Professional Documents
Culture Documents
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air force. The Philippines also agreed with the U.S. to use the
MDT to preposition U.S. war materials in strategic locations in the
Philippines, particularly in the islands of Palawan and Luzon facing
the West Philippine Sea.
Same; Same; View that this is what the Enhanced Defense
Cooperation Agreement (EDCA) is all about · the prepositioning in
strategic locations of war materials to successfully resist any armed
aggression.·In modern warfare, the successful implementation of a
mutual defense treaty requires the strategic prepositioning of war
materials. Before the advent of guided missiles and drones, wars
could take months or even years to prosecute. There was plenty of
time to conscript and train soldiers, manufacture guns and artillery,
and ship war materials to strategic locations even after the war had
started. Today, wars could be won or lost in the first few weeks or
even first few days after the initial outbreak of war. In modern
warfare, the prepositioning of war materials, like mobile anti-ship
and anti-aircraft missiles, is absolutely necessary and essential to a
successful defense against armed aggression, particularly for a
coastal state like the Philippines. This is what the EDCA is all
about · the prepositioning in strategic locations of war materials to
successfully resist any armed aggression. Such prepositioning will
also publicly telegraph to the enemy that any armed aggression
would be repelled. The enemy must know that we possess the
capability, that is, the war materials, to defend the country against
armed aggression. Otherwise, without such capability, we telegraph
to the enemy that further seizure of Philippine islands, rocks and
reefs in the South China Sea would be a walk in the park, just like
ChinaÊs seizure of Mischief Reef and Scarborough Shoal. Without
such capability, we would practically be inviting the enemy to seize
whatever Philippine island, rock or reef it desires to seize in the
West Philippine Sea.
Same; Same; View that the Philippines will lose 381,000 square
kilometers of its Exclusive Economic Zone (EEZ) in the West
Philippine Sea, a maritime space larger than the total Philippine
land area of 300,000 square kilometers.·It is obvious that China
will use the three air and naval bases in its artificial islands to
prevent Philippine ships and planes from re-supplying Philippine-
occupied islands in the Spratlys, forcing the Philippines to abandon
its occupied islands. Already, Chinese coast guard vessels are
preventing medium-sized Philippine ships from re-supplying the
BRP Sierra Madre, the
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tions that bear upon its plain terms, among them, the treaty-
executive agreement distinctions under Article VII, Section 21 that
I discussed above; the history of Article XVIII, Section 25; the
motivations that drove the framers to adopt the provision; and the
current and contemporaneous developments and usages that give
full and effective meaning to the provision. Separately from textual
interpretation considerations and as part of the history of Article
XVIII, Section 25, the basic concept of sovereignty that underlies it
should not be forgotten. Sovereignty means the full right and power
of the nation to govern itself, its people, and its territory without
any interference from outside sources or entities. Within its
territory, a nation reigns supreme. If it will allow interference at all,
such interference should be under the terms the nation allows and
has accepted; beyond those terms, the primacy of sovereignty is the
rule.
Same; Treaties; View that Article XVIII, Section 25 imposed
three (3) requirements that must be complied with for an agreement
to be considered valid insofar as the Philippines is concerned. These
three requirements are: (1) the agreement must be embodied in a
treaty; (2) the treaty must be duly concurred in by 2/3 votes of all the
members of the Senate; recognized as a treaty by the other State; and
(3) the agreement must be recognized as a treaty by the other State.·
Article XVIII, Section 25 imposed three requirements that must be
complied with for an agreement to be considered valid insofar as the
Philippines is concerned. These three requirements are: (1) the
agreement must be embodied in a treaty; (2) the treaty must be
duly concurred in by 2/3 votes of all the members of the Senate; and
(3) the agreement must be recognized as a treaty by the other State.
On the second requirement, the two-thirds concurrence of all the
members of the Senate, the peopleÊs representative, may be viewed
as the peopleÊs „voluntary submission‰ of their sovereignty so they
can reap the greater benefits of the agreement that the President,
as policymaker, entered into. When the Congress so requires, the
agreement should be ratified by a majority of the votes cast by the
people in a national referendum held for that purpose. This
additional requirement evinces the framersÊ intent to emphasize the
peopleÊs direct participation in treaty-making.
Same; Same; Mutual Defense Treaty; View that an attack on
either party will be acted upon in accordance with their
constitutional processes and any armed attack on either party will be
brought to the
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bly allows the U.S. to use the Agreed Locations for 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.‰ In order to carry out these activities, the
EDCA allows U.S. military personnel to enter and remain in
Philippine territory. It grants the U.S. the right to construct
structures and assemblies. It also allows the U.S. to preposition
defense equipment, supplies and materiel. The U.S. personnel may
also use the Agreed Locations to refuel aircraft and bunker vessels.
Mutual Defense Treaty; Visiting Forces Agreement; View that
neither the 1951 Mutual Defense Treaty (MDT) nor the 1998 Visiting
Forces Agreement (VFA) authorized stockpiling. The 1951 MDT
focused on developing the Philippines and the United StatesÊ (U.S.Ê)
capacity to resist an armed attack while 1998 VFA focused on the
entry and exit of U.S. troops in the country. No provision in either
treaty specifically allows stockpiling of military materiel.·Notably,
neither the 1951 MDT nor the 1998 VFA authorized
stockpiling. The 1951 MDT focused on developing the Philippines
and the U.S.Ês capacity to resist an armed attack while 1998 VFA
focused on the entry and exit of US troops in the country. No
provision in either treaty specifically allows stockpiling of military
materiel. In sum, the Agreed Locations mentioned in the EDCA are
areas where the U.S. can perform military activities in structures
built by its personnel. The extent of the U.S.Ê right to use of the
Agreed Locations is broad enough to include even the stockpiling of
weapons and the shelter and repair of vessels over which the U.S.
personnel has exclusive control. Clearly, this is a military base as
this term is ordinarily understood. Further, as we held in BAYAN
(Bagong Alyansang Makabayan) v. Zamora, 342 SCRA 449 (2000),
Article XVIII, Section 25 refers to three different situations: the
presence of foreign military bases, troops, or facilities. Even
assuming that the EDCA is not a basing agreement, it
nevertheless involves the deployment of troops and facilities
in Philippine soil. As I have already stated, the EDCA allows U.S.
forces to enter and remain in the Philippines. It defines U.S. forces
to include U.S. military and civilian personnel and U.S. Armed
Forces property,
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are of a temporary nature. This is not the case with the EDCA.
The EDCA contains significant and material obligations not
contemplated by the VFA. As an executive agreement, it cannot be
given any legal effect.
Enhanced Defense Cooperation Agreement; Foreign Military
Bases; View that United States (U.S.) military forces will not only be
allowed to „visit‰ Philippine territory to do a transient military
training exercise with their Philippine counterparts.·United States
military forces will not only be allowed to „visit‰ Philippine territory
to do a transient military training exercise with their Philippine
counterparts. They are also allowed to execute, among others, the
following scenarios: One: Parts of Philippine territory may be used
as staging areas for special or regular United States military
personnel for intervention in conflict areas in the Southeast Asian
region. This can be in the form of landing rights given to their
fighter jets and stealth bombers or way stations for SEALS or other
special units entering foreign territory in states not officially at war
with the Philippines. Two: Parts of Philippine territory may be used
to supplement overt communication systems of the United States
forces. For instance, cyberwarfare targeting a state hostile to the
United States can be launched from any of the Agreed Locations to
pursue their interests even if this will not augur well to Philippine
foreign policy. Three: Parts of Philippine territory may be used to
plan, deploy, and supply covert operations done by United States
contractors such as Blackwater and other mercenary groups that
have been used by the United States in other parts of the world.
The EDCA covers these types of operations within and outside
Philippine territory. Again, the consequences to Philippine foreign
policy in cases where targets are found in neighboring countries
would be immeasurable. The Visiting Forces Agreement does not
cover these sample activities. Nor does it cover United States
contractors.
Same; Same; Agreed Locations; View that blanket authority over
Agreed Locations is granted under Article VI, Section 3 of the
Enhanced Defense Cooperation Agreement (EDCA). The United
States (U.S.) forces are given a broad range of powers with regard to
the Agreed Locations that are „necessary for their operational control
or defense.‰·Blanket authority over Agreed Locations is granted
under Article VI, Section 3 of the EDCA. The United States forces
are given a broad range of powers with regard to the Agreed Loca-
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SERENO, CJ.:
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8 Id., Art. I.
9 Id., Art. II, Sec. 3.
10 Id.
11 Id., Art. II, Sec. 5.
12 Id., Art. VII, Sec. 18, in relation to Art. II, Secs. 3, 4 & 7; Executive
Order No. 292 (Administrative Code of 1987), Book IV (Executive
Branch), Title VIII (National Defense), Secs. 1, 15, 26 & 33 [hereinafter
Administrative Code of 1987].
13 Administrative Code of 1987, Book IV (Executive Branch), Title
XII (Local Government), Sec. 3(5).
14 Constitution, Art. VII, Sec. 18.
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17 Vinuya v. Romulo, 633 Phil. 538, 570; 619 SCRA 533, 561 (2010)
(quoting the Dissenting Opinion of then Assoc. Justice Reynato S. Puno
in Secretary of Justice v. Lantion, 379 Phil. 165, 233-234; 322 SCRA 160,
221-222 [2000]).
18 Constitution, Art. II, Sec. 7.
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28 Id.
29 Id.
30 Id.
31 Id.; Simbulan, Roland G., The Bases of our Insecurity: A Study of
the US Military Bases in the Philippines, p. 13 (2nd ed. 1985).
32 Hare-Hawes-Cutting Act, ch. 11, Sec. 2(1), 47 US Stat. 761 (1933).
According to the law: „Sec. 2. The constitution formulated and
drafted shall be republican in form, shall contain a bill of rights, and
shall, either as a part thereof or in an ordinance appended thereto,
contain provisions to the effect that, pending the final and
complete withdrawal of the sovereignty of the United States over
the Philippine Islands · (1) The Philippine Islands recognizes the
right of the United States x x x to maintain military and other
reservations and armed forces in the Philippines x x x.‰
33 Hare-Hawes-Cutting Act, Secs. 5 & 10. According to the law: „Sec.
5. All the property and rights which may have been acquired in
the Philippine Islands by the United States under the treaties
mentioned in the first section of this Act, except such land or other
property as has heretofore been designated by
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310 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
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ment (21 Nov. 2007). See generally: People v. Nazareno, 612 Phil. 753;
595 SCRA 438 (2009) (on the continued effectivity of the agreement).
59 See Mutual Defense Treaty between the Republic of the
Philippines and the United States of America, 30 Aug. 1951, 177 UNTS
133 (entered into force 27 Aug. 1952) [hereinafter 1951 MDT]. According
to its preamble: „The Parties to this Treaty x x x Desiring further to
strengthen their present efforts to collective defense for the preservation
of peace and security pending the development of a more comprehensive
system of regional security in the Pacific Area x x x hereby agreed as
follows[.]‰ See: Bayan (Bagong Alyansang Makabayan) v. Zamora, supra
note 23.
60 S. Res. 84, 2nd Cong. (1952); Foreign Service Institute, supra note
24 at pp. 193-194; The Philippine instrument of ratification was signed
by the President on 27 August 1952 and it entered into force on the same
date upon the exchange of ratification between the Parties (Philippines
and U.S.), and was proclaimed by the President by virtue of Proc. No.
341, S. 1952.
61 Nicolas v. Romulo, supra note 39 (citing U.S. Congressional
Record, 82nd Congress, Second Session, Vol. 98, Part 2, pp. 2594-2595).
62 1951 MDT, Art. II.
63 Id., Arts. IV-V.
64 Padua, Colonel Paterno C., Republic of the Philippines United
States Defense Cooperation: Opportunities and Challenges, A Filipino
Perspective, p. 6 (2010).
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85 Memorandum of the OSG, pp. 8, 24 Rollo (G.R. No. 212426, Vol. I),
pp. 438, 454.
86 See Note No. 1082 of the U.S. Embassy to the DFA dated 25 June
2014, Annex B of the Memorandum of the OSG, Rollo (G.R. No. 212426,
Vol. I), p. 477; Memorandum of the OSG, p. 8, Rollo (G.R. No. 212426,
Vol. I), p. 438.
87 Statement of Secretary Albert F. del Rosario on the signing of the
PH-U.S. EDCA, Department of Foreign Affairs (28 Apr. 2014) available
at <https://www.dfa.gov.ph/index.php/newsroom/dfa-releases/2694-
statement-of-secretary-albert-f-del-rosario-on-the-signing-of-the-
philippines-us-enhanced-defense-cooperation-agreement> (last visited 5
Nov. 2015); Frequently Asked Questions (FAQ) on the Enhanced Defense
Cooperation Agreement, Department of Foreign Affairs (28 Apr. 2014)
available at <https://www.dfa.gov.ph/index.php/newsroom/dfa-
releases/2693-frequently-asked-questions-faqs-on-the-enhanced-defense-
cooperation-agreement> (last visited 5 Nov. 2015).
88 EDCA; Memorandum of OSG, p. 3, Rollo (G.R. No. 212426, Vol. I),
p. 433.
89 Instrument of Ratification, Annex of A of the Memorandum of
OSG, Rollo, p. 476.
90 Oral Arguments, TSN, 25 November 2014, pp. 119-120.
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III. Issues
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IV. Discussion
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113 Memorandum of OSG, supra note 80. See also Note No. 1082,
supra note 86.
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122 Petition of Saguisag, et al., p. 10, Rollo (G.R. No. 212426, Vol. I),
p. 12; Petition of Bayan, et al., pp. 9-10, Rollo (G.R. No. 212444, Vol. I),
pp. 11-12; Memorandum of Bayan, et al., pp. 19, 23, Rollo (G.R. No.
212444, Vol. I), pp. 583, 587.
123 Oral Arguments, TSN, 18 November 2014, pp. 19-20.
124 Consolidated Comment of the OSG, p. 4, Rollo (G.R. No. 212426,
Vol. I), p. 241; Memorandum of OSG, p. 7, Rollo (G.R. No. 212426, Vol. I),
p. 437.
125 Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 23.
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126 Id., (citing Pascual v. Secretary of Public Works, 110 Phil. 331
[1960]; Maceda v. Macaraig, Jr., G.R. No. 88291, 31 May 1991, 197 SCRA
771; Lozada v. Commission on Elections, 205 Phil. 283; 120 SCRA 337
[1983]; Dumlao v. COMELEC, 184 Phil. 369; 95 SCRA 392 [1980];
Gonzales v. Marcos, 160 Phil. 637; 65 SCRA 624 [1975]).
127 Id., (citing Bugnay Construction and Development Corporation v.
Laron, 257 Phil. 245; 176 SCRA 240 [1989]).
128 Lozano v. Nograles, supra note 111 at pp. 342-343; p. 361.
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129 Petition of Bayan, et al., p. 10, Rollo (G.R. No. 212444, Vol. I), p.
12; Memorandum of Bayan, et al., pp. 19-20, Rollo (G.R. No. 212444, Vol.
I), pp. 583-584.
130 Consolidated Comment of the OSG, pp. 3-4, Rollo (G.R. No.
212444, Vol. I), pp. 240-241; Memorandum of the OSG, pp. 4-7, Rollo
(G.R. No. 212444, Vol. I), pp. 434-437.
131 Pimentel, Jr. v. Office of the Executive Secretary, supra note 15;
Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 23;
Philippine Constitution Association v. Enriquez, G.R. Nos. 113105,
113174, 113766, 113888, 19 August 1994, 235 SCRA 506; Gonzales v.
Macaraig, supra note 97; Mabanag v. Lopez Vito, 78 Phil. 1 (1947).
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139 Consolidated Comment of the OSG, pp. 4-5, Rollo (G.R. No.
212444, Vol. I), pp. 241-242; Memorandum of the OSG, pp. 7-8, Rollo
(G.R. No. 212444, Vol. I), pp. 437-438.
140 Bayan Muna v. Romulo, supra note 114 at p. 265; p. 255 (citing
Constantino, Jr. v. Cuisia, 509 Phil. 486; 472 SCRA 505 [2005]; Agan, Jr.
v. Philippine International Air Terminals Co., Inc., 450 Phil. 744; 402
SCRA 612 [2003]; Del Mar v. Philippine Amusement and Gaming
Corporation, 400 Phil. 307; 346 SCRA 485 [2000]; Tatad v. Garcia, Jr.,
313 Phil. 296; 243 SCRA 436 [1995]; Kilosbayan, Incorporated v.
Guingona, Jr., G.R. No. 113375, 5 May 1994, 232 SCRA 110); Integrated
Bar of the Philippines v. Zamora, 392 Phil. 618; 338 SCRA 81 (2000).
336
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145 Id.
146 Constitution, Art. VII, Sec. 5; Constitution (1973, as amended),
Art. VII, Sec. 7; Constitution (1935, as amended), Art. VII, Sec. 7.
147 Id.
148 Almario v. Executive Secretary, supra note 114.
149 Constitution (1973, as amended), Art. VII, Sec. 10: „The
President shall have control of the ministries.‰
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170 Memorandum of Bayan, et al., pp. 29-32, Rollo (G.R. No. 212444),
pp. 593-596; Memorandum of Saguisag, et al., pp. 17-29, 35-37, Rollo
(G.R. No. 212426, Vol. II), pp. 987-999, 1005-1007.
171 The pertinent text of SR 105 is reproduced below:
WHEREAS, the treaty known as RP-US EDCA (Enhanced Defense
Cooperation Agreement) is at present subject of Supreme Court
proceedings on the question of whether this treaty is valid and effective,
considering that the Senate has not concurred with the treaty;
WHEREAS, the Office of the President argues that the document is
not a treaty but is instead an executive agreement that allegedly does
not require Senate concurrence;
WHEREAS, the only constitutional ground for the position taken by
the Executive is the mere inclusion of the term „executive agreement‰ in
the Constitution which provides: „All cases involving the
constitutionality of an ... executive agree-
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172 Arigo v. Swift, G.R. No. 206510, 16 September 2014, 735 SCRA
102; Land Bank of the Philippines v. Atlanta Industries, Inc., G.R. No.
193796, 2 July 2014, 729 SCRA 12; Roxas v. Ermita, G.R. No. 180030,
June 10, 2014; Bayan Muna v. Romulo, supra note 114; Vinuya v.
Romulo, supra note 17; Nicolas v. Romulo, supra note 39; Akbayan
Citizens Action Party v. Aquino, supra note 15; Suplico v. NEDA, 580
Phil. 301; 558 SCRA 329 (2008); Neri v. Senate Committee on
Accountability of Public Officers and Investigations, 572 Phil. 554; 549
SCRA 77 (2008); Abaya v. Ebdane, Jr., 544 Phil. 645; 515 SCRA 720
(2007); Senate of the Philippines v. Ermita, 522 Phil. 1; 488 SCRA 1
(2006); Pimentel, Jr. v. Office of the Executive Secretary, supra note 15;
Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note note 23;
Chavez v. Presidential Commission on Good Government, 360 Phil. 133;
299 SCRA 744 (1998).
173 Republic v. Quasha, 150-B Phil. 140; 46 SCRA 160 (1972); Adolfo
v. Court of First Instance of Zambales, 145 Phil. 264; 34 SCRA 166
(1970); Commissioner of Internal Revenue v. Guerrero, 128 Phil. 197; 19
SCRA 205 (1967); Gonzales v. Hechanova, 118 Phil. 1065; 9 SCRA 230
(1963); Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333; 3
SCRA 351 (1961); USAFFE Veterans AssÊn., Inc. v. Treasurer of the Phil.,
105 Phil. 1030 (1959); Uy Matiao & Co., Inc. v. City of Cebu, 93 Phil. 300
(1953); Abbot Laboratories v. Agrava, 91 Phil. 328 (1952).
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229 Sinco, supra note 15 at p. 297. See: Vinuya v. Romulo, supra note
17 (on espousal of the claims of Philippine nationals against a foreign
government); Pimentel, Jr. v. Office of the Executive Secretary, supra note
15 (on ratification of international agreements); Secretary of Justice v.
Lantion, supra note 17 (on temporarily withholding of the right to notice
and hearing during the evaluation stage of the extradition process);
PeopleÊs Movement for Press Freedom v. Manglapus, supra note 15 (on the
imposition of secrecy in treaty negotiations with foreign countries).
230 Vinuya v. Romulo, id.
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234 Bayan Muna v. Romulo, supra note 114 at p. 273; p. 263. See also:
Nicolas v. Romulo, id.; Adolfo v. Court of First Instance of Zambales,
supra note 173; Abbot Laboratories v. Agrava, supra note 173. Senate
Resolution No. 18, dated 27 May 1999, which embodies the concurrence
of the Senate in the VFA, stresses in its preamble that „nothing in this
Resolution or in the VFA shall be construed as authorizing the
President of the Philippines alone to bind the Philippines to any
amendment of any provision of the VFA.‰ (Emphases supplied)
235 Lim v. Executive Secretary, supra note 69 at p. 571; p. 752.
236 The provision states: „As used in this Agreement, ÂUnited States
personnelÊ means United States military and civilian per-
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245 Id.
246 Concurring and Dissenting Opinion of Justice Teresita J.
Leonardo-De Castro, p. 528.
247 Lim v. Executive Secretary, supra note 69 at p. 575; p. 755.
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250 Memorandum of OSG, pp. 14-27, Rollo (G.R. No. 212426), pp.
444-457.
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251 Memorandum of Saguisag, et al., pp. 22-23, 38-49, Rollo (G.R. No.
212426, Vol. II), pp. 992-993, 1008-1019; Memorandum of Bayan, et al.,
pp. 35-41, Rollo (G.R. No. 212444), pp. 599-605.
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259 See: Djumantan v. Domingo, 310 Phil. 848; 240 SCRA 746 (1995).
260 Id., at p. 854; p. 752.
261 Commonwealth Act No. 613 (The Philippine Immigration Act of
1940, as amended).
262 Id., Secs. 10 & 11.
263 Id., Secs. 29 & 30. Under Section 29, the following classes of
aliens shall be excluded from entry into the Philippines: (1) Idiots or
insane persons and persons who have been insane; (2) Persons afflicted
with a loathsome or dangerous contagious disease, or epilepsy; (3)
Persons who have been convicted of a crime involving moral turpitude;
(4) Prostitutes, or procurers, or persons coming for any immoral
purposes; (5) Persons likely to become, public charge; (6) Paupers,
vagrants, and beggars; (7) Persons who practice polygamy or who believe
in or advocate the practice of polygamy; (8) Persons who believe in or
advocate the overthrow by force and violence of the Government
of the Philippines, or of constituted lawful authority, or who disbelieve in
or are opposed to organized government, or who advocate the assault
or assassination of public officials because of their office, or who
advocate or teach principles, theories, or ideas contrary to the
Constitution of the Philippines or advocate or teach the unlawful
destruction of property, or who are members of or affiliated with any
organization entertaining or teaching such doctrines; (9) Persons over
fifteen years of age, physically capable of reading, who cannot read
printed matter in ordinary use in any language selected by the alien, but
this provision shall not apply to the grandfather, grandmother, father,
mother, wife, husband or child of a Philippine citizen or of an alien
lawfully resident in the Philippines; (10) Persons who are members of a
family accompanying an excluded alien, unless in the
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c. Authorized activities of
U.S. military and civil-
ian personnel within
Philippine territory are
in furtherance of the
MDT and the VFA.
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393
Article III
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
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269 See: Secretary of Justice v. Lantion, supra note 17. According to
the Court: „An equally compelling factor to consider is the
understanding of the parties themselves to the RP-US Extradition
Treaty x x x. The rule is recognized that while courts have the power to
interpret treaties, the meaning given them by the departments of
government particularly charged with their negotiation and
enforcement is accorded great weight. x x x This interpretation by
the two governments cannot be given scant significance. It will be
presumptuous for the Court to assume that both governments did not
understand the terms of the treaty they concluded.‰ (Emphasis supplied)
270 See Status of Forces Agreement of 1993, supra note 70. The
International Law Commission explains that the subsequent practice of
states in the application of the treaty may be taken into account in
ascertaining the partiesÊ agreement in the interpretation of that treaty.
This is „well-established in the jurisprudence of international tribunals‰
even before the Vienna Convention on the Law of Treaties was concluded.
See International Law Commission, Draft Articles on the Law of Treaties
with Commentaries, 1966 (II) Y.B.I.L.C. 187 at pp. 221-222 (citing
Russian Claim for Indemnities [Russia/Turkey], XI R.I.A.A. 421, 433
[1912] [Nov. 11]; Competence of the ILO to Regulate Agricultural Labour,
1922 P.C.I.J. [ser. B] No. 2, 39 [Aug. 12]; Interpretation of Article 3,
paragraph 2, of the Treaty of Lausanne, 1925 P.C.I.J. [ser. B] No. 12, 24
[Nov. 21]; Brazilian
396
_______________
Loans, 1929 P.C.I.J. [ser. A] No. 21, 119 [Jul. 12]; and Corfu Channel
[U.K. v. Albania], 1949 I.C.J. 4, 25 [Apr. 9]).
271 Lim v. Executive Secretary, supra note 69 at pp. 571-572; p. 752.
272 Nicolas v. Romulo, supra note 39 at p. 284; p. 461.
273 Id.
274 Lim v. Executive Secretary, supra note 69 at p. 575; p. 755; Joint
Report of the Committee on Foreign Relations and the Committee on
National Defense and Security reproduced in Senate of the Philippines,
supra note 69 at p. 206.
275 Status of Forces Agreement of 1993, supra note 70. According to
Note No. 93-2301 dated 11 June 1993 of the DFA to the U.S. Embassy,
„The [DFA] x x x has the honor to reaffirm its position that all U.S.
military and civilian personnel present in the Philippines participating
in activities undertaken in relation to the Mutual Defense Treaty will be
accorded the same status as the U.S. EmbassyÊs technical and
administrative personnel who are qualified to enter the Philippines
under existing Philippine laws. The Department further proposes that
the procedures as well as the arrangements for these MDT-related
activities are to be mutually agreed upon by the MDB, subject to the
guidelines of the Council of Ministers.‰
397
398
_______________
276 Lim v. Executive Secretary, supra note 69. See also Joint Report of
the Committee on Foreign Relations and the Committee on National
Defense and Security reproduced in Senate of the Philippines, supra note
69 at pp. 230-231.
399
_______________
400
_______________
401
_______________
402
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.
_______________
286 Lim v. Executive Secretary, supra note 69 at pp. 565-566; pp. 746-
747.
403
x x x x.
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.
404
_______________
405
_______________
406
407
_______________
291 See Constitution, Art. VII, Sec. 18, in relation to Art. II, Sec. 3.
292 See Administrative Code of 1987, Book IV (Executive Branch),
Title I (Foreign Affairs), Sec. 3(1), in relation to Constitution, Art. VII,
Sec. 1 and Art. II, Sec. 3; Akbayan Citizens Action Party v. Aquino, supra
note 15; Pimentel, Jr. v. Office of the Executive Secretary, supra note 15;
Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 23.
293 Vinuya v. Romulo, supra note 17.
294 Id.
408
_______________
409
_______________
410
_______________
411
_______________
net/63649/us-navy-contractor-dumped-millions-of-liters-of-wastes-in-
subic> (last visited 3 December 2015).
306 Cabreza, Vincent, US Embassy says dumping of untreated waste
in Subic not condoned, Philippine Daily Inquirer, available at
<http://globalnation.inquirer.net/60255/us-embassy-says-dumping-of--
untreated-waste-in-subic-not-condoned> (last visited 3 December 2015).
307 Gonzaga, Robert, Contractor could face sanctions from US navy
for violations, Philippine Daily Inquirer, available at
<http://globalnation.inquirer.net/56622/contractor-could-face-sanctions-
from-usnavy-for-violations> (last visited 3 December 2015).
308 Lim v. Executive Secretary, supra note 69 at p. 580; pp. 759-760.
412
_______________
413
_______________
414
a. Preliminary point on
badges of exclusivity.
_______________
415
_______________
_______________
417
_______________
418
_______________
419
420
422
422 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
423
425
427
428
429
430
432
_______________
328 P.D. No. 1227 – Punishing Unlawful Entry into Any Military
Base in the Philippines, Sec. 2.
329 IV Record, Constitutional Commission, p. 648 (15 September
1986).
433
_______________
434
_______________
435
_______________
436
_______________
437
xxxx
_______________
438
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
_______________
439
_______________
440
_______________
441
_______________
xxxx
SPEECH OF COMMISSIONER TADEO354
Para sa magbubukid, ano ba 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, po-
_______________
443
_______________
444
_______________
445
_______________
446
_______________
447
_______________
448
_______________
449
_______________
450
_______________
451
452
_______________
453
_______________
380 BlackÊs Law Dictionary, p. 770 (6th ed., 1990). See also J. CarpioÊs
Dissenting Opinion in Liban v. Gordon, 654 Phil. 680; 639 SCRA 709
(2011).
381 Memorandum of Saguisag, p. 56, Rollo (G.R. No. 212426), p. 594.
382 Id., at p. 596.
454
_______________
455
b. Operational control
vis-à-vis effective com-
mand and control.
_______________
456
_______________
390 Id.
391 Id., at p. 598.
392 Id., at p. 599.
393 Id., footnote 76.
394 Id., footnote 77.
395 EDCA, preamble.
396 See: Bayan Muna v. Romulo, supra note 114; Bayan (Bagong
Alyansang Makabayan) v. Zamora, supra note 23; USAFFE Veterans
AssÊn., Inc. v. Treasurer of the Phil., supra note 173; Vienna Convention
on the Law of the Treaties, Art. 27 (on internal law and observance of
457
458
_______________
459
_______________
460
_______________
461
_______________
462
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
_______________
463
The VFA serves as the basis for the entry of U.S. troops
in a limited scope. It does not allow, for instance, the
reestablishment 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
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464
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465
VOL. 779, JANUARY 12, 2016 465
Saguisag vs. Ochoa, Jr.
_______________
423 Id.
424 Id., at p. 32.
425 Id.
426 Id.
427 Henckaerts, Jean-Marie and Ooswald-Beck, Louise, Customary
International Humanitarian Law-Volume I: Rules, pp. 34-36 (2005)
428 Art. 52, Protocol I, supra note 419.
429 Art. 48, id.
430 Art. 4, id.
466
_______________
431 Memorandum of Saguisag, pp. 66-70, Rollo (G.R. No. 212426), pp.
604-608.
432 Article 11(6) thereof provides: „Agreed facilities and areas‰
means the state owned facilities and areas in the territory of the
Republic of Bulgaria listed in Annex A, and such other state owned
facilities and areas, as may be mutually agreed by the Parties.
433 Article I(g) thereof provides: „Agreed facilities and locations‰
means those sites, installations, and infrastructure to which the
United States is authorized access and use by Colombia in
467
_______________
_______________
469
_______________
470
471
_______________
472
_______________
473
EPILOGUE
_______________
460 Id.
461 EDCA, Art. III(6); Art. IV(2); Art. V(1, 4); Art. VIII(2).
474
_______________
475
_______________
467 Locsin, Joel, NDRRMC: Yolanda death toll hits 6,300 mark nearly
6 months after typhoon, 17 April 2014, GMA News Online
<http://www.gmanetwork.com/news/story/357322/news/nation/ndrrmc--
yolanda-death-toll-hits-6-300-mark-nearly-6-months-after-typhoon> (last
accessed 3 December 2015).
468 Typhoon Yolanda, Official Gazette, available at
<http://www.gov.ph/crisis-response/updates-typhoon-yolanda/> (last
visited 3 December 2015).
476
CARPIO, J.:
_______________
477
_______________
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall
comprise, in addition to the text, including its preamble and annexes:
x x x. (Emphasis supplied)
The Philippines acceded to the Vienna Convention on 15 November
1972.
3 Article 32 of the 1969 Vienna Convention on the Law of Treaties
provides:
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances of its
conclusion, in order to confirm the meaning resulting from the
application of Article 31, or to determine the meaning when the
interpretation according to Article 31: (a) leaves the meaning ambiguous
or obscure; or (b) leads to a result which is manifestly absurd or
unreasonable. (Emphasis supplied)
478
_______________
479
480
_______________
481
_______________
482
_______________
483
484
484 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
_______________
485
_______________
485
_______________
_______________
488
_______________
489
_______________
490
_______________
23 ChinaÊs successful control of the South China Sea will force the
Philippines to share a 1,300-kilometer sea border with China, from
Balabac Island in Palawan to Yamin Island in Batanes, very close to the
Philippine coastline facing the South China Sea. This will bring the
Philippines into ChinaÊs orbit, with the Philippines adhering to ChinaÊs
positions on matters involving foreign policy.
491
LEONARDO-DE CASTRO, J.:
ARTICLE XVIII
TRANSITORY PROVISIONS
SEC. 25. After the expiration in 1991 of the
Agreement between the Republic of the Philippines
and
_______________
492
_______________
493
_______________
495
_______________
496
_______________
497
_______________
498
_______________
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 or on its armed forces, public vessels or aircraft in the Pacific.
10 Id., Article VIII.
499
500
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501
VOL. 779, JANUARY 12, 2016 501
Saguisag vs. Ochoa, Jr.
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502
The EDCA
_______________
503
_______________
504
_______________
505
_______________
506
_______________
507
_______________
508
511
_______________
512
_______________
514
_______________
515
516
_______________
517
_______________
518
519
_______________
520
_______________
521
522
_______________
523
_______________
524
_______________
525
_______________
526
_______________
83 http://www.dtic.mil/doctrine/new_pubs/jp4_0.pdf. Accessed on
December 11, 2015, 11:48 AM.
84 WebsterÊs Third New International Dictionary [1993].
85 http://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf. Accessed on
December 11, 2015, 12:36 PM.
86 Enhanced Defense Cooperation Agreement, Article I(1)(b).
87 Id., Article III(1).
527
_______________
528
529
VOL. 779, JANUARY 12, 2016 529
Saguisag vs. Ochoa, Jr.
_______________
530
DISSENTING OPINION
BRION, J.:
_______________
531
532
The Case
I.
The Petitions
I.A.
_______________
533
_______________
9 Id., at pp. 23-27; Saguisag, et al. Petition (G.R. No. 212444), pp. 36-
38.
10 Id., at pp. 87-89.
11 Id., at pp. 90-91.
12 Id., at pp. 44-45, 58-59; Saguisag, et al. Petition (G.R. No. 212426),
pp. 39-49.
13 OSG Consolidated Comment, pp. 3-8.
14 Id., at pp. 10-13.
15 Id., at pp. 13-14.
16 Id., at pp. 14-21.
534
The Ponencia
I.C.
_______________
535
The Dissent
I.D.
_______________
24 Id., at p. 375.
25 Id.
26 Id., at pp. 375-378.
536
_______________
537
Locus Standi
II.A.
_______________
538
_______________
539
_______________
540
_______________
541
Ripeness
II.B. of the Issues Raised for
Adjudication
_______________
542
543
_______________
544
_______________
_______________
546
The Facts
III.
_______________
547
_______________
548
_______________
549
_______________
550
_______________
551
_______________
552
_______________
553
_______________
554
The EDCA
III.A(4)
_______________
555
_______________
77 Vine, David, Base Nation: How U.S. Military Bases Abroad Harm
America and the World, pp. 300-301 (2015).
78 Brzesinski, supra note 59 at pp. 151-193.
79 The arbitration case was filed before the Permanent Court of
Arbitration on January 22, 2013. See Republic of the Philippines v. The
PeopleÊs Republic of China, Permanent Court of Arbitration, available at
http://www.pca-cpa.org/showpage65f2.html?pag_id= 1529.
556
_______________
557
_______________
_______________
559
_______________
560
Separation of Powers
IV.B(1)
and the Treaty-Making Process
_______________
90 Pimentel, Jr. v. Office of the Executive Secretary, 501 Phil. 303, 317-
318; 462 SCRA 622, 632 (2005).
91 Id.
92 Id.
561
562
_______________
563
_______________
_______________
102 Id.
103 Id., at pp. 637-638.
104 552 U.S. 491 (2008).
105 Id.; Youngstown Sheet & Tube Co. v. Sawyer, supra note 98 at p.
637.
106 Id.
565
_______________
566
_______________
109 See Land Bank of the Philippines v. Atlanta Industries, Inc., G.R.
No. 193796, July 2, 2014, 729 SCRA 12, 30-31, citing Bayan Muna v.
Romulo, 656 Phil. 246, 269-274; 641 SCRA 244, 258 (2011); Neri v. Senate
Committee on Accountability of Public Officers and Investigations, 586
Phil. 135, 168; 549 SCRA 77, 105 (2008), citing Usaffe Veterans
Association, Inc. v. Treasurer of the Philippines, 105 Phil. 1030, 1038
(1959); Commissioner of Customs v. Eastern Sea Trading, supra note 95.
110 Id.
567
_______________
568
_______________
569
_______________
120 Gonzales v. Hechanova, 118 Phil. 1065, 1079; 9 SCRA 230, 242
(1963).
121 Adolfo v. CFI of Zambales, 145 Phil. 264, 266-268; 34 SCRA 166,
170 (1970).
122 Bayan Muna v. Romulo, supra note 109 at pp. 1079-1080; p. 279.
123 Id.
124 Id.
570
571
_______________
572
573
574
_______________
575
_______________
_______________
577
577
_______________
579
_______________
580
_______________
580
_______________
581
_______________
582
582 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
_______________
583
_______________
584
_______________
585
_______________
586
_______________
587
The 1951 MDT was signed on August 30, 1951, while the
U.S. was establishing a number of bilateral defense
alliances with key Asian States as it positioned itself to
contain communist expansion in Asia in the period
following World War II and the Korean War. Despite
periods of drift, its relationship with its Asian allies
provided the U.S. support and assistance throughout the
Cold War and during the Vietnam War.168
The 1951 MDT provided the general terms of the
defense alliance between the U.S. and the Philippines; the
more detailed terms were reflected in the earlier 1947 MBA
that expired and was not renewed in 1991.
_______________
588
_______________
589
_______________
590
591
_______________
592
The EDCA
V.D.
_______________
593
_______________
188 Id.
189 EDCA, Preamble, par. 5.
190 Id., Article IV, par. 6.
594
_______________
595
596
_______________
194 V Record, Constitutional Commission, p. 105. (October 11, 1986),
which reads:
Mr. Benntagen: Point of information. I have with me a book of Patricia
M. Paez, The Bases Factor, the authority on US relations. And reference
to the agreement reads this way: Agreement between the Republic of the
Philippines and the United States of America concerning military bases.
Mr. Azcuna: That is the official title. Why do we not use that? After
the expiration of the agreement x x x.
195 Id.
196 Alcantara, Samson, Statutes, p. 58 (1997 ed.); see also Agpalo,
Ruben, Statutory Construction, 6th ed., p. 282.
197 Ernesto v. Court of Appeals, 216 Phil. 319, 327-328; 131 SCRA
347, 356 (1984).
597
598
601
602
_______________
603
_______________
604
_______________
605
_______________
606
_______________
607
_______________
608
_______________
609
610
_______________
611
_______________
_______________
613
Article II
The Parties will consult together whenever, in the
opinion of either of them, the political independence
or security of either of the Parties is threatened by
external armed attack. Separately and jointly, by self-
help and mutual aid, the Parties will maintain
and develop appropriate means to deter armed
attack and will take suitable measures in
consultation and agreement to implement this Treaty
and to further its purposes.221
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 and communist subversive activities
directed from without against their territorial
integrity and political stability.222
_______________
614
Article III
The Parties, individually and in cooperation with
each other, by means of continuous and effective self-
help and mutual aid will maintain and develop,
subject to their constitutional provisions, their
capacities to resist armed attack.223
Article IV
(US-Korea)
The Republic of Korea grants, and the United
States of America accepts, the right to dispose
United States land, air and sea forces in and
about the territory of the Republic of Korea as
determined by mutual agreement.225
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615
VOL. 779, JANUARY 12, 2016 615
Saguisag vs. Ochoa, Jr.
Article VII
(US-Taiwan)
The Government of the Republic of China (Taiwan)
grants, and the Government of the United States of
America accepts, the right to dispose such United
States land, air and sea forces in and about
Taiwan and the Pescadores as may be required for
their defense, as determined by mutual agreement.226
Article VI
(US-Japan)
For the purpose of contributing to the security of
Japan and the maintenance of international peace
and security in the Far East, the United States of
America is granted the use by its land, air and
naval forces of facilities and areas in Japan.
The use of these facilities and areas as well as the
status of United States armed forces in Japan shall be
governed by a separate agreement, replacing the
Administrative Agreement under Article III of the
Security Treaty between Japan and the United States
of America, signed at Tokyo on February 28, 1952, as
amended, and by such other arrangements as may be
agreed upon.227
_______________
616
617
_______________
618
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. x x x
xxxx
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. x x x
619
_______________
230 Id.
231 Supra note 179 at p. 572; p. 752.
620
_______________
621
_______________
622
623
_______________
624
625
_______________
244 Id.
245 Senate deliberations, May 25, 1999, AM, p. 17, which reads:
Senator Tatad. x x x Mr. President, distinguished colleagues, the
Visiting Forces Agreement does not create a new policy or a new
relationship. It simply seeks to implement and reinforce what already
exists.
For that purpose, an executive agreement might have sufficed,
were there no constitutional constraints. But the Constitution
requires the Senate to concur in all international agreements. So
the Senate must concur in the Visiting Forces Agreement, even if the
U.S. Constitution does not require the U.S. Senate to give its advice and
consent.
246 Senate Resolution No. 1414, supra note 107.
626
247 During the latter part of the Cold War, the term „facilities‰ was
frequently substituted for the word „bases‰ to soften the negative political
overtones normally associated with the basing of foreign troops in a
sovereign country. In line with this thinking, the Stockholm
International Peace Research Institute uses the term foreign military
presence (FMP) to describe bases/facilities that house foreign troops in a
sovereign state. See Krepinevich and Work, supra note 202.
627
_______________
628
_______________
629
DISSENTING OPINION
_______________
630
631
632
_______________
633
_______________
635
_______________
636
_______________
6 Id., at pp. 575-576; pp. 755-756. „Nemo palest facere per alium quod
non palest facere per directum‰ translates to „No one is allowed to do
indirectly what he is prohibited to do directly.‰
7 598 Phil. 262; 578 SCRA 438 (2009) [Per J. Azcuna, En Banc].
637
II
_______________
638
....
_______________
639
_______________
640
_______________
641
VOL. 779, JANUARY 12, 2016 641
Saguisag vs. Ochoa, Jr.
III
642
_______________
643
645
_______________
646
_______________
647
648
649
650
_______________
651
IV
_______________
652
_______________
See also Exec. Order No. 292 (1987), Book IV, Title I, Sec. 3(1) and 20.
29 Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333; 3
SCRA 351 (1961) [Per J. Concepcion, En Banc].
30 Id.
31 Id., at p. 338; p. 356.
653
_______________
654
_______________
655
Thus, Article VII, Section 21 may cover some but not all
types of executive agreements. Definitely, the
determination of its coverage does not depend on the
nomenclature assigned by the President.
Executive agreements are international agreements
that pertain to mere adjustments of detail that carry out
well-entrenched national policies and traditions in line
with the functions of the Executive. It includes enforcement
of existing and valid treaties where the provisions are clear.
It involves arrangements that are of a temporary nature.
More importantly, it does not amend existing treaties,
statutes, or the Constitution.
In contrast, international agreements that are
considered treaties under our Constitution involve key
political issues or changes of national policy. These
agreements are of a permanent character. It requires
concurrence by at least two-thirds of all the members of the
Senate.
Even if we assume that the EDCAÊs nomenclature as an
„executive agreement‰ is correct, it is still the type of
international agreement that needs to be submitted to the
Senate for concurrence. It involves a key political issue that
substantially alters or reshapes our national and foreign
policy.
Fundamentally however, the PresidentÊs classification of
the EDCA as a mere „executive agreement‰ is invalid.
Article XVIII, Section 25 requires that the presence of
foreign troops, bases, and facilities must be covered by an
internationally binding agreement in the form of a treaty
concurred in by the Senate.
_______________
656
VI
657
VOL. 779, JANUARY 12, 2016 657
Saguisag vs. Ochoa, Jr.
658
_______________
659
_______________
660
661
_______________
662
663
664
665
_______________
667
VII
_______________
668
_______________
mutual aid will maintain and develop their individual and collective
capacity to resist armed attack.
47 RespondentsÊ Memorandum, p. 15.
48 Id., at p. 16.
49 Id., citing Agreement between the Government Republic of the
Philippines and the Government of the United States of America
Regarding the Treatment of United States Armed Forces Visiting the
Philippines (1998), Arts. I, VII, and VIII.
669
670
671
VIII
_______________
672
Article III
Agreed Locations
1. With consideration of the views of the Parties,
the Philippines hereby authorizes and agrees that
United States forces, United States contractors, and
vehicles, vessels, and aircraft operated by or for United
States forces may conduct the following activities with
respect to Agreed Locations: training; transit; support
and related activities; refueling of aircraft; bunkering
of vessels; temporary maintenance of vehicles, vessels,
arid 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.
2. 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).
3. Given the mutuality of benefits, the Parties
agree that the Philippines shall make Agreed
Locations available to United States forces without
rental or similar costs. United States forces shall
cover their necessary operation expenses with respect
to their activities at the Agreed Locations.
4. 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 on the
PartiesÊ shared intent that the technical requirements
and construction standards of any such projects
undertaken by or on behalf of United States
673
(1) training;
(2) transit;
(3) support and related activities;
(4) refueling of aircraft;
(5) bunkering of vessels;
(6) temporary maintenance of vehicles, vessels, and
aircraft;
(7) temporary accommodation of personnel;
(8) communications;
(9) pre-positioning of equipment, supplies, and materiel;
(10) deploying forces and materiel; and
(11) other activities as the parties may agree.
674
675
IX
_______________
676
Preamble
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[.] (Emphasis supplied)
_______________
677
_______________
678
_______________
679
Article I
Purpose and Scope
_______________
680
_______________
58 Manyin, Mark E., Pivot to the Pacific? The Obama
AdministrationÊs „Rebalancing‰ Toward Asia (2012)
<https://www.fas.org/sgp/crs/natsec/R42448.pdf> (visited January 11,
2016). See Odom, Jonathan G., What Does a „Pivot‰ or „Rebalance‰ Look
Like? Elements of the US Strategic Turn Towards Security in the Asia-
Pacific Region and Its Waters, 14 APLPJ 2-8 (2013); OÊRourke, Ronald,
Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes
Involving China: Issues for Congress (2015)
<https://www.fas.org/sgp/crs/row/R42784.pdf> (visited January 11, 2016).
59 United States Department of Defense, The Asia-Pacific Maritime
Security Strategy: Achieving US National Security Objectives in a
Changing Environment, pp. 1-2
<http://www.defense.gov/Portals/1/Documents/pubs/NDAA%20A-
P_Maritime_SecuritY_Strategy-08142015-1300-FINALFORMAT.PDF
(visited January 11, 2016).
60 Id., at p. 1.
681
Force Posture
_______________
....
In Southeast Asia, the Department is honing an
already robust bilateral exercise program with our
treaty ally, the Republic of the Philippines, to assist it
with establishing a minimum credible defense more
effectively. We are conducting more than 400 planned
events with the Philippines in 2015, including our
premier joint exercise, Balikatan, which this year was
the largest and most sophisticated ever. During this
yearÊs Balikatan, more than 15,000 US, Philippine,
and Australian military personnel exercised
operations involving a territorial defense scenario in
the Sulu Sea, with personnel from Japan observing.62
(Emphasis supplied)
_______________
683
This definition admits that the VFA does not provide for
the entry of contractors into Philippine territory. The
activities that United States contractors are allowed to
undertake are specific to United States forces or personnel
only as can be gleaned from this courtÊs decisions in
BAYAN, Lim, and Nicolas. Hence, the extensive authority
granted to United States contractors cannot be sourced
from the VFA:
Article II
DEFINITIONS
....
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.
....
_______________
684
Article III
AGREED LOCATIONS
1. With consideration of the views of the Parties,
the Philippines hereby authorizes and agrees that
United States forces, United States contractors, and
vehicles, vessels, and aircraft operated by or for United
States forces may conduct the following activities with
respect to Agreed Locations: training; transit; support
and related activities; refuel big 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.
....
Article IV
EQUIPMENT, SUPPLIES, AND MATERIEL
....
4. United States forces and United States
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.
5. The Parties share an intent that United States
contractors may carry out such matters in accordance
with, and to the extent permissible under, United
States laws, regulations, and policies. (Emphasis
supplied)
685
_______________
686
_______________
687
688
_______________
689
Article VI
Security
....
3. United States forces are authorized to exercise
all rights and authorities within Agreed Locations
that are necessary for their operational control or
defense, including taking appropriate measures to
protect United States forces and United States
contractors. The United States should coordinate such
measures with appropriate authorities of the
Philippines.
_______________
690
_______________
691
_______________
693
694
XI
695
XII
_______________
696
_______________
80 Id., at p. 7.
81 Id., at p. 8.
82 Const., Art. VIII, Sec. 1.
83 63 Phil. 139 (1936) [Per J. Laurel, En Banc].
697
_______________
698
XIII
_______________
699
_______________
700
_______________
93 Id.
94 Id., at p. 721.
95 G.R. No. 204603, September 24, 2013, 706 SCRA 273 [Per J.
Perlas-Bernabe, En Banc].
701
_______________
702
XIV
_______________
703
704
705
_______________
706
707
_______________
102 Id., at pp. 910-912; pp. 149-151. See also Diocese of Bacolod v.
COMELEC, supra note 87.
103 Diocese of Bacolod v. COMELEC, id.
104 Id.
708
XV
_______________
709
XVI
_______________
107 Pimentel, Jr. v. Office of the Executive Secretary, supra note 28.
108 Const., Art. VIII, Secs. 1 and 5(2).
710
711
712
Final Note
713
714
Petitions dismissed.
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