G.R. No.

L-10500             June 30, 1959

USAFFE VETERANS ASSOCIATION, INC., plaintiff-appellant,

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

BAYAN v. ZAMORA
G. R. No. 138570
October 10, 2000

Facts:The United States panel met with the Philippine panel to discussed, among others, the possible elements of the
Visiting Forces Agreement (VFA). This resulted to a series of conferences and negotiations which culminated on January
12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively signed by Secretary Siazon
and United States Ambassador Thomas Hubbard.Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27,
1999, the senate approved it by (2/3) votes.

Cause of Action:
Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution is applicable and not Section 21, Article
VII.

Following the argument of the petitioner, under they provision cited, the “foreign military bases, troops, or facilities” may
be allowed in the Philippines unless the following conditions are sufficiently met:
a) It must be a treaty,
b) it must be 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
c) Recognized as such by the other contracting state.

Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for such treaty to
be valid and effective is the concurrence in by at least two-thirds of all the members of the senate.

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

HELD:
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. The Constitution, makes no distinction between “transient” and “permanent.”
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 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.

BAYAN VS ZAMORA

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) vote9 of 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 and Basco vs.
Phil. Amusement and Gaming Corporation,23 where we emphatically held:

"Considering however the importance to the public of the case at bar, and in keeping with the 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 party accepts or
acknowledges the agreement as a treaty.32 To require the other contracting state, the United States of America in this case,
to submit the VFA to the United States Senate for concurrence pursuant to its Constitution,33 is to accord strict meaning to
the phrase.

Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except
where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be
understood in the sense they have in common use.34

Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under
international law, an executive agreement is as binding as a treaty. 35 To be sure, as long as the VFA possesses the elements
of an agreement under international law, the said agreement is to be taken equally as a treaty.

A treaty, as defined by the Vienna Convention on the Law of Treaties, is "an international instrument concluded between
States in written form and governed by international law, whether embodied in a single instrument or in two or more
related instruments, and whatever its particular designation."36 There are many other terms used for a treaty or
international agreement, some of which are: act, protocol, agreement, compromis d’ arbitrage, concordat, convention,
declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have
pointed out that the names or titles of international agreements included under the general term treaty have little or no
legal significance. Certain terms are useful, but they furnish little more than mere description.37
Article 2(2) of the Vienna Convention provides that "the provisions of paragraph 1 regarding the use of terms in the
present Convention are without prejudice to the use of those terms, or to the meanings which may be given to them in the
internal law of the State."

Thus, in international law, there is no difference between treaties and executive agreements in their binding effect upon
states concerned, as long as the negotiating functionaries have remained within their powers. 38 International 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 servanda which preserves
the sanctity of treaties and have been one of the most fundamental principles of positive international law, supported by
the jurisprudence of international tribunals.49

NO GRAVE ABUSE OF DISCRETION

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

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

By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and
authority in the external affairs of the country. In many ways, the President is the chief architect of the 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.1âwphi1 Thus, once the
Senate56 performs that power, or exercises its prerogative within the boundaries prescribed by the Constitution, the
concurrence cannot, in like manner, be viewed to constitute an abuse of power, much less grave abuse thereof. Corollarily,
the Senate, in the exercise of its discretion and acting within the limits of such power, may not be similarly faulted for
having simply performed a task conferred and sanctioned by no less than the fundamental law.

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

SAGUISAG VS OCHOA

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,19 except 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.50 In 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,52 including 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. 97 The expansion of this
power has made the political question doctrine "no longer the insurmountable obstacle to the exercise of judicial power or
the impenetrable shield that protects executive and legislative actions from judicial inquiry or review."98

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

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

1. That there be absolute necessity of deciding a case

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

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

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

5. That the parties are not in estoppel

6. That the Court upholds the presumption of constitutionality

(Emphases supplied)

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

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

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

It must be emphasized that the Senate has already expressed its position through SR 105.108 Through the Resolution, the
Senate has taken a position contrary to that of the OSG. As the body tasked to participate in foreign affairs by ratifying
treaties, its belief that EDCA infringes upon its constitutional role indicates that an actual controversy - albeit brought to
the Court by non-Senators, exists.

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

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

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

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

The question of locus standi or legal standing focuses on the determination of whether those assailing the governmental
act have the right of appearance to bring the matter to the court for adjudication.114 They must show that they have a
personal and substantial interest in the case, such that they have sustained or are in immediate danger of sustaining, some
direct injury as a consequence of the enforcement of the challenged governmental act. 115 Here, "interest" in the question
involved must be material - an interest that is in issue and will be affected by the official act - as distinguished from being
merely incidental or general.116 Clearly, it would be insufficient to show that the law or any governmental act is invalid,
and that petitioners stand to suffer in some indefinite way.117 They must show that they have a particular interest in
bringing the suit, and that they have been or are about to be denied some right or privilege to which they are lawfully
entitled, or that they are about to be subjected to some burden or penalty by reason of the act complained of.118 The reason
why those who challenge the validity of a law or an international agreement are required to allege the existence of a
personal stake in the outcome of the controversy is "to assure the concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional questions."119
The present petitions cannot qualify as citizens', taxpayers', or legislators' suits; the Senate as a body has the requisite
standing, but considering that it has not formally filed a pleading to join the suit, as it merely conveyed to the Supreme
Court its sense that EDCA needs the Senate's concurrence to be valid, petitioners continue to suffer from lack of standing.

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

In claiming that they have legal standing as taxpayers, 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 funds authorized for these
purposes. (Emphases supplied)

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

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

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

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

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

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

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

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

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

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

The OSG, on the other hand, 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;152 the 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 Secretary  and Pimentel v.
Executive Secretary; its overreaching principle was, perhaps, best articulated in (now Chief) Justice Puno's dissent in
Secretary of Justice v. Lantion:
 . . . The conduct of foreign relations is full of complexities and consequences, sometimes with life and
death significance to the nation especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information and can decide with
decisiveness .... It is also the President who possesses the most comprehensive and the most confidential
information about foreign countries for our diplomatic and consular officials regularly brief him on
meaningful events all over the world. He has also unlimited access to ultra-sensitive military intelligence
data. In fine, the presidential role in foreign affairs is dominant and the President is traditionally
accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity
of his actions are adjudged under less stringent standards, lest their judicial repudiation lead to
breach of an international obligation, rupture of state relations, forfeiture of confidence, national
embarrassment and a plethora of other problems with equally undesirable
consequences.169 (Emphases supplied)

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

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

Despite the President's roles as defender of the State and sole authority in foreign relations, the 1987 Constitution
expressly limits his ability in instances when it involves the entry of foreign military bases, troops or facilities. The initial
limitation is found in Section 21 of the provisions on the Executive Department: "No treaty or international agreement
shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate." The specific
limitation is given by Section 25 of the Transitory Provisions, the full text of which reads as follows:

SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United
States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a
majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the
other contracting State.

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

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

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

SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United
States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a
majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the
other contracting State. (Emphases supplied)

In view of this provision, petitioners argue 170 that EDCA must be in the form of a "treaty" duly concurred in by the Senate.
They stress that the Constitution is unambigous in mandating the transmission to the Senate of all international
agreements concluded after the expiration of the MBA in 1991 - agreements that concern the presence of foreign military
bases, troops, or facilities in the country. Accordingly, petitioners maintain that the Executive Department is not given the
choice to conclude agreements like EDCA in the form of an executive agreement.
This is also the view of the Senate, which, through a majority vote of 15 of its members - with 1 against and 2 abstaining -
says in SR 105171 that EDCA must be submitted to the Senate in the form of a treaty for concurrence by at least two-thirds
of all its members.

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

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

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

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

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

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

Note that the provision "shall not be allowed" is a negative injunction. This wording signifies that the President is not
authorized by law to allow foreign military bases, troops, or facilities to enter the Philippines, except under a treaty
concurred in by the Senate. Hence, the constitutionally restricted authority pertains to the entry of the bases, troops, or
facilities, and not to the activities to be done after entry.

Under the principles of constitutional construction, of paramount consideration is the plain meaning of the language
expressed in the Constitution, or the verba legis rule.175 It is presumed that the provisions have been carefully crafted in
order to express the objective it seeks to attain.176 It is incumbent upon the Court to refrain from going beyond the plain
meaning of the words used in the Constitution. It is presumed that the framers and the people meant what they said when
they said it, and that this understanding was reflected in the Constitution and understood by the people in the way it was
meant to be understood when the fundamental law was ordained and promulgated.177 As this Court has often said:

We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is
where we begin. It is to be assumed that the words in which constitutional provisions are couched express the objective
sought to be attained. They are to be given their ordinary meaning except where technical terms are employed  in
which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it
being essential for the rule of law to obtain that it should ever be present in the people's consciousness, its language as
much as possible should be understood in the sense they have in common use. What it says according to the text of
the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate
that the framers and the people mean what they say. Thus, these are the cases where the need for construction is
reduced to a minimum.178 (Emphases supplied)
It is only in those instances in which the constitutional provision is unclear, ambiguous, or silent that further construction
must be done to elicit its meaning.179 In Ang Bagong Bayani-OFW v. Commission on Elections,180 we reiterated this
guiding principle:

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

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

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

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

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

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word "activities" arose
from accident. In our view, it was deliberately made that way to give both parties a certain leeway in negotiation. In this
manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the
joint exercises may include training on new techniques of patrol and surveillance to protect the nation's marine resources,
sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the
building of school houses, medical and humanitarian missions, and the like.

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

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

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

The aforecited Dissenting Opinion of Justice Brion disagrees with the ponencia's application of verba legis construction
to the words of Article XVIII, Section 25.187 It claims that the provision is "neither plain, nor that simple."188 To buttress
its disagreement, the dissent states that the provision refers to a historical incident, which is the expiration of the 1947
MBA.189 Accordingly, this position requires questioning the circumstances that led to the historical event, and the meaning
of the terms under Article XVIII, Section 25.

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

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

As applied, verba legis aids in construing the ordinary meaning of terms. In this case, the phrase being construed is "shall
not be allowed in the Philippines" and not the preceding one referring to "the expiration in 1991 of the Agreement
between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military
bases, troops, or facilities." It is explicit in the wording of the provision itself that any interpretation goes beyond the text
itself and into the discussion of the framers, the context of the Constitutional Commission's time of drafting, and the
history of the 1947 MBA. Without reference to these factors, a reader would not understand those terms. However, for the
phrase "shall not be allowed in the Philippines," there is no need for such reference. The law is clear. No less than the
Senate understood this when it ratified the VFA.

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

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

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

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

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

As the sole organ of our foreign 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. 205 They are no longer limited to the
traditional subjects that are usually covered by executive agreements as identified in Eastern Sea Trading. The Court
thoroughly discussed this matter in the following manner:

The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea

Trading is not cast in stone. x x x.

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

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

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

Treaties are formal documents which require ratification with the approval of two-thirds of the Senate. Executive

agreements become binding through executive action without the need of a vote by the Senate or by Congress.

xxxx

[T]he right of the Executive to enter into binding agreements without the necessity of subsequent Congressional
approval has been confirmed by long usage. From the earliest days of our history we have entered into executive
agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights,
trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of
these has never been seriously questioned by our courts. (Emphases Supplied)

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

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

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

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

MR. CONCEPCION: Executive agreements are generally made to implement a treaty already enforced or to

determine the details for the implementation of the treaty. We are speaking of executive agreements, not international
agreements.

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

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

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

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

The right of the executive to enter into binding agreements without the necessity of subsequent Congressional
approval has been confirmed by long usage. From the earliest days of our history, we have entered into executive
agreements covering such subjects as commercial and consular relations, most favored nation rights, patent rights,
trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of this
has never been seriously questioned by our Courts.

Agreements with respect to the registration of trademarks have been concluded by the executive of various countries
under the Act of Congress of March 3, 1881 (21 Stat. 502) . . . International agreements involving political issues or
changes of national policy and those involving international agreements of a permanent character usually take the
form of treaties. But international agreements embodying adjustments of detail, carrying out well established national
policies and traditions and those involving arrangements of a more or less temporary nature usually take the form
of executive agreements.

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

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

MS. AQUINO: And it may include commercial agreements which are executive agreements essentially but which are
proceeding from the authorization of Congress. If that is our understanding, then I am willing to withdraw that
amendment.
FR. BERNAS: If it is with prior authorization of Congress, then it does not need subsequent concurrence by
Congress.

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

MR. TINGSON: Madam President.

THE PRESIDENT: Is Commissioner Aquino satisfied?

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

xxx

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

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

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

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

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

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

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

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

xxx

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

FR. BERNAS: Yes. (Emphases Supplied)

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

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

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

However, this principle does not mean that the domestic law distinguishing treaties, international
agreements, and executive agreements is relegated to a mere variation in form, or that the constitutional requirement of
Senate concurrence is demoted to an optional constitutional directive. There remain two very important features that
distinguish treaties from executive agreements and translate them into terms of art in the domestic setting.

First, executive agreements must remain traceable to an express or implied authorization under the Constitution, statutes,
or treaties. The absence of these precedents puts the validity and effectivity of executive agreements under serious
question for the main function of the Executive is to enforce the Constitution and the laws enacted by the Legislature, not
to defeat or interfere in the performance of these rules.214 In turn, executive agreements cannot create new international
obligations that are not expressly allowed or reasonably implied in the law they purport to implement.

Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are products of the acts of
the Executive and the Senate215 unlike executive agreements, which are solely executive actions.216 Because 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 banc discussed this intrinsic presidential
prerogative as follows:

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

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

xxxx

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

xxxx

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

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

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

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

Accordingly, in the exercise of its power of judicial review, the Court does not look into whether an international
agreement should be in the form of a treaty or an executive agreement, save in cases in which the Constitution or a statute
requires otherwise. Rather, in view of the vast constitutional powers and prerogatives granted to the President in the field
of foreign affairs, the task of the Court is to determine whether the international agreement is consistent with the
applicable limitations.

6. Executive agreements may cover the matter of foreign military forces if it merely involves detail adjustments.

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

In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an executive agreement in an attempt to adjust the
details of a provision of the VFA. The Philippines and the U.S. entered into the Romulo-Kenney Agreement, which
undertook to clarify the detention of a U.S. Armed Forces member, whose case was pending appeal after his conviction by
a trial court for the crime of rape. In testing the validity of the latter agreement, the Court precisely alluded to one of the
inherent limitations of an executive agreement: it cannot go beyond the terms of the treaty it purports to implement. It was
eventually ruled that the Romulo-Kenney Agreement was "not in accord" with the VFA, since the former was squarely
inconsistent with a provision in the treaty requiring that the detention be "by Philippine authorities." Consequently, the
Court ordered the Secretary of Foreign Affairs to comply with the VFA and "forthwith negotiate with the United States
representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V,
Sec. 10 of the VFA. "233

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

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

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

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

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

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

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

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

In Lim, the Terms of Reference of the joint military exercises was scrutinized by studying "the framework of the treaty
antecedents to which the Philippines bound itself,"235 i.e., the MDT and the VFA. The Court proceeded to examine the
extent of the term "activities" as contemplated in Articles 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"242 and
follows with an enumeration of the differences between EDCA and the VFA. While these arguments will be rebutted
more fully further on, an initial answer can already be given to each of the concerns raised by his dissent.
The first difference emphasized is that EDCA does not only regulate visits as the VFA does, but allows temporary
stationing on a rotational basis of U.S. military personnel and their contractors in physical locations with permanent
facilities and pre-positioned military materiel.

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

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

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

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

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

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

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

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

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

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

The fifth difference highlighted by the Dissenting Opinion is that the VFA does not have provisions that may be construed
as a restriction on or modification of obligations found in existing statues, including the jurisdiction of courts, local
autonomy, and taxation. Implied in this argument is that EDCA contains such restrictions or modifications.249

This last argument cannot be accepted in view of the clear provisions of EDCA. Both the VFA and EDCA ensure
Philippine jurisdiction in all instances contemplated by both agreements, with the exception of those outlined by the VFA
in Articles III-VI. In the VFA, taxes are clearly waived whereas in EDCA, taxes are assumed by the government as will
be discussed later on. This fact does not, therefore, produce a diminution of jurisdiction on the part of the Philippines, but
rather a recognition of sovereignty and the rights that attend it, some of which may be waived as in the cases under
Articles III-VI of the VFA.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. The term "civilian personnel" refers to individuals who are neither nationals of nor ordinarily

resident in the Philippines and who are employed by the United States armed forces or who are
accompanying the United States armed forces, such as employees of the American Red Cross and
the United Services Organization.258

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

1. The Government of the Philippines shall facilitate the admission of United States personnel and their

departure from the Philippines in connection with activities covered by this agreement.

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

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

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

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

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

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

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

Nowhere in EDCA are U.S. contractors guaranteed immediate admission into the Philippines. Articles III and IV, in fact,
merely grant them the right of access to, and the authority to conduct certain activities within the Agreed Locations. Since
Article II(3) of EDCA specifically leaves out U.S. contractors from the coverage of the VFA, they shall not be granted
the same entry accommodations and privileges as those enjoyed by U.S. military and civilian personnel under the VFA.
Consequently, it is neither mandatory nor obligatory on the part of the Philippines to admit U.S. contractors into the
country.259 We emphasize that the admission of aliens into Philippine territory is "a matter of pure permission and simple
tolerance which creates no obligation on the part of the government to permit them to stay." 260 Unlike U.S. personnel who
are accorded entry accommodations, U.S. contractors are subject to Philippine immigration laws. 261 The latter must
comply with our visa and passport 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 Act 267 and the Data
Privacy Act.268 In contrast, Article 111(5) of the VFA requires a request for removal from the Philippine government
before a member of the U.S. personnel may be "dispos[ed] xx x outside of the Philippines."

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

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

MUTUAL DEFENSE TREATY

Article II

In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-help
and mutual aid will maintain and develop their individual and collective capacity to resist armed attack.

Article III

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

VISITING FORCES AGREEMENT

Preamble

xxx

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

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

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

xxx

Article I - Definitions

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

Article II - Respect for Law

It is the duty of United States personnel to respect the laws of the Republic of the Philippines and to abstain from
any activity inconsistent with the spirit of this agreement, and, in particular, from any political activity in the
Philippines. The Government of the United States shall take all measures within its authority to ensure that this is done.

Article VII - Importation and Exportation

1. United States Government equipment, materials, supplies, and other property imported into or acquired in the
Philippines by or on behalf of the United States armed forces in connection with activities to which this agreement
applies, shall be free of all Philippine duties, taxes and other similar charges. Title to such property shall remain with the
United States, which may remove such property from the Philippines at any time, free from export duties, taxes, and other
similar charges. x x x.

Article VIII - Movement of Vessels and Aircraft

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

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

Manifest in these provisions is the abundance of references to the creation of further "implementing arrangements"
including the identification of "activities [to be] approved by the Philippine Government." To determine the parameters of
these implementing arrangements and activities, we referred to the content, purpose, and framework of the MDT and the
VFA.

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

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

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

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

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

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word "activities"
arose from accident. In our view, it was deliberately made that way to give both parties a certain leeway in
negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military.
As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the nation's
marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action
projects such as the building of school houses, medical and humanitarian missions, and the like.

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

The joint report of the Senate committees on foreign relations and on national defense and security further explains the
wide range and variety of activities contemplated in the VFA, and how these activities shall be identified:277

These joint exercises envisioned in the VFA are not limited to combat-related activities; they have a wide range and
variety. They include exercises that will reinforce the AFP's ability to acquire new techniques of patrol and
surveillance to protect the country's maritime resources; sea-search and rescue operations to assist ships in distress;
and disaster-relief operations to aid the civilian victims of natural calamities, such as earthquakes, typhoons and tidal
waves.

xxxx

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

xxxx

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

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

EDCA seeks to be an instrument that enumerates the Philippine-approved activities of U.S. personnel referred to in the
VFA. EDCA allows U.S. military and civilian personnel to perform "activities approved by the Philippines, as those terms
are defined in the VFA"278 and clarifies that these activities include those conducted within the Agreed Locations:
1. Security cooperation exercises; joint and combined training activities; humanitarian assistance and disaster relief
activities; and such other activities as may be agreed upon by the 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 Reference 285 mentioned in Lim. Both
EDCA and the Terms of Reference authorize the U.S. to perform the following: (a) participate in training exercises; (b)
retain command over their forces; (c) establish temporary structures in the country; (d) share in the use of their respective
resources, equipment and other assets; and (e) exercise their right to self-defense. We quote the relevant portion of the
Terms and Conditions as follows:286

I. POLICY LEVEL

xxxx

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

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

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

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

xx xx.

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

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

1. TRAINING

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

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

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

2. ADMINISTRATION & LOGISTICS

xxxx

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

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

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

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

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

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

Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more permanent" in nature.289 However,
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 security 300 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 Relations EDCA

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

The Government of the Republic of Affirming that the Parties share an understanding
the Philippines (hereinafter referred to as the for the United States not to establish a
Philippines) grants to the Government of permanent military presence or base in the
the United States of America (hereinafter territory of the Philippines;
referred to as the United States) the right to
retain the use of the bases in the xxxx
Philippines listed in Annex A attached hereto.
Recognizing that all United States access to and
1947 MBA, Art. XVII(2): use of facilities and areas will be at the
invitation of the Philippines and with full
All buildings and structures which are erected respect for the Philippine Constitution and
by the United States in the bases shall be Philippine laws;
the property of the United States and may be
removed by it before the expiration of this x x x x
Agreement or the earlier relinquishment of the
base on which the structures are situated. There EDCA, Art. II(4):
shall be no obligation on the part of the
Philippines or of the United States to rebuild or "Agreed Locations" means facilities and
repair any destruction or damage inflicted from areas that are provided by the Government of
any cause whatsoever on any of the said the Philippines through the AFP and that United
buildings or structures owned or used by the States forces, United States contractors, and
United States in the bases. x x x x. others as mutually agreed, shall have the right to
access and use pursuant to this Agreement. Such
1946 Treaty of Gen. Relations, Art. I: Agreed Locations may be listed in an annex to
be appended to this Agreement, and may be
The United States of America agrees to further described in implementing arrangements.
withdraw and surrender, and does hereby
withdraw and surrender, all rights of EDCA, Art. V:
possession, supervision, jurisdiction, control
or sovereignty existing and exercised by the 1. The Philippines shall retain ownership of
United States of America in and over the and title to Agreed Locations.
territory and the people of the Philippine
Islands, except the use of such bases, x x x x
necessary appurtenances to such bases, and
the rights incident thereto, as the United States
4. All buildings, non-relocatable structures,
of America, by agreement with the Republic of
and assemblies affixed to the land in the
the Philippines may deem necessary to retain for
Agreed Locations, including ones altered or
the mutual protection of the Republic of the
improved by United States forces, remain the
Philippines and of the United States of America.
property of the Philippines. Permanent
x x x.
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 Relations EDCA

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

The Philippines agree to enter into Recognizing that all United States access to and

negotiations with the United States at the
latter's request, to permit the United States to
expand such bases, to exchange such bases for
other bases, to acquire additional bases, or
relinquish rights to bases, as any of such
exigencies may be required by military
necessity.
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.
use of facilities and areas will be at the
invitation of the Philippines and with full
respect for the Philippine Constitution and
Philippine laws;
xxxx
EDCA. Art. II(4):
"Agreed Locations" means facilities and
areas that are provided by the Government of
the Philippines through the AFP and that United
States forces, United States contractors, and
others as mutually agreed, shall have the right
to access and use pursuant to this Agreement.
Such Agreed Locations may be listed in an
annex to be appended to this Agreement, and
may be further described in implementing
arrangements.

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

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

1947 MBA EDCA

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

The United States shall, subject to previous With consideration of the views of the Parties,

agreement with the Philippines, have the right to
use land and coastal sea areas of appropriate
size and location for periodic maneuvers, for
additional staging areas, bombing and
gunnery ranges, and for such intermediate
airfields as may be required for safe and
efficient air operations. Operations in such areas
shall be carried on with due regard and
safeguards for the public safety.
the Philippines hereby authorizes and agrees
that United States forces, United States
contractors, and vehicles, vessels, and aircraft
operated by or for United States forces may
conduct the following activities with respect to
Agreed Locations: training; transit; support and
related activities; refueling of aircraft; bunkering
of vessels; temporary maintenance of vehicles,
vessels, and aircraft; temporary accommodation
of personnel; communications; prepositioning of
 1947 MBA, Art.I(2): equipment, supplies, and materiel; deploying
forces and materiel; and such other activities as
The Philippines agrees to permit the United the Parties may agree.
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.

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

1947 MBA EDCA

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

Such rights, power and authority shall

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

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

1947 MBA EDCA

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

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

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

1947 MBA EDCA

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

It is mutually agreed that the United States 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 be applicable from time to
time to the military forces of the Philippines.
When requested, the Designated Authority of
the Philippines shall assist in facilitating transit
or temporary access by United States forces to
public land and facilities (including roads, ports,
and airfields), including those owned or
controlled by local governments, and to other
land and facilities (including roads, ports, and
airfields).

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

1947 MBA EDCA

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

Such rights, power and authority shall
include, inter alia, the right, power and
authority: x x x x to construct, install,
maintain, and employ on any base any
type of facilities, weapons, substance, device,
vessel or vehicle on or under the ground, in the
air or on or under the water that may be requisite
or appropriate, including meteorological
systems, aerial and water navigation lights, radio
and radar apparatus and electronic devices, of
any desired power, type of emission and
frequency.
The Philippines hereby grants to the United
States, through bilateral security mechanisms,
such as the MDB and SEB, operational control
of Agreed Locations for construction activities
and authority to undertake such activities on,
and make alterations and improvements to,
Agreed Locations. United States forces shall
consult on issues regarding such construction,
alterations, and improvements based on the
Parties' shared intent that the technical
requirements and construction standards of any
such projects undertaken by or on behalf of
United States forces should be consistent with
the requirements and standards of both Parties.

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

1947 MBA EDCA

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

Whenever it is necessary to acquire by

condemnation or expropriation proceedings

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

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

1947 MBA EDCA

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

It is mutually agreed that the United States 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 by
the Philippine authorities. Such persons, other
than members of the United States armed forces
in uniform, shall present their travel documents
to the appropriate Philippine authorities for
visas, it being understood that no objection will
be made to their travel to the Philippines as
non-immigrants.
1. "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.
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 included as part of
the definition of United States personnel in this
Agreement, including within the context of the
VFA.
 

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

1947 MBA EDCA

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

The Philippines consents that the United

States shall have the right to exercise

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

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

1947 MBA EDCA

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

It is mutually agreed that the United States

shall have the right to establish on bases, free

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

In sum, EDCA is a far cry from a basing agreement as was understood by the people at the time that the 1987 Constitution
was adopted.

Nevertheless, a comprehensive review of what the Constitution means by "foreign military bases" and "facilities" is
required before EDCA can be deemed to have passed judicial scrutiny.

c. The meaning of military facilities and bases

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

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

Section 2 of the law defines the term in this manner: "'[M]ilitary base' as used in this decree means any military, air, naval,
or coast guard reservation, base, fort, camp, arsenal, yard, station, or installation in the Philippines."
Commissioner Tadeo, in presenting his objections to U.S. presence in the Philippines before the 1986 Constitutional
Commission, listed the areas that he considered as military bases:

1,000 hectares Camp O'Donnel

20,000 hectares Crow Valley Weapon's Range

55,000 hectares Clark Air Base

150 hectares Wallace Air Station

400 hectares John Hay Air Station

15,000 hectares Subic Naval Base

1,000 hectares San Miguel Naval Communication

750 hectares Radio Transmitter in Capas, Tarlac

900 hectares Radio Bigot Annex at Bamban, Tarlac329

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

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

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

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

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

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

By definition, Agreed Locations are

facilities and areas that are provided by the Government of the Philippines through the AFP and that United States forces,
United States contractors, and others as mutually agreed, shall have the right to access and use pursuant to this
Agreement. Such Agreed Locations may be listed in an annex to be appended to this Agreement, and may be further
described in implementing arrangements.332
Preliminarily, respondent already claims that the proviso that the Philippines shall retain ownership of and title to the
Agreed Locations means that EDCA is "consistent with Article II of the VFA which recognizes Philippine sovereignty
and jurisdiction over locations within Philippine territory.333

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

Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized by the Philippines to "conduct the
following activities: "training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary
maintenance of vehicles, vessels and aircraft; temporary accommodation of personnel; communications; prepositioning of
equipment, supplies and materiel; deploying forces and materiel; and such other activities as the Parties may agree."

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

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

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

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

SPEECH OF COMMISSIONER REGALADO334

xxxx

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

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

xxxx

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

xxxx

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

xxxx

SPEECH OF COMMISSIONER SUAREZ337

MR. SUAREZ: Thank you, Madam President.

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

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

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

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

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

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

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

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

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

xxxx

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

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

SPEECH OF COMMISSIONER BENNAGEN340

xxxx

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

SPEECH OF COMMISSIONER BACANI342

xxxx

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

SPEECH OF COMMISSIONER JAMIR344

xxxx

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

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

SPEECH OF COMMISSIONER TINGSON346

xxxx

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

xxxx

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

SPEECH OF COMMISSIONER 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.1âwphi1 The essence of that independence is self-governance and self-control.379 Independence 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.410 Hence,
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. 425 Unsurprisingly, 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."443 These logistic supplies, support, and services include temporary use of "nonlethal
items of military equipment which are not designated as significant military equipment on the U.S. Munitions List, during
an approved activity."444 The first Mutual Logistics Support Agreement has lapsed, while the second one has been
extended until 2017 without any formal objection before this Court from the Senate or any of its members.

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

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

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

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

8. Others issues and concerns raised

A point was raised during the oral arguments that the language of the MDT only refers to mutual help and defense in the
Pacific area.453 We believe that any discussion of the activities to be undertaken under EDCA vis-a-vis the defense of
areas beyond the Pacific is premature. We note that a proper petition on that issue must be filed before we rule thereon.
We also note that none of the petitions or memoranda has attempted to discuss this issue, except only to theorize that the
U.S. will not come to our aid in the event of an attack outside of the Pacific. This is a matter of policy and is beyond the
scope of this judicial review.

In reference to the issue on telecommunications, suffice it to say that the initial impression of the facility adverted to does
appear to be one of those that require a public franchise by way of congressional action under Section 11, Article XII of
the Constitution. As respondents submit, however, the system referred to in the agreement does not provide
telecommunications services to the public for compensation.454 It is clear from Article VIl(2) of EDCA that the
telecommunication system is solely for the use of the U.S. and not the public in general, and that this system will not
interfere with that which local operators use. Consequently, a public franchise is no longer necessary.

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

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

RAMON A. GONZALES, petitioner,
vs.
RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary of Defense,
PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA, as Secretary of Commerce and Industry,
and SALVADOR MARINO, Secretary of Justice, respondents.
Ramon A. Gonzales in his own behalf as petitioner.
Office of the Solicitor General and Estanislao Fernandez for respondents.

CONCEPCION, J.:

This is an original action for prohibition with preliminary injunction.

It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the importation of 67,000 tons of
foreign rice to be purchased from private sources, and created a rice procurement committee composed of the other
respondents herein1 for the implementation of said proposed importation. Thereupon, or September 25, 1963, herein
petitioner, Ramon A. Gonzales — a rice planter, and president of the Iloilo Palay and Corn Planters Association, whose
members are, likewise, engaged in the production of rice and corn — filed the petition herein, averring that, in making or
attempting to make said importation of foreign rice, the aforementioned respondents "are acting without jurisdiction or in
excess of jurisdiction", because Republic Act No. 3452 which allegedly repeals or amends Republic Act No. 220 —
explicitly prohibits the importation of rice and corn "the Rice and Corn Administration or any other government agency;"
that petitioner has no other plain, speedy and adequate remedy in the ordinary course of law; and that a preliminary
injunction is necessary for the preservation of the rights of the parties during the pendency this case and to prevent the
judgment therein from coming ineffectual. Petitioner prayed, therefore, that said petition be given due course; that a writ
of preliminary injunction be forthwith issued restraining respondent their agents or representatives from implementing the
decision of the Executive Secretary to import the aforementioned foreign rice; and that, after due hearing, judgment be
rendered making said injunction permanent.

Forthwith, respondents were required to file their answer to the petition which they did, and petitioner's pray for a writ of
preliminary injunction was set for hearing at which both parties appeared and argued orally. Moreover, a memorandum
was filed, shortly thereafter, by the respondents. Considering, later on, that the resolution said incident may require some
pronouncements that would be more appropriate in a decision on the merits of the case, the same was set for hearing on
the merits thereafter. The parties, however, waived the right to argue orally, although counsel for respondents filed their
memoranda.

I. Sufficiency of petitioner's interest.

Respondents maintain that the status of petitioner as a rice planter does not give him sufficient interest to file the petition
herein and secure the relief therein prayed for. We find no merit in this pretense. Apart from prohibiting the importation of
rice and corn "by the Rice and Corn Administration or any other government agency". Republic Act No. 3452 declares, in
Section 1 thereof, that "the policy of the Government" is to "engage in the purchase of these basic foods directly from
those tenants, farmers, growers, producers and landowners in the Philippines who wish to dispose of their products at a
price that will afford them a fair and just return for their labor and capital investment. ... ." Pursuant to this provision,
petitioner, as a planter with a rice land of substantial proportion,2 is entitled to a chance to sell to the Government the rice
it now seeks to buy abroad. Moreover, since the purchase of said commodity will have to be effected with public funds
mainly raised by taxation, and as a rice producer and landowner petitioner must necessarily be a taxpayer, it follows that
he has sufficient personality and interest to seek judicial assistance with a view to restraining what he believes to be an
attempt to unlawfully disburse said funds.

II. Exhaustion of administrative remedies.

Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted all administrative remedies
available to him before coming to court". We have already held, however, that the principle requiring the previous
exhaustion of administrative remedies is not applicable where the question in dispute is purely a legal one", 3 or where the
controverted act is "patently illegal" or was performed without jurisdiction or in excess of jurisdiction, 4 or where the
respondent is a department secretary, whose acts as an alter-ego of the President bear the implied or assumed approval of
the latter,5 unless actually disapproved by him,6 or where there are circumstances indicating the urgency of judicial
intervention.7 The case at bar fails under each one of the foregoing exceptions to the general rule. Respondents' contention
is, therefore, untenable.

III. Merits of petitioner's cause of action.

Respondents question the sufficiency of petitioner's cause of action upon the theory that the proposed importation in
question is not governed by Republic Acts Nos. 2207 and 3452, but was authorized by the President as Commander-in-
Chief "for military stock pile purposes" in the exercise of his alleged authority under Section 2 of Commonwealth Act No.
1;8 that in cases of necessity, the President "or his subordinates may take such preventive measure for the restoration of
good order and maintenance of peace"; and that, as Commander-in-Chief of our armed forces, "the President ... is duty-
bound to prepare for the challenge of threats of war or emergency without waiting for any special authority".

Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by petitioner herein - on
which our view need not be expressed — we are unanimously of the opinion - assuming that said Republic Act No. 2207
is still in force — that the two Acts are applicable to the proposed importation in question because the language of said
laws is such as to include within the purview thereof all importations of rice and corn into the Philippines". Pursuant to
Republic Act No. 2207, "it shall be unlawful for any person, association, corporation or government agency to import rice
and corn into any point in the Philippines", although, by way of exception, it adds, that "the President of the
Philippines may authorize the importation of these commodities through any government agency that he may designate",
is the conditions prescribed in Section 2 of said Act are present. Similarly, Republic Act No. 3452 explicitly enjoins "the
Rice and Corn Administration or any government agency" from importing rice and corn.

Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452, prohibiting the importation of rice
and corn by any "government agency", do not apply to importations "made by the Government itself", because the latter is
not a "government agency". This theory is devoid of merit. The Department of National Defense and the Armed Forces of
the Philippines, as well as respondents herein, and each and every officer and employee of our Government, our
government agencies and/or agents. The applicability of said laws even to importations by the Government as such,
becomes more apparent when we consider that:

1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President of the Philippines" and,
hence, by or on behalf of the Government of the Philippines;

2. Immediately after enjoining the Rice and Corn administration and any other government agency from importing rice
and corn, Section 10 of Republic Act No. 3452 adds "that the importation of rice and corn is left to private parties upon
payment of the corresponding taxes", thus indicating that only "private parties" may import rice under its provisions; and

3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than five (5) years for those
who shall violate any provision of Republic Act No. 3452 or any rule and regulation promulgated pursuant thereto,
Section 15 of said Act provides that "if the offender is a public official and/or employees", he shall be subject to the
additional penalty specified therein. A public official is an officer of the Government itself, as distinguished from officers
or employees of instrumentalities of the Government. Hence, the duly authorized acts of the former are those of the
Government, unlike those of a government instrumentality which may have a personality of its own, distinct and separate
from that of the Government, as such. The provisions of Republic Act No. 2207 are, in this respect, even more explicit.
Section 3 thereof provides a similar additional penalty for any "officer or employee of the Government" who "violates,
abets or tolerates the violation of any provision" of said Act. Hence, the intent to apply the same to transactions made by
the very government is patent.

Indeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed in Commonwealth Act
No. 138, entitled "An Act to give native products and domestic entities the preference in the purchase of articles for the
Government." Pursuant to Section 1 thereof:

The Purchase and Equipment Division of the Government of the Philippines and other officers and employees of
the municipal and provincial governments and the Government of the Philippines and of chartered cities, boards,
commissions, bureaus, departments, offices, agencies, branches, and bodies of any description, including
government-owned companies, authorized to requisition, purchase, or contract or make disbursements for articles,
materials, and supplies for public use, public buildings, or public works shall give preference to materials ...
produced ... in the Philippines or in the United States, and to domestic entities, subject to the conditions
hereinbelow specified. (Emphasis supplied.)
Under this provision, in all purchases by the Government, including those made by and/or for the armed
forces, preference shall be given to materials produced in the Philippines. The importation involved in the case at bar
violates this general policy of our Government, aside from the provisions of Republic Acts Nos. 2207 and 3452.

The attempt to justify the proposed importation by invoking reasons of national security — predicated upon the
"worsening situation in Laos and Vietnam", and "the recent tension created by the Malaysia problem" - and the alleged
powers of the President as Commander-in-Chief of all armed forces in the Philippines, under Section 2 of the National
Defense Act (Commonwealth Act No. 1), overlooks the fact that the protection of local planters of rice and corn in a
manner that would foster and accelerate self-sufficiency in the local production of said commodities constitutes a factor
that is vital to our ability to meet possible national emergency. Even if the intent in importing goods in anticipation of
such emergency were to bolster up that ability, the latter would, instead, be impaired if the importation were so made as to
discourage our farmers from engaging in the production of rice.

Besides, the stockpiling of rice and corn for purpose of national security and/or national emergency is within the purview
of Republic Act No. 3452. Section 3 thereof expressly authorizes the Rice and Corn Administration "to accumulate stocks
as a national reserve in such quantities as it may deem proper and necessary to meet any contingencies". Moreover, it
ordains that "the buffer stocks held as a national reserve ... be deposited by the administration throughout the country
under the proper dispersal plans ... and may be released only upon the occurrence of calamities or emergencies ...".
(Emphasis applied.)

Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so much, are not self-
executory. They merely outline the general objectives of said legislation. The means for the attainment of those objectives
are subject to congressional legislation. Thus, the conditions under which the services of citizens, as indicated in said
Section 2, may be availed of, are provided for in Sections 3, 4 and 51 to 88 of said Commonwealth Act No. 1. Similarly,
Section 5 thereof specifies the manner in which resources necessary for our national defense may be secured by the
Government of the Philippines, but only "during a national mobilization",9 which does not exist. Inferentially, therefore,
in the absence of a national mobilization, said resources shall be produced in such manner as Congress may by other laws
provide from time to time. Insofar as rice and corn are concerned, Republic Acts Nos. 2207 and 3452, and
Commonwealth Act No. 138 are such laws.

Respondents cite Corwin in support of their pretense, but in vain. An examination of the work cited 10 shows that Corwin
referred to the powers of the President during "war time" 11 or when he has placed the country or a part thereof under
"martial law".12 Since neither condition obtains in the case at bar, said work merely proves that respondents' theory, if
accepted, would, in effect, place the Philippines under martial law, without a declaration of the Executive to that effect.
What is worse, it would keep us perpetually under martial law.

It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207 and 3452, it should,
nevertheless, be permitted because "it redounds to the benefit of the people". Salus populi est suprema lex, it is said.

If there were a local shortage of rice, the argument might have some value. But the respondents, as officials of this
Government, have expressly affirmed again and again that there is no rice shortage. And the importation is avowedly for
stockpile of the Army — not the civilian population.

But let us follow the respondents' trend of thought. It has a more serious implication that appears on the surface. It implies
that if an executive officer believes that compliance with a certain statute will not benefit the people, he is at liberty to
disregard it. That idea must be rejected - we still live under a rule of law.

And then, "the people" are either producers or consumers. Now — as respondents explicitly admit — Republic Acts Nos.
2207 and 3452 were approved by the Legislature for the benefit of producers and consumers, i.e., the people, it must
follow that the welfare of the people lies precisely in the compliance with said Acts.

It is not for respondent executive officers now to set their own opinions against that of the Legislature, and adopt means or
ways to set those Acts at naught. Anyway, those laws permit importation — but under certain conditions, which have not
been, and should be complied with.
IV. The contracts with Vietnam and Burma —

It is lastly contended that the Government of the Philippines has already entered into two (2) contracts for the Purchase of
rice, one with the Republic of Vietnam, and another with the Government of Burma; that these contracts constitute valid
executive agreements under international law; that such agreements became binding effective upon the signing thereof by
representatives the parties thereto; that in case of conflict between Republic Acts Nos. 2207 and 3452 on the one hand,
and aforementioned contracts, on the other, the latter should prevail, because, if a treaty and a statute are inconsistent with
each other, the conflict must be resolved — under the American jurisprudence — in favor of the one which is latest in
point of time; that petitioner herein assails the validity of acts of the Executive relative to foreign relations in the conduct
of which the Supreme Court cannot interfere; and the aforementioned contracts have already been consummated, the
Government of the Philippines having already paid the price of the rice involved therein through irrevocable letters of
credit in favor of the sell of the said commodity. We find no merit in this pretense.

The Court is not satisfied that the status of said tracts as alleged executive agreements has been sufficiently established.
The parties to said contracts do not pear to have regarded the same as executive agreements. But, even assuming that said
contracts may properly considered as executive agreements, the same are unlawful, as well as null and void, from a
constitutional viewpoint, said agreements being inconsistent with the provisions of Republic Acts Nos. 2207 and 3452.
Although the President may, under the American constitutional system enter into executive agreements without previous
legislative authority, he may not, by executive agreement, enter into a transaction which is prohibited by statutes enacted
prior thereto. Under the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The
former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto
power. He may not defeat legislative enactments that have acquired the status of law, by indirectly repealing the same
through an executive agreement providing for the performance of the very act prohibited by said laws.

The American theory to the effect that, in the event of conflict between a treaty and a statute, the one which is latest in
point of time shall prevail, is not applicable to the case at bar, for respondents not only admit, but, also insist that the
contracts adverted to are not treaties. Said theory may be justified upon the ground that treaties to which the United States
is signatory require the advice and consent of its Senate, and, hence, of a branch of the legislative department. No such
justification can be given as regards executive agreements not authorized by previous legislation, without completely
upsetting the principle of separation of powers and the system of checks and balances which are fundamental in our
constitutional set up and that of the United States.

As regards the question whether an international agreement may be invalidated by our courts, suffice it to say that the
Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article VIII thereof,
that the Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse, modify, or affirm on
appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior
courts in — (1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or
regulation is in question". In other words, our Constitution authorizes the nullification of a treaty, not only when it
conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.

The alleged consummation of the aforementioned contracts with Vietnam and Burma does not render this case academic,
Republic Act No. 2207 enjoins our Government not from entering into contracts for the purchase of rice, but
from importing rice, except under the conditions Prescribed in said Act. Upon the other hand, Republic Act No. 3452 has
two (2) main features, namely: (a) it requires the Government to purchase rice and corn directly from our local planters,
growers or landowners; and (b) it prohibits importations of rice by the Government, and leaves such importations to
private parties. The pivotal issue in this case is whether the proposed importation — which has not been consummated as
yet — is legally feasible.

Lastly, a judicial declaration of illegality of the proposed importation would not compel our Government to default in the
performance of such obligations as it may have contracted with the sellers of the rice in question, because, aside from the
fact that said obligations may be complied with without importing the commodity into the Philippines, the proposed
importation may still be legalized by complying with the provisions of the aforementioned laws.

V. The writ of preliminary injunction.

The members of the Court have divergent opinions on the question whether or not respondents herein should be enjoined
from implementing the aforementioned proposed importation. However, the majority favors the negative view, for which
reason the injunction prayed for cannot be granted.

WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had and has no power to
authorize the importation in question; that he exceeded his jurisdiction in granting said authority; said importation is not
sanctioned by law and is contrary to its provisions; and that, for lack of the requisite majority, the injunction prayed for
must be and is, accordingly denied. It is so ordered.

JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,

vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.

Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner.

The Solicitor General for respondent.

FERNANDO, C.J.:ñé+.£ªwph!1

This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries of the
protected area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion by respondent
Mayor Ramon Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit
from the City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon,
starting from the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks away. Once there,
and in an open space of public property, a short program would be held. 2 During the course of the oral argument, 3 it was
stated that after the delivery of two brief speeches, a petition based on the resolution adopted on the last day by the
International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases held in
Manila, would be presented to a representative of the Embassy or any of its personnel who may be there so that it may be
delivered to the United States Ambassador. The march would be attended by the local and foreign participants of such
conference. There was likewise an assurance in the petition that in the exercise of the constitutional rights to free speech
and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and rally." 4

The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on October 20,
1983 was due to the fact that as of that date, petitioner had not been informed of any action taken on his request on behalf
of the organization to hold a rally. On October 25, 1983, the answer of respondent Mayor was filed on his behalf by
Assistant Solicitor General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner
was unaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police
intelligence reports which strongly militate against the advisability of issuing such permit at this time and at the place
applied for." 6 To be more specific, reference was made to persistent intelligence reports affirm[ing] the plans of
subversive/criminal elements to infiltrate and/or disrupt any assembly or congregations where a large number of people is
expected to attend." 7 Respondent Mayor suggested, however, in accordance with the recommendation of the police
authorities, that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum or any other enclosed area
where the safety of the participants themselves and the general public may be ensured." 8

The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then deliberated on
the matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory injunction prayed for
on the ground that there was no showing of the existence of a clear and present danger of a substantive evil that could
justify the denial of a permit. On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the
ground that the holding of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the City of
Manila. The last sentence of such minute resolution reads: "This resolution is without prejudice to a more extended
opinion." 9 Hence this detailed exposition of the Court's stand on the matter.
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful
assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the
freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for
redress of grievances." 10 Free speech, like free press, may be Identified with the liberty to discuss publicly and truthfully
any matter of public concern without censorship or punishment. 11 There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel suits, 12 prosecution for sedition, 13 or action for
damages, 14 or contempt proceedings 15 unless there be a clear and present danger of a substantive evil that [the State] has
a right to prevent." 16 Freedom of assembly connotes the right people to meet peaceably for consultation and discussion of
matters Of public concern.17 It is entitled to be accorded the utmost deference and respect. It is hot to be limited, much less
denied, except on a showing, as 's the case with freedom of expression, of a clear and present danger of a substantive evil
that the state has a right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had occasion to stress that it is
a necessary consequence of our republican institutions and complements the right of free speech. 19 To paraphrase opinion
of Justice Rutledge speaking for the majority of the American Supreme Court Thomas v. Collins, 20 it was not by accident
or coincidence that the right to freedom of speech and of the press were toupled in a single guarantee with the and to
petition the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these
rights, while not Identical, are inseparable. the every case, therefo re there is a limitation placed on the exercise of this
right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification
for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of
a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest. 21

2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this
excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child
of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful
means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes
of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can
lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be
sheltered by the Constitution." 22 What was rightfully stressed is the abandonment of reason, the utterance, whether verbal
or printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety
valve, allowing parties the opportunity to give vent to their-views, even if contrary to the prevailing climate of opinion.
For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only
alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right to be heard of the
person who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact that there may be
something worth hearing from the dissenter. That is to ensure a true ferment of Ideas. There are, of course, well-defined
limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach
rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. resort to
force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an
early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is rather to be expected that more or
less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because
on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more
intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible
followers." 24 It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts
of vandalism must be avoided, To give free rein to one's destructive urges is to call for condemnation. It is to make a
mockery of the high estate occupied by intellectual liberty in our scheme of values.

3. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of
Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality
opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public
places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a
citizen of the United States to use the streets and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general
comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be
abridged or denied. 26 The above excerpt was quoted with approval in Primicias v. Fugoso. 27 Primicias made explicit what
was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision, where this Court categorically affirmed that plazas or
parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-
municipality. Reference was made to such plaza "being a promenade for public use," 29 which certainly is not the only
purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the or oposed
march and rally starting from a public dark that is the Luneta.

4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy, hardly two block-
away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then
Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court
categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox vs. State of New Hampshire,
312 U.S., 569. In that case, the statute of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or
procession upon any ground abutting thereon, shall 'De permitted unless a special license therefor shall first be explained
from the selectmen of the town or from licensing committee,' was construed by the Supreme Court of New Hampshire as
not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And the
Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the
State Supreme Court, held that 'a statute requiring persons using the public streets for a parade or procession to procure a
special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of
freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly
limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a
view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not
invested with arbitrary discretion to issue or refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in a
subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the existence of an
organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted
abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people
in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most
familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is
designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of
some civil right which in other circumstances would be entitled to protection." 31

5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted, would have arisen. So,
too, if the march would end at another park. As previously mentioned though, there would be a short program upon
reaching the public space between the two gates of the United States Embassy at Roxas Boulevard. That would be
followed by the handing over of a petition based on the resolution adopted at the closing session of the Anti-Bases
Coalition. The Philippines is a signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It was
concurred in by the then Philippine Senate on May 3, 1965 and the instrument of ratification was signed by the President
on October 11, 1965, and was thereafter deposited with the Secretary General of the United Nations on November 15. As
of that date then, it was binding on the Philippines. The second paragraph of the Article 22 reads: "2. The receiving State
is under a special duty to take appropriate steps to protect the premises of the mission against any intrusion or damage and
to prevent any disturbance of the peace of the mission or impairment of its dignity. " 32 The Constitution "adopts the
generally accepted principles of international law as part of the law of the land. ..." 33 To the extent that the Vienna
Convention is a restatement of the generally accepted principles of international law, it should be a part of the law of the
land. 34 That being the case, if there were a clear and present danger of any intrusion or damage, or disturbance of the
peace of the mission, or impairment of its dignity, there would be a justification for the denial of the permit insofar as the
terminal point would be the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila
prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign
mission or chancery and for other purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation as a
defense is understandable but not decisive, in view of the primacy accorded the constitutional rights of free speech and
peaceable assembly. Even if shown then to be applicable, that question the confronts this Court.

6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment must be confined
within the limits of previous decisions. The law declared on past occasions is, on the whole, a safe guide, So it has been
here. Hence, as noted, on the afternoon of the hearing, October 25, 1983, this Court issued the minute resolution granting
the mandatory injunction allowing the proposed march and rally scheduled for the next day. That conclusion was
inevitable ill the absence of a clear and present danger of a substantive, evil to a legitimate public interest. There was no
justification then to deny the exercise of the constitutional rights of tree speech and peaceable assembly. These rights are
assured by our Constitution and the Universal Declaration of Human Rights. 35 The participants to such assembly,
composed primarily of those in attendance at the International Conference for General Disbarmament, World Peace and
the Removal of All Foreign Military Bases would start from the Luneta. proceeding through Roxas Boulevard to the gates
of the United States Embassy located at the same street. To repeat, it is settled law that as to public places, especially so as
to parks and streets, there is freedom of access. Nor is their use dependent on who is the applicant for the permit, whether
an individual or a group. If it were, then the freedom of access becomes discriminatory access, giving rise to an equal
protection question. The principle under American doctrines was given utterance by Chief Justice Hughes in these words:
"The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under
which the meeting is held but as to its purpose; not as to The relations of the speakers, but whether their utterances
transcend the bounds of the freedom of speech which the Constitution protects." 36 There could be danger to public peace
and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only
the guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of
discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While
prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given
all the relevant circumstances, still the assumption — especially so where the assembly is scheduled for a specific public
— place is that the permit must be for the assembly being held there. The exercise of such a right, in the language of
Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in
some other place." 37

7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang

Pilipino (PMP.) v. Bagatsing,  39 called for application. While the General rule is that a permit should recognize the right
of the applicants to hold their assembly at a public place of their choice, another place may be designated by the licensing
authority if it be shown that there is a clear and present danger of a substantive evil if no such change were made. In the
Navarro and the Pagkakaisa decisions, this Court was persuaded that the clear and present danger test was satisfied. The
present situation is quite different. Hence the decision reached by the Court. The mere assertion that subversives may
infiltrate the ranks of the demonstrators does not suffice. Not that it should be overlooked. There was in this case,
however, the assurance of General Narciso Cabrera, Superintendent, Western Police District, Metropolitan Police Force,
that the police force is in a position to cope with such emergency should it arise That is to comply with its duty to extend
protection to the participants of such peaceable assembly. Also from him came the commendable admission that there
were the least five previous demonstrations at the Bayview hotel Area and Plaza Ferguson in front of the United States
Embassy where no untoward event occurred. It was made clear by petitioner, through counsel, that no act offensive to the
dignity of the United States Mission in the Philippines would take place and that, as mentioned at the outset of this
opinion, "all the necessary steps would be taken by it 'to ensure a peaceful march and rally.' " 40 Assistant Solicitor
General Montenegro expressed the view that the presence of policemen may in itself be a provocation. It is a sufficient
answer that they should stay at a discreet distance, but ever ready and alert to cope with any contingency. There is no need
to repeat what was pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of the city authorities to
provide the proper police protection to those exercising their right to peaceable assembly and freedom of expression.

8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing authority of the date,
the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the
one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public
official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another
public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the
standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive
evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so minded, then, can have recourse to the proper judicial authority.
Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly stressed that on the judiciary, — even more so than on the other
departments — rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights.
No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Justice
Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the
scales of justice on the side of such rights, enjoying as they do precedence and primacy. Clearly then, to the extent that
there may be inconsistencies between this resolution and that of Navarro v. Villegas, that case is pro tanto modified. So it
was made clear in the original resolution of October 25, 1983.

9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila prohibiting the
holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or
chancery and for other purposes. It is to be admitted that it finds support In the previously quoted Article 22 of the Vienna
Convention on Diplomatic Relations. There was no showing, however, that the distance between the chancery and the
embassy gate is less than 500 feet. Even if it could be shown that such a condition is satisfied. it does not follow that
respondent Mayor could legally act the way he did. The validity of his denial of the permit sought could still be
challenged. It could be argued that a case of unconstitutional application of such ordinance to the exercise of the right of
peaceable assembly presents itself. As in this case there was no proof that the distance is less than 500 feet, the need to
pass on that issue was obviated, Should it come, then the qualification and observation of Justices Makasiar and Plana
certainly cannot be summarily brushed aside. The high estate accorded the rights to free speech and peaceable assembly
demands nothing less.

10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of the permit sought and
order the respondent official, to grant it. Nonetheless, as there was urgency in this case, the proposed march and rally
being scheduled for the next day after the hearing, this Court. in the exercise of its conceded authority, granted the
mandatory injunction in the resolution of October 25, 1983. It may be noted that the peaceful character of the peace march
and rally on October 26 was not marred by any untoward incident. So it has been in other assemblies held elsewhere. It is
quite reassuring such that both on the part of the national government and the citizens, reason and moderation have
prevailed. That is as it should be.

WHEREFORE, the mandatory injunction prayed for is granted. No costs.

SECRETARY OF JUSTICE, petitioner,
vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B.
JIMENEZ, respondents.

MELO, J.:

The individual citizen is but a speck of particle or molecule vis-à-vis the vast and overwhelming powers of government.
His only guarantee against oppression and tyranny are his fundamental liberties under the Bill of Rights which shield him
in times of need. The Court is now called to decide whether to uphold a citizen's basic due process rights, or the
government's ironclad duties under a treaty. The bugle sounds and this Court must once again act as the faithful guardian
of the fundamental writ.

The petition at our doorstep is cast against the following factual backdrop:

On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing the Procedure
for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decree is founded on: the
doctrine of incorporation under the Constitution; the mutual concern for the suppression of crime both in the state where it
was committed and the state where the criminal may have escaped; the extradition treaty with the Republic of Indonesia
and the intention of the Philippines to enter into similar treaties with other interested countries; and the need for rules to
guide the executive department and the courts in the proper implementation of said treaties.

On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic of the
Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines and the
Government of the United States of America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by
way of Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed its concurrence in
the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents accompanying
an extradition request upon certification by the principal diplomatic or consular officer of the requested state resident in
the Requesting State).
On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S. Note Verbale No.
0522 containing a request for the extradition of private respondent Mark Jimenez to the United States. Attached to the
Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court, Southern District of
Florida, and other supporting documents for said extradition. Based on the papers submitted, private respondent appears to
be charged in the United States with violation of the following provisions of the United States Code (USC):

A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum Penalty
— 5 years on each count);

B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty — 5 years on each count);

C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty — 5 years on each
count);

D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty — 5 years on each count);

E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty — less
than one year).

(p. 14, Rollo.)

On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of attorneys to take
charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel began
with the "technical evaluation and assessment" of the extradition request and the documents in support thereof. The panel
found that the "official English translation of some documents in Spanish were not attached to the request and that there
are some other matters that needed to be addressed" (p. 15, Rollo).

Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a letter dated July
1, 1999 addressed to petitioner requesting copies of the official extradition request from the U.S. Government, as well as
all documents and papers submitted therewith; and that he be given ample time to comment on the request after he shall
have received copies of the requested papers. Private respondent also requested that the proceedings on the matter be held
in abeyance in the meantime.

Later, private respondent requested that preliminary, he be given at least a copy of, or access to, the request of the United
States Government, and after receiving a copy of the Diplomatic Note, a period of time to amplify on his request.

In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but received by
private respondent only on August 4, 1999), denied the foregoing requests for the following reasons:

1. We find it premature to furnish you with copies of the extradition request and supporting documents from the
United States Government, pending evaluation by this Department of the sufficiency of the extradition documents
submitted in accordance with the provisions of the extradition treaty and our extradition law. Article 7 of the
Extradition Treaty between the Philippines and the United States enumerates the documentary requirements and
establishes the procedures under which the documents submitted shall be received and admitted as evidence.
Evidentiary requirements under our domestic law are also set forth in Section 4 of P.D. No. 1069.

Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to
preliminary investigation of criminal cases. We merely determine whether the procedures and requirements under
the relevant law and treaty have been complied with by the Requesting Government. The constitutionally
guaranteed rights of the accused in all criminal prosecutions are therefore not available.

It is only after the filing of the petition for extradition when the person sought to be extradited will be furnished
by the court with copies of the petition, request and extradition documents and this Department will not pose any
objection to a request for ample time to evaluate said documents.
 2. The formal request for extradition of the United States contains grand jury information and documents obtained
through grand jury process covered by strict secrecy rules under United States law. The United States had to
secure orders from the concerned District Courts authorizing the United States to disclose certain grand jury
information to Philippine government and law enforcement personnel for the purpose of extradition of Mr.
Jimenez. Any further disclosure of the said information is not authorized by the United States District Courts. In
this particular extradition request the United States Government requested the Philippine Government to prevent
unauthorized disclosure of the subject information. This Department's denial of your request is consistent with
Article 7 of the RP-US Extradition Treaty which provides that the Philippine Government must represent the
interests of the United States in any proceedings arising out of a request for extradition. The Department of Justice
under P.D. No. 1069 is the counsel of the foreign governments in all extradition requests.

3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition request.
Article 26 of the Vienna Convention on the Law of Treaties, to which we are a party provides that "[E]very treaty
in force is binding upon the parties to it and must be performed by them in good faith". Extradition is a tool of
criminal law enforcement and to be effective, requests for extradition or surrender of accused or convicted
persons must be processed expeditiously.

(pp. 77-78, Rollo.)

Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court of the
National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the
Director of the National Bureau of Investigation, for mandamus (to compel herein petitioner to furnish private respondent
the extradition documents, to give him access thereto, and to afford him an opportunity to comment on, or oppose, the
extradition request, and thereafter to evaluate the request impartially, fairly and objectively); certiorari (to set aside herein
petitioner's letter dated July 13, 1999); and prohibition (to restrain petitioner from considering the extradition request and
from filing an extradition petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from
performing any act directed to the extradition of private respondent to the United States), with an application for the
issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-105, Rollo).

The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 of said regional
trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion.

After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own behalf, moved
that he be given ample time to file a memorandum, but the same was denied.

On August 10, 1999, respondent judge issued an order dated the previous day, disposing:

WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of
Foreign Affairs and the Director of the National Bureau of Investigation, their agents and/or representatives to
maintain the status quo by refraining from committing the acts complained of; from conducting further
proceedings in connection with the request of the United States Government for the extradition of the petitioner;
from filing the corresponding Petition with a Regional Trial court; and from performing any act directed to the
extradition of the petitioner to the United States, for a period of twenty (20) days from service on respondents of
this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.

The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the counsels
for the parties herein, is set on August 17, 1999 at 9:00 o'clock in the morning. The respondents are, likewise,
ordered to file their written comment and/or opposition to the issuance of a Preliminary Injunction on or before
said date.

SO ORDERED.

(pp. 110-111, Rollo.)

Forthwith, petitioner initiated the instant proceedings, arguing that:

 PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE
TEMPORARY RESTRAINING ORDER BECAUSE:

I.

BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED

OF, I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL
EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN
OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE MAIN PRAYER
FOR A WRIT OF MANDAMUS IN THE PETITION FOR MANDAMUS, CERTIORARI AND PROHIBITION
WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF
THE MANDAMUS ISSUES;

II.

PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE
EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW;

III.

THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, FORMALLY

AND SUBSTANTIALLY DEFICIENT; AND

IV.

PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND ENFORCEMENT,

AND WILL NOT SUFFER ANY IRREPARABLE INJURY.

(pp. 19-20, Rollo.)

On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for, was a
temporary restraining order (TRO) providing:

NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondent
Judge Ralph C. Lantion, your agents, representatives or any person or persons acting in your place or stead are
hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated August 9, 1999 issued by
public respondent in Civil Case No. 99-94684.

GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this 17th
day of August 1999.

(pp. 120-121, Rollo.)

The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their respective
memoranda.

From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a review of these
issues as well as the extensive arguments of both parties, compel us to delineate the focal point raised by the pleadings:
During the evaluation stage of the extradition proceedings, is private respondent entitled to the two basic due process
rights of notice and hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot and
academic (the issues of which are substantially the same as those before us now), while a negative resolution would call
for the immediate lifting of the TRO issued by this Court dated August 24, 1999, thus allowing petitioner to fast-track the
process leading to the filing of the extradition petition with the proper regional trial court. Corollarily, in the event that
private respondent is adjudged entitled to basic due process rights at the evaluation stage of the extradition proceedings,
would this entitlement constitute a breach of the legal commitments and obligations of the Philippine Government under
the RP-US Extradition Treaty? And assuming that the result would indeed be a breach, is there any conflict between
private respondent's basic due process rights and the provisions of the RP-US Extradition Treaty?

The issues having transcendental importance, the Court has elected to go directly into the substantive merits of the case,
brushing aside peripheral procedural matters which concern the proceedings in Civil Case No. 99-94684, particularly the
propriety of the filing of the petition therein, and of the issuance of the TRO of August 17, 1999 by the trial court.

To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which was executed
only on November 13, 1994, ushered into force the implementing provisions of Presidential Decree No. 1069, also called
as the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal of an accused from the
Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or
government to hold him in connection with any criminal investigation directed against him or the execution of a penalty
imposed on him under the penal or criminal law of the requesting state or government." The portions of the Decree
relevant to the instant case which involves a charged and not convicted individual, are abstracted as follows:

The Extradition Request

The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of Foreign Affairs, and
shall be accompanied by:

1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of the
Requesting State having jurisdiction over the matter, or some other instruments having equivalent legal force;

2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of
the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and
place of the commission of these acts;

3. The text of the applicable law or a statement of the contents of said law, and the designation or description of
the offense by the law, sufficient for evaluation of the request; and

4. Such other documents or information in support of the request.

(Sec. 4. Presidential Decree No. 1069.)

Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently provides

. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this
law and the relevant treaty or convention, he shall forward the request together with the related documents to the
Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the
case.

The above provision shows only too clearly that the executive authority given the task of evaluating the sufficiency of the
request and the supporting documents is the Secretary of Foreign Affairs. What then is the coverage of this task?

In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority must ascertain
whether or not the request is supported by:

1. Documents, statements, or other types of information which describe the identity and probable location of the
person sought;

2. A statement of the facts of the offense and the procedural history of the case;

3. A statement of the provisions of the law describing the essential elements of the offense for which extradition is
requested;
 4. A statement of the provisions of law describing the punishment for the offense;

5. A statement of the provisions of the law describing any time limit on the prosecution or the execution of
punishment for the offense;

6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said Article, as
applicable.

(Paragraph 2, Article 7, Presidential Decree No. 1069.)

7. Such evidence as, according to the law of the Requested State, would provide probable cause for his arrest and
committal for trial if the offense had been committed there;

8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and

9. A copy of the charging document.

(Paragraph 3, ibid.)

The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents received in
support of the request had been certified by the principal diplomatic or consular officer of the Requested State resident in
the Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No. 951309 from the Department of
Foreign Affairs).

In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive authority
of the Requested State determines that the request is politically motivated, or that the offense is a military offense which is
not punishable under non-military penal legislation."

The Extradition Petition

Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are
sufficient and complete in form and substance, he shall deliver the same to the Secretary of Justice, who shall immediately
designate and authorize an attorney in his office to take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The
lawyer designated shall then file a written petition with the proper regional trial court of the province or city, with a prayer
that the court take the extradition request under consideration (Paragraph [2], ibid.).

The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as practicable,
issue an order summoning the prospective extraditee to appear and to answer the petition on the day and hour fixed in the
order. The judge may issue a warrant of arrest if it appears that the immediate arrest and temporary detention of the
accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the
prospective extraditee.

The Extradition Hearing

The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a special
proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of the extradition petition, the
provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the proceedings,
shall apply. During the hearing, Section 8 of the Decree provides that the attorney having charge of the case may, upon
application by the Requesting State, represent the latter throughout the proceedings.

Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the reasons therefor
upon a showing of the existence of a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is
appealable to the Court of Appeals, whose decision shall be final and immediately executory (Section 12, ibid.). The
provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in the
aforementioned appeal, except for the required 15-day period to file brief (Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the petition is extraditable based on the application of
the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition Treaty. The trial court also
determines whether or not the offense for which extradition is requested is a political one (Paragraph [1], Article 3, RP-US
Extradition Treaty).1âwphi1.nêt

With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself: What is the
nature of the role of the Department of Justice at the evaluation stage of the extradition proceedings?

A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the extradition
petition after the request and all the supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the
latter official who is authorized to evaluate the extradition papers, to assure their sufficiency, and under Paragraph [3],
Article 3 of the Treaty, to determine whether or not the request is politically motivated, or that the offense is a military
offense which is not punishable under non-military penal legislation. Ipso facto, as expressly provided in Paragraph [1],
Section 5 of the Extradition Law, the Secretary of Justice has the ministerial duty of filing the extradition papers.

However, looking at the factual milieu of the case before us, it would appear that there was failure to abide by the
provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to the
Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the Department of Justice
received the request, apparently without the Department of Foreign Affairs discharging its duty of thoroughly evaluating
the same and its accompanying documents. The statement of an assistant secretary at the Department of Foreign Affairs
that his Department, in this regard, is merely acting as a post office, for which reason he simply forwarded the request to
the Department of Justice, indicates the magnitude of the error of the Department of Foreign Affairs in taking lightly its
responsibilities. Thereafter, the Department of Justice took it upon itself to determine the completeness of the documents
and to evaluate the same to find out whether they comply with the requirements laid down in the Extradition Law and the
RP-US Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of Justice had no
obligation to evaluate the extradition documents, the Department also had to go over them so as to be able to prepare an
extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private respondent insisted
on the following; (1) the right to be furnished the request and the supporting papers; (2) the right to be heard which
consists in having a reasonable period of time to oppose the request, and to present evidence in support of the opposition;
and (3) that the evaluation proceedings be held in abeyance pending the filing of private respondent's opposition to the
request.

The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers and the other
enlarging its commission. The Department of Foreign Affairs, moreover, has, through the Solicitor General, filed a
manifestation that it is adopting the instant petition as its own, indirectly conveying the message that if it were to evaluate
the extradition request, it would not allow private respondent to participate in the process of evaluation.

Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly
reviewed the extradition request and supporting documents and that it arrived at a well-founded judgment that the request
and its annexed documents satisfy the requirements of law. The Secretary of Justice, eminent as he is in the field of law,
could not privately review the papers all by himself. He had to officially constitute a panel of attorneys. How then could
the DFA Secretary or his undersecretary, in less than one day, make the more authoritative determination?

The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui generis. It is not a
criminal investigation, but it is also erroneous to say that it is purely an exercise of ministerial functions. At such stage,
the executive authority has the power: (a) to make a technical assessment of the completeness and sufficiency of the
extradition papers; (b) to outrightly deny the request if on its face and on the face of the supporting documents the crimes
indicated are not extraditable; and (c) to make a determination whether or not the request is politically motivated, or that
the offense is a military one which is not punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29;
Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as an
investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body's
quasi-judicial power.

In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining facts
based upon the evidence presented; and (c) rendering an order or decision supported by the facts proved (De Leon,
Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power,
which is also known as examining or investigatory power, is one or the determinative powers of an administrative body
which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This
power allows the administrative body to inspect the records and premises, and investigate the activities, of persons or
entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of information by means or accounts, records,
reports, testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64).

The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in an
administrative agency's performance of its rule-making or quasi-judicial functions. Notably, investigation is indispensable
to prosecution.

In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of an
investigatory body with the sole power of investigation. It does not exercise judicial functions and its power is limited to
investigating the facts and making findings in respect thereto. The Court laid down the test of determining whether an
administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise
of power and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the only purpose for
investigation is to evaluate evidence submitted before it based on the facts and circumstances presented to it, and if the
agency is not authorized to make a final pronouncement affecting the parties, then there is an absence of judicial
discretion and judgment.

The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents. The
body has no power to adjudicate in regard to the rights and obligations of both the Requesting State and the prospective
extraditee. Its only power is to determine whether the papers comply with the requirements of the law and the treaty and,
therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial and not final. The body
has no power to determine whether or not the extradition should be effected. That is the role of the court. The body's
power is limited to an initial finding of whether or not the extradition petition can be filed in court.

It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by certain
peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result in the
deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages: First, the provisional
arrest of the prospective extraditee pending the submission of the request. This is so because the Treaty provides that in
case of urgency, a contracting party may request the provisional arrest of the person sought pending presentation of the
request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be automatically discharged after 60 days if no
request is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after which the
arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the
provisions only mean that once a request is forwarded to the Requested State, the prospective extraditee may be
continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will
only be discharged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flight
from the Requested State. Second, the temporary arrest of the prospective extraditee during the pendency of the
extradition petition in court (Section 6, Presidential Decree No. 1069).

Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. It is not
only an imagined threat to his liberty, but a very imminent one.

Because of these possible consequences, we conclude that the evaluation process is akin to an administrative agency
conducting an investigative proceeding, the consequences of which are essentially criminal since such technical
assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a prospective extraditee.
As described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78, Rollo). In essence, therefore, the
evaluation process partakes of the nature of a criminal investigation. In a number of cases, we had occasion to make
available to a respondent in an administrative case or investigation certain constitutional rights that are ordinarily
available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there
are rights formerly available only at the trial stage that had been advanced to an earlier stage in the proceedings, such as
the right to counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S.
478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).

In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-incrimination under
Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to
administrative proceedings which possess a criminal or penal aspect, such as an administrative investigation of a licensed
physician who is charged with immorality, which could result in his loss of the privilege to practice medicine if found
guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of
one's license as a medical practitioner, is an even greater deprivation than forfeiture of property.

Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent which was filed
under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the investigation may result in
forfeiture of property, the administrative proceedings are deemed criminal or penal, and such forfeiture partakes the nature
of a penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing
American jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If the proceeding is
under a statute such that if an indictment is presented the forfeiture can be included in the criminal case, such proceeding
is criminal in nature, although it may be civil in form; and where it must be gathered from the statute that the action is
meant to be criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not involve the
conviction of the wrongdoer for the offense charged, the proceeding is civil in nature.

The cases mentioned above refer to an impending threat of deprivation of one's property or property right. No less is this
true, but even more so in the case before us, involving as it does the possible deprivation of liberty, which, based on the
hierarchy of constitutionally protected rights, is placed second only to life itself and enjoys precedence over property, for
while forfeited property can be returned or replaced, the time spent in incarceration is irretrievable and beyond
recompense.

By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a foreign country,
thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the evaluation procedure is akin to a
preliminary investigation since both procedures may have the same result — the arrest and imprisonment of the
respondent or the person charged. Similar to the evaluation stage of extradition proceedings, a preliminary investigation,
which may result in the filing of an information against the respondent, can possibly lead to his arrest, and to the
deprivation of his liberty.

Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's Memorandum) that the
extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not well-taken. Wright is not
authority for petitioner's conclusion that his preliminary processing is not akin to a preliminary investigation. The
characterization of a treaty in Wright was in reference to the applicability of the prohibition against an ex post facto law. It
had nothing to do with the denial of the right to notice, information, and hearing.

As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public authority, whether
sanctioned by age or custom, or newly devised in the discretion of the legislative power, in furtherance of the general
public good, which regards and preserved these principles of liberty and justice, must be held to be due process of law"
(Hurtado vs. California, 110 U.S. 516). Compliance with due process requirements cannot be deemed non-compliance
with treaty commitments.

The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their
respective jurisdictions. At the same time, both States accord common due process protection to their respective citizens.

The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language
and terminology, but more importantly, they are alike in what their respective Supreme Courts have expounded as the
spirit with which the provisions are informed and impressed, the elasticity in their interpretation, their dynamic and
resilient character which make them capable of meeting every modern problem, and their having been designed from
earliest time to the present to meet the exigencies of an undefined and expanding future. The requirements of due process
are interpreted in both the United States and the Philippines as not denying to the law the capacity for progress and
improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have
the meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the
decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the
sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila, 20 SCRA 849
[1967]). It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden vs.
Hardy, 169 U.S. 366).
Due process is comprised of two components — substantive due process which requires the intrinsic validity of the law in
interfering with the rights of the person to his life, liberty, or property, and procedural due process which consists of the
two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and competent tribunal
(Cruz, Constitutional Law, 1993 Ed., pp. 102-106).

True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in criminal and civil
proceedings, but in administrative proceedings as well. Non-observance of these rights will invalidate the proceedings.
Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the
right to appear therein and present their side and to refute the position of the opposing parties (Cruz, Phil. Administrative
Law, 1996 ed., p. 64).

In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the Rules of
Court guarantees the respondent's basic due process rights, granting him the right to be furnished a copy of the complaint,
the affidavits, and other supporting documents, and the right to submit counter-affidavits and other supporting documents
within ten days from receipt thereof. Moreover, the respondent shall have the right to examine all other evidence
submitted by the complainant.

These twin rights may, however, be considered dispensable in certain instances, such as:

1. In proceeding where there is an urgent need for immediate action, like the summary abatement of a
nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative
charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters
showing obscene movies or like establishments which are immediate threats to public health and decency, and the
cancellation of a passport of a person sought for criminal prosecution;

2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from
enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as the
summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary
appointee; and

3. Where the twin rights have previously been offered but the right to exercise them had not been claimed.

Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the extradition
proceedings fall under any of the described situations mentioned above?

Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy considering that the
subject treaty involves the U.S. Government.

American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition Clause
in the U.S. Constitution (Art. IV, §2 cl 2), and international extradition proceedings. In interstate rendition or extradition,
the governor of the asylum state has the duty to deliver the fugitive to the demanding state. The Extradition Clause and the
implementing statute are given a liberal construction to carry out their manifest purpose, which is to effect the return as
swiftly as possible of persons for trial to the state in which they have been charged with crime (31A Am Jur 2d 754-755).
In order to achieve extradition of an alleged fugitive, the requisition papers or the demand must be in proper form, and all
the elements or jurisdictional facts essential to the extradition must appear on the face of the papers, such as the allegation
that the person demanded was in the demanding state at the time the offense charged was committed, and that the person
demanded is charged with the commission of the crime or that prosecution has been begun in the demanding state before
some court or magistrate (35 C.J.S. 406-407). The extradition documents are then filed with the governor of the asylum
state, and must contain such papers and documents prescribed by statute, which essentially include a copy of the
instrument charging the person demanded with a crime, such as an indictment or an affidavit made before a magistrate.
Statutory requirements with respect to said charging instrument or papers are mandatory since said papers are necessary in
order to confer jurisdiction on the government of the asylum state to effect extradition (35 C.J.S. 408-410). A statutory
provision requiring duplicate copies of the indictment, information, affidavit, or judgment of conviction or sentence and
other instruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney is
directory. However, the right being such a basic one has been held to be a right mandatory on demand (Ibid., p. 410,
citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d 853).

In international proceedings, extradition treaties generally provide for the presentation to the executive authority of the
Requested State of a requisition or demand for the return of the alleged offender, and the designation of the particular
officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815).

In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated September 13, 1999 from the
Criminal Division of the U.S. Department of Justice, summarizing the U.S. extradition procedures and principles, which
are basically governed by a combination of treaties (with special reference to the RP-US Extradition Treaty), federal
statutes, and judicial decisions, to wit:

1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for the
provincial arrest of an individual may be made directly by the Philippine Department of Justice to the U.S.
Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for extradition is
transmitted subsequently through the diplomatic channel.

2. The Department of State forwards the incoming Philippine extradition request to the Department of Justice.
Before doing so, the Department of State prepares a declaration confirming that a formal request has been made,
that the treaty is in full force and effect, that under Article 17 thereof the parties provide reciprocal legal
representation in extradition proceedings, that the offenses are covered as extraditable offenses under Article 2
thereof, and that the documents have been authenticated in accordance with the federal statute that ensures
admissibility at any subsequent extradition hearing.

3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18
U.S.C. §3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in support
of the extradition request (Ibid.)

4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign country. The
court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b)
the defendant is being sought for offenses for which the applicable treaty permits extradition; and (c) there is
probable cause to believe that the defendant is the person sought and that he committed the offenses charged
(Ibid.)

5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a
"complaint made under oath, charging any person found within his jurisdiction" with having committed any of the
crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this regard, it is noted
that a long line of American decisions pronounce that international extradition proceedings partake of the
character of a preliminary examination before a committing magistrate, rather than a trial of the guilt or innocence
of the alleged fugitive (31A Am Jur 2d 826).]

6. If the court decides that the elements necessary for extradition are present, it incorporates its determinations in
factual findings and conclusions of law and certifies the person's extraditability. The court then forwards this
certification of extraditability to the Department of State for disposition by the Secretary of State. The ultimate
decision whether to surrender an individual rests with the Secretary of State (18 U.S.C. §3186).

7. The subject of an extradition request may not litigate questions concerning the motives of the requesting
government in seeking his extradition. However, a person facing extradition may present whatever information he
deems relevant to the Secretary of State, who makes the final determination whether to surrender an individual to
the foreign government concerned.

From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity — the
Department of State — which has the power to evaluate the request and the extradition documents in the beginning, and,
in the person of the Secretary of State, the power to act or not to act on the court's determination of extraditability. In the
Philippine setting, it is the Department of Foreign Affairs which should make the initial evaluation of the request, and
having satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the request to the Department of
Justice for the preparation and filing of the petition for extradition. Sadly, however, the Department of Foreign Affairs, in
the instant case, perfunctorily turned over the request to the Department of Justice which has taken over the task of
evaluating the request as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for extradition.

Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to be extradited
be given due process rights by the Philippines in the evaluation stage. He emphasizes that petitioner's primary concern is
the possible delay in the evaluation process.

We agree with private respondent's citation of an American Supreme Court ruling:

The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest
worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and
efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause, in particular,
that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for
efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than
mediocre ones.

(Stanley vs. Illinois, 404 U.S. 645, 656)

The United States, no doubt, shares the same interest as the Philippine Government that no right — that of liberty —
secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well, is sacrificed at the
altar of expediency.

(pp. 40-41, Private Respondent's Memorandum.)

In the Philippine context, this Court's ruling is invoked:

One of the basic principles of the democratic system is that where the rights of the individual are concerned, the
end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means
employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional
shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need,
subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration
to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as
against the rest of the nation who would deny him that right (Association of Small Landowners in the Philippines,
Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).

There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement. To be effective,
requests for extradition or the surrender of accused or convicted persons must be processed expeditiously. Nevertheless,
accelerated or fast-tracked proceedings and adherence to fair procedures are, however, not always incompatible. They do
not always clash in discord. Summary does not mean precipitous haste. It does not carry a disregard of the basic principles
inherent in "ordered liberty."

Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no extraditee yet in the
strict sense of the word. Extradition may or may not occur. In interstate extradition, the governor of the asylum state may
not, in the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the
extradition papers, he may hold that federal and statutory requirements, which are significantly jurisdictional, have not
been met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive authority of the requested state has the
power to deny the behest from the requesting state. Accordingly, if after a careful examination of the extradition
documents the Secretary of Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty,
he shall not forward the request to the Department of Justice for the filing of the extradition petition since non-compliance
with the aforesaid requirements will not vest our government with jurisdiction to effect the extradition.

In this light, it should be observed that the Department of Justice exerted notable efforts in assuring compliance with the
requirements of the law and the treaty since it even informed the U.S. Government of certain problems in the extradition
papers (such as those that are in Spanish and without the official English translation, and those that are not properly
authenticated). In fact, petitioner even admits that consultation meetings are still supposed to take place between the
lawyers in his Department and those from the U.S. Justice Department. With the meticulous nature of the evaluation,
which cannot just be completed in an abbreviated period of time due to its intricacies, how then can we say that it is a
proceeding that urgently necessitates immediate and prompt action where notice and hearing can be dispensed with?

Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private respondent
precluded from enjoying the right to notice and hearing at a later time without prejudice to him? Here lies the peculiarity
and deviant characteristic of the evaluation procedure. On one hand there is yet no extraditee, but ironically on the other, it
results in an administrative if adverse to the person involved, may cause his immediate incarceration. The grant of the
request shall lead to the filing of the extradition petition in court. The "accused" (as Section 2[c] of Presidential Decree
No. 1069 calls him), faces the threat of arrest, not only after the extradition petition is filed in court, but even during the
evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. The
prejudice to the "accused" is thus blatant and manifest.

Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and shelved aside.

Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of Article III which
reads:

Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.

The above provision guarantees political rights which are available to citizens of the Philippines, namely: (1) the right to
information on matters of public concern, and (2) the corollary right of access to official records documents. The general
right guaranteed by said provision is the right to information on matters of public concern. In its implementation, the right
of access to official records is likewise conferred. These cognate or related rights are "subject to limitations as may be
provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that
ultimately it is an informed and critical public opinion which alone can protect the values of democratic government
(Ibid.).

Petitioner argues that the matters covered by private respondent's letter-request dated July 1, 1999 do not fall under the
guarantee of the foregoing provision since the matters contained in the documents requested are not of public concern. On
the other hand, private respondent argues that the distinction between matters vested with public interest and matters
which are of purely private interest only becomes material when a third person, who is not directly affected by the matters
requested, invokes the right to information. However, if the person invoking the right is the one directly affected thereby,
his right to information becomes absolute.

The concept of matters of public concerns escapes exact definition. Strictly speaking, every act of a public officer in the
conduct of the governmental process is a matter of public concern (Bernas, The 1987 Constitution of the Republic of the
Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects which the public may want to know,
either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen
(Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the people and any
citizen has "standing".

When the individual himself is involved in official government action because said action has a direct bearing on his life,
and may either cause him some kind of deprivation or injury, he actually invokes the basic right to be notified under
Section 1 of the Bill of Rights and not exactly the right to information on matters of public concern. As to an accused in a
criminal proceeding, he invokes Section 14, particularly the right to be informed of the nature and cause of the accusation
against him.
The right to information is implemented by the right of access to information within the control of the government
(Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such information may be contained
in official records, and in documents and papers pertaining to official acts, transactions, or decisions.

In the case at bar, the papers requested by private respondent pertain to official government action from the U.S.
Government. No official action from our country has yet been taken. Moreover, the papers have some relation to matters
of foreign relations with the U.S. Government. Consequently, if a third party invokes this constitutional provision, stating
that the extradition papers are matters of public concern since they may result in the extradition of a Filipino, we are afraid
that the balance must be tilted, at such particular time, in favor of the interests necessary for the proper functioning of the
government. During the evaluation procedure, no official governmental action of our own government has as yet been
done; hence the invocation of the right is premature. Later, and in contrast, records of the extradition hearing would
already fall under matters of public concern, because our government by then shall have already made an official decision
to grant the extradition request. The extradition of a fellow Filipino would be forthcoming.

We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private respondent's
entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of
the Philippine Government under the RP-Extradition Treaty? Assuming the answer is in the affirmative, is there really a
conflict between the treaty and the due process clause in the Constitution?

First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality of the
provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. We limit ourselves only to
the effect of the grant of the basic rights of notice and hearing to private respondent on foreign relations.

The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties
to a treaty to keep their agreement therein in good faith. The observance of our country's legal duties under a treaty is also
compelled by Section 2, Article II of the Constitution which provides that "[t]he 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 nations." Under the doctrine of
incorporation, rules of international law form part of the law of the and land no further legislative action is needed to
make such rules applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).

The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in
which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of
the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that
municipal law was enacted with proper regard for the generally accepted principles of international law in observance of
the observance of the Incorporation Clause in the above-cited constitutional provision (Cruz, Philippine Political Law,
1996 ed., p. 55). In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of
international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts
(Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984
[1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances
(Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law of the land does not pertain
to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of
incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are
not superior to, national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect — a
treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest law of the land,
such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the
constitution (Ibid.).

In the case at bar, is there really a conflict between international law and municipal or national law? En contrario, these
two components of the law of the land are not pined against each other. There is no occasion to choose which of the two
should be upheld. Instead, we see a void in the provisions of the RP-US Extradition Treaty, as implemented by
Presidential Decree No. 1069, as regards the basic due process rights of a prospective extraditee at the evaluation stage of
extradition proceedings. From the procedures earlier abstracted, after the filing of the extradition petition and during the
judicial determination of the propriety of extradition, the rights of notice and hearing are clearly granted to the prospective
extraditee. However, prior thereto, the law is silent as to these rights. Reference to the U.S. extradition procedures also
manifests this silence.
Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluation procedure as
an "ex parte technical assessment" of the sufficiency of the extradition request and the supporting documents.

We disagree.

In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twin due
process rights of notice and hearing will not go against the treaty or the implementing law. Neither the Treaty nor the
Extradition Law precludes these rights from a prospective extraditee. Similarly, American jurisprudence and procedures
on extradition pose no proscription. In fact, in interstate extradition proceedings as explained above, the prospective
extraditee may even request for copies of the extradition documents from the governor of the asylum state, and if he does,
his right to be supplied the same becomes a demandable right (35 C.J.S. 410).

Petitioner contends that the United States requested the Philippine Government to prevent unauthorized disclosure of
confidential information. Hence, the secrecy surrounding the action of the Department of Justice Panel of Attorneys. The
confidentiality argument is, however, overturned by petitioner's revelation that everything it refuses to make available at
this stage would be obtainable during trial. The Department of Justice states that the U.S. District Court concerned has
authorized the disclosure of certain grand jury information. If the information is truly confidential, the veil of secrecy
cannot be lifted at any stage of the extradition proceedings. Not even during trial.

A libertarian approach is thus called for under the premises.

One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American jurisprudence and
procedures on extradition, for any prohibition against the conferment of the two basic due process rights of notice and
hearing during the evaluation stage of the extradition proceedings. We have to consider similar situations in jurisprudence
for an application by analogy.

Earlier, we stated that there are similarities between the evaluation process and a preliminary investigation since both
procedures may result in the arrest of the respondent or the prospective extraditee. In the evaluation process, a provisional
arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential
Decree No. 1069). Following petitioner's theory, because there is no provision of its availability, does this imply that for a
period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15, Article III of the Constitution
which states that "[t]he privilege of the writ or habeas corpus shall not be suspended except in cases of invasion or
rebellion when the public safety requires it"? Petitioner's theory would also infer that bail is not available during the arrest
of the prospective extraditee when the extradition petition has already been filed in court since Presidential Decree No.
1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll
persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall,
before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right
to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. . ." Can petitioner validly
argue that since these contraventions are by virtue of a treaty and hence affecting foreign relations, the aforestated
guarantees in the Bill of Rights could thus be subservient thereto?

The basic principles of administrative law instruct us that "the essence of due process in administrative proceeding is an
opportunity to explain one's side or an opportunity to seek reconsideration of the actions or ruling complained of (Mirano
vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997];
Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC,
278 SCRA 632 [1997]). In essence, procedural due process refers to the method or manner by which the law is enforced
(Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least
disregard of constitutional guarantees in the enforcement of a law or treaty. Petitioner's fears that the Requesting State
may have valid objections to the Requested State's non-performance of its commitments under the Extradition Treaty are
insubstantial and should not be given paramount consideration.

How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential
Decree No. 1069?
Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals (201 SCRA 661
[1991]) and Go vs. National Police Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings
under Presidential Decree No. 807 (Providing for the Organization of the Civil Service Commission in Accordance with
Provisions of the Constitution, Prescribing its Powers and Functions and for Other Purposes), and Presidential Decree No.
971 (Providing Legal Assistance for Members of the Integrated National Police who may be charged for Service-
Connected Offenses and Improving the Disciplinary System in the Integrated National Police, Appropriating Funds
Therefor and for other purposes), as amended by Presidential Decree No. 1707, although summary dismissals may be
effected without the necessity of a formal investigation, the minimum requirements of due process still operate. As held
in GSIS vs. Court of Appeals:

. . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed
or dismissed even without formal investigation, in certain instances. It is equally clear to us that an employee
must be informed of the charges preferred against him, and that the normal way by which the employee is so
informed is by furnishing him with a copy of the charges against him. This is a basic procedural requirement that
a statute cannot dispense with and still remain consistent with the constitutional provision on due process. The
second minimum requirement is that the employee charged with some misfeasance or malfeasance must have a
reasonable opportunity to present his side of the matter, that is to say, his defenses against the charges levelled
against him and to present evidence in support of his defenses. . . .

(at p. 671)

Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of the
respondent.

In the case at bar, private respondent does not only face a clear and present danger of loss of property or employment, but
of liberty itself, which may eventually lead to his forcible banishment to a foreign land. The convergence of petitioner's
favorable action on the extradition request and the deprivation of private respondent's liberty is easily comprehensible.

We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice outside legality,"
may be availed of only in the absence of, and never against, statutory law or judicial pronouncements (Smith Bell & Co.,
Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The
constitutional issue in the case at bar does not even call for "justice outside legality," since private respondent's due
process rights, although not guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not
be true to the organic law of the land if we choose strict construction over guarantees against the deprivation of liberty.
That would not be in keeping with the principles of democracy on which our Constitution is premised.

Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority, he
must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be laid.

WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of merit. Petitioner
is ordered to furnish private respondent copies of the extradition request and its supporting papers, and to grant him a
reasonable period within which to file his comment with supporting evidence. The incidents in Civil Case No. 99-94684
having been rendered moot and academic by this decision, the same is hereby ordered dismissed.

Lex posterior derogat (legi) priori

“A later law repeals an earlier (law).”A maxim meaning that a legal rule arising after a conflicting legal rule.

TANADA VS ANGARA

PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade Organization, abetted by the membership thereto of the vast
majority of countries has revolutionized international business and economic relations amongst states. It has irreversibly
propelled the world towards trade liberalization and economic globalization. Liberalization, globalization, deregulation
and privatization, the third-millennium buzz words, are ushering in a new borderless world of business by sweeping away
as mere historical relics the heretofore traditional modes of promoting and protecting national economies like tariffs,
export subsidies, import quotas, quantitative restrictions, tax exemptions and currency controls. Finding market niches and
becoming the best in specific industries in a market-driven and export-oriented global scenario are replacing age-old
"beggar-thy-neighbor" policies that unilaterally protect weak and inefficient domestic producers of goods and services. In
the words of Peter Drucker, the well-known management guru, "Increased participation in the world economy has become
the key to domestic economic growth and prosperity."

Brief Historical Background

To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the establishment of
three multilateral institutions — inspired by that grand political body, the United Nations — were discussed at Dumbarton
Oaks and Bretton Woods. The first was the World Bank (WB) which was to address the rehabilitation and reconstruction
of war-ravaged and later developing countries; the second, the International Monetary Fund (IMF) which was to deal with
currency problems; and the third, the International Trade Organization (ITO), which was to foster order and predictability
in world trade and to minimize unilateral protectionist policies that invite challenge, even retaliation, from other states.
However, for a variety of reasons, including its non-ratification by the United States, the ITO, unlike the IMF and WB,
never took off. What remained was only GATT — the General Agreement on Tariffs and Trade. GATT was a collection
of treaties governing access to the economies of treaty adherents with no institutionalized body administering the
agreements or dependable system of dispute settlement.

After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the Tokyo Round and
the Uruguay Round, the world finally gave birth to that administering body — the World Trade Organization — with the
signing of the "Final Act" in Marrakesh, Morocco and the ratification of the WTO Agreement by its members.1

Like many other developing countries, the Philippines joined WTO as a founding member with the goal, as articulated by
President Fidel V. Ramos in two letters to the Senate (infra), of improving "Philippine access to foreign markets,
especially its major trading partners, through the reduction of tariffs on its exports, particularly agricultural and industrial
products." The President also saw in the WTO the opening of "new opportunities for the services sector . . . , (the
reduction of) costs and uncertainty associated with exporting . . . , and (the attraction of) more investments into the
country." Although the Chief Executive did not expressly mention it in his letter, the Philippines — and this is of special
interest to the legal profession — will benefit from the WTO system of dispute settlement by judicial adjudication through
the independent WTO settlement bodies called (1) Dispute Settlement Panels and (2) Appellate Tribunal. Heretofore,
trade disputes were settled mainly through negotiations where solutions were arrived at frequently on the basis of relative
bargaining strengths, and where naturally, weak and underdeveloped countries were at a disadvantage.

The Petition in Brief

Arguing mainly (1) that the WTO requires the Philippines "to place nationals and products of member-countries on the
same footing as Filipinos and local products" and (2) that the WTO "intrudes, limits and/or impairs" the constitutional
powers of both Congress and the Supreme Court, the instant petition before this Court assails the WTO Agreement for
violating the mandate of the 1987 Constitution to "develop a self-reliant and independent national economy effectively
controlled by Filipinos . . . (to) give preference to qualified Filipinos (and to) promote the preferential use of Filipino
labor, domestic materials and locally produced goods."

Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide trade liberalization and
economic globalization? Does it proscribe Philippine integration into a global economy that is liberalized, deregulated and
privatized? These are the main questions raised in this petition for certiorari, prohibition and mandamus under Rule 65 of
the Rules of Court praying (1) for the nullification, on constitutional grounds, of the concurrence of the Philippine Senate
in the ratification by the President of the Philippines of the Agreement Establishing the World Trade Organization (WTO
Agreement, for brevity) and (2) for the prohibition of its implementation and enforcement through the release and
utilization of public funds, the assignment of public officials and employees, as well as the use of government properties
and resources by respondent-heads of various executive offices concerned therewith. This concurrence is embodied in
Senate Resolution No. 97, dated December 14, 1994.

The Facts

On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The Department of Trade and Industry (Secretary
Navarro, for brevity), representing the Government of the Republic of the Philippines, signed in Marrakesh, Morocco, the
Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiations (Final Act, for brevity).

By signing the Final Act,2 Secretary Navarro on behalf of the Republic of the Philippines, agreed:

(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent
authorities, with a view to seeking approval of the Agreement in accordance with their procedures; and

(b) to adopt the Ministerial Declarations and Decisions.

On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994 from the President of
the Philippines,3 stating among others that "the Uruguay Round Final Act is hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution."

On August 13, 1994, the members of the Philippine Senate received another letter from the President of the
Philippines4 likewise dated August 11, 1994, which stated among others that "the Uruguay Round Final Act, the
Agreement Establishing the World Trade Organization, the Ministerial Declarations and Decisions, and the Understanding
on Commitments in Financial Services are hereby submitted to the Senate for its concurrence pursuant to Section 21,
Article VII of the Constitution."

On December 9, 1994, the President of the Philippines certified the necessity of the immediate adoption of P.S. 1083, a
resolution entitled "Concurring in the Ratification of the Agreement Establishing the World Trade Organization."5

On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which "Resolved, as it is hereby resolved, that
the Senate concur, as it hereby concurs, in the ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization."6 The text of the WTO Agreement is written on pages 137 et seq. of Volume I
of the 36-volume Uruguay Round of Multilateral Trade Negotiations and includes various agreements and associated
legal instruments (identified in the said Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as
Multilateral Trade Agreements, for brevity) as follows:

ANNEX 1

Annex 1A: Multilateral Agreement on Trade in Goods

General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of he
General Agreement on Tariffs and Trade
1994
Agreement on Implementation of Article VII of the
General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating
 Measures
Agreement on Safeguards

Annex 1B: General Agreement on Trade in Services and Annexes

Annex 1C: Agreement on Trade-Related Aspects of Intellectual

Property Rights

ANNEX 2

Understanding on Rules and Procedures Governing

the Settlement of Disputes

ANNEX 3

Trade Policy Review Mechanism

On December 16, 1994, the President of the Philippines signed7 the Instrument of Ratification, declaring:

NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of the Philippines,
after having seen and considered the aforementioned Agreement Establishing the World Trade
Organization and the agreements and associated legal instruments included in Annexes one (1), two (2)
and three (3) of that Agreement which are integral parts thereof, signed at Marrakesh, Morocco on 15
April 1994, do hereby ratify and confirm the same and every Article and Clause thereof.

To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the Agreement Proper and
"the associated legal instruments included in Annexes one (1), two (2) and three (3) of that Agreement which are integral
parts thereof."

On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO Agreement (and its integral
annexes aforementioned) but also (1) the Ministerial Declarations and Decisions and (2) the Understanding on
Commitments in Financial Services. In his Memorandum dated May 13, 1996, 8 the Solicitor General describes these two
latter documents as follows:

The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide range of
matters, such as measures in favor of least developed countries, notification procedures, relationship of
WTO with the International Monetary Fund (IMF), and agreements on technical barriers to trade and on
dispute settlement.

The Understanding on Commitments in Financial Services dwell on, among other things, standstill or
limitations and qualifications of commitments to existing non-conforming measures, market access,
national treatment, and definitions of non-resident supplier of financial services, commercial presence and
new financial service.

On December 29, 1994, the present petition was filed. After careful deliberation on respondents' comment and petitioners'
reply thereto, the Court resolved on December 12, 1995, to give due course to the petition, and the parties thereafter filed
their respective memoranda. The court also requested the Honorable Lilia R. Bautista, the Philippine Ambassador to the
United Nations stationed in Geneva, Switzerland, to submit a paper, hereafter referred to as "Bautista Paper,"9 for brevity,
(1) providing a historical background of and (2) summarizing the said agreements.

During the Oral Argument held on August 27, 1996, the Court directed:

(a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy and (2) the
transcript of proceedings/hearings in the Senate; and
 (b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties signed prior to
the Philippine adherence to the WTO Agreement, which derogate from Philippine sovereignty and (2)
copies of the multi-volume WTO Agreement and other documents mentioned in the Final Act, as soon as
possible.

After receipt of the foregoing documents, the Court said it would consider the case submitted for resolution. In a
Compliance dated September 16, 1996, the Solicitor General submitted a printed copy of the 36-volume Uruguay Round
of Multilateral Trade Negotiations, and in another Compliance dated October 24, 1996, he listed the various "bilateral or
multilateral treaties or international instruments involving derogation of Philippine sovereignty." Petitioners, on the other
hand, submitted their Compliance dated January 28, 1997, on January 30, 1997.

The Issues

In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:

A. Whether the petition presents a political question or is otherwise not justiciable.

B. Whether the petitioner members of the Senate who participated in the deliberations and voting leading
to the concurrence are estopped from impugning the validity of the Agreement Establishing the World
Trade Organization or of the validity of the concurrence.

C. Whether the provisions of the Agreement Establishing the World Trade Organization contravene the
provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of the 1987 Philippine Constitution.

D. Whether provisions of the Agreement Establishing the World Trade Organization unduly limit, restrict
and impair Philippine sovereignty specifically the legislative power which, under Sec. 2, Article VI, 1987
Philippine Constitution is "vested in the Congress of the Philippines";

E. Whether provisions of the Agreement Establishing the World Trade Organization interfere with the
exercise of judicial power.

F. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or
excess of jurisdiction when they voted for concurrence in the ratification of the constitutionally-infirm
Agreement Establishing the World Trade Organization.

G. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or
excess of jurisdiction when they concurred only in the ratification of the Agreement Establishing the
World Trade Organization, and not with the Presidential submission which included the Final Act,
Ministerial Declaration and Decisions, and the Understanding on Commitments in Financial Services.

On the other hand, the Solicitor General as counsel for respondents "synthesized the several issues raised by petitioners
into the following": 10

1. Whether or not the provisions of the "Agreement Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of that
agreement" cited by petitioners directly contravene or undermine the letter, spirit and intent of Section 19,
Article II and Sections 10 and 12, Article XII of the 1987 Constitution.

2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of
legislative power by Congress.

3. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this
Honorable Court in promulgating the rules of evidence.
 4. Whether or not the concurrence of the Senate "in the ratification by the President of the Philippines of
the Agreement establishing the World Trade Organization" implied rejection of the treaty embodied in the
Final Act.

By raising and arguing only four issues against the seven presented by petitioners, the Solicitor General has effectively
ignored three, namely: (1) whether the petition presents a political question or is otherwise not justiciable; (2) whether
petitioner-members of the Senate (Wigberto E. Tañada and Anna Dominique Coseteng) are estopped from joining this
suit; and (3) whether the respondent-members of the Senate acted in grave abuse of discretion when they voted for
concurrence in the ratification of the WTO Agreement. The foregoing notwithstanding, this Court resolved to deal with
these three issues thus:

(1) The "political question" issue — being very fundamental and vital, and being a matter that probes into the very
jurisdiction of this Court to hear and decide this case — was deliberated upon by the Court and will thus be ruled upon as
the first issue;

(2) The matter of estoppel will not be taken up because this defense is waivable and the respondents have effectively
waived it by not pursuing it in any of their pleadings; in any event, this issue, even if ruled in respondents' favor, will not
cause the petition's dismissal as there are petitioners other than the two senators, who are not vulnerable to the defense of
estoppel; and

(3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be taken up as an integral part
of the disposition of the four issues raised by the Solicitor General.

During its deliberations on the case, the Court noted that the respondents did not question the locus standi of petitioners.
Hence, they are also deemed to have waived the benefit of such issue. They probably realized that grave constitutional
issues, expenditures of public funds and serious international commitments of the nation are involved here, and that
transcendental public interest requires that the substantive issues be met head on and decided on the merits, rather than
skirted or deflected by procedural matters. 11

To recapitulate, the issues that will be ruled upon shortly are:

(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE STATED,

DOES THE PETITION INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT HAS NO
JURISDICTION?

(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE PHILIPPINE
CONSTITUTION?

(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT, RESTRICT, OR
IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY CONGRESS?

(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE OF

JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES ON EVIDENCE?

(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS
ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT INCLUDE THE
FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS, AND THE UNDERSTANDING
ON COMMITMENTS IN FINANCIAL SERVICES?

The First Issue: Does the Court

Have Jurisdiction Over the Controversy?

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no
doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. "The question thus
posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of the Constitution is
upheld." 12 Once a "controversy as to the application or interpretation of a constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional mandate to decide." 13

The jurisdiction of this Court to adjudicate the matters 14 raised in the petition is clearly set out in the 1987
Constitution, 15 as follows:

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.

The foregoing text emphasizes the judicial department's duty and power to strike down grave abuse of discretion on the
part of any branch or instrumentality of government including Congress. It is an innovation in our political law. 16 As
explained by former Chief Justice Roberto Concepcion, 17 "the judiciary is the final arbiter on the question of whether or
not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction or so
capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power
but a duty to pass judgment on matters of this nature."

As this Court has repeatedly and firmly emphasized in many cases, 18 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.

As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate remedy in the ordinary
course of law, we have no hesitation at all in holding that this petition should be given due course and the vital questions
raised therein ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari, prohibition and mandamus are
appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative
and executive officials. On this, we have no equivocation.

We should stress that, in deciding to take jurisdiction over this petition, this Court will not review the wisdom of the
decision of the President and the Senate in enlisting the country into the WTO, or pass upon the merits of trade
liberalization as a policy espoused by said international body. Neither will it rule on the propriety of the government's
economic policy of reducing/removing tariffs, taxes, subsidies, quantitative restrictions, and other import/trade barriers.
Rather, it will only exercise its constitutional duty "to determine whether or not there had been a grave abuse of discretion
amounting to lack or excess of jurisdiction" on the part of the Senate in ratifying the WTO Agreement and its three
annexes.

Second Issue: The WTO Agreement

and Economic Nationalism

This is the lis mota, the main issue, raised by the petition.

Petitioners vigorously argue that the "letter, spirit and intent" of the Constitution mandating "economic nationalism" are
violated by the so-called "parity provisions" and "national treatment" clauses scattered in various parts not only of the
WTO Agreement and its annexes but also in the Ministerial Decisions and Declarations and in the Understanding on
Commitments in Financial Services.

Specifically, the "flagship" constitutional provisions referred to are Sec 19, Article II, and Secs. 10 and 12, Article XII, of
the Constitution, which are worded as follows:

Article II

DECLARATION OF PRINCIPLES
AND STATE POLICIES
 x x x           x x x          x x x

Sec. 19. The State shall develop a self-reliant and independent national economy effectively controlled by
Filipinos.

x x x           x x x          x x x

Article XII

NATIONAL ECONOMY AND PATRIMONY

x x x           x x x          x x x

Sec. 10. . . . The Congress shall enact measures that will encourage the formation and operation of
enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State
shall give preference to qualified Filipinos.

x x x           x x x          x x x

Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally
produced goods, and adopt measures that help make them competitive.

Petitioners aver that these sacred constitutional principles are desecrated by the following WTO provisions quoted in their
memorandum: 19

a) In the area of investment measures related to trade in goods (TRIMS, for brevity):

Article 2

National Treatment and Quantitative Restrictions.

1. Without prejudice to other rights and obligations under GATT 1994, no Member shall
apply any TRIM that is inconsistent with the provisions of Article II or Article XI of
GATT 1994.

2. An illustrative list of TRIMS that are inconsistent with the obligations of general
elimination of quantitative restrictions provided for in paragraph I of Article XI of GATT
1994 is contained in the Annex to this Agreement." (Agreement on Trade-Related
Investment Measures, Vol. 27, Uruguay Round, Legal Instruments, p. 22121, emphasis
supplied).

The Annex referred to reads as follows:

ANNEX

Illustrative List

1. TRIMS that are inconsistent with the obligation of national treatment provided for in paragraph 4 of
Article III of GATT 1994 include those which are mandatory or enforceable under domestic law or under
administrative rulings, or compliance with which is necessary to obtain an advantage, and which require:
 (a) the purchase or use by an enterprise of products of domestic origin or from any
domestic source, whether specified in terms of particular products, in terms of volume or
value of products, or in terms of proportion of volume or value of its local production; or

(b) that an enterprise's purchases or use of imported products be limited to an amount

related to the volume or value of local products that it exports.

2. TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions
provided for in paragraph 1 of Article XI of GATT 1994 include those which are mandatory or
enforceable under domestic laws or under administrative rulings, or compliance with which is necessary
to obtain an advantage, and which restrict:

(a) the importation by an enterprise of products used in or related to the local production
that it exports;

(b) the importation by an enterprise of products used in or related to its local production
by restricting its access to foreign exchange inflows attributable to the enterprise; or

(c) the exportation or sale for export specified in terms of particular products, in terms of
volume or value of products, or in terms of a preparation of volume or value of its local
production. (Annex to the Agreement on Trade-Related Investment Measures, Vol. 27,
Uruguay Round Legal Documents, p. 22125, emphasis supplied).

The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:

The products of the territory of any contracting party imported into the territory of any
other contracting party shall be accorded treatment no less favorable than that accorded
to like products of national origin in respect of laws, regulations and requirements
affecting their internal sale, offering for sale, purchase, transportation, distribution or use,
the provisions of this paragraph shall not prevent the application of differential internal
transportation charges which are based exclusively on the economic operation of the
means of transport and not on the nationality of the product." (Article III, GATT 1947, as
amended by the Protocol Modifying Part II, and Article XXVI of GATT, 14 September
1948, 62 UMTS 82-84 in relation to paragraph 1(a) of the General Agreement on Tariffs
and Trade 1994, Vol. 1, Uruguay Round, Legal Instruments p. 177, emphasis supplied).

(b) In the area of trade related aspects of intellectual property rights (TRIPS, for brevity):

Each Member shall accord to the nationals of other Members treatment no less
favourable than that it accords to its own nationals with regard to the protection of
intellectual property. . . (par. 1 Article 3, Agreement on Trade-Related Aspect of
Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments, p. 25432
(emphasis supplied)

(c) In the area of the General Agreement on Trade in Services:

National Treatment

1. In the sectors inscribed in its schedule, and subject to any conditions and qualifications
set out therein, each Member shall accord to services and service suppliers of any other
Member, in respect of all measures affecting the supply of services, treatment no less
favourable than it accords to its own like services and service suppliers.

2. A Member may meet the requirement of paragraph I by according to services and

service suppliers of any other Member, either formally suppliers of any other Member,
 either formally identical treatment or formally different treatment to that it accords to its
own like services and service suppliers.

3. Formally identical or formally different treatment shall be considered to be less

favourable if it modifies the conditions of completion in favour of services or service
suppliers of the Member compared to like services or service suppliers of any other
Member. (Article XVII, General Agreement on Trade in Services, Vol. 28, Uruguay
Round Legal Instruments, p. 22610 emphasis supplied).

It is petitioners' position that the foregoing "national treatment" and "parity provisions" of the WTO Agreement "place
nationals and products of member countries on the same footing as Filipinos and local products," in contravention of the
"Filipino First" policy of the Constitution. They allegedly render meaningless the phrase "effectively controlled by
Filipinos." The constitutional conflict becomes more manifest when viewed in the context of the clear duty imposed on
the Philippines as a WTO member to ensure the conformity of its laws, regulations and administrative procedures with its
obligations as provided in the annexed agreements. 20 Petitioners further argue that these provisions contravene
constitutional limitations on the role exports play in national development and negate the preferential treatment accorded
to Filipino labor, domestic materials and locally produced goods.

On the other hand, respondents through the Solicitor General counter (1) that such Charter provisions are not self-
executing and merely set out general policies; (2) that these nationalistic portions of the Constitution invoked by
petitioners should not be read in isolation but should be related to other relevant provisions of Art. XII, particularly Secs.
1 and 13 thereof; (3) that read properly, the cited WTO clauses do not conflict with Constitution; and (4) that the WTO
Agreement contains sufficient provisions to protect developing countries like the Philippines from the harshness of sudden
trade liberalization.

We shall now discuss and rule on these arguments.

Declaration of Principles
Not Self-Executing

By its very title, Article II of the Constitution is a "declaration of principles and state policies." The counterpart of this
article in the 1935 Constitution 21 is called the "basic political creed of the nation" by Dean Vicente Sinco. 22 These
principles in Article II are not intended to be self-executing principles ready for enforcement through the courts. 23 They
are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its
enactment of laws. As held in the leading case of Kilosbayan, Incorporated vs. Morato, 24 the principles and state policies
enumerated in Article II and some sections of Article XII are not "self-executing provisions, the disregard of which can
give rise to a cause of action in the courts. They do not embody judicially enforceable constitutional rights but guidelines
for legislation."

In the same light, we held in Basco vs. Pagcor 25 that broad constitutional principles need legislative enactments to
implement the, thus:

On petitioners' allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12 (Family) and 13 (Role
of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of
Article XIV of the 1987 Constitution, suffice it to state also that these are merely statements of principles
and policies. As such, they are basically not self-executing, meaning a law should be passed by Congress
to clearly define and effectuate such principles.

In general, therefore, the 1935 provisions were not intended to be self-executing

principles ready for enforcement through the courts. They were rather directives
addressed to the executive and to the legislature. If the executive and the legislature failed
to heed the directives of the article, the available remedy was not judicial but political.
The electorate could express their displeasure with the failure of the executive and the
legislature through the language of the ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged infringement of board constitutional principles are sourced from
basic considerations of due process and the lack of judicial authority to wade "into the uncharted ocean of social and
economic policy making." Mr. Justice Florentino P. Feliciano in his concurring opinion in Oposa vs. Factoran,
Jr., 26 explained these reasons as follows:

My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a
right cast in language of a significantly lower order of generality than Article II (15) of the Constitution
— that is or may be violated by the actions, or failures to act, imputed to the public respondent by
petitioners so that the trial court can validly render judgment grating all or part of the relief prayed for. To
my mind, the court should be understood as simply saying that such a more specific legal right or rights
may well exist in our corpus of law, considering the general policy principles found in the Constitution
and the existence of the Philippine Environment Code, and that the trial court should have given
petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to
dismiss.

It seems to me important that the legal right which is an essential component of a cause of action be a
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons.
One is that unless the legal right claimed to have been violated or disregarded is given specification in
operational terms, defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or applicable regulation
is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial
power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:

Sec. 1. . . .

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. (Emphasis
supplied)

When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to
health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting
to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to propel courts into the
uncharted ocean of social and economic policy making. At least in respect of the vast area of
environmental protection and management, our courts have no claim to special technical competence and
experience and professional qualification. Where no specific, operable norms and standards are shown to
exist, then the policy making departments — the legislative and executive departments — must be given a
real and effective opportunity to fashion and promulgate those norms and standards, and to implement
them before the courts should intervene.

Economic Nationalism Should Be Read with

Other Constitutional Mandates to Attain
Balanced Development of Economy

On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general principles relating to the
national economy and patrimony, should be read and understood in relation to the other sections in said article, especially
Secs. 1 and 13 thereof which read:

Sec. 1. The goals of the national economy are a more equitable distribution of opportunities, income, and
wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of
the people; and an expanding productivity as the key to raising the quality of life for all especially the
underprivileged.
 The State shall promote industrialization and full employment based on sound agricultural development
and agrarian reform, through industries that make full and efficient use of human and natural resources,
and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino
enterprises against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given
optimum opportunity to develop. . . .

xxx xxx xxx

Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and reciprocity.

As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national economic development, as follows:

1. A more equitable distribution of opportunities, income and wealth;

2. A sustained increase in the amount of goods and services provided by the nation for the benefit of the people; and

3. An expanding productivity as the key to raising the quality of life for all especially the underprivileged.

With these goals in context, the Constitution then ordains the ideals of economic nationalism (1) by expressing preference
in favor of qualified Filipinos "in the grant of rights, privileges and concessions covering the national economy and
patrimony" 27 and in the use of "Filipino labor, domestic materials and locally-produced goods"; (2) by mandating the
State to "adopt measures that help make them competitive; 28 and (3) by requiring the State to "develop a self-reliant and
independent national economy effectively controlled by Filipinos." 29 In similar language, the Constitution takes into
account the realities of the outside world as it requires the pursuit of "a trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality ad reciprocity"; 30 and speaks of industries "which
are competitive in both domestic and foreign markets" as well as of the protection of "Filipino enterprises
against unfair foreign competition and trade practices."

It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System, et al., 31 this Court held
that "Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself
and which needs no further guidelines or implementing laws or rule for its enforcement. From its very words the provision
does not require any legislation to put it in operation. It is per se judicially enforceable." However, as the constitutional
provision itself states, it is enforceable only in regard to "the grants of rights, privileges and concessions covering national
economy and patrimony" and not to every aspect of trade and commerce. It refers to exceptions rather than the rule. The
issue here is not whether this paragraph of Sec. 10 of Art. XII is self-executing or not. Rather, the issue is whether, as a
rule, there are enough balancing provisions in the Constitution to allow the Senate to ratify the Philippine concurrence in
the WTO Agreement. And we hold that there are.

All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the
same time, it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity
and limits protection of Filipino enterprises only against foreign competition and trade practices that are unfair. 32 In other
words, the Constitution did not intend to pursue an isolationist policy. It did not shut out foreign investments, goods and
services in the development of the Philippine economy. While the Constitution does not encourage the unlimited entry of
foreign goods, services and investments into the country, it does not prohibit them either. In fact, it allows an exchange on
the basis of equality and reciprocity, frowning only on foreign competition that is unfair.

WTO Recognizes Need to

Protect Weak Economies

Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to protect weak and
developing economies, which comprise the vast majority of its members. Unlike in the UN where major states have
permanent seats and veto powers in the Security Council, in the WTO, decisions are made on the basis of sovereign
equality, with each member's vote equal in weight to that of any other. There is no WTO equivalent of the UN Security
Council.

WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial Conference and
the General Council shall be taken by the majority of the votes cast, except in cases of interpretation of
the Agreement or waiver of the obligation of a member which would require three fourths vote.
Amendments would require two thirds vote in general. Amendments to MFN provisions and the
Amendments provision will require assent of all members. Any member may withdraw from the
Agreement upon the expiration of six months from the date of notice of withdrawals. 33

Hence, poor countries can protect their common interests more effectively through the WTO than through one-on-one
negotiations with developed countries. Within the WTO, developing countries can form powerful blocs to push their
economic agenda more decisively than outside the Organization. This is not merely a matter of practical alliances but a
negotiating strategy rooted in law. Thus, the basic principles underlying the WTO Agreement recognize the need of
developing countries like the Philippines to "share in the growth in international trade commensurate with the needs of
their economic development." These basic principles are found in the preamble 34 of the WTO Agreement as follows:

The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavour should be conducted with a
view to raising standards of living, ensuring full employment and a large and steadily growing volume of
real income and effective demand, and expanding the production of and trade in goods and services,
while allowing for the optimal use of the world's resources in accordance with the objective of sustainable
development, seeking both to protect and preserve the environment and to enhance the means for doing
so in a manner consistent with their respective needs and concerns at different levels of economic
development,

Recognizing further that there is need for positive efforts designed to ensure that developing countries,
and especially the least developed among them, secure a share in the growth in international trade
commensurate with the needs of their economic development,

Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous
arrangements directed to the substantial reduction of tariffs and other barriers to trade and to
the elimination of discriminatory treatment in international trade relations,

Resolved, therefore, to develop an integrated, more viable and durable multilateral trading system
encompassing the General Agreement on Tariffs and Trade, the results of past trade liberalization efforts,
and all of the results of the Uruguay Round of Multilateral Trade Negotiations,

Determined to preserve the basic principles and to further the objectives underlying this multilateral
trading system, . . . (emphasis supplied.)

Specific WTO Provisos

Protect Developing Countries

So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic principles, the WTO
Agreement grants developing countries a more lenient treatment, giving their domestic industries some protection from
the rush of foreign competition. Thus, with respect to tariffs in general, preferential treatment is given to developing
countries in terms of the amount of tariff reduction and the period within which the reduction is to be spread out.
Specifically, GATT requires an average tariff reduction rate of 36% for developed countries to be effected within
a period of six (6) years while developing countries — including the Philippines — are required to effect an average
tariff reduction of only 24% within ten (10) years.

In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to agricultural products
by 20% over six (6) years, as compared to only 13% for developing countries to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed countries to reduce their budgetary outlays
for export subsidy by 36% and export volumes receiving export subsidy by 21% within a period of six (6) years. For
developing countries, however, the reduction rate is only two-thirds of that prescribed for developed countries and a
longer period of ten (10) years within which to effect such reduction.

Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade practices including
anti-dumping measures, countervailing measures and safeguards against import surges. Where local businesses are
jeopardized by unfair foreign competition, the Philippines can avail of these measures. There is hardly therefore any basis
for the statement that under the WTO, local industries and enterprises will all be wiped out and that Filipinos will be
deprived of control of the economy. Quite the contrary, the weaker situations of developing nations like the Philippines
have been taken into account; thus, there would be no basis to say that in joining the WTO, the respondents have gravely
abused their discretion. True, they have made a bold decision to steer the ship of state into the yet uncharted sea of
economic liberalization. But such decision cannot be set aside on the ground of grave abuse of discretion, simply because
we disagree with it or simply because we believe only in other economic policies. As earlier stated, the Court in taking
jurisdiction of this case will not pass upon the advantages and disadvantages of trade liberalization as an economic policy.
It will only perform its constitutional duty of determining whether the Senate committed grave abuse of discretion.

Constitution Does Not

Rule Out Foreign Competition

Furthermore, the constitutional policy of a "self-reliant and independent national economy" 35 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. 36

The WTO reliance on "most favored nation," "national treatment," and "trade without discrimination" cannot be struck
down as unconstitutional as in fact they are rules of equality and reciprocity that apply to all WTO members. Aside from
envisioning a trade policy based on "equality and reciprocity," 37 the fundamental law encourages industries that are
"competitive in both domestic and foreign markets," thereby demonstrating a clear policy against a sheltered domestic
trade environment, but one in favor of the gradual development of robust industries that can compete with the best in the
foreign markets. Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to compete
internationally. And given a free trade environment, Filipino entrepreneurs and managers in Hongkong have demonstrated
the Filipino capacity to grow and to prosper against the best offered under a policy of laissez faire.

Constitution Favors Consumers,

Not Industries or Enterprises

The Constitution has not really shown any unbalanced bias in favor of any business or enterprise, nor does it contain any
specific pronouncement that Filipino companies should be pampered with a total proscription of foreign competition. On
the other hand, respondents claim that WTO/GATT aims to make available to the Filipino consumer the best goods and
services obtainable anywhere in the world at the most reasonable prices. Consequently, the question boils down to
whether WTO/GATT will favor the general welfare of the public at large.

Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality?

Will WTO/GATT succeed in promoting the Filipinos' general welfare because it will — as promised by its promoters —
expand the country's exports and generate more employment?
Will it bring more prosperity, employment, purchasing power and quality products at the most reasonable rates to the
Filipino public?

The responses to these questions involve "judgment calls" by our policy makers, for which they are answerable to our
people during appropriate electoral exercises. Such questions and the answers thereto are not subject to judicial
pronouncements based on grave abuse of discretion.

Constitution Designed to Meet

Future Events and Contingencies

No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted and ratified in 1987. That does
not mean however that the Charter is necessarily flawed in the sense that its framers might not have anticipated the advent
of a borderless world of business. By the same token, the United Nations was not yet in existence when the 1935
Constitution became effective. Did that necessarily mean that the then Constitution might not have contemplated a
diminution of the absoluteness of sovereignty when the Philippines signed the UN Charter, thereby effectively
surrendering part of its control over its foreign relations to the decisions of various UN organs like the Security Council?

It is not difficult to answer this question. Constitutions are designed to meet not only the vagaries of contemporary events.
They should be interpreted to cover even future and unknown circumstances. It is to the credit of its drafters that a
Constitution can withstand the assaults of bigots and infidels but at the same time bend with the refreshing winds of
change necessitated by unfolding events. As one eminent political law writer and respected jurist 38 explains:

The Constitution must be quintessential rather than superficial, the root and not the blossom, the base and
frame-work only of the edifice that is yet to rise. It is but the core of the dream that must take shape, not
in a twinkling by mandate of our delegates, but slowly "in the crucible of Filipino minds and hearts,"
where it will in time develop its sinews and gradually gather its strength and finally achieve its substance.
In fine, the Constitution cannot, like the goddess Athena, rise full-grown from the brow of the
Constitutional Convention, nor can it conjure by mere fiat an instant Utopia. It must grow with the society
it seeks to re-structure and march apace with the progress of the race, drawing from the vicissitudes of
history the dynamism and vitality that will keep it, far from becoming a petrified rule, a pulsing, living
law attuned to the heartbeat of the nation.

Third Issue: The WTO Agreement and Legislative Power

The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its laws, regulations and
administrative procedures with its obligations as provided in the annexed Agreements." 39 Petitioners maintain that this
undertaking "unduly limits, restricts and impairs Philippine sovereignty, specifically the legislative power which under
Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the Congress of the Philippines. It is an assault on the
sovereign powers of the Philippines because this means that Congress could not pass legislation that will be good for our
national interest and general welfare if such legislation will not conform with the WTO Agreement, which not only relates
to the trade in goods . . . but also to the flow of investments and money . . . as well as to a whole slew of agreements on
socio-cultural matters . . . 40

More specifically, petitioners claim that said WTO proviso derogates from the power to tax, which is lodged in the
Congress. 41 And while the Constitution allows Congress to authorize the President to fix tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts, such authority is subject to "specified limits and . . . such
limitations and restrictions" as Congress may provide, 42 as in fact it did under Sec. 401 of the Tariff and Customs Code.

Sovereignty Limited by
International Law and Treaties

This Court notes and appreciates the ferocity and passion by which petitioners stressed their arguments on this issue.
However, while sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is
however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a
member of the family of nations. Unquestionably, the Constitution did not envision a hermit-type isolation of the country
from the rest of the world. In its Declaration of Principles and State Policies, the Constitution "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." 43 By the doctrine of incorporation, the country is bound by generally
accepted principles of international law, which are considered to be automatically part of our own laws. 44 One of the
oldest and most fundamental rules in international law is pacta sunt servanda — international agreements must be
performed in good faith. "A treaty engagement is not a mere moral obligation but creates a legally binding obligation on
the parties . . . A state which has contracted valid international obligations is bound to make in its legislations such
modifications as may be necessary to ensure the fulfillment of the obligations undertaken." 45

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act, nations may
surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or
pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits,
they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties have been used to record
agreements between States concerning such widely diverse matters as, for example, the lease of naval bases, the sale or
cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the
regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the
establishment of international organizations. 46 The sovereignty of a state therefore cannot in fact and in reality be
considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of membership
in the family of nations and (2) limitations imposed by treaty stipulations. As aptly put by John F. Kennedy, "Today, no
nation can build its destiny alone. The age of self-sufficient nationalism is over. The age of interdependence is here." 47

UN Charter and Other Treaties

Limit Sovereignty

Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented to restrict its
sovereign rights under the "concept of sovereignty as auto-limitation."47-A Under Article 2 of the UN Charter, "(a)ll
members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and
shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement
action." Such assistance includes payment of its corresponding share not merely in administrative expenses but also in
expenditures for the peace-keeping operations of the organization. In its advisory opinion of July 20, 1961, the
International Court of Justice held that money used by the United Nations Emergency Force in the Middle East and in the
Congo were "expenses of the United Nations" under Article 17, paragraph 2, of the UN Charter. Hence, all its members
must bear their corresponding share in such expenses. In this sense, the Philippine Congress is restricted in its power to
appropriate. It is compelled to appropriate funds whether it agrees with such peace-keeping expenses or not. So too, under
Article 105 of the said Charter, the UN and its representatives enjoy diplomatic privileges and immunities, thereby
limiting again the exercise of sovereignty of members within their own territory. Another example: although "sovereign
equality" and "domestic jurisdiction" of all members are set forth as underlying principles in the UN Charter, such
provisos are however subject to enforcement measures decided by the Security Council for the maintenance of
international peace and security under Chapter VII of the Charter. A final example: under Article 103, "(i)n the event of a
conflict between the obligations of the Members of the United Nations under the present Charter and their obligations
under any other international agreement, their obligation under the present charter shall prevail," thus unquestionably
denying the Philippines — as a member — the sovereign power to make a choice as to which of conflicting obligations, if
any, to honor.

Apart from the UN Treaty, the Philippines has entered into many other international pacts — both bilateral and
multilateral — that involve limitations on Philippine sovereignty. These are enumerated by the Solicitor General in his
Compliance dated October 24, 1996, as follows:

(a) Bilateral convention with the United States regarding taxes on income, where the Philippines agreed,
among others, to exempt from tax, income received in the Philippines by, among others, the Federal
Reserve Bank of the United States, the Export/Import Bank of the United States, the Overseas Private
Investment Corporation of the United States. Likewise, in said convention, wages, salaries and similar
remunerations paid by the United States to its citizens for labor and personal services performed by them
as employees or officials of the United States are exempt from income tax by the Philippines.
 (b) Bilateral agreement with Belgium, providing, among others, for the avoidance of double taxation with
respect to taxes on income.

(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double taxation.

(d) Bilateral convention with the French Republic for the avoidance of double taxation.

(e) Bilateral air transport agreement with Korea where the Philippines agreed to exempt from all customs
duties, inspection fees and other duties or taxes aircrafts of South Korea and the regular equipment, spare
parts and supplies arriving with said aircrafts.

(f) Bilateral air service agreement with Japan, where the Philippines agreed to exempt from customs
duties, excise taxes, inspection fees and other similar duties, taxes or charges fuel, lubricating oils, spare
parts, regular equipment, stores on board Japanese aircrafts while on Philippine soil.

(g) Bilateral air service agreement with Belgium where the Philippines granted Belgian air carriers the
same privileges as those granted to Japanese and Korean air carriers under separate air service
agreements.

(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the Philippines exempted
Israeli nationals from the requirement of obtaining transit or visitor visas for a sojourn in the Philippines
not exceeding 59 days.

(i) Bilateral agreement with France exempting French nationals from the requirement of obtaining transit
and visitor visa for a sojourn not exceeding 59 days.

(j) Multilateral Convention on Special Missions, where the Philippines agreed that premises of Special
Missions in the Philippines are inviolable and its agents can not enter said premises without consent of the
Head of Mission concerned. Special Missions are also exempted from customs duties, taxes and related
charges.

(k) Multilateral convention on the Law of Treaties. In this convention, the Philippines agreed to be
governed by the Vienna Convention on the Law of Treaties.

(l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the International
Court of Justice. The International Court of Justice has jurisdiction in all legal disputes concerning the
interpretation of a treaty, any question of international law, the existence of any fact which, if established,
would constitute a breach "of international obligation."

In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign powers of taxation,
eminent domain and police power. The underlying consideration in this partial surrender of sovereignty is the reciprocal
commitment of the other contracting states in granting the same privilege and immunities to the Philippines, its officials
and its citizens. The same reciprocity characterizes the Philippine commitments under WTO-GATT.

International treaties, whether relating to nuclear disarmament, human rights, the environment, the law of
the sea, or trade, constrain domestic political sovereignty through the assumption of external obligations.
But unless anarchy in international relations is preferred as an alternative, in most cases we accept that the
benefits of the reciprocal obligations involved outweigh the costs associated with any loss of political
sovereignty. (T)rade treaties that structure relations by reference to durable, well-defined substantive
norms and objective dispute resolution procedures reduce the risks of larger countries exploiting raw
economic power to bully smaller countries, by subjecting power relations to some form of legal ordering.
In addition, smaller countries typically stand to gain disproportionately from trade liberalization. This is
due to the simple fact that liberalization will provide access to a larger set of potential new trading
relationship than in case of the larger country gaining enhanced success to the smaller country's market. 48
The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without violating the
Constitution, based on the rationale 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 . . . cooperation and amity with all nations."

Fourth Issue: The WTO Agreement and Judicial Power

Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS) 49 intrudes on the power of the Supreme Court to promulgate
rules concerning pleading, practice and procedures. 50

To understand the scope and meaning of Article 34, TRIPS, 51 it will be fruitful to restate its full text as follows:

Article 34

Process Patents: Burden of Proof

1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred
to in paragraph 1 (b) of Article 28, if the subject matter of a patent is a process for obtaining a product,
the judicial authorities shall have the authority to order the defendant to prove that the process to obtain
an identical product is different from the patented process. Therefore, Members shall provide, in at least
one of the following circumstances, that any identical product when produced without the consent of the
patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the
patented process:

(a) if the product obtained by the patented process is new;

(b) if there is a substantial likelihood that the identical product was made by the process
and the owner of the patent has been unable through reasonable efforts to determine the
process actually used.

2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the
alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the condition
referred to in subparagraph (b) is fulfilled.

3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their
manufacturing and business secrets shall be taken into account.

From the above, a WTO Member is required to provide a rule of disputable (not the words "in the absence of proof to the
contrary") presumption that a product shown to be identical to one produced with the use of a patented process shall be
deemed to have been obtained by the (illegal) use of the said patented process, (1) where such product obtained by the
patented product is new, or (2) where there is "substantial likelihood" that the identical product was made with the use of
the said patented process but the owner of the patent could not determine the exact process used in obtaining such
identical product. Hence, the "burden of proof" contemplated by Article 34 should actually be understood as the duty of
the alleged patent infringer to overthrow such presumption. Such burden, properly understood, actually refers to the
"burden of evidence" (burden of going forward) placed on the producer of the identical (or fake) product to show that his
product was produced without the use of the patented process.

The foregoing notwithstanding, the patent owner still has the "burden of proof" since, regardless of the presumption
provided under paragraph 1 of Article 34, such owner still has to introduce evidence of the existence of the alleged
identical product, the fact that it is "identical" to the genuine one produced by the patented process and the fact of
"newness" of the genuine product or the fact of "substantial likelihood" that the identical product was made by the
patented process.
The foregoing should really present no problem in changing the rules of evidence as the present law on the subject,
Republic Act No. 165, as amended, otherwise known as the Patent Law, provides a similar presumption in cases of
infringement of patented design or utility model, thus:

Sec. 60. Infringement. — Infringement of a design patent or of a patent for utility model shall consist in
unauthorized copying of the patented design or utility model for the purpose of trade or industry in the
article or product and in the making, using or selling of the article or product copying the patented design
or utility model. Identity or substantial identity with the patented design or utility model shall constitute
evidence of copying. (emphasis supplied)

Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption applies only if (1) the
product obtained by the patented process in NEW or (2) there is a substantial likelihood that the identical product was
made by the process and the process owner has not been able through reasonable effort to determine the process used.
Where either of these two provisos does not obtain, members shall be free to determine the appropriate method of
implementing the provisions of TRIPS within their own internal systems and processes.

By and large, the arguments adduced in connection with our disposition of the third issue — derogation of legislative
power — will apply to this fourth issue also. Suffice it to say that the reciprocity clause more than justifies such intrusion,
if any actually exists. Besides, Article 34 does not contain an unreasonable burden, consistent as it is with due process and
the concept of adversarial dispute settlement inherent in our judicial system.

So too, since the Philippine is a signatory to most international conventions on patents, trademarks and copyrights, the
adjustment in legislation and rules of procedure will not be substantial. 52

Fifth Issue: Concurrence Only in the WTO Agreement and

Not in Other Documents Contained in the Final Act

Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes — but not in the other documents
referred to in the Final Act, namely the Ministerial Declaration and Decisions and the Understanding on Commitments in
Financial Services — is defective and insufficient and thus constitutes abuse of discretion. They submit that such
concurrence in the WTO Agreement alone is flawed because it is in effect a rejection of the Final Act, which in turn was
the document signed by Secretary Navarro, in representation of the Republic upon authority of the President. They
contend that the second letter of the President to the Senate 53 which enumerated what constitutes the Final Act should
have been the subject of concurrence of the Senate.

"A final act, sometimes called protocol de cloture, is an instrument which records the winding up of the proceedings of a
diplomatic conference and usually includes a reproduction of the texts of treaties, conventions, recommendations and
other acts agreed upon and signed by the plenipotentiaries attending the conference." 54 It is not the treaty itself. It is rather
a summary of the proceedings of a protracted conference which may have taken place over several years. The text of the
"Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations" is contained in just one
page 55 in Vol. I of the 36-volume Uruguay Round of Multilateral Trade Negotiations. By signing said Final Act,
Secretary Navarro as representative of the Republic of the Philippines undertook:

(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent
authorities with a view to seeking approval of the Agreement in accordance with their procedures; and

(b) to adopt the Ministerial Declarations and Decisions.

The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required from its signatories,
namely, concurrence of the Senate in the WTO Agreement.

The Ministerial Declarations and Decisions were deemed adopted without need for ratification. They were approved by
the ministers by virtue of Article XXV: 1 of GATT which provides that representatives of the members can meet "to give
effect to those provisions of this Agreement which invoke joint action, and generally with a view to facilitating the
operation and furthering the objectives of this Agreement." 56
The Understanding on Commitments in Financial Services also approved in Marrakesh does not apply to the Philippines.
It applies only to those 27 Members which "have indicated in their respective schedules of commitments on standstill,
elimination of monopoly, expansion of operation of existing financial service suppliers, temporary entry of personnel, free
transfer and processing of information, and national treatment with respect to access to payment, clearing systems and
refinancing available in the normal course of business."57

On the other hand, the WTO Agreement itself expresses what multilateral agreements are deemed included as its integral
parts, 58 as follows:

Article II

Scope of the WTO

1. The WTO shall provide the common institutional frame-work for the conduct of trade relations among
its Members in matters to the agreements and associated legal instruments included in the Annexes to this
Agreement.

2. The Agreements and associated legal instruments included in Annexes 1, 2, and 3, (hereinafter referred
to as "Multilateral Agreements") are integral parts of this Agreement, binding on all Members.

3. The Agreements and associated legal instruments included in Annex 4 (hereinafter referred to as
"Plurilateral Trade Agreements") are also part of this Agreement for those Members that have accepted
them, and are binding on those Members. The Plurilateral Trade Agreements do not create either
obligation or rights for Members that have not accepted them.

4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (hereinafter referred to as
"GATT 1994") is legally distinct from the General Agreement on Tariffs and Trade, dated 30 October
1947, annexed to the Final Act adopted at the conclusion of the Second Session of the Preparatory
Committee of the United Nations Conference on Trade and Employment, as subsequently rectified,
amended or modified (hereinafter referred to as "GATT 1947").

It should be added that the Senate was well-aware of what it was concurring in as shown by the members' deliberation on
August 25, 1994. After reading the letter of President Ramos dated August 11, 1994, 59 the senators
of the Republic minutely dissected what the Senate was concurring in, as follows: 60

THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up in the first day
hearing of this Committee yesterday. Was the observation made by Senator Tañada that what was
submitted to the Senate was not the agreement on establishing the World Trade Organization by the final
act of the Uruguay Round which is not the same as the agreement establishing the World Trade
Organization? And on that basis, Senator Tolentino raised a point of order which, however, he agreed to
withdraw upon understanding that his suggestion for an alternative solution at that time was acceptable.
That suggestion was to treat the proceedings of the Committee as being in the nature of briefings for
Senators until the question of the submission could be clarified.

And so, Secretary Romulo, in effect, is the President submitting a new . . . is he making a new submission
which improves on the clarity of the first submission?

MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no misunderstanding,
it was his intention to clarify all matters by giving this letter.

THE CHAIRMAN: Thank you.

Can this Committee hear from Senator Tañada and later on Senator Tolentino since they were the ones
that raised this question yesterday?
 Senator Tañada, please.

SEN. TAÑADA: Thank you, Mr. Chairman.

Based on what Secretary Romulo has read, it would now clearly appear that what is being submitted to
the Senate for ratification is not the Final Act of the Uruguay Round, but rather the Agreement on the
World Trade Organization as well as the Ministerial Declarations and Decisions, and the Understanding
and Commitments in Financial Services.

I am now satisfied with the wording of the new submission of President Ramos.

SEN. TAÑADA. . . . of President Ramos, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Tañada. Can we hear from Senator Tolentino? And after him
Senator Neptali Gonzales and Senator Lina.

SEN. TOLENTINO, Mr. Chairman, I have not seen the new submission actually transmitted to us but I
saw the draft of his earlier, and I think it now complies with the provisions of the Constitution, and with
the Final Act itself . The Constitution does not require us to ratify the Final Act. It requires us to ratify
the Agreement which is now being submitted. The Final Act itself specifies what is going to be submitted
to with the governments of the participants.

In paragraph 2 of the Final Act, we read and I quote:

By signing the present Final Act, the representatives agree: (a) to submit as appropriate the WTO
Agreement for the consideration of the respective competent authorities with a view to seeking approval
of the Agreement in accordance with their procedures.

In other words, it is not the Final Act that was agreed to be submitted to the governments for ratification
or acceptance as whatever their constitutional procedures may provide but it is the World Trade
Organization Agreement. And if that is the one that is being submitted now, I think it satisfies both the
Constitution and the Final Act itself .

Thank you, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.

SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of record. And they had
been adequately reflected in the journal of yesterday's session and I don't see any need for repeating the
same.

Now, I would consider the new submission as an act ex abudante cautela.

THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make any comment on
this?

SEN. LINA. Mr. President, I agree with the observation just made by Senator Gonzales out of the
abundance of question. Then the new submission is, I believe, stating the obvious and therefore I have no
further comment to make.

Epilogue

In praying for the nullification of the Philippine ratification of the WTO Agreement, petitioners are invoking this Court's
constitutionally imposed duty "to determine whether or not there has been grave abuse of discretion amounting to lack or
excess of jurisdiction" on the part of the Senate in giving its concurrence therein via Senate Resolution No. 97.
Procedurally, a writ of certiorari grounded on grave abuse of discretion may be issued by the Court under Rule 65 of the
Rules of Court when it is amply shown that petitioners have no other plain, speedy and adequate remedy in the ordinary
course of law.

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction. 61 Mere abuse of discretion is not enough. It must be grave abuse of discretion as when the power is exercised
in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to
amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation
of law. 62 Failure on the part of the petitioner to show grave abuse of discretion will result in the dismissal of the
petition. 63

In rendering this Decision, this Court never forgets that the Senate, whose act is under review, is one of two sovereign
houses of Congress and is thus entitled to great respect in its actions. It is itself a constitutional body independent and
coordinate, and thus its actions are presumed regular and done in good faith. Unless convincing proof and persuasive
arguments are presented to overthrow such presumptions, this Court will resolve every doubt in its favor. Using the
foregoing well-accepted definition of grave abuse of discretion and the presumption of regularity in the Senate's
processes, this Court cannot find any cogent reason to impute grave abuse of discretion to the Senate's exercise of its
power of concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the Constitution. 64

It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an independent national
economy effectively controlled by Filipinos; and to protect and/or prefer Filipino labor, products, domestic materials and
locally produced goods. But it is equally true that such principles — while serving as judicial and legislative guides — are
not in themselves sources of causes of action. Moreover, there are other equally fundamental constitutional principles
relied upon by the Senate which mandate the pursuit of a "trade policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of equality and reciprocity" and the promotion of industries "which are
competitive in both domestic and foreign markets," thereby justifying its acceptance of said treaty. So too, the alleged
impairment of sovereignty in the exercise of legislative and judicial powers is balanced by the adoption of the generally
accepted principles of international law as part of the law of the land and the adherence of the Constitution to the policy of
cooperation and amity with all nations.

That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the WTO Agreement
thereby making it "a part of the law of the land" is a legitimate exercise of its sovereign duty and power. We find no
"patent and gross" arbitrariness or despotism "by reason of passion or personal hostility" in such exercise. It is not
impossible to surmise that this Court, or at least some of its members, may even agree with petitioners that it is more
advantageous to the national interest to strike down Senate Resolution No. 97. But that is not a legal reason to attribute
grave abuse of discretion to the Senate and to nullify its decision. To do so would constitute grave abuse in the exercise of
our own judicial power and duty. Ineludably, what the Senate did was a valid exercise of its authority. As to whether such
exercise was wise, beneficial or viable is outside the realm of judicial inquiry and review. That is a matter between the
elected policy makers and the people. As to whether the nation should join the worldwide march toward trade
liberalization and economic globalization is a matter that our people should determine in electing their policy makers.
After all, the WTO Agreement allows withdrawal of membership, should this be the political desire of a member.

The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian Renaissance 65 where "the East
will become the dominant region of the world economically, politically and culturally in the next century." He refers to
the "free market" espoused by WTO as the "catalyst" in this coming Asian ascendancy. There are at present about 31
countries including China, Russia and Saudi Arabia negotiating for membership in the WTO. Notwithstanding objections
against possible limitations on national sovereignty, the WTO remains as the only viable structure for multilateral trading
and the veritable forum for the development of international trade law. The alternative to WTO is isolation, stagnation, if
not economic self-destruction. Duly enriched with original membership, keenly aware of the advantages and
disadvantages of globalization with its on-line experience, and endowed with a vision of the future, the Philippines now
straddles the crossroads of an international strategy for economic prosperity and stability in the new millennium. Let the
people, through their duly authorized elected officers, make their free choice.

WHEREFORE, the petition is DISMISSED for lack of merit.

NICOLAS VS ROMULO

AZCUNA, J.:

These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision of the Court of Appeals in
Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in CA-G.R. SP No. 97212, dated January 2, 2007.

The facts are not disputed.

Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces. He was charged with
the crime of rape committed against a Filipina, petitioner herein, sometime on November 1, 2005, as follows:

The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis, Keith Silkwood and
Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the Revised Penal Code, as amended by Republic Act
8353, upon a complaint under oath filed by Suzette S. Nicolas, which is attached hereto and made an integral part hereof
as Annex "A," committed as follows:

"That on or about the First (1st) day of November 2005, inside the Subic Bay Freeport Zone, Olongapo City and within
the jurisdiction of this Honorable Court, the above-named accused’s (sic), being then members of the United States
Marine Corps, except Timoteo L. Soriano, Jr., conspiring, confederating together and mutually helping one another, with
lewd design and by means of force, threat and intimidation, with abuse of superior strength and taking advantage of the
intoxication of the victim, did then and there willfully, unlawfully and feloniously sexually abuse and have sexual
intercourse with or carnal knowledge of one Suzette S. Nicolas, a 22-year old unmarried woman inside a Starex Van with
Plate No. WKF-162, owned by Starways Travel and Tours, with Office address at 8900 P. Victor St., Guadalupe, Makati
City, and driven by accused Timoteo L. Soriano, Jr., against the will and consent of the said Suzette S. Nicolas, to her
damage and prejudice.

CONTRARY TO LAW."1

Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered
into on February 10, 1998, the United States, at its request, was granted custody of defendant Smith pending the
proceedings.

During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the RTC of Makati for
security reasons, the United States Government faithfully complied with its undertaking to bring defendant Smith to the
trial court every time his presence was required.

On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision, finding defendant Smith
guilty, thus:

WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient evidence against accused S/SGT.
CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC DUPLANTIS, all of the US
Marine Corps assigned at the USS Essex, are hereby ACQUITTED to the crime charged.

The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J. SMITH, also of the US Marine
Corps at the USS Essex, this Court hereby finds him GUILTY BEYOND REASONABLE DOUBT of the crime of RAPE
defined under Article 266-A, paragraph 1 (a) of the Revised Penal Code, as amended by R.A. 8353, and, in accordance
with Article 266-B, first paragraph thereof, hereby sentences him to suffer the penalty of reclusion perpetua together with
the accessory penalties provided for under Article 41 of the same Code.

Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the Philippines and the United
States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in the facilities that shall, thereafter, be agreed upon
by appropriate Philippine and United States authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J.
SMITH is hereby temporarily committed to the Makati City Jail.
Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S. NICOLAS in the
amount of ₱50,000.00 as compensatory damages plus ₱50,000.00 as moral damages.

SO ORDERED.2

As a result, the Makati court ordered Smith detained at the Makati jail until further orders.

On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a contingent of Philippine law
enforcement agents, purportedly acting under orders of the Department of the Interior and Local Government, and brought
to a facility for detention under the control of the United States government, provided for under new agreements between
the Philippines and the United States, referred to as the Romulo-Kenney Agreement of December 19, 2006 which states:

The Government of the Republic of the Philippines and the Government of the United States of America agree that, in
accordance with the Visiting Forces Agreement signed between our two nations, Lance Corporal Daniel J. Smith, United
States Marine Corps, be returned to U.S. military custody at the U.S. Embassy in Manila.

(Sgd.) Kristie A. Kenney (Sgd.) Alberto G. Romulo

Representative of the United States Representative of the Republic
of America of the Philippines

DATE: 12-19-06 DATE: December 19, 2006

and the Romulo-Kenney Agreement of December 22, 2006 which states:

The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United States of America
agree that, in accordance with the Visiting Forces Agreement signed between the two nations, upon transfer of Lance
Corporal Daniel J. Smith, United States Marine Corps, from the Makati City Jail, he will be detained at the first floor,
Rowe (JUSMAG) Building, U.S. Embassy Compound in a room of approximately 10 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.

The matter was brought before the Court of Appeals which decided on January 2, 2007, as follows:

WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having become moot.3

Hence, the present actions.

The petitions were heard on oral arguments on September 19, 2008, after which the parties submitted their memoranda.

Petitioners contend that the Philippines should have custody of defendant L/CPL Smith because, first of all, the VFA is
void and unconstitutional.

This issue had been raised before, and this Court resolved in favor of the constitutionality of the VFA. This was in Bayan
v. Zamora,4 brought by Bayan, one of petitioners in the present cases.

Against the barriers of res judicata vis-à-vis Bayan, and stare decisis vis-à-vis all the parties, the reversal of the previous
ruling is sought on the ground that the issue is of primordial importance, involving the sovereignty of the Republic, as
well as a specific mandate of the Constitution.

The provision of the Constitution is Art. XVIII, Sec. 25 which states:

Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under
a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.

The reason for this provision lies in history and the Philippine experience in regard to the United States military bases in
the country.

It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine Commonwealth and,
eventually, for the recognition of independence, the United States agreed to cede to the Philippines all the territory it
acquired from Spain under the Treaty of Paris, plus a few islands later added to its realm, except certain naval ports and/or
military bases and facilities, which the United States retained for itself.

This is noteworthy, because what this means is that Clark and Subic and the other places in the Philippines covered by the
RP-US Military Bases Agreement of 1947 were not Philippine territory, as they were excluded from the cession and
retained by the US.

Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed by the United States.
Furthermore, the RP-US Military Bases Agreement was never advised for ratification by the United States Senate, a
disparity in treatment, because the Philippines regarded it as a treaty and had it concurred in by our Senate.

Subsequently, the United States agreed to turn over these bases to the Philippines; and with the expiration of the RP-US
Military Bases Agreement in 1991, the territory covered by these bases were finally ceded to the Philippines.

To prevent a recurrence of this experience, the provision in question was adopted in the 1987 Constitution.

The provision is thus designed to ensure that any agreement allowing the presence of foreign military bases, troops or
facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign State involved. The
idea is to prevent a recurrence of the situation in which the terms and conditions governing the presence of foreign armed
forces in our territory were binding upon us but not upon the foreign State.

Applying the provision to the situation involved in these cases, the question is whether or not the presence of US Armed
Forces in Philippine territory pursuant to the VFA is allowed "under a treaty duly concurred in by the Senate xxx and
recognized as a treaty by the other contracting State."

This Court finds that it is, for two reasons.

First, as held in Bayan v. Zamora, 5 the VFA was duly concurred in by the Philippine Senate and has been recognized as a
treaty by the United States as attested and certified by the duly authorized representative of the United States government.

The fact that the VFA was not submitted for advice and consent of the United States Senate does not detract from its
status as a binding international agreement or treaty recognized by the said State. For this is a matter of internal United
States law. Notice can be taken of the internationally known practice by the United States of submitting to its Senate for
advice and consent agreements that are policymaking in nature, whereas those that carry out or further implement these
policymaking agreements are merely submitted to Congress, under the provisions of the so-called Case–Zablocki Act,
within sixty days from ratification.6

The second reason has to do with the relation between the VFA and the RP-US Mutual Defense Treaty of August 30,
1951. This earlier agreement was signed and duly ratified with the concurrence of both the Philippine Senate and the
United States Senate.

The RP-US Mutual Defense Treaty states:7

MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED STATES
OF AMERICA. Signed at Washington, August 30, 1951.

The Parties of this Treaty

Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace
with all peoples and all governments, and desiring to strengthen the fabric of peace in the Pacific area.

Recalling with mutual pride the historic relationship which brought their two peoples together in a common bond of
sympathy and mutual ideals to fight side-by-side against imperialist aggression during the last war.

Desiring to declare publicly and formally their sense of unity and their common determination to defend themselves
against external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in
the Pacific area.

Desiring further to strengthen their present efforts for collective defense for the preservation of peace and security pending
the development of a more comprehensive system of regional security in the Pacific area.

Agreeing that nothing in this present instrument shall be considered or interpreted as in any way or sense altering or
diminishing any existing agreements or understandings between the Republic of the Philippines and the United States of
America.

Have agreed as follows:

Article I. The parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes in
which they may be involved by peaceful means in such a manner that international peace and security and justice are not
endangered and to refrain in their international relation from the threat or use of force in any manner inconsistent with the
purposes of the United Nations.

Article II. In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-help
and mutual aid will maintain and develop their individual and collective capacity to resist armed attack.

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

Article IV. Each Party recognizes that an armed attack in the Pacific area on either of the parties would be dangerous to its
own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional
processes.

Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of
the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to
restore and maintain international peace and security.

Article V. For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an armed attack on
the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific Ocean, its
armed forces, public vessels or aircraft in the Pacific.

Article VI. This Treaty does not affect and shall not be interpreted as affecting in any way the rights and obligations of the
Parties under the Charter of the United Nations or the responsibility of the United Nations for the maintenance of
international peace and security.

Article VII. This Treaty shall be ratified by the Republic of the Philippines and the United Nations of America in
accordance with their respective constitutional processes and will come into force when instruments of ratification thereof
have been exchanged by them at Manila.

Article VIII. This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice has been
given to the other party.

In withness whereof the undersigned Plenipotentiaries have signed this Treaty.

Done in duplicate at Washington this thirtieth day of August, 1951.

For the Republic of the Philippines:

(Sgd.) Carlos P. Romulo

(Sgd.) Joaquin M. Elizalde

(Sgd.) Vicente J. Francisco

(Sgd.) Diosdado Macapagal

For the United States of America:

(Sgd.) Dean Acheson

(Sgd.) John Foster Dulles

(Sgd.) Tom Connally

(Sgd.) Alexander Wiley8

Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability to resist an armed attack
fall squarely under the provisions of the RP-US Mutual Defense Treaty. The VFA, which is the instrument agreed upon to
provide for the joint RP-US military exercises, is simply an implementing agreement to the main RP-US Military Defense
Treaty. The Preamble of the VFA states:

The Government of the United States of America and the Government of the Republic of the Philippines,

Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to strengthen
international and regional security in the Pacific area;

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

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

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

Recognizing the desirability of defining the treatment of United States personnel visiting the Republic of the Philippines;

Have agreed as follows:9

Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit the
VFA to the US Senate for advice and consent, but merely to the US Congress under the Case–Zablocki Act within 60
days of its ratification. It is for this reason that the US has certified that it recognizes the VFA as a binding international
agreement, i.e., a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our Constitution.10

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the presence of the US
Armed Forces through the VFA is a presence "allowed under" the RP-US Mutual Defense Treaty. Since the RP-US
Mutual Defense Treaty itself has been ratified and concurred in by both the Philippine Senate and the US Senate, there is
no violation of the Constitutional provision resulting from such presence.
The VFA being a valid and binding agreement, the parties are required as a matter of international law to abide by its
terms and provisions.

The VFA provides that in cases of offenses committed by the members of the US Armed Forces in the Philippines, the
following rules apply:

Article V

Criminal Jurisdiction

xxx

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.

Petitioners contend that these undertakings violate another provision of the Constitution, namely, that providing for the
exclusive power of this Court to adopt rules of procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue
that to allow the transfer of custody of an accused to a foreign power is to provide for a different rule of procedure for that
accused, which also violates the equal protection clause of the Constitution (Art. III, Sec. 1.).

Again, this Court finds no violation of the Constitution.

The equal protection clause is not violated, because there is a substantial basis for a different treatment of a member of a
foreign military armed forces allowed to enter our territory and all other accused.11

The rule in international law is that a foreign armed forces allowed to enter one’s territory is immune from local
jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving foreign military units around
the world vary in terms and conditions, according to the situation of the parties involved, and reflect their bargaining
power. But the principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the sending State
only to the extent agreed upon by the parties.12

As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure is curtailed or
violated, but rather one in which, as is normally encountered around the world, the laws (including rules of procedure) of
one State do not extend or apply – except to the extent agreed upon – to subjects of another State due to the recognition of
extraterritorial immunity given to such bodies as visiting foreign armed forces.

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. On the contrary, the
Constitution states that the Philippines adopts the generally accepted principles of international law as part of the law of
the land. (Art. II, Sec. 2).

Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it comes to detention
as against custody. The moment the accused has to be detained, e.g., after conviction, the rule that governs is the
following provision of the VFA:

Article V
Criminal Jurisdiction

xxx

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

It is clear that the parties to the VFA recognized the difference between custody during the trial and detention after
conviction, because they provided for a specific arrangement to cover detention. And this specific arrangement clearly
states not only that the detention shall be carried out in facilities agreed on by authorities of both parties, but also that the
detention shall be "by Philippine authorities." Therefore, the Romulo-Kenney Agreements of December 19 and 22, 2006,
which are agreements on the detention of the accused in the United States Embassy, are not in accord with the VFA itself
because such detention is not "by Philippine authorities."

Respondents should therefore comply with the VFA and negotiate with representatives of the United States towards an
agreement on detention facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the VFA.

Next, the Court addresses the recent decision of the United States Supreme Court in Medellin v. Texas ( 552 US ___ No.
06-984, March 25, 2008), which held that treaties entered into by the United States are not automatically part of their
domestic law unless these treaties are self-executing or there is an implementing legislation to make them
enforceable.1avvphi1

On February 3, 2009, the Court issued a Resolution, thus:

"G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No. 176051 (Jovito R. Salonga, et al. v.
Daniel Smith, et al.); and G.R. No. 176222 (Bagong Alyansang Makabayan [BAYAN], et al. v. President Gloria
Macapagal-Arroyo, et al.).

The parties, including the Solicitor General, are required to submit within three (3) days a Comment/Manifestation on the
following points:

1. What is the implication on the RP-US Visiting Forces Agreement of the recent US Supreme Court decision in
Jose Ernesto Medellin v. Texas, dated March 25, 2008, to the effect that treaty stipulations that are not self-
executory can only be enforced pursuant to legislation to carry them into effect; and that, while treaties may
comprise international commitments, they are not domestic law unless Congress has enacted implementing
statutes or the treaty itself conveys an intention that it be "self-executory" and is ratified on these terms?

2. Whether the VFA is enforceable in the US as domestic law, either because it is self-executory or because there
exists legislation to implement it.

3. Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in by the US Senate and, if so,
is there proof of the US Senate advice and consent resolution? Peralta, J., no part."

After deliberation, the Court holds, on these points, as follows:

First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because the parties intend its
provisions to be enforceable, precisely because the Agreement is intended to carry out obligations and undertakings under
the RP-US Mutual Defense Treaty. As a matter of fact, the VFA has been implemented and executed, with the US
faithfully complying with its obligation to produce L/CPL Smith before the court during the trial.

Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC Sec. 112(b), inasmuch
as it is the very purpose and intent of the US Congress that executive agreements registered under this Act within 60 days
from their ratification be immediately implemented. The parties to these present cases do not question the fact that the
VFA has been registered under the Case-Zablocki Act.1avvphi1
In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the Avena decision of the
International Court of Justice (ICJ), subject matter of the Medellin decision. The Convention and the ICJ decision are not
self-executing and are not registrable under the Case-Zablocki Act, and thus lack legislative implementing authority.

Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on March 20, 1952, as
reflected in the US Congressional Record, 82nd Congress, Second Session, Vol. 98 – Part 2, pp. 2594-2595.

The framers of the Constitution were aware that the application of international law in domestic courts varies from
country to country.

As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF INTERNATIONAL CRIMINAL LAW IN
NATIONAL COURTS, some countries require legislation whereas others do not.

It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25, to require the other
contracting State to convert their system to achieve alignment and parity with ours. It was simply required that the treaty
be recognized as a treaty by the other contracting State. With that, it becomes for both parties a binding international
obligation and the enforcement of that obligation is left to the normal recourse and processes under international law.

Furthermore, as held by the US Supreme Court in Weinberger v. Rossi,13 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. Thus, the
US Supreme Court in Weinberger enforced the provisions of the executive agreement granting preferential employment to
Filipinos in the US Bases here.

Accordingly, there are three types of treaties in the American system:

1. Art. II, Sec. 2 treaties – These are advised and consented to by the US Senate in accordance with Art. II, Sec. 2
of the US Constitution.

2. Executive–Congressional Agreements: These are joint agreements of the President and Congress and need not
be submitted to the Senate.

3. Sole Executive Agreements. – These are agreements entered into by the President. They are to be submitted to
Congress within sixty (60) days of ratification under the provisions of the Case-Zablocki Act, after which they are
recognized by the Congress and may be implemented.

As regards the implementation of the RP-US Mutual Defense Treaty, military aid or assistance has been given under it
and this can only be done through implementing legislation. The VFA itself is another form of implementation of its
provisions.

WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals’ Decision in CA-G.R. SP No. 97212
dated January 2, 2007 is MODIFIED. The Visiting Forces Agreement (VFA) between the Republic of the Philippines and
the United States, entered into on February 10, 1998, is UPHELD as constitutional, but the Romulo-Kenney Agreements
of December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of Foreign
Affairs is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on
detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo
shall be maintained until further orders by this Court.

The Court of Appeals is hereby directed to resolve without delay the related matters pending therein, namely, the petition
for contempt and the appeal of L/CPL Daniel Smith from the judgment of conviction.

No costs.

SO ORDERED.
PIMENTEL VS EXECUTIVE SECRETARY

UNO J.:

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

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

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

Petitioners filed the instant petition to compel the respondents — the Office of the Executive Secretary and the
Department of Foreign Affairs — to transmit the signed text of the treaty to the Senate of the Philippines for ratification.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function
of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the
Senate to allow it to exercise its discretion with respect to ratification of treaties. Moreover, petitioners submit that the
Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. Petitioners
invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the
object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention
clear not to become parties to the treaty.5

The Office of the Solicitor General, commenting for the respondents, questioned the standing of the petitioners to file the
instant suit. It also contended that the petition at bar violates the rule on hierarchy of courts. On the substantive issue
raised by petitioners, respondents argue that the executive department has no duty to transmit the Rome Statute to the
Senate for concurrence.

A petition for mandamus may be filed when any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station. 6 We 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 of mandamus. This Court has no jurisdiction
over actions seeking to enjoin the President in the performance of his official duties.23 The Court, therefore, cannot issue
the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the
government to transmit the signed text of Rome Statute to the Senate.

IN VIEW WHEREOF, the petition is DISMISSED.

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L.
MAZA, Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity as Secretary of
Foreign Affairs, Respondents.

DECISION

VELASCO, JR., J.:

The Case

This petition1 for certiorari, mandamus and prohibition under Rule 65 assails and seeks to nullify the Non-Surrender
Agreement concluded by and between the Republic of the Philippines (RP) and the United States of America (USA).

The Facts

Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society.
Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to this case.
Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary.2

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute 3 establishing the International Criminal Court (ICC)
with "the power to exercise its jurisdiction over persons for the most serious crimes of international concern  x x x and
shall be complementary to the national criminal jurisdictions."4 The serious crimes adverted to cover those considered
grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression.5

On December 28, 2000, the RP, through Charge 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
the Agreement and prays that it be struck down as unconstitutional, or at least declared as without force and effect.

For their part, respondents question 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 the Rome Statute
of the [ICC] to prosecute and try "persons" as defined in the x x x Agreement, x x x or literally any
conduit of American interests, who have committed crimes of genocide, crimes against humanity, war
crimes and the crime of aggression, thereby abdicating Philippine Sovereignty.

B. Whether after the signing and pending ratification of the Rome Statute of the [ICC] the [RP] President
and the [DFA] Secretary x x x are obliged by the principle of good faith to refrain from doing all acts
which would substantially impair the value of the undertaking as signed.

C. Whether the x x x Agreement constitutes an act which defeats the object and purpose of the Rome
Statute of the International Criminal Court and contravenes the obligation of good faith inherent in the
signature of the President affixed on the Rome Statute of the International Criminal Court, and if so
whether the x x x Agreement is void and unenforceable on this ground.

D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave abuse of
discretion amounting to lack or excess of jurisdiction in connection with its execution.
 II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR CONTRACTING
OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT VARIANCE WITH UNIVERSALLY
RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.

III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT THE

CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE x x x.11

The foregoing issues may be summarized into two: first, whether or not the Agreement was contracted validly, which
resolves itself into the question of whether or not respondents gravely abused their discretion in concluding it; and second,
whether or not the Agreement, which has not been submitted to the Senate for concurrence, contravenes and undermines
the Rome Statute and other treaties. But because respondents expectedly raised it, we shall first tackle the issue of
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
the Agreement carries with it constitutional significance and is of paramount importance that justifies its standing. Cited in
this regard is what is usually referred to as the emergency powers cases,12 in which ordinary citizens and taxpayers were
accorded the personality to question the constitutionality of executive issuances.

Locus standi is "a right of appearance in a court of justice on a given question."13 Specifically, it is "a 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 cases 22 and Kilosbayan v. Guingona, Jr.23 In 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. 36 Authorities 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,41 holding that
an executive agreement through an exchange of notes cannot be used to amend a treaty.

We are not persuaded.

The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea
Trading is not cast in stone. There are no hard and fast rules on the propriety of entering, on a given subject, into a treaty
or an executive agreement as an instrument of international relations. The primary consideration in the choice of the form
of agreement is the parties’ intent and desire to craft an international agreement in the form they so wish to further their
respective interests. Verily, the matter of form takes a back seat when it comes to effectiveness and binding effect of the
enforcement of a treaty or an executive agreement, as the parties in either international agreement each labor under
the pacta sunt servanda42 principle.

As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea Trading. Since
then, the conduct of foreign affairs has become more complex and the domain of international law wider, as to include
such subjects as human rights, the environment, and the sea. In fact, in the US alone, the executive agreements executed
by its President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation, aviation, atomic energy,
environmental cooperation, peace corps, arms limitation, and nuclear safety, among others. 43 Surely, the enumeration
in Eastern Sea Trading cannot circumscribe the option of each state on the matter of which the international agreement
format would be convenient to serve its best interest. As Francis Sayre said in his work referred to earlier:

x x x It would be useless to undertake to discuss here the large variety of executive agreements as such concluded from
time to time. Hundreds of executive agreements, other than those entered into under the trade-agreement act, have been
negotiated with foreign governments. x x x They cover such subjects as the inspection of vessels, navigation dues, income
tax on shipping profits, the admission of civil air craft, custom matters and commercial relations generally, international
claims, postal matters, the registration of trademarks and copyrights, etc. x x x
And lest it be overlooked, one type of executive agreement is a treaty-authorized 44 or a treaty-implementing executive
agreement,45 which necessarily would cover the same matters subject of the underlying treaty.

But over and above the foregoing considerations is the fact 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 Convention 57 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, the Agreement alters. And
for a third, it does not demonstrate in the concrete how the Agreement seeks to frustrate the objectives of the principles of
law subsumed in the Rome Statute.

Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the former merely reinforces the
primacy of the national jurisdiction of the US and the Philippines in prosecuting criminal offenses committed by their
respective citizens and military personnel, among others. The jurisdiction of the ICC pursuant to the Rome Statute over
high crimes indicated thereat is clearly and unmistakably complementary to the national criminal jurisdiction of the
signatory states.

Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian law, genocide and
other crimes against humanity;70 (2) provides penal sanctions and criminal liability for their commission;71 and (3)
establishes special courts for the prosecution of these crimes and for the State to exercise primary criminal
jurisdiction.72 Nowhere in RA 9851 is there a proviso that goes against the tenor of the Agreement.

The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the Philippine State to surrender
to the proper international tribunal those persons accused of crimes sanctioned under said law if it does not exercise its
primary jurisdiction to prosecute such persons. This view is not entirely correct, for the above quoted proviso clearly
provides discretion to the Philippine State on whether to surrender or not a person accused of the crimes under RA 9851.
The statutory proviso uses the word "may." It is settled doctrine in statutory construction that the word "may" denotes
discretion, and cannot be construed as having mandatory effect.73 Thus, the pertinent second pararagraph of Sec. 17, RA
9851 is simply permissive on the part of the Philippine State.1avvphi1

Besides, even granting that the surrender of a person is mandatorily required when the Philippines does not exercise its
primary jurisdiction in cases where "another court or international tribunal is already conducting the investigation or
undertaking the prosecution of such crime," still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said
legal proviso aptly provides that the surrender may be made "to another State pursuant to the applicable extradition laws
and treaties." The Agreement can already be considered a treaty following this 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.801avvphi1

Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:

§1091. Genocide

(a) Basic Offense – Whoever, whether in the time of peace or in time of war and with specific intent to destroy, in
whole or in substantial part, a national, ethnic, racial or religious group as such–

(1) kills members of that group;

(2) causes serious bodily injury to members of that group;

(3) causes the permanent impairment of the mental faculties of members of the group through drugs,
torture, or similar techniques;

(4) subjects the group to conditions of life that are intended to cause the physical destruction of the group
in whole or in part;
 (5) imposes measures intended to prevent births within the group; or

(6) transfers by force children of the group to another group;

shall be punished as provided in subsection (b).81

Arguing further, another view has been advanced that the current US laws do not cover every crime listed within the
jurisdiction of the ICC and that there is a gap between the definitions of the different crimes under the US laws versus the
Rome Statute. The view used a report written by Victoria K. Holt and Elisabeth W. Dallas, entitled "On Trial: The US
Military and the International Criminal Court," as its basis.

At the outset, it should be pointed out that the report used may not have any weight or value under international law.
Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources of international law, as follows: (1)
international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
(2) international custom, as evidence of a general practice accepted as law; (3) the general principles of law recognized by
civilized nations; and (4) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of law. The report does not
fall under any of the foregoing enumerated sources. It cannot even be considered as the "teachings of highly qualified
publicists." A highly qualified publicist is a scholar of public international law and the term usually refers to legal scholars
or "academic writers."82 It has not been shown that the authors83 of this report are highly qualified publicists.

Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the crimes are nonexistent. To
highlight, the table below shows the definitions of genocide and war crimes under the Rome Statute vis-à-vis the
definitions under US laws:

Rome Statute US Law

Article 6 §1091. Genocide
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:
(a) Killing members of the group;
(b) Causing serious bodily or 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.
(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

Article 8 (d) Definition – As used in this Section
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 the
relevant Geneva Convention: x
x x84
(b) Other serious violations of
the laws and customs
applicable in international
armed conflict, within the
established framework of
international law, namely, any
of the following acts:
xxxx
(c) In the case of an armed
conflict not of an international
character, serious violations of
article 3 common to the four
Geneva Conventions of 12
August 1949, namely, any of
the following acts committed
against persons taking no active
part in the hostilities, 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
group; or
(6) transfers by force children
of the group to another group;
shall be punished as provided in
subsection (b).
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]85) 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.86
 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 Quirin 96 the US Supreme
Court noted that "[f]rom the very beginning of its history this Court has recognized and applied the law of war as
including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy
nations as well as of enemy individuals." 97 It went on further to explain that Congress had not undertaken the task of
codifying the specific offenses covered in the law of war, thus:
It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that branch of
international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law
condemns. An Act of Congress punishing ‘the crime of piracy as defined by the law of nations is an appropriate exercise
of its constitutional authority, Art. I, s 8, cl. 10, ‘to define and punish’ the offense since it has adopted by reference the
sufficiently precise definition of international law. x x x Similarly by the reference in the 15th Article of War to ‘offenders
or offenses that x x x by the law of war may be triable by such military commissions. Congress has incorporated by
reference, as within the jurisdiction of military commissions, all offenses which are defined as such by the law of war x x
x, and which may constitutionally be included within that jurisdiction.98 x x x (Emphasis supplied.)

This rule finds an even stronger hold in the case of crimes against humanity. It has been held that genocide, war crimes
and crimes against humanity have attained the status of customary international law. Some even go so far as to state that
these crimes have attained the status of jus cogens.99

Customary international law or international custom is a source of international law as stated in the Statute of the ICJ. 100 It
is defined as the "general and consistent practice of states recognized and followed by them from a sense of legal
obligation."101 In order to establish the customary status of a particular norm, two elements must concur: State practice, the
objective element; and opinio juris sive necessitates, the subjective element.102

State practice refers to the continuous repetition of the same or similar kind of acts or norms by States. 103 It is
demonstrated upon the existence of the following elements: (1) generality; (2) uniformity and consistency; and (3)
duration.104 While, opinio juris, the psychological element, requires that the state practice or norm "be carried out in such a
way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it."105

"The term ‘jus cogens’ means the ‘compelling law.’"106 Corollary, "a jus cogens norm holds the highest hierarchical
position among all other customary norms and principles."107 As a result, jus cogens norms are deemed "peremptory and
non-derogable."108 When applied to international crimes, "jus cogens crimes have been deemed so fundamental to the
existence of a just international legal order that states cannot derogate from them, even by agreement."109

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state may exercise jurisdiction over an
individual who commits certain heinous and widely condemned offenses, even when no other recognized basis for
jurisdiction exists."110 "The rationale behind this principle is that the crime committed is so egregious that it is considered
to be committed against all members of the international community"111 and thus granting every State jurisdiction over the
crime.112

Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the doctrine of
incorporation and universal jurisdiction to try these crimes.

Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the Rome Statute is not
declaratory of customary international law.

The first element of customary international law, i.e., "established, widespread, and consistent practice on the part of
States,"113 does not, under the premises, appear to be obtaining as reflected in this simple reality: As of October 12, 2010,
only 114114 States have ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier, or on July 1,
2002. The fact that 114 States out of a total of 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.
xxx

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. 117 Like 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.