270
See Status of Forces Agreement of 1993, supra note 70. The
International Law Commission explains that the subsequent practice of
states in the application of the treaty may be taken into account in
ascertaining the parties' agreement in the interpretation of that treaty. This
is "well-established in the jurisprudence of international tribunals" even
before the Vienna Convention on the Law of Treaties was
concluded. See International Law Commission, Draft Articles on the Law of
Treaties with Commentaries,1966(II) Y.B.I.L.C. 187, at 221-222
(citing Russian Claim for Indemnities [Russia/Turkey], XI R.I.A.A. 421, 433
[1912] [Nov. 11]; Competence of the !LO to Regulate Agricultural
Labour, 1922 P.C.1.J. [ser. B] No. 2, 39 [Aug. 12]; Interpretation of Article
3, paragraph 2, of the Treaty of Lausanne, 1925 P.C.l.J. [ser. B] No. 12, 24
[Nov. 21]; Brazilian Loans, 1929 P.C.1.J. (ser. A) No. 21, 119 [Jul. 12];
and Corfu Channel [U.K. v. Albania], 19491.C.J. 4, 25 [Apr. 9]).
271
Lim v. Executive Secretary, supra note 69, at 571-572.

272
Nicolas v. Romulo, supra note 39, at 284.
273
Id.

Lim v. Executive Secretary, supra note 69, at 575; Joint Report of the
274

Committee on Foreign Relations and the Committee on National Defense

and Security reproduced in SENATE OF THE PHILIPPINES, supra note
69, at 206.

275
Status of Forces Agreement of 1993, supra note 70. According to Note
No. 93-2301dated11June1993 of the DFA to the U.S. Embassy, "The
[DFA] xx x has the honor to reaffirm its position that all U.S. military and
civilian personnel present in the Philippines participating in activities
undertaken in relation to the Mutual Defense Treaty will be accorded the
same status as the U.S. Embassy's technical and administrative personnel
who are qualified to enter the Philippines under existing Philippine laws.
The Department further proposes that the procedures as well as the
arrangements for these MDT-related activities are to be mutually agreed
upon by the MDB, subject to the guidelines of the Council of Ministers."

Lim v. Executive Secretary, supra note 69. See also Joint Report of the
276

Committee on Foreign Relations and the Committee on National Defense

and Security reproduced in SENATE OF THE PHILIPPINES, supra note
69, at 230-231.

Joint Report of the Committee on Foreign Relations and the Committee

277

on National Defense and Security reproduced in SENATE OF THE

PHILIPPINES, supra note 69, at 205-206, 231.
278
EDCA, Art. II(I).
279
EDCA, Art. I(3 ).
280
EDCA, Art. III(l ).
281
EDCA, Art. III(4) & (6).

282
EDCA, Art. VI(3).

283
EDCA, Art. VII(l ).
284
EDCA, Art. VII(2).

According to the Agreed Minutes of the Discussion between the former

285

Philippine Vice-President ISecretary of Foreign Affairs Teofisto T.

Guingona, Jr. and U.S. Assistant Secretary of State for East Asian and
Pacific Affairs James Kelly, both countries approved the Terms of
Agreement of the Balikatan exercises. See: rollo (G.R. No. 151445), pp.
99-100.

286
Lim v. ExecuHve Secretary, supra note 69, at 565-566.

287
. Memorandum ofSaguisag et al., pp. 43-46, ro//o (G.R. No. 212426, Vol.
II), pp. 1013-1016.

Concurring and Dissenting Opinion of Justice Teresita J. Leonardo-De

288

Castro, p. 24.

289
Dissenting Opinion of Justice Brion, pp. 48-51.

Aileen S.P. Baviera, Implications of the US-Philippines Enhanced

290

Defense Cooperation Agreement, ASIA PACIFIC BULLETIN No. 292, 9

May 2014.
291
See CONSTITUTION, Art. VII, Sec. 18 in relation to Art. II, Sec. 3.

See Administrative Code of 1987, Book IV (Executive Branch), Title I

292

(Foreign Affairs), Sec. 3(1) in relation to CONSTITUTION, Art. VII, Sec. 1

and Art. II, Sec. 3; Akbayan Citizens Action Party v. Aquino,supra note
15; Pimentel v. Office of the Executive Secretary, supra note 15; Bayan v.
Zamora, supra note 23.
293
Vinuya v. Executive Secretary, supra note 17.
294
Id.
 See generally Joint Report of the Committee on Foreign Relations and
295

the Committee on National Defense and Security reproduced in SENATE

OF THE PHILIPPINES, supra note 69, at 206. According to the report:
"The Mutual Defense Board programs an average of 10 to 12 exercises
annually. Participating U.S. personnel, numbering from 10 to more than
1,000, stay in Philippine territory from four days to four weeks, depending
on the nature of the exercise."

296
Memorandum ofBayan, pp. 47-51, rollo (G.R. No. 212444), pp. 611-615

297
EDCA, Art. III(l).

298
EDCA, Art. IV(4).
299
EDCA, Art. IV(5).

300
Commonwealth Act No. 541.

301
Republic Act No. 10951.
302
Executive Order No. 184 (2015).

Republic Act No. 5487 - The Private Security Agency Law, as amended
303

by P.D. No. 11.

Glenn Defense: SBMA suspension doesn't cover all our

304

functions, RAPPLER, available at <http://www.rapp !er .com/nation/ 16688-

glenn-defense-sbma-suspension-does-not-cover-all-functions> (last visited
3 December 2015).
305
Glenn Defense: SBMA suspension doesn't cover all our
.functions, RAPPLER, available at <http://www.rappler.com/nation/16688-
glenn-defense-sbma-suspension-does-not-cover-all-functions> (last visited
3 December 2015); Norman Bordadora, US Navy contractor liable for
Subic waste dumping,PHILIPPINE DAILY INQUIRER, available at
<http://globalnation.inquirer.net/63765/us-navy-contractorliable-for-subic-
waste-dumping> (last visited 3 December 2015); Matikas Santos, US navy
contractor dumped millions of liters of wastes in Subic, PHILIPPINE DAILY
INQUIRER, available at <http://globalnation.inquirer.net/63649/us-navy-
contractor-dumped-millions-of-liters-of-wastes-in-subic> (last visited 3
December 2015).

Vincent Cabreza, US Embassy says dumping of untreated waste in

306

Subic not condoned, PHILIPPINE DAILY INQUIRER, available at

<http://globalnation.inquirer.net/60255/us-embassy-says-dumping-of-
untreated-waste-in-subic-not-condoned> (last visited 3 December 2015).
307
Robert Gonzaga, Contractor could face sanctions from US navy for
violations, PHILIPPINE DAILY INQUIRER, available at
<http://globalnation.inquirer.net/56622/contractor-could-face-sanctions-
from-us-navy-for-violations> (last visited 3 December 2015).
308
Lim v. Executive Secretary, supra note 69, at 580.
309
See R.A. No. 10591 or the Comprehensive Firearms and Ammunition
Regulation Act. According to Section 4, Article II thereof: In order to
qualify and acquire a license to own and possess a firearm or
firearms and ammunition, the applicant must be a Filipino citizen, at
least twenty-one (21) years old and has gainful work, occupation or
business or has filed an Income Tax Return (ITR) for the preceding year as
proof of income, profession, business or occupation. In addition, the
applicant shall submit the following certification issued by appropriate
authorities attesting the following: x x x x." On the other hand, Section 5
states: "A juridical person maintaining its own security force may be
issued a regular license to own and possess firearms and
ammunition under the following conditions: (a) It must beFilipino-owned
and duly registered with the Securities and Exchange Commission
(SEC); (b) It is current, operational and a continuing concern; (c) It has
completed and submitted all its reportorial requirements to the SEC; and
(d) It has paid all its income taxes for the year, as duly certified by the
Bureau of Internal Revenue. x x x x. Security agencies and LGUs shall be
included in this category of licensed holders but shall be subject to
additional requirements as may be required by the Chief of the PNP."
Finally, Section 22 expresses: "A person arriving in the Philippines who
is legally in possession of any firearm or ammunition in his/her
country of origin and who has declared the existence of the firearm upon
embarkation and disembarkation but whose firearm is not registered in
the Philippines in accordance with this Act shall deposit the same
upon written receipt with the Collector of Customsfor delivery to the
FEO of the PNP for safekeeping, or for the issuance of a permit to
transport if the person is a competitor in a sports shooting competition. If
the importation of the same is allowed and the party in question
desires to obtain a domestic firearm license, the same should be
undertaken in accordance with the provisions of this Act. If no license
is desired or leave to import is not granted, the firearm or ammunition in
question shall remain in the custody of the FEO of the PNP until otherwise
disposed of in accordance with law." (Emphasis supplied)
 Article 40 of the Labor Code, as amended, provides: "Employment
310

permit of non-resident aliens. Anyalien seeking admission to the

Philippines for employment purposes and any domestic or foreign
employer who desires to engage an alien for employment in the
Philippines shall obtain an employment permit from the Department of
Labor. The employment permit may be issued to a non-resident alien or to
the applicant employer after a determination of the non-availability of a
person in the Philippines who is competent, able and willing at the
time of application to perform the services for which the alien is
desired. For an enterprise registered in preferred areas of
investments, said employment permit may be issued upon
recommendation of the government agency charged with the
supervision of said registered enterprise." (Emphasis supplied)
311
Supra notes 263 and 267.

Memorandum ofSaguisag et al., pp. 25-29, rollo (G.R. No. 212426, Vol.
312

11), pp. 995-999.

PH-US MDB and SEB Convenes, DEPARTMENT OF NATIONAL

313

DEFENSE, available at <http://www.dndph.org/press-releases/ph-us-mdb-

and-seb-convenes> (last visited 3 December 2015).

314
EDCA, Art. IV(3).
315
EDCA, Art. IV(3).

316
EDCA, Art. IV(3).

317
EDCA, Art. IV(l).

Such rights gleaned from Title II, Chapter I of the Civil Code
318

are (Cojuangco v. Sandiganbayan, 604 Phil. 670 [2009] ): the right to

possess, to use and enjoy, to abuse or consume, to accessories, to
dispose or alienate, to recover or vindicate, and to the fruits.
319
Memorandum of Saguisag et al., pp. 29-33, rollo (G.R. No. 212426, Vol.
II), pp. 999-1003; Memorandum ofBayan et al., pp. 41-71, rol/o (G.R. No.
212444), pp.605-635.

320
Memorandum ofSaguisag et al., pp. 33-35, rol/o (G.R. No. 212426, Vol.
II), pp. 1003-1005.

321
Id., pp. 1000-1001.
322
Id., p. 1000. EDCA, Arts. I(l)(b), 1(2), 1(3), & IIl(4).
323
Id., p. 1002.
324
See generally CIVIL CODE, Arts. 427-429.

325
Memorandum ofSaguisag et al., pp. 33-35, rollo (G.R. No. 212426, Vol.
II), pp. 1001-1002.

326
Memorandum ofSaguisag et al., pp. 33-35, rollo (G.R. No. 212426, Vol.
II), pp. 1001-1002.

327
CONSTITUTION, Art. XII, Sec. 7.

P.D. No. 1227 - Punishing Unlawful Entry into Any Military Base in the
328

Philippines, Sec. 2.

IV RECORD, CONSTITUTIONAL COMMISSION 648 (15 September

329

1986).

330
R.A. No. 7227.
331
PADUA, supra note 64.

332
EDCA, Art. II(4).
333
Memorandum of OSG, p. 23, rollo (G.R. No. 212426), p. 453.

IV RECORD, CONSTITUTIONAL COMMISSION 628-630 (15

334

September 1986).

335
Id. at 628.

336
Id. at 629.

IV RECORD, CONSTITUTIONAL COMMISSION 630-631 (15

337

September 1986).
338
Id. at 630.

339
Id. at 631.

IV RECORD, CONSTITUTIONAL COMMISSION 632-634 (15

340

September 1986).
341
Id. at 632.

IV RECORD, CONSTITUTIONAL COMMISSION 634-635 (15

342

September 1986).
343
Id. at 634.

IV RECORD, CONSTITUTIONAL COMMISSION 635-636 (15

344

September 1986).
345
Id. at 636.

IV RECORD, CONSTITUTIONAL COMMISSION 637-639 (15

346

September 1986).

347
Id. at 638.

348
Id. at 639.

IV RECORD, CONSTITUTIONAL COMMISSION 640-641 (15

349

September 1986).
350
Id. at 640.

IV RECORD, CONSTITUTIONAL COMMISSION 641-645 (15

351

September 1986).

352
Id. at 643.

353
Id. at 644.

IV RECORD, CONSTITUTIONAL COMMISSION 645-649 (15

354

September 1986).

355
Id. at 645.

IV RECORD, CONSTITUTIONAL COMMISSION 649-652 (15

356

September 1986).
357
Id. at 650.

358
Id. at 651.
359
Id. at 652.
 IV RECORD, CONSTITUTIONAL COMMISSION 652-653 (15
360

September 1986).
361
Id.

IV RECORD, CONSTITUTIONAL COMMISSION 653-654 (15

362

September 1986).
363
Id. at 653.
364
Id. at 654.

365
CIVIL CODE, Art. 419.

366
CIVIL CODE, Art. 420.

367
CIVIL CODE, Art. 433.
368
EDCA, Art. V.

369
EDCA, Art. II(4).

Roman Catholic Apostolic Administrator of Davao, Inc. v. Land

370

Registration Commission, 102 Phil. 596 (1957).

371
EDCA, Art. III(2).

372
EDCA, Art. III(l ).
373
EDCA, Art. III(4).
374
EDCA, Art. III(5).

375
1947 MBA, IIl(2)(a).

v RECORD, CONSTITUTIONAL COMMISSION 240 (30 September

376

1986).

v RECORD, CONSTITUTIONAL COMMISSION 240-241 (30 September

377

1986).
378
Tañada v. Angara, supra note 97.
 Tydings-McDuffie Act, Section IO(a) Pub.L. 73-I27, 48 Stat. 456
379

(enacted 24 March 1934).

BLACK'S LAW DICTIONARY 770 (6th ed. I990). See also J. Carpio's
380

Dissenting Opinion in Liban v. Gordon, 654 Phil. 680 (2011).

381
Memorandum ofSaguisag, p. 56, rollo (G.R. No.2I2426), p. 594.
382
Id. at 596.
383
Id. at 460.

384
G.R. No. 108813, 15 December 1994, 239 SCRA 224, 229.

R.A. No. 6975 -Department of the Interior and Local Government Act of
385

1990, Sec. 86; P.D. No. 531, Secs. 4, 5, and 6.

386
Local Government Code of 1991, Sec. 444.

387
Local Government Code of 1991, Sec. 455.

388
Rollo, (G.R. No. 212426), pp. 515-525.

389
Id. at 597.
390
Id.

391
Id. at 598.
392
Id. at 599.
393
Id. at 599, FN 76

394
Id. at footnote 77.

395
EDCA, preamble.

See: Bayan Muna v. Romulo, supra note 114; Bayan v. Zamora, supra
396

note 23; USAFFE Veterans Ass'n., Inc. v. Treasurer of the Phil., supra note
173; Vienna Convention on the Law of the Treaties, Art. 27 (on internal law
and observance of treaties) in relation to Art. 46 (on provisions of internal
law regarding competence to conclude treaties).
 "Under EDCA, before constructions and other activities can be
397

undertaken, prior consent of the Philippines will have to be secured

through the Mutual Defense Board (MDB) and Security Engagement Board
(SEB) which were established under the MDT and the VF A." . See Q&A
on the Enhanced Defense Cooperation Agreement, OFFICIAL GAZETTE,
available at <http://www.gov.ph/2014/04/28/qna-on-the-enhanced-defense-
cooperation-agreement> (last accessed 3 December 2015).

UNITED STATES DEPARTMENT OF DEFENSE, DOCTRINE FOR THE

398

ARMED FORCES OF THE UNITED STATES: JOINT PUBLICATION 1,

Chap. 1-18 (2013).

399
Id., at Chap. V-6.
400
See id., at Chap. V-2.

401
EDCA, Art. III(4).

402
EDCA, Art. III(4).

Sarmiento v. Mison, supra note 177. The case also formulated this
403

principle as follows: "an express enumeration of subjects excludes others

not enumerated."

404
Rebuttal of Commissioner Nolledo, supra note 362.

Vienna Convention on Diplomatic Relations, Arts. 31-40, 500 U.N.T.S.

405

95 (1961).

406
See BLACK'S LAW DICTIONARY 1523 (9th ed. 2009).

407
See BLACK'S LAW DICTIONARY 927 (9th ed. 2009).
408
EDCA, Article 1(1 )(b ).

409
Laurel v. Misa, 77 Phil. 856 (194 7).

410
EDCA. Art. VI(2).

411
EDCA, Art. VI(3).
412
Liwanagv. Hamill, 98 Phil. 437 (1956).
413
1947 MBA, Art. XIII.
414
Bayan v. Zamora, supra note 23.
415
Memorandum ofSaguisag, p. 72, rollo (G.R. No. 212426), p. 610.
416
Id.

417
Id.

418
Charter of the United Nations, 24 October 1945, 1 UNTS XVI.

Protocol Additional to the Geneva Conventions of 12 August 1949, and

419

relating to the Protection of Victims of International Armed Conflicts

(Protocol I), 1125 U.N.T.S. 3 (1977) [hereinafter Geneva Convention
Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of Non-International
Armed Conflicts (Protocol II), 1125 UNTS 609 (1977).

420
Articles 48, 51(2) and 52(2), Protocol I, supra note 419.

421
1949 Geneva Convention (I) for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75
UNTS 31; 1949 Geneva Convention (II) for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces
at Sea, 12 August 1949, 75 UNTS 85; 1949 Geneva Convention (III)
Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS
135; 1949 Geneva Convention (IV) Relative to the Protection of Civilian
Persons in Time of War, 12 August 1949, 75 UNTS 287; Id.

JOHN WOODCLIFFE, THE PEACETIME USE OF FOREIGN MILITARY

422

INSTALLATIONS UNDER MODERN INTERNATIONAL LAW 30 (1992).

423
Id.
424
Id. at 32.

425
Id.
426
Id.

JEAN-MARIE HENCKAERTS AND LOUISE OOSWALD-BECK,

427

CUSTOMARY INTERNATIONAL HUMANITARIAN LAW- VOLUME I:

RULES 34-36 (2005)
428
Art. 52, Protocol I, supra note 419.
429
Art. 48, Id ..
430
Art. 4., Id.

Memorandum ofSaguisag, pp. 66-70, rol/o (G.R. No. 212426), pp. 604-
431

608.

Article 11(6) thereof provides: "Agreed facilities and areas" means

432

the state owned facilities and areas in the territory of the Republic of
Bulgaria listed in Annex A, and such other state owned facilities and
areas, as may be mutually agreed by the Parties.

Article I(g) thereof provides: "Agreed facilities and locations" means

433

those sites, installations, and infrastructure to which the United States is

authorized access and use by Colombia in connection with activities
carried out within the framework of this Agreement.

Article 2(i) thereof provides: "agreed facilities and areas" shall mean
434

areas, facilities, buildings or structures in the territory of the Republic of

Poland, owned by the Republic of Poland, and used by United States
forces with the consent of the Republic of Poland.

Article I thereof provides: "Agreed Facilities and Areas" means the

435

facilities and areas in the territory of Australia provided by Australia

which may be listed in Annex A appended to this Agreement,and such
other facilities and areas in the territory of Australia as may be provided
by Australia in the future, to which United States Forces, United States
Contractors, dependants, and other United States Government personnel
as mutually agreed, shall have the right to access and use pursuant to
this Agreement.

Article 1(7) thereof provides: "Agreed facilities and areas" means

436

the facilities and areas in the territory of Afghanistan provided by

Afghanistan at the locations listed in Annex A, and such other facilities
and areas in the territory of Afghanistan as may be provided by
Afghanistan in the future, to which United States forces, United States
contractors, United States contractor employees, and others as mutually
agreed, shall have the right to access and use pursuant to this
Agreement.

US-Bulgaria Defense Cooperation Agreement, Arts. II(6) & IV(l); US-

437

Colombia Defense Cooperation Agreement, Art. IV; US-Poland Status of

Forces Agreement, Art. 3(2); US-Australia Force Posture Agreement, Arts.
I, IV;

US-Bulgaria Defense Cooperation Agreement, Art. IV(5); US-Colombia

438

Defense Cooperation Agreement, Art. IV; US-Poland Status of Forces

Agreement, Art. 3(1); US-Australia Force Posture Agreement, Art. IV(7).

US-Bulgaria Defense Cooperation Agreement, Art. IV(7); US-Colombia

439

Defense Cooperation Agreement, Arts. IV(7), XI; US-Poland Status of

Forces Agreement, Art. 3(6); US-Australia Force Posture Agreement, Art.
IV(8).

US-Bulgaria Defense Cooperation Agreement, Arts. II(6), IV(l) & VI(l);

440

US-Colombia Defense Cooperation Agreement, Art. IV(6); US-Poland

Status of Forces Agreement, Art. 4(1); US-Australia Force Posture
Agreement, Art. XIV(l).

US-Bulgaria Defense Cooperation Agreement, Art. IV(8); US-Colombia

441

Defense Cooperation Agreement, Art. IV(4); US-Poland Status of Forces

Agreement, Art. 3(10); US-Australia Force Posture Agreement, Art. X(2).

442
2002 MLSA, Art. III(2); 2007 MLSA, Art. III(2).

443
2002 MLSA, Art. IV(l)(a)(2); 2007 MLSA, Art. IV(l)(a)(2).

444
2002 MLSA, Art. IV(l )(a)(3); 2007 MLSA, Art. IV(l )(a)(3).
445
EDCA, Art. V(I).

446
EDCA, Art. V(2).

447
EDCA, Art. III(1).
448
EDCA, Art. IV(l ).

449
2002 MLSA, Art. IV(l)(a)(2); 2007 MLSA, Art. IV(l)(a)(2).

450
2002 MLSA, Art. IV(l)(a)(3); 2007 MLSA, Art. IV(l)(a)(3).

451
2002 MLSA, Art. IIl(l); 2007 MLSA, Art. III(l).
452
EDCA, Art. IV(l).
453
MDT, Arts. III, IV, and V.
454
Rollo, p. 464.
455
EDCA, Art. IV(6).
456
Rollo, pp. 34-35.

457
Article II, Sec. 8.

458
EDCA. Art. VII(I).
459
National Power Corporation v. Province of Quezon, 610 Phil. 456 (2009).

460
National Power Corporation v. Province of Quezon, supra.

461
EDCA, Art. III(6); Art. IV(2); Art. V(1, 4); Art. VIII(2).

462
Statement of Secretary Albert de/ Rosario before the Permanent Court
of Arbitration, Peace Palace, The Hague, Netherlands, 7 July 2015,
OFFICIAL GAZETTE, available at <http://www.gov.ph/2015/07 /07
/statement-of-secretary-albert-del-rosario-before-the-permanent-court-of-
arbitration-peace-palace-the-hague-netherlands/> (last visited 3 December
2015); Statement on Recent Incidents in the Philippines' Baja de
Masin/oc, 4 February 2015, DEPARTMENT OF FOREIGN AFFAIRS,
available at <http://www.dfa.gov. ph/index. php/newsroom/ dfa-releases/ 5
3 3 7-statement-on-recent-incidents-in-the-ph ilippines-bajo-de-masinloc>
(last visited 21 October 2015).

463
The Republic of the Philippines v. The People's Republic of China, Case
No. 2013-19 (Perm Ct. Arb.) <http://www.pcacases.com/web/view/7> (last
visited 13 October 2015).

Comprehensive Agreement on the Bangsamoro, OFFICIAL GAZETTE,

464

available at <http://www.gov.ph/2014/03/27/document-cab> (last visited 21

October 2015).

465
Frinston Lim, Authorities believe Abu Sayyaf behind abduction of
Filipina, 3 foreigners, 22 September 2015, PHILIPPINE DAILY INQUIRER,
available at <http://globalnation.inquirer.net/l 28739/authorities-believe-
npa-behind-abduction-of-filipina-foreigners (last visited 3 December 2015).

Republic Act No. 10349 (2012); The Philippine Navy, Picture of the
466

Future: The Philippine Navy Briefer,available at

<http://www.navy.mil.ph/downloads/THE%20PHILIPPINE%20NA
VY%20BRIEFER.pdf> (last visited 3 December 2015).
 Joel Locsin, NDRRMC: Yolanda death toll hits 6,300 mark nearly 6
467

months after typhoon, 17 April 2014, GMA NEWS ONLINE

<http://www.gmanetwork.com/news/story/357322/news/nation/ndrrmc-
yolanda-death-toll-hits-6-300-mark-nearly-6-months-after-typhoon> (last
accessed 3 December 2015).

468
Typhoon Yolanda, OFFICIAL GAZETTE, available at
<http://www.gov.ph/crisis-response/updates-typhoon-yolanda/> (last
visited 3 December 2015).

THE DIPLOMATIC POWER

As head of State, the President is the spokesperson of the nation on external affairs. He may deal with
foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign relations.

The power to conclude treaties is however subject to the concurrence of at least two-thirds of all the
Members of the Senate and also of the Supreme Court which has also the power to delcare them
unconstitutional.