the Madrid Protocol.
It ultimately arrived at the conclusion that accession would benefit
EN BANC
[G.R. No. 204605. July 19, 2016.]
INTELLECTUAL PROPERTY ASSOCIATION OF THE
PHILIPPINES, petitioner, vs. HON. PAQUITO OCHOA, IN HIS CAPACITY
AS EXECUTIVE SECRETARY, HON. ALBERT DEL ROSARIO, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN
AFFAIRS, AND HON. RICARDO BLANCAFLOR, IN HIS CAPACITY AS
THE DIRECTOR GENERAL OF THE INTELLECTUAL PROPERTY OFFICE
OF THE PHILIPPINES, respondents.
DECISION
BERSAMIN, J p:
In this special civil action for certiorari and prohibition, the Intellectual Property
Association of the Philippines (IPAP) seeks to declare the accession of the Philippines to
the Protocol Relating to the Madrid Agreement Concerning the International Registration
of Marks (Madrid Protocol) unconstitutional on the ground of the lack of concurrence by
the Senate, and in the alternative, to declare the implementation thereof as
unconstitutional because it conflicts with Republic Act No. 8293, otherwise known as
the Intellectual Property Code of the Philippines (IP Code). 1
We find and declare that the President's ratification is valid and constitutional
because the Madrid Protocol, being an executive agreement as determined by the
Department of Foreign Affairs, does not require the concurrence of the Senate.
Antecedents
The Madrid System for the International Registration of Marks (Madrid
System), which is the centralized system providing a one-stop solution for registering and
managing marks worldwide, allows the trademark owner to file one application in one
language, and to pay one set of fees to protect his mark in the territories of up to 97
member-states. 2 The Madrid System is governed by the Madrid Agreement, concluded
in 1891, and the Madrid Protocol, concluded in 1989. 3
The Madrid Protocol, which was adopted in order to remove the challenges
deterring some countries from acceding to the Madrid Agreement, has two objectives,
namely: (1) to facilitate securing protection for marks; and (2) to make the management
of the registered marks easier in different countries. 4 SDAaTC
In 2004, the Intellectual Property Office of the Philippines (IPOPHL), the
government agency mandated to administer the intellectual property system of the
country and to implement the state policies on intellectual property, began considering
the country's accession to the Madrid Protocol. However, based on its assessment in
2005, the IPOPHL needed to first improve its own operations before making the
recommendation in favor of accession. The IPOPHL thus implemented reforms to
eliminate trademark backlogs and to reduce the turnaround time for the registration of
marks. 5
In the meanwhile, the IPOPHL mounted a campaign for information dissemination
to raise awareness of the Madrid Protocol. It launched a series of consultations with
stakeholders and various business groups regarding the Philippines' accession to
the country and help raise the level of competitiveness for Filipino brands. Hence, it
recommended in September 2011 to the Department of Foreign Affairs (DFA) that the
Philippines should accede to the Madrid Protocol. 6
After its own review, the DFA endorsed to the President the country's accession to
the Madrid Protocol. Conformably with its express authority under Section 9 of Executive
Order No. 459 (Providing for the Guidelines in the Negotiation of International
Agreements and its Ratification) dated November 25, 1997, the DFA determined that
the Madrid Protocol was an executive agreement, The IPOPHL, the Department of
Science and Technology, and the Department of Trade and Industry concurred in the
recommendation of the DFA. 7
On March 27, 2012, President Benigno C. Aquino III ratified the Madrid
Protocol through an instrument of accession. The instrument of accession was deposited
with the Director General of the World Intellectual Property Organization (WIPO) on April
25, 2012. 8 The Madrid Protocol entered into force in the Philippines on July 25, 2012. 9
Petitioner IPAP, an association of more than 100 law firms and individual
practitioners in Intellectual Property Law whose main objective is to promote and protect
intellectual property rights in the Philippines through constant assistance and involvement
in the legislation of intellectual property law, 10 has commenced this special civil action
for certiorari and prohibition 11 to challenge the validity of the President's accession to
the Madrid Protocol without the concurrence of the Senate. Citing Pimentel, Jr. v. Office
of the Executive Secretary, the IPAP has averred:
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. 12
According to the IPAP, the Madrid Protocol is a treaty, not an executive agreement;
hence, respondent DFA Secretary Albert Del Rosario acted with grave abuse of
discretion in determining the Madrid Protocol as an executive agreement. 13
The IPAP has argued that the implementation of the Madrid Protocol in the
Philippines, specifically the processing of foreign trademark applications, conflicts with
the IP Code, 14 whose Section 125 states:
Sec. 125. Representation; Address for Service. If the applicant
is not domiciled or has no real and effective commercial establishment in the
Philippines, he shall designate by a written document filed in the office, the
name and address of a Philippine resident who may be served notices or
process in proceedings affecting the mark. Such notices or services may be
served upon the person so designated by leaving a copy thereof at the
address specified in the last designation filed. If the person so designated
cannot be found at the address given in the last designation, such notice or
process may be served upon the Director. (Sec. 3, R.A. No. 166 a)
It has posited that Article 2 of the Madrid Protocol provides in contrast:
 Article 2
Securing Protection through International Registration
(1) Where an application for the registration of a mark has been filed
with the Office of a Contracting Party, or where a mark has been registered
in the register of the Office of a Contracting Party, the person in whose name
that application (hereinafter referred to as "the basic application") or that
registration (hereinafter referred to as "the basic registration") stands may,
subject to the provisions of this Protocol secure protection for his mark in the
territory of the Contracting Parties, by obtaining the registration of that mark
in the register of the International Bureau of the World Intellectual Property
Organization (hereinafter referred to as "the international registration," "the
International Register," "the International Bureau" and "the Organization",
respectively), provided that,
(i) where the basic application has been filed with the
Office of a Contracting State or where the basic registration has
been made by such an Office, the person in whose name that
application or registration stands is a national of that
Contracting State, or is domiciled, or has a real and effective
industrial or commercial establishment, in the said Contracting
State,
(ii) where the basic application has been filed with the
Office of a Contracting Organization or where the basic
registration has been made by such an Office, the person in
whose name that application or registration stands is a national
of a State member of that Contracting Organization, or is
domiciled, or has a real and effective industrial or commercial
establishment, in the territory of the said Contracting
Organization. acEHCD
(2) The application for international registration (hereinafter referred to
as "the international application") shall be filed with the International Bureau
through the intermediary of the Office with which the basic application was
filed or by which the basic registration was made (hereinafter referred to as
"the Office of origin"), as the case may be.
(3) Any reference in this Protocol to an "Office" or an "Office of a
Contracting Party" shall be construed as a reference to the office that is in
charge, on behalf of a Contracting Party, of the registration of marks, and
any reference in this Protocol to "marks" shall be construed as a reference
to trademarks and service marks.
(4) For the purposes of this Protocol, "territory of a Contracting Party"
means, where the Contracting Party is a State, the territory of that State and,
where the Contracting Party is an intergovernmental organization, the
territory in which the constituting treaty of that intergovernmental
organization applied.
The IPAP has insisted that Article 2 of the Madrid Protocol means that foreign
trademark applicants may file their applications through the International Bureau or the
WIPO, and their applications will be automatically granted trademark protection without
the need for designating their resident agents in the country. 15
Moreover, the IPAP has submitted that the procedure outlined in the Guide to the
International Registration of Marks relating to representation before the International
Bureau is the following, to wit:
Rule 3(1)(a) 09.02 References in the Regulations, Administrative
Instructions or in this Guide to representation relate only to representation
before the International Bureau. The questions of the need for a
representative before the Office of origin or the Office of a designated
Contracting Party (for example, in the event of a refusal of protection issued
by such an Office), who may act as a representative in such cases and the
method of appointment, are outside the scope of the Agreement, Protocol
and Regulations and are governed by the law and practice of the Contracting
Party concerned.
which procedure is in conflict with that under Section 125 of the IP Code, and constitutes
in effect an amendment of the local law by the Executive Department. 16
The IPAP has prayed that the implementation of the Madrid Protocol in the
Philippines be restrained in order to prevent future wrongs considering that the IPAP and
its constituency have a clear and unmistakable right not to be deprived of the rights
granted them by the IP Code and existing local laws. 17
In its comment in behalf of the respondents, the Office of the Solicitor General
(OSG) has stated that the IPAP does not have the locus standi to challenge the
accession to the Madrid Protocol; that the IPAP cannot invoke the Court's original
jurisdiction absent a showing of any grave abuse of discretion on the part of the
respondents; that the President's ratification of the Madrid Protocol as an executive
agreement is valid because the Madrid Protocol is only procedural, does not create
substantive rights, and does not require the amendment of the IP Code; that the IPAP is
not entitled to the restraining order or injunction because it suffers no damage from the
ratification by the President, and there is also no urgency for such relief; and the IPAP
has no clear unmistakable right to the relief sought. 18
Issues
The following issues are to be resolved, namely:
I. Whether or not the IPAP has locus standi to challenge the President's ratification
of the Madrid Protocol;
II. Whether or not the President's ratification of the Madrid Protocol is valid and
constitutional; and
III. Whether or not the Madrid Protocol is in conflict with the IP Code.
Ruling of the Court
The petition for certiorari and prohibition is without merit.
A.
The issue of legal standing to sue, or locus standi
The IPAP argues in its reply 19 that it has the locus standi to file the present case
by virtue of its being an association whose members stand to be injured as a result of the
enforcement of the Madrid Protocol in the Philippines; that the injury pertains to the
acceptance and approval of applications submitted through the Madrid Protocol without
local representation as required by Section 125 of the IP Code; 20 and that such will
diminish the rights granted by the IP Code to Intellectual Property Law practitioners like
the members of the IPAP. 21
The argument of the IPAP is untenable.
Legal standing refers to "a right of appearance in a court of justice on a given
question." 22 According to Agan, Jr. v. Philippine International Air Terminals Co.,
Inc., 23 standing is "a peculiar concept in constitutional law because 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." SDHTEC
The Court has frequently felt the need to dwell on the issue of standing in public or
constitutional litigations to sift the worthy from the unworthy public law litigants seeking
redress or relief. The following elucidation in De Castro v. Judicial and Bar
Council 24 offers the general understanding of the context of legal standing, or locus
standi for that purpose, viz.:
In public or constitutional litigations, the Court is often burdened with the
determination of the locus standi of the petitioners due to the ever-present
need to regulate the invocation of the intervention of the Court to correct any
official action or policy in order to avoid obstructing the efficient functioning
of public officials and offices involved in public service. It is required,
therefore, that the petitioner must have a personal stake in the outcome of
the controversy, for, as indicated in Agan, Jr. v. Philippine International Air
Terminals Co., Inc.:
The question on legal standing is whether such
parties have "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." Accordingly, it has been held
that the interest of a person 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.
It is true that as early as in 1937, in People v. Vera, the Court adopted
the direct injury test for determining whether a petitioner in a public action
had locus standi. There, the Court held that the person who would assail the
validity of a statute must have "a personal and substantial interest in the case
such that he has sustained, or will sustain direct injury as a result." Vera was
followed in Custodio v. President of the Senate, Manila Race Horse Trainers'
Association v. De la Fuente, Anti-Chinese League of the Philippines v.
Felix, and Pascual v. Secretary of Public Works.
Yet, the Court has also held that the requirement of locus standi, being
a mere procedural technicality, can be waived by the Court in the exercise
of its discretion. For instance, in 1949, in Araneta v. Dinglasan, the Court
liberalized the approach when the cases had "transcendental importance."
Some notable controversies whose petitioners did not pass the direct injury
test were allowed to be treated in the same way as in Araneta v. Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this Court
decided to resolve the issues raised by the petition due to their "far-reaching
implications," even if the petitioner had no personality to file the suit. The
liberal approach of Aquino v. Commission on Elections has been adopted in
several notable cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity of
laws, regulations, and rulings.
However, the assertion of a public right as a predicate for challenging
a supposedly illegal or unconstitutional executive or legislative action rests
on the theory that the petitioner represents the public in general. Although
such petitioner may not be as adversely affected by the action complained
against as are others, it is enough that he sufficiently demonstrates in his
petition that he is entitled to protection or relief from the Court in the
vindication of a public right. 25
The injury that the IPAP will allegedly suffer from the implementation of the Madrid
Protocol is imaginary, incidental and speculative as opposed to a direct and material
injury required by the foregoing tenets on locus standi. Additionally, as the OSG points
out in the comment, 26 the IPAP has misinterpreted Section 125 of the IP Code on the
issue of representation. The provision only states that a foreign trademark applicant "shall
designate by a written document filed in the office, the name and address of a Philippine
resident who may be served notices or process in proceedings affecting the mark;" it
does not grant anyone in particular the right to represent the foreign trademark applicant.
Hence, the IPAP cannot justly claim that it will suffer irreparable injury or diminution of
rights granted to it by Section 125 of the IP Code from the implementation of the Madrid
Protocol.
Nonetheless, the IPAP also emphasizes that the paramount public interest
involved has transcendental importance because its petition asserts that the Executive
Department has overstepped the bounds of its authority by thereby cutting into another
branch's functions and responsibilities. 27 The assertion of the IPAP may be valid on this
score. There is little question that the issues raised herein against the implementation of
the Madrid Protocol are of transcendental importance. Accordingly, we recognize
IPAP's locus standi to bring the present challenge. Indeed, the Court has adopted a
liberal attitude towards locus standi whenever the issue presented for consideration has
transcendental significance to the people, or whenever the issues raised are of
paramount importance to the public. 28
B.
Accession to the
Madrid Protocol was constitutional
The IPAP submits that respondents Executive Secretary and DFA Secretary Del
Rosario gravely abused their discretion in determining that there was no need for the
Philippine Senate's concurrence with the Madrid Protocol; that the Madrid
Protocol involves changes of national policy, and its being of a permanent character
requires the Senate's concurrence, 29 pursuant to Section 21, Article VII of the
Constitution, which states 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." AScHCD
Before going further, we have to distinguish between treaties and international
agreements, which require the Senate's concurrence, on one hand, and executive
agreements, which may be validly entered into without the Senate's
concurrence. Executive Order No. 459, Series of 1997, 30 notes the following definitions,
to wit:
Sec. 2. Definition of Terms.
a. International agreement shall refer to a contract or understanding,
regardless of nomenclature, entered into between the Philippines and
another government in written form and governed by international law,
whether embodied in a single instrument or in two or more related
instruments.
b. Treaties international agreements entered into by the Philippines which
require legislative concurrence after executive ratification. This term
may include compacts like conventions, declarations, covenants and
acts.
c. Executive Agreements similar to treaties except that they do not
require legislative concurrence.
The Court has highlighted the difference between treaties and executive
agreements in Commissioner of Customs v. Eastern Sea Trading, 31 thusly:
International agreements involving political issues or changes of
national policy and those involving international arrangements of a
permanent character usually take the form of treaties. But international
agreements embodying adjustments of detail carrying out well-established
national policies and traditions and those involving arrangements of a more
or less temporary nature usually take the form of executive agreements.
In the Philippines, the DFA, by virtue of Section 9, Executive Order No. 459, 32 is
initially given the power to determine whether an agreement is to be treated as a treaty
or as an executive agreement. To determine the issue of whether DFA Secretary Del
Rosario gravely abused his discretion in making his determination relative to the Madrid
Protocol, we review the jurisprudence on the nature of executive agreements, as well as
the subject matters to be covered by executive agreements.
The pronouncement in Commissioner of Customs v. Eastern Sea Trading 33 is
instructive, to wit:
. . . The concurrence of said House of Congress is required by our
fundamental law in the making of "treaties" (Constitution of the Philippines,
Article VII, Section 10[7]), which are, however, distinct and different from
"executive agreements," which may be validly entered into without such
concurrence.
"Treaties are formal documents which require ratification
with the approval of two thirds of the Senate. Executive
agreements become binding through executive
action without the need of a vote by the Senate or by Congress.
xxx xxx xxx
". . . the right of the Executive to enter into binding
agreements without the necessity of subsequent
Congressional approval has been confirmed by long
usage. From the earliest days of our history we have entered
into executive agreements covering such subjects as
commercial and consular relations, most-favored-nation rights,
patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. The
validity of these has never been seriously questioned by our
courts.
xxx xxx xxx
Agreements with respect to the registration of
trademarks have been concluded by the Executive with
various countries under the Act of Congress of March 3, 1881
(21 Stat. 502). . . .
xxx xxx xxx
In this connection, Francis B. Sayre, former U.S. High Commissioner
to the Philippines, said in his work on "The Constitutionality of Trade
Agreement Acts":
Agreements concluded by the President which fall short
of treaties are commonly referred to as executive agreements
and are no less common in our scheme of government than are
the more formal instruments treaties and conventions. They
sometimes take the form of exchanges of notes and at other
times that or more formal documents denominated
'agreements' or 'protocols'. The point where ordinary
correspondence between this and other governments ends and
agreements whether denominated executive agreements or
exchanges of notes or otherwise begin, may sometimes be
difficult of ready ascertainment. It would be useless to
undertake to discuss here the large variety of executive
agreements as such, concluded from time to time. Hundreds of
executive agreements, other than those entered into under the
trade-agreements act, have been negotiated with foreign
governments. . . . It would seem to be sufficient, in order to show
that the trade agreements under the act of 1934 are not
anomalous in character, that they are not treaties, and that they
have abundant precedent in our history, to refer to certain
classes of agreements heretofore entered into by the Executive
without the approval of the Senate. They cover such subjects
as the inspection of vessels, navigation dues, income tax
on shipping profits, the admission of civil aircraft, customs
matters, and commercial relations generally, international
claims, postal matters, the registration of trademarks and
copyrights, etcetera. Some of them were concluded not by
specific congressional authorization but in conformity with
policies declared in acts of Congress with respect to the
general subject matter, such as tariff acts; while still others,
 particularly those with respect of the settlement of claims
against foreign governments, were concluded independently of
any legislation. (Emphasis ours) AcICHD
As the foregoing pronouncement indicates, the registration of trademarks and
copyrights have been the subject of executive agreements entered into without the
concurrence of the Senate. Some executive agreements have been concluded in
conformity with the policies declared in the acts of Congress with respect to the general
subject matter.
It then becomes relevant to examine our state policy on intellectual property in
general, as reflected in Section 2 of our IP Code, to wit:
Section 2. Declaration of State Policy. The State recognizes
that an effective intellectual and industrial property system is vital to
the development of domestic and creative activity, facilitates transfer
of technology, attracts foreign investments, and ensures market
access for our products. It shall protect and secure the exclusive rights
of scientists, inventors, artists and other gifted citizens to their
intellectual property and creations, particularly when beneficial to the
people, for such periods as provided in this Act.
The use of intellectual property bears a social function. To this end,
the State shall promote the diffusion of knowledge and information for the
promotion of national development and progress and the common good.
It is also the policy of the State to streamline administrative
procedures of registering patents, trademarks and copyright, to
liberalize the registration on the transfer of technology, and to enhance the
enforcement of intellectual property rights in the Philippines.
In view of the expression of state policy having been made by the Congress itself,
the IPAP is plainly mistaken in asserting that "there was no Congressional act that
authorized the accession of the Philippines to the Madrid Protocol." 34
Accordingly, DFA Secretary Del Rosario's determination and treatment of
the Madrid Protocol as an executive agreement, being in apparent contemplation of the
express state policies on intellectual property as well as within his power under Executive
Order No. 459, are upheld. We observe at this point that there are no hard and fast rules
on the propriety of entering into a treaty or an executive agreement on a given subject 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 their international agreement
in the form they so wish to further their respective interests. 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, inasmuch as all the parties, regardless of the form, become
obliged to comply conformably with the time-honored principle of pacta sunt
servanda. 35 The principle binds the parties to perform in good faith their parts in the
agreements. 36
C.
There is no conflict between the
Madrid Protocol and the IP Code.
The IPAP also rests its challenge on the supposed conflict between the Madrid
Protocol and the IP Code, contending that the Madrid Protocol does away with the
requirement of a resident agent under Section 125 of the IP Code; and that the Madrid
Protocol is unconstitutional for being in conflict with the local law, which it cannot modify.
The IPAP's contentions stand on a faulty premise. The method of registration
through the IPOPHL, as laid down by the IP Code, is distinct and separate from the
method of registration through the WIPO, as set in the Madrid Protocol. Comparing the
two methods of registration despite their being governed by two separate systems of
registration is thus misplaced.
In arguing that the Madrid Protocol conflicts with Section 125 of the IP Code, the
IPAP highlights the importance of the requirement for the designation of a resident agent.
It underscores that the requirement is intended to ensure that non-resident entities
seeking protection or privileges under Philippine Intellectual Property Laws will be
subjected to the country's jurisdiction. It submits that without such resident agent, there
will be a need to resort to costly, time consuming and cumbersome extra-territorial service
of writs and processes. 37
The IPAP misapprehends the procedure for examination under the Madrid
Protocol. The difficulty, which the IPAP illustrates, is minimal, if not altogether inexistent.
The IPOPHL actually requires the designation of the resident agent when it refuses the
registration of a mark. Local representation is further required in the submission of the
Declaration of Actual Use, as well as in the submission of the license
contract. 38 The Madrid Protocol accords with the intent and spirit of the IP Code,
particularly on the subject of the registration of trademarks. The Madrid Protocol does not
amend or modify the IP Code on the acquisition of trademark rights considering that the
applications under the Madrid Protocol are still examined according to the relevant
national law. In that regard, the IPOPHL will only grant protection to a mark that meets
the local registration requirements. TAIaHE
WHEREFORE, this Court DISMISSES the petition for certiorari and prohibition for
lack of merit; and ORDERS the petitioner to pay the costs of suit.
SO ORDERED.
||| (Intellectual Property Association of the Philippines v. Ochoa, G.R. No. 204605, [July 19,
2016], 790 PHIL 276-347)
EN BANC
[G.R. No. 212426. January 12, 2016.]
RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO
"DODONG" NEMENZO, JR., SR. MARY JOHN MANANZAN, PACIFICO A.
AGABIN, ESTEBAN "STEVE" SALONGA, H. HARRY L. ROQUE, JR.,
EVALYN G. URSUA, EDRE U. OLALIA, DR. CAROL PAGADUAN-
ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY
CASIÑO,petitioners, vs. EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR.,DEPARTMENT OF NATIONAL DEFENSE SECRETARY VOLTAIRE
GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT
DEL ROSARIO, JR.,DEPARTMENT OF BUDGET AND MANAGEMENT
SECRETARY FLORENCIO ABAD, AND ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T.
BAUTISTA, respondents.
[G.R. No. 212444. January 12, 2016.]
 BAGONG ALYANSANG MAKABAYAN (BAYAN),REPRESENTED BY ITS
SECRETARY GENERAL RENATO M. REYES, JR.,BAYAN MUNA PARTY-
LIST REPRESENTATIVES NERI J. COLMENARES AND CARLOS
ZARATE, GABRIELA WOMEN'S PARTY-LIST REPRESENTATIVES LUZ
ILAGAN AND EMERENCIANA DE JESUS, ACT TEACHERS PARTY-LIST
REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST
REPRESENTATIVE FERNANDO HICAP, KABATAAN PARTY-LIST
REPRESENTATIVE TERRY RIDON, MAKABAYANG KOALISYON NG
MAMAMAYAN (MAKABAYAN),REPRESENTED BY SATURNINO
OCAMPO AND LIZA MAZA, BIENVENIDO LUMBERA, JOEL C.
LAMANGAN, RAFAEL MARIANO, SALVADOR FRANCE, ROGELIO M.
SOLUTA, AND CLEMENTE G. BAUTISTA,petitioners, vs. DEPARTMENT
OF NATIONAL DEFENSE (DND) SECRETARY VOLTAIRE GAZMIN,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL
ROSARIO, EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.,ARMED
FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL
T. BAUTISTA, DEFENSE UNDERSECRETARY PIO LORENZO BATINO,
AMBASSADOR LOURDES YPARRAGUIRRE, AMBASSADOR J.
EDUARDO MALAYA, DEPARTMENT OF JUSTICE UNDERSECRETARY
FRANCISCO BARAAN III, AND DND ASSISTANT SECRETARY FOR
STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP AS
CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE
NEGOTIATING PANEL FOR THE PHILIPPINES ON EDCA,respondents.
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON, ELMER
LABOG, CONFEDERATION FOR UNITY, RECOGNITION AND
ADVANCEMENT OF GOVERNMENT EMPLOYEES
(COURAGE),REPRESENTED BY ITS NATIONAL PRESIDENT
FERDINAND GAITE, NATIONAL FEDERATION OF LABOR UNIONS-
KILUSANG MAYO UNO, REPRESENTED BY ITS NATIONAL PRESIDENT
JOSELITO USTAREZ, NENITA GONZAGA, VIOLETA ESPIRITU, VIRGINIA
FLORES, AND ARMANDO TEODORO, JR.,petitioners-in-intervention,
RENE A.Q. SAGUISAG, JR.,petitioner-in-intervention.
DECISION
SERENO, C.J p:
The petitions 1 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 ako ng Diyos. ICHDca
Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa
Saligang Batas 5
The 1987 Constitution has "vested the executive power in the President of the
Republic of the Philippines." 6 While the vastness of the executive power that has been
consolidated in the person of the President cannot be expressed fully in one provision,
the Constitution has stated the prime duty of the government, of which the President is
the head:
The prime duty of the Government is to serve and protect the
people.The Government may call upon the people to defend the State and,
in the fulfillment thereof, all citizens may be required, under conditions
provided by law, to render personal military or civil service. 7 (Emphases
supplied)
B. The duty to protect the
territory and the citizens of the
Philippines, the power to call
upon the people to defend the
State, and the President as
Commander-in-Chief
The duty to protect the State and its people must be carried out earnestly and
effectively throughout the whole territory of the Philippines in accordance with the
constitutional provision on national territory. Hence, the President of the Philippines, as
the sole repository of executive power, is the guardian of the Philippine archipelago,
including all the islands and waters embraced therein and all other territories over which
it has sovereignty or jurisdiction. These territories consist of its terrestrial, fluvial, and
aerial domains; including its territorial sea, the seabed, the subsoil, the insular shelves,
and other submarine areas; and the waters around, between, and connecting the islands
of the archipelago, regardless of their breadth and dimensions. 8
To carry out this important duty, the President is equipped with authority over the
Armed Forces of the Philippines (AFP),9 which is the protector of the people and the
state. The AFP's role is to secure the sovereignty of the State and the integrity of the
national territory. 10 In addition, the Executive is constitutionally empowered to maintain
peace and order; protect life, liberty, and property; and promote the general welfare. 11 In
recognition of these powers, Congress has specified that the President must oversee,
ensure, and reinforce our defensive capabilities against external and internal
threats 12 and, in the same vein, ensure that the country is adequately prepared for all
national and local emergencies arising from natural and man-made disasters. 13
 To be sure, this power is limited by the Constitution itself. To illustrate, the
President may call out the AFP to prevent or suppress instances of lawless violence,
invasion or rebellion, 14 but not suspend the privilege of the writ of habeas corpus for a
period exceeding 60 days, or place the Philippines or any part thereof under martial law
exceeding that same span. In the exercise of these powers, the President is also duty-
bound to submit a report to Congress, in person or in writing, within 48 hours from the
proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus;and Congress may in turn revoke the proclamation or suspension. The same
provision provides for the Supreme Court's review of the factual basis for the
proclamation or suspension, as well as the promulgation of the decision within 30 days
from filing.
C. The power and duty to conduct
foreign relations
The President also carries the mandate of being the sole organ in the conduct of
foreign relations. 15 Since every state has the capacity to interact with and engage in
relations with other sovereign states, 16 it is but logical that every state must vest in an
agent the authority to represent its interests to those other sovereign states.
The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to the nation
especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information and
can decide with decisiveness. ...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. TCAScE
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 power 22 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 ASEcHI
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 Agreement 55 with the U.S. This
executive agreement established the conditions under which U.S. military assistance
would be granted to the Philippines, 56 particularly the provision of military arms,
ammunitions, supplies, equipment, vessels, services, and training for the latter's defense
forces. 57 An exchange of notes in 1953 made it clear that the agreement would remain
in force until terminated by any of the parties. 58
To further strengthen their defense and security relationship, 59 the Philippines
and the U.S. next entered into the MDT in 1951. Concurred in by both the
Philippine 60 and the U.S. 61 Senates, the treaty has two main features: first,it allowed
for mutual assistance in maintaining and developing their individual and collective
capacities to resist an armed attack; 62 and second,it provided for their mutual self-
defense in the event of an armed attack against the territory of either party. 63 The treaty
was premised on their recognition that an armed attack on either of them would equally
be a threat to the security of the other. 64
C. Current legal regime on the
presence of U.S. armed forces
in the country
In view of the impending expiration of the 1947 MBA in 1991, the Philippines and
the U.S. negotiated for a possible renewal of their defense and security
relationship. 65 Termed as the Treaty of Friendship, Cooperation and Security, the
countries sought to recast their military ties by providing a new framework for their
defense cooperation and the use of Philippine installations. 66 One of the proposed
provisions included an arrangement in which U.S. forces would be granted the use of
certain installations within the Philippine naval base in Subic. 67 On 16 September 1991,
the Senate rejected the proposed treaty. 68 ITAaHc
The consequent expiration of the 1947 MBA and the resulting paucity of any formal
agreement dealing with the treatment of U.S. personnel in the Philippines led to the
suspension in 1995 of large-scale joint military exercises. 69 In the meantime, the
respective governments of the two countries agreed 70 to hold joint exercises at a
substantially reduced level. 71 The military arrangements between them were revived in
1999 when they concluded the first Visiting Forces Agreement (VFA).72
As a "reaffirm[ation] [of the] obligations under the MDT," 73 the VFA has laid down
the regulatory mechanism for the treatment of U.S. military and civilian personnel visiting
the country. 74 It contains provisions on the entry and departure of U.S. personnel; the
purpose, extent, and limitations of their activities; criminal and disciplinary jurisdiction; the
waiver of certain claims; the importation and exportation of equipment, materials,
supplies, and other pieces of property owned by the U.S. government; and the movement
of U.S. military vehicles, vessels, and aircraft into and within the country. 75 The
Philippines and the U.S. also entered into a second counterpart agreement (VFA II),which
in turn regulated the treatment of Philippine military and civilian personnel visiting the
U.S. 76 The Philippine Senate concurred in the first VFA on 27 May 1999. 77
Beginning in January 2002, U.S. military and civilian personnel started arriving in
Mindanao to take part in joint military exercises with their Filipino
counterparts. 78 Called Balikatan,these exercises involved trainings aimed at simulating
joint military maneuvers pursuant to the MDT. 79
In the same year, the Philippines and the U.S. entered into the Mutual Logistics
Support Agreement to "further the interoperability, readiness, and effectiveness of their
respective military forces" 80 in accordance with the MDT, the Military Assistance
Agreement of 1953, and the VFA. 81 The new agreement outlined the basic terms,
conditions, and procedures for facilitating the reciprocal provision of logistics support,
supplies, and services between the military forces of the two countries. 82 The phrase
"logistics support and services" includes billeting, operations support, construction and
use of temporary structures, and storage services during an approved activity under the
existing military arrangements. 83 Already extended twice, the agreement will last until
2017. 84
 D. The Enhanced Defense
Cooperation Agreement
EDCA authorizes the U.S. military forces to have access to and conduct activities
within certain "Agreed Locations" in the country. It was not transmitted to the Senate on
the executive's understanding that to do so was no longer necessary. 85 Accordingly, in
June 2014, the Department of Foreign Affairs (DFA) and the U.S. Embassy exchanged
diplomatic notes confirming the completion of all necessary internal requirements for the
agreement to enter into force in the two countries. 86
According to the Philippine government, the conclusion of EDCA was the result of
intensive and comprehensive negotiations in the course of almost two years. 87 After
eight rounds of negotiations, the Secretary of National Defense and the U.S. Ambassador
to the Philippines signed the agreement on 28 April 2014. 88 President Benigno S.
Aquino III ratified EDCA on 6 June 2014. 89 The OSG clarified during the oral
arguments 90 that the Philippine and the U.S. governments had yet to agree formally on
the specific sites of the Agreed Locations mentioned in the agreement.
Two petitions for certiorari were thereafter filed before us assailing the
constitutionality of EDCA. They primarily argue that it should have been in the form of a
treaty concurred in by the Senate, not an executive agreement.
On 10 November 2015, months after the oral arguments were concluded and the
parties ordered to file their respective memoranda, the Senators adopted Senate
Resolution No. (SR) 105. 91 The resolution expresses the "strong sense" 92 of the
Senators that for EDCA to become valid and effective, it must first be transmitted to the
Senate for deliberation and concurrence.
III. ISSUES
Petitioners mainly seek a declaration that the Executive Department committed
grave abuse of discretion in entering into EDCA in the form of an executive agreement.
For this reason, we cull the issues before us:
A. Whether the essential requisites for judicial review are present
B. Whether the President may enter into an executive agreement on foreign
military bases, troops, or facilities
C. Whether the provisions under EDCA are consistent with the Constitution,
as well as with existing laws and treaties
IV. DISCUSSION
A. Whether the essential
requisites for judicial review
have been satisfied
Petitioners are hailing this Court's power of judicial review in order to strike down
EDCA for violating the Constitution. They stress that our fundamental law is explicit in
prohibiting the presence of foreign military forces in the country, except under a treaty
concurred in by the Senate. Before this Court may begin to analyze the constitutionality
or validity of an official act of a coequal branch of government, however, petitioners must
show that they have satisfied all the essential requisites for judicial review. 93 CHTAIc
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. ....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.
xxx xxx xxx
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. . . . . In our case, this moderating power is granted, if
not expressly, by clear implication from section 2 of article VIII of [the 1935]
Constitution. cHDAIS
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. ....(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.
Alba 101 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 Francisco 104 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 maintains 107 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) ISHCcT
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 ...have
already been complied with." 113 By this exchange of diplomatic notes, the Executive
Department effectively performed the last act required under Article XII (1) 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
claim 121 that the case they have filed is a concerned citizen's suit. But aside from
general statements that the petitions involve the protection of a public right, and that their
constitutional rights as citizens would be violated, they fail to make any specific assertion
of a particular public right that would be violated by the enforcement of EDCA. For their
failure to do so, the present petitions cannot be considered by the Court as
citizens' suits that would justify a disregard of the aforementioned requirements.
In claiming that they have legal standing as taxpayers, petitioners 122 aver that the
implementation of EDCA would result in the unlawful use of public funds. They emphasize
that Article X (1) refers to an appropriation of funds; and that the agreement entails a
waiver of the payment of taxes, fees, and rentals. During the oral arguments, however,
they admitted that the government had not yet appropriated or actually disbursed public
funds for the purpose of implementing the agreement. 123 The OSG, on the other hand,
maintains that petitioners cannot sue as taxpayers. 124 Respondent explains that EDCA
is neither meant to be a tax measure, nor is it directed at the disbursement of public funds.
A taxpayer's suit concerns a case in which the official act complained of directly
involves the illegal disbursement of public funds derived from taxation. 125 Here, those
challenging the act must specifically show that they have sufficient interest in preventing
the illegal expenditure of public money, and that they will sustain a direct injury as a result
of the enforcement of the assailed act. 126 Applying that principle to this case, they must
establish that EDCA involves the exercise by Congress of its taxing or spending
powers. 127
We agree with the OSG that the petitions cannot qualify as taxpayers' suits. We
emphasize that a taxpayers' suit contemplates a situation in which there is already an
appropriation or a disbursement of public funds. 128 A reading of Article X (1) 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. CAacTH
Petitioners Bayan, et al.also claim 129 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 counters 130 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.
Petitioners 138 argue that the Court may set aside procedural technicalities, as the
present petition tackles issues that are of transcendental importance. They point out that
the matter before us is about the proper exercise of the Executive Department's power
to enter into international agreements in relation to that of the Senate to concur in those
agreements. They also assert that EDCA would cause grave injustice, as well as
irreparable violation of the Constitution and of the Filipino people's rights.
The OSG, on the other hand, insists 139 that petitioners cannot raise the mere fact
that the present petitions involve matters of transcendental importance in order to cure
their inability to comply with the constitutional requirement of standing. Respondent
bewails the overuse of "transcendental importance" as an exception to the traditional
requirements of constitutional litigation. It stresses that one of the purposes of these
requirements is to protect the Supreme Court from unnecessary litigation of constitutional
questions.
In a number of cases, 140 this Court has indeed taken a liberal stance towards the
requirement of legal standing, especially when paramount interest is involved. Indeed,
when those who challenge the official act are able to craft an issue of transcendental
significance to the people, the Court may exercise its sound discretion and take
cognizance of the suit. It may do so in spite of the inability of the petitioners to show that
they have been personally injured by the operation of a law or any other government
act. IAETDc
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 . . . 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 17, 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 DcHSEa
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.
xxx xxx xxx
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 lawless violence,
invasion, or rebellion. At such times, the President has full powers to ensure the faithful
execution of the laws.
It would therefore be remiss for the President and repugnant to the faithful-
execution clause of the Constitution to do nothing when the call of the moment requires
increasing the military's defensive capabilities, which could include forging alliances with
states that hold a common interest with the Philippines or bringing an international suit
against an offending state.
The context drawn in the analysis above has been termed by Justice Arturo D.
Brion's Dissenting Opinion as the beginning of a "patent misconception." 165 His dissent
argues that this approach taken in analyzing the President's role as executor of the laws
is preceded by the duty to preserve and defend the Constitution, which was allegedly
overlooked. 166
In arguing against the approach, however, the dissent grossly failed to appreciate
the nuances of the analysis, if read holistically and in context. The concept that the
President cannot function with crippled hands and therefore can disregard the need for
Senate concurrence in treaties 167 was never expressed or implied. Rather, the
appropriate reading of the preceding analysis shows that the point being elucidated is the
reality that the President's duty to execute the laws and protect the Philippines is
inextricably interwoven with his foreign affairs powers, such that he must resolve issues
imbued with both concerns to the full extent of his powers, subject only to the limits
supplied by law. In other words, apart from an expressly mandated limit, or an implied
limit by virtue of incompatibility, the manner of execution by the President must be given
utmost deference. This approach is not different from that taken by the Court in situations
with fairly similar contexts.
Thus, the analysis portrayed by the dissent does not give the President authority
to bypass constitutional safeguards and limits. In fact, it specifies what these limitations
are, how these limitations are triggered, how these limitations function, and what can be
done within the sphere of constitutional duties and limitations of the President.
 Justice Brion's dissent likewise misinterprets the analysis proffered when it claims
that the foreign relations power of the President should not be interpreted in
isolation. 168 The analysis itself demonstrates how the foreign affairs function, while
mostly the President's, is shared in several instances, namely in Section 2 of Article II on
the conduct of war; Sections 20 and 21 of Article VII on foreign loans, treaties, and
international agreements; Sections 4 (2) and 5 (2) (a) of Article VIII on the judicial review
of executive acts; Sections 4 and 25 of Article XVIII on treaties and international
agreements entered into prior to the Constitution and on the presence of foreign military
troops, bases, or facilities.
In fact, the analysis devotes a whole subheading to the relationship between the
two major presidential functions and the role of the Senate in it.
This approach of giving utmost deference to presidential initiatives in respect of
foreign affairs is not novel to the Court. The President's act of treating EDCA as an
executive agreement is not the principal power being analyzed as the Dissenting Opinion
seems to suggest. Rather, the preliminary analysis is in reference to the expansive power
of foreign affairs. We have long treated this power as something the Courts must not
unduly restrict. As we stated recently in Vinuya v. Romulo: SCaITA
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 Bayan 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. aTHCSE
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 105 171 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) cAaDHT
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) HCaDIS
As applied, verba legis aids in construing the ordinary meaning of terms. In this
case, the phrase being construed is "shall not be allowed in the Philippines" and not the
preceding one referring to "the expiration in 1991 of the Agreement between the Republic
of the Philippines and the United States of America concerning Military Bases, foreign
military bases, troops, or facilities." It is explicit in the wording of the provision itself that
any interpretation goes beyond the text itself and into the discussion of the framers, the
context of the Constitutional Commission's time of drafting, and the history of the 1947
MBA. Without reference to these factors, a reader would not understand those terms.
However, for the phrase "shall not be allowed in the Philippines," there is no need for
such reference. The law is clear. No less than the Senate understood this when it ratified
the VFA.
4. The President may generally
enter into executive
agreements subject to
limitations defined by the
Constitution and may be in
furtherance of a treaty
already concurred in by the
Senate.
We discuss in this section why the President can enter into executive agreements.
 It would be helpful to put into context the contested language found in Article XVIII,
Section 25. Its more exacting requirement was introduced because of the previous
experience of the country when its representatives felt compelled to consent to the old
MBA. 191 They felt constrained to agree to the MBA in fulfilment of one of the major
conditions for the country to gain independence from the U.S. 192 As a result of that
experience, a second layer of consent for agreements that allow military bases, troops
and facilities in the country is now articulated in Article XVIII of our present Constitution.
This second layer of consent, however, cannot be interpreted in such a way that
we completely ignore the intent of our constitutional framers when they provided for that
additional layer, nor the vigorous statements of this Court that affirm the continued
existence of that class of international agreements called "executive agreements."
The power of the President to enter into binding executive agreements without
Senate concurrence is already well-established in this jurisdiction. 193 That power has
been alluded to in our present and past Constitutions, 194 in various statutes, 195 in
Supreme Court decisions, 196 and during the deliberations of the Constitutional
Commission. 197 They cover a wide array of subjects with varying scopes and
purposes, 198 including those that involve the presence of foreign military forces in the
country. 199
As the sole organ of our foreign relations 200 and the constitutionally assigned
chief architect of our foreign policy, 201 the President is vested with the exclusive power
to conduct and manage the country's interface with other states and governments. Being
the principal representative of the Philippines, the Chief Executive speaks and listens for
the nation; initiates, maintains, and develops diplomatic relations with other states and
governments; negotiates and enters into international agreements; promotes trade,
investments, tourism and other economic relations; and settles international disputes with
other states. 202
As previously discussed, this constitutional mandate emanates from the inherent
power of the President to enter into agreements with other states, including the
prerogative to conclude binding executive agreements that do not require further Senate
concurrence. The existence of this presidential power 203 is so well-entrenched that
Section 5 (2) (a), Article VIII of the Constitution, even provides for a check on its exercise.
As expressed below, executive agreements are among those official governmental acts
that can be the subject of this Court's power of judicial review:
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari,as the
law or the Rules of Court may provide, final judgments and orders of
lower courts in:
(a) All cases in which the constitutionality or
validity of any treaty,international or executive
agreement,law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question. (Emphases
supplied)
In Commissioner of Customs v. Eastern Sea Trading,executive agreements are
defined as "international agreements embodying adjustments of detail carrying out well-
established national policies and traditions and those involving arrangements of a more
or less temporary nature." 204 In Bayan Muna v. Romulo,this Court further clarified that
executive agreements can cover a wide array of subjects that have various scopes and
purposes. 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. ....
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: AHCETa
...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.
xxx xxx xxx
[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. ScHADI
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 xxx 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 xxx 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'être 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
modern, 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. aICcHA
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 Senate 215 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 territory 221
b. The fixing of tariff rates, import and export quotas, tonnage and wharfage dues,
and other duties or imposts, which must be pursuant to the authority granted
by Congress 222
c. The grant of any tax exemption, which must be pursuant to a law concurred in
by a majority of all the Members of Congress 223
d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans
that must be previously concurred in by the Monetary Board 224
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 EHaASD
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. ....Pressing its point, petitioner submits that the subject of
the Agreement does not fall under any of the subject-categories 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.
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.
xxx xxx xxx
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.
xxx xxx xxx
....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 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. (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. DaIAcC
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 ...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 I 236 and II 237 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 (10) requires that the confinement or detention be "by Philippine
authorities." TAacHE
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 activities 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 statutes, 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 argues 250 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. HDICSa
Petitioners contest 251 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 III (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 clarifies that the agreement
does not deal with the entry into the country of U.S. personnel and contractors per
se.While Articles I (1) (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. IDaEHC
3. The following documents only, which shall be required in respect of United
States military personnel who enter the Philippines; .....
4. United States civilian personnel shall be exempt from visa
requirements but shall present,upon demand, valid passports upon
entry and departure of the Philippines. (Emphases Supplied)
By virtue of Articles I and III of the VFA, the Philippines already allows U.S. military
and civilian personnel to be "temporarily in the Philippines," so long as their presence is
"in connection with activities approved by the Philippine Government." The Philippines,
through Article III, even guarantees that it shall facilitate the admission of U.S. personnel
into the country and grant exemptions from passport and visa regulations. The VFA does
not even limit their temporary presence to specific locations.
Based on the above provisions, the admission and presence of U.S. military
and civilian personnel in Philippine territory are already allowed under the VFA,
the treaty supposedly being implemented by EDCA.What EDCA has effectively done,
in fact, is merely provide the mechanism to identify the locations in which U.S. personnel
may perform allowed activities pursuant to the VFA. As the implementing agreement, it
regulates and limits the presence of U.S. personnel in the country.
b. EDCA does not provide the
legal basis for admission of
U.S. contractors into Philippine
territory; their entry must be
sourced from extraneous
Philippine statutes and
regulations for the admission of
alien employees or business
persons.
Of the three aforementioned classes of individuals who will be conducting certain
activities within the Agreed Locations, we note that only U.S. contractors are not explicitly
mentioned in the VFA. This does not mean, though, that the recognition of their presence
under EDCA is ipso facto an amendment of the treaty, and that there must be Senate
concurrence before they are allowed to enter the country.
Nowhere in EDCA are U.S. contractors guaranteed immediate admission into the
Philippines. Articles III and IV, in fact, merely grant them the right of access to, and the
authority to conduct certain activities within the Agreed Locations. Since Article II (3) of
EDCA specifically leaves out U.S. contractors from the coverage of the VFA, they shall
not be granted the same entry accommodations and privileges as those enjoyed by U.S.
military and civilian personnel under the VFA.
Consequently, it is neither mandatory nor obligatory on the part of the Philippines
to admit U.S. contractors into the country. 259 We emphasize that the admission of aliens
into Philippine territory is "a matter of pure permission and simple tolerance which creates
no obligation on the part of the government to permit them to stay." 260 Unlike U.S.
personnel who are accorded entry accommodations, U.S. contractors are subject to
Philippine immigration laws. 261 The latter must comply with our visa and passport
regulations 262 and prove that they are not subject to exclusion under any provision of
Philippine immigration laws. 263 The President may also deny them entry pursuant to his
absolute and unqualified power to prohibit or prevent the admission of aliens whose
presence in the country would be inimical to public interest. 264
In the same vein, the President may exercise the plenary power to expel or deport
U.S. contractors 265 as may be necessitated by national security, public safety, public
health, public morals, and national interest. 266 They may also be deported if they are
found to be illegal or undesirable aliens pursuant to the Philippine Immigration
Act 267 and the Data Privacy Act. 268 In contrast, Article III (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] ...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 xxx xxx
Reaffirming their obligations under the Mutual Defense Treaty of August
30, 1951; DTCSHA
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 xxx 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: ...
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. ....
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....(Emphases
Supplied)
Manifest in these provisions is the abundance of references to the creation of
further "implementing arrangements" including the identification of "activities [to be]
approved by the Philippine Government." To determine the parameters of these
implementing arrangements and activities, we referred to the content, purpose, and
framework of the MDT and the VFA.
By its very language, the MDT contemplates a situation in which both countries
shall engage in joint activities, so that they can maintain and develop their defense
capabilities. The wording itself evidently invites a reasonable construction that
the joint activities shall involve joint military trainings, maneuvers, and exercises. Both
the interpretation 269 and the subsequent practice 270 of the parties show that the MDT
independently allows joint military exercises in the country. Lim v. Executive
Secretary 271 and Nicolas v. Romulo 272 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. CScTED
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.
xxx xxx xxx
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.
xxx xxx xxx
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 in further agreements. EDCA is one such
agreement.
EDCA seeks to be an instrument that enumerates the Philippine-approved
activities of U.S. personnel referred to in the VFA. EDCA allows U.S. military and civilian
personnel to perform "activities approved by the Philippines, as those terms are defined
in the VFA" 278 and clarifies that these activities include those conducted within the
Agreed Locations:
1. Security cooperation exercises; joint and combined training activities;
humanitarian assistance and disaster relief activities; and such other
activities as may be agreed upon by the Parties 279
2. Training; transit; support and related activities; refueling of aircraft; bunkering of
vessels; temporary maintenance of vehicles, vessels, and aircraft;
temporary accommodation of personnel; communications; prepositioning of
equipment, supplies, and materiel; deployment of forces and materiel; and
such other activities as the Parties may agree 280
3. Exercise of operational control over the Agreed Locations for construction
activities and other types of activity, including alterations and improvements
thereof 281
 4. Exercise of all rights and authorities within the Agreed Locations that are
necessary for their operational control or defense, including the adoption of
appropriate measures to protect U.S. forces and contractors 282
5. Use of water, electricity, and other public utilities 283
6. Operation of their own telecommunication systems, including the utilization of
such means and services as are required to ensure the full ability to operate
telecommunication systems, as well as the use of the necessary radio
spectrum allocated for this purpose 284
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. cDCEIA
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
xxx xxx xxx
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.
xxx xxx xxx.
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
xxx xxx xxx
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.....(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 assert 287 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. DHESca
 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 (1) 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
....(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 U.S.-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 U.S.-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. cDTACE
The reasoning behind this interpretation is rooted in the constitutional role of the
President who, as Commander-in-Chief of our armed forces, is the principal strategist of
the nation and, as such, duty-bound to defend our national sovereignty and territorial
integrity; 291 who, as chief architect of our foreign relations, is the head policymaker
tasked to assess, ensure, and protect our national security and interests; 292 who holds
the most comprehensive and most confidential information about foreign
countries 293 that may affect how we conduct our external affairs; and who has
unrestricted access to highly classified military intelligence data 294 that may threaten
the life of the nation. Thus, if after a geopolitical prognosis of situations affecting the
country, a belief is engendered that a much longer period of military training is needed,
the President must be given ample discretion to adopt necessary measures including the
flexibility to set an extended timetable.
Due to the sensitivity and often strict confidentiality of these concerns, we
acknowledge that the President may not always be able to candidly and openly discuss
the complete situation being faced by the nation. The Chief Executive's hands must not
be unduly tied, especially if the situation calls for crafting programs and setting timelines
for approved activities. These activities may be necessary for maintaining and developing
our capacity to resist an armed attack, ensuring our national sovereignty and territorial
integrity, and securing our national interests. If the Senate decides that the President is
in the best position to define in operational terms the meaning of temporary in relation to
the visits, considered individually or in their totality, the Court must respect that policy
decision. If the Senate feels that there is no need to set a time limit to these visits, neither
should we.
Evidently, the fact that the VFA does not provide specificity in regard to the extent
of the "temporary" nature of the visits of U.S. personnel does not suggest that the duration
to which the President may agree is unlimited. Instead, the boundaries of the meaning of
the term temporary in Article I of the treaty must be measured depending on the purpose
of each visit or activity. 295 That purpose must be analyzed on a case-by-case basis
depending on the factual circumstances surrounding the conclusion of the implementing
agreement. While the validity of the President's actions will be judged under less stringent
standards, the power of this Court to determine whether there was grave abuse of
discretion remains unimpaired.
d. Authorized activities performed
by U.S. 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 TEHIaD
Petitioners also raise 296 concerns about the U.S. government's purported
practice of hiring private security contractors in other countries. They claim that these
contractors one of which has already been operating in Mindanao since 2004 have
been implicated in incidents or scandals in other parts of the globe involving rendition,
torture and other human rights violations. They also assert that these contractors employ
paramilitary forces in other countries where they are operating.
Under Articles III and IV of EDCA, U.S. contractors are authorized to perform only
the following activities:
1. Training; transit; support and related activities; refueling of aircraft; bunkering of
vessels; temporary maintenance of vehicles, vessels, and aircraft;
temporary accommodation of personnel; communications; prepositioning of
equipment, supplies, and materiel; deployment of forces and materiel; and
such other activities as the Parties may agree 297
 2. Prepositioning and storage of defense equipment, supplies, and materiel,
including delivery, management, inspection, use, maintenance, and removal
of such equipment, supplies and materiel 298
3. Carrying out of matters in accordance with, and to the extent permissible under,
U.S. laws, regulations, and policies 299
EDCA requires that all activities within Philippine territory be in accordance with
Philippine law. This means that certain privileges denied to aliens are likewise denied to
foreign military contractors. Relevantly, providing security 300 and carrying, owning, and
possessing firearms 301 are illegal for foreign civilians.
The laws in place already address issues regarding the regulation of contractors.
In the 2015 Foreign Investment Negative list, 302 the Executive Department has already
identified corporations that have equity restrictions in Philippine jurisdiction. Of note is
No. 5 on the list private security agencies that cannot have any foreign equity by virtue
of Section 4 of Republic Act No. 5487; 303 and No. 15, which regulates contracts for the
construction of defense-related structures based on Commonwealth Act No. 541.
Hence, any other entity brought into the Philippines by virtue of EDCA must
subscribe to corporate and civil requirements imposed by the law, depending on the
entity's corporate structure and the nature of its business. cCHITA
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
laws 311 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) of EDCA
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. CAIHTE
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 To our mind, both EDCA and the MBA simply incorporate what is already the law
through their Designated Authorities. This provision, seen as a whole, contradicts of the land in the Philippines. The Civil Code's provisions on ownership, as applied, grant
petitioners' interpretation of the return as a "badge of exclusivity." In fact, it shows the the owner of a movable property full rights over that property, even if located in another
cooperation and partnership aspect of EDCA in full bloom. person's property. 324
Second, the term "unimpeded access" must likewise be viewed from a contextual The parallelism, however, ends when the situation involves facilities that can be
perspective. Article IV (4) states that U.S. forces and U.S. contractors shall have considered immovable. Under the MBA, the U.S. retains ownership if it paid for the
"unimpeded access to Agreed Locations for all matters relating to the prepositioning and facility. 325 Under EDCA, an immovable is owned by the Philippines, even if built
storage of defense equipment, supplies, and materiel, including delivery, management, completely on the back of U.S. funding. 326 This is consistent with the constitutional
inspection, use, maintenance, and removal of such equipment, supplies and materiel." prohibition on foreign land ownership. 327
At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the Despite the apparent similarity, the ownership of property is but a part of a larger
authority to bring in these equipment, supplies, and materiel through the MDB and SEB whole that must be considered before the constitutional restriction is violated. Thus,
security mechanism. These items are owned by the U.S.,314 are exclusively for the use petitioners' points on operational control will be given more attention in the discussion
of the U.S. 315 and, after going through the joint consent mechanisms of the MDB and below. The arguments on policy are, however, outside the scope of judicial review and
the SEB, are within the control of the U.S. 316 More importantly, before these items are will not be discussed.
considered prepositioned, they must have gone through the process of prior authorization Moreover, a direct comparison of the MBA and EDCA will result in several
by the MDB and the SEB and given proper notification to the AFP. 317 important distinctions that would allay suspicion that EDCA is but a disguised version of
Therefore, this "unimpeded access" to the Agreed Locations is a necessary adjunct the MBA.
to the ownership, use, and control of the U.S. over its own equipment, supplies, and b. There are substantial matters
materiel and must have first been allowed by the joint mechanisms in play between the that the U.S. cannot do under
two states since the time of the MDT and the VFA. It is not the use of the Agreed Locations EDCA, but which it was
that is exclusive per se; it is mere access to items in order to exercise the rights of authorized to do under the
ownership granted by virtue of the Philippine Civil Code. 318 1947 MBA
As for the view that EDCA authorizes U.S. forces to use public utilities and to The Philippine experience with U.S. military bases under the 1947 MBA is simply
operate their own telecommunications system, it will be met and answered in not possible under EDCA for a number of important reasons.
part D, infra.
First,in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over
Petitioners also point out 319 that EDCA is strongly reminiscent of and in fact bears Philippine territory occupied by American bases. In contrast, the U.S. under EDCA does
a one-to-one correspondence with the provisions of the 1947 MBA. They assert that both not enjoy any such right over any part of the Philippines in which its forces or equipment
agreements (a) allow similar activities within the area; (b) provide for the same "species may be found. Below is a comparative table between the old treaty and EDCA:
of ownership" over facilities; and (c) grant operational control over the entire area. Finally,
they argue 320 that EDCA is in fact an implementation of the new defense policy of the 1947 MBA/ EDCA
U.S. According to them, this policy was not what was originally intended either by the 1946 Treaty of General Relations
MDT or by the VFA.
On these points, the Court is not persuaded. 1947 MBA, Art. I (1): EDCA, preamble:
The similar activities cited by petitioners 321 simply show that under the MBA, the The Government of the Republic of the Affirming that the Parties share an
U.S. had the right to construct, operate, maintain, utilize, occupy, garrison, and control Philippines (hereinafter referred to as the understanding for the United States not to
the bases. The so-called parallel provisions of EDCA allow only operational control over Philippines) grants to the Government of establish a permanent military presence
the Agreed Locations specifically for construction activities. They do not allow the the United States of America (hereinafter or base in the territory of the
overarching power to operate, maintain, utilize, occupy, garrison, and control a base with referred to as the United States) the right Philippines;
full discretion. EDCA in fact limits the rights of the U.S. in respect of every activity, to retain the use of the bases in the
including construction, by giving the MDB and the SEB the power to determine the details Philippines listed in Annex A attached ...
of all activities such as, but not limited to, operation, maintenance, utility, occupancy, hereto.
garrisoning, and control. 322 DETACa Recognizing that all United States access
1947 MBA, Art. XVII (2): to and use of facilities and areas will be at
The "species of ownership" on the other hand, is distinguished by the nature of the the invitation of the Philippines and with
property. For immovable property constructed or developed by the U.S.,EDCA expresses All buildings and structures which are full respect for the Philippine
that ownership will automatically be vested to the Philippines. 323 On the other hand, for erected by the United States in the bases Constitution and Philippine laws;
movable properties brought into the Philippines by the U.S.,EDCA provides that shall be the property of the United States
ownership is retained by the latter. In contrast, the MBA dictates that the U.S. retains and may be removed by it before the ...
ownership over immovable and movable properties. expiration of this Agreement or the earlier
relinquishment of the base on which the
structures are situated. There shall be no
obligation on the part of the Philippines or
of the United States to rebuild or repair any
destruction or damage inflicted from any
cause whatsoever on any of the said
buildings or structures owned or used by
the United States in the bases. ....
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. ....
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. aDSIHc
1947 MBA/
1946 Treaty of General Relations
1947 MBA, Art. I (3):
The Philippines agree to enter into
negotiations with the United States at the
latter's request, to permit the United
States to expand such bases, to exchange
such bases for other bases, to acquire
additional bases, or relinquish rights to
bases, as any of such exigencies may be
EDCA, Art. II (4):
"Agreed Locations" means facilities and
areas that are provided by the
Government of the Philippines through
the AFP and that United States forces,
United States contractors, and others as
mutually agreed, shall have the right to
access and use pursuant to this Agreement.
Such Agreed Locations may be listed in an
annex to be appended to this Agreement,
and may be further described in
implementing arrangements.
EDCA, Art. V:
1. The Philippines shall retain ownership
of and title to Agreed Locations.
...
4. All buildings, non-relocatable
structures, and assemblies affixed to the
land in the Agreed Locations, including
ones altered or improved by United
States forces, remain the property of the
Philippines. Permanent buildings
constructed by United States forces become
the property of the Philippines, once
constructed, but shall be used by United
States forces until no longer required by
United States forces.
EDCA
EDCA, preamble:
Recognizing that all United States access
to and use of facilities and areas will be at
the invitation of the Philippines and with
full respect for the Philippine
Constitution and Philippine laws;
...
required by military necessity.
EDCA, Art. II (4):
1946 Treaty of Gen. Relations, Art. I: "Agreed Locations" means facilities and
areas that are provided by the
The United States of America agrees to Government of the Philippines through
withdraw and surrender, and does hereby the AFP and that United States forces,
withdraw and surrender, all rights of United States contractors, and others as
possession, supervision, jurisdiction, mutually agreed, shall have the right to
control or sovereignty existing and access and use pursuant to this Agreement.
exercised by the United States of America Such Agreed Locations may be listed in an
in and over the territory and the people annex to be appended to this Agreement,
of the Philippine Islands, except the use and may be further described in
of such bases, necessary appurtenances to implementing arrangements.
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. ....
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
EDCA, Art. III(5):
No equivalent provision. 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): determines to be required by military
The Philippines agrees to permit the The Philippines hereby grants to the necessity.
United States, upon notice to the United States, through bilateral security
Philippines, to use such of those bases mechanisms, such as the MDB and SEB, Sixth,under the MBA, the U.S. was given the right, power, and authority to control
listed in Annex B as the United States operational control of Agreed Locations and prohibit the movement and operation of all types of vehicles within the vicinity of the
determines to be required by military for construction activities and authority bases. The U.S. does not have any right, power, or authority to do so under EDCA.
necessity. to undertake such activities on, and make
alterations and improvements to, Agreed 1947 MBA EDCA
Locations. United States forces shall 1947 MBA, Art. III (2) (c)
1947 MBA, Art. III (1): consult on issues regarding such
construction, alterations, and Such rights, power and authority shall No equivalent provision.
It is mutually agreed that the United States improvements based on the Parties' shared include, inter alia, the right, power and
shall have the rights, power and authority intent that the technical requirements and authority: . . . to control (including the
within the bases which are necessary for construction standards of any such projects right to prohibit) in so far as may be
the establishment, use, operation and undertaken by or on behalf of United States required for the efficient operation and
defense thereof or appropriate for the forces should be consistent with the safety of the bases, and within the limits of
control thereof and all the rights, power requirements and standards of both Parties. military necessity, anchorages, moorings,
and authority within the limits of landings, takeoffs, movements and
territorial waters and air space adjacent operation of ships and water-borne
to, or in the vicinity of, the bases which craft, aircraft and other vehicles on
are necessary to provide access to them, water, in the air or on land comprising
or appropriate for their control.

Seventh,under EDCA, the U.S. is merely given temporary access to land and
Fifth,the U.S. under the bases agreement was given the authority to use Philippine facilities (including roads, ports, and airfields).On the other hand, the old treaty gave the
territory for additional staging areas, bombing and gunnery ranges. No such right is given U.S. the right to improve and deepen the harbors, channels, entrances, and anchorages;
under EDCA, as seen below: and to construct or maintain necessary roads and bridges that would afford it access to
its military bases.
1947 MBA EDCA
1947 MBA, Art. VI: EDCA, Art. III (1):
1947 MBA EDCA
The United States shall, subject to With consideration of the views of the 1947 MBA, Art. III (2) (b): EDCA, Art. III (2):
previous agreement with the Philippines, Parties, the Philippines hereby authorizes
have the right to use land and coastal Such rights, power and authority shall When requested, the Designated Authority
and agrees that United States forces, United include, inter alia, the right, power and of the Philippines shall assist in facilitating
sea
areas of appropriate size and location for States contractors, and vehicles, vessels, authority: ...to improve and deepen transit or temporary access by United
periodic maneuvers, for additional stagingand aircraft operated by or for United the harbors, channels, entrances and States forces to public land and facilities
areas, bombing and gunnery ranges, anchorages, and to construct or maintain (including roads, ports, and airfields),
States forces may conduct the following necessary roads and bridges affording including those owned or controlled by
and
for such intermediate airfields as may be activities with respect to Agreed access to the bases. local governments, and to other land and
required for safe and efficient air Locations: training; transit; support and facilities (including roads, ports, and
operations. Operations in such areas shall related activities; refueling of aircraft; airfields).
be carried on with due regard and bunkering of vessels; temporary
safeguards for the public safety. maintenance of vehicles, vessels, and Eighth,in the 1947 MBA, the U.S. was granted the automatic right to use any and
aircraft; temporary accommodation of all public utilities, services and facilities, airfields, ports, harbors, roads, highways,
1947 MBA, Art. I (2): personnel; communications; prepositioning railroads, bridges, viaducts, canals, lakes, rivers, and streams in the Philippines in the
of equipment, supplies, and materiel; same manner that Philippine military forces enjoyed that right. No such arrangement
The Philippines agrees to permit the deploying forces and materiel; and such appears in EDCA. In fact, it merely extends to U.S. forces temporary access to public
United States, upon notice to the other activities as the Parties may agree. land and facilities when requested:
Philippines, to use such of those bases
listed in Annex B as the United States 1947 MBA EDCA
1947 MBA, Art. VII:
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.
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. TIADCc
1947 MBA
1947 MBA, Art. III (2) (e):
Such rights, power and authority shall
include, inter alia, the right, power and
authority: . . . 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.
EDCA, Art. III (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).
EDCA
EDCA, Art. III (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
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 (1):
Whenever it is necessary to acquire by No equivalent provision.
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
thereby 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 (1): EDCA, Art. II:
It is mutually agreed that the United States 1. "United States personnel" means
shall have the right to bring into the United States military and civilian
Philippines members of the United States personnel temporarily in the territory of
military forces and the United States the Philippines in connection with activities
nationals employed by or under an approved by the Philippines, as those
contract with the United States together terms are defined in the VFA.
with their families, and technical
personnel of other nationalities (not ...
being persons excluded by the laws of the
Philippines) in connection with the 3. "United States contractors" means
construction, maintenance, or operation of companies and firms, and their employees,
the bases. The United States shall make under contract or subcontract to or on
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.
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
1947 MBA, Art. XIII (1) (a):
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. AIDSTE
1947 MBA
1947 MBA, Art. XVIII (1):
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
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.
EDCA
No equivalent provision.
EDCA
No equivalent provision.
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, Tarlac 329
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 1947
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. AaCTcI
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 REGALADO 334
xxx xxx xxx
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.
xxx xxx xxx
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 EcTCAD
xxx xxx xxx
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
xxx xxx xxx
SPEECH OF COMMISSIONER SUAREZ 337
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 self-respect 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
xxx xxx xxx
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.
xxx xxx xxx
...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 BENNAGEN 340
xxx xxx xxx
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 BACANI 342
xxx xxx xxx
...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 JAMIR 344
xxx xxx xxx
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 TINGSON 346
xxx xxx xxx
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
xxx xxx xxx
Allow me to say in summation that I am for the retention of
American military bases in the Philippines provided that such an
extension from one period to another shall be concluded upon
concurrence of the parties, and such extension shall be based on
justice, the historical amity of the people of the Philippines and the
United States and their common defense interest.348
SPEECH OF COMMISSIONER ALONTO 349
xxx xxx xxx
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 GASCON 351
xxx xxx xxx
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
xxx xxx xxx
...The United States bases, therefore, are springboards for intervention
in our own internal affairs and in the affairs of other nations in this
region.
xxx xxx xxx
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 AScHCD
xxx xxx xxx
SPEECH OF COMMISSIONER TADEO 354
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, 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 QUESADA 356
xxx xxx xxx
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.
xxx xxx xxx
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 make this a part of future negotiations. 357
xxx xxx xxx
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
xxx xxx xxx
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. AcICHD
xxx xxx xxx
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.
xxx xxx xxx
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 PADILLA 360
xxx xxx xxx
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 NOLLEDO 362
xxx xxx xxx
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
xxx xxx xxx
...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.
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 government. 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 government. 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 TAIaHE
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 ...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 self-reliance
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: cDHAES
Economic self reliance is a primary objective of a developing
country that is keenly aware of overdependence on external
assistance for even its most basic needs. It does not mean
autarky or economic seclusion; rather, it means avoiding
mendicancy in the international community. Independence
refers to the freedom from undue foreign control of the
national economy, especially in such strategic industries as in
the development of natural resources and public
utilities. 378 (Emphases supplied)
The heart of the constitutional restriction on foreign military facilities and bases is
therefore the assertion of independence from the U.S. and other foreign powers, as
independence is exhibited by the degree of foreign control exerted over these areas. The
essence of that independence is self-governance and self-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 ASEcHI
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 ...." 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. ITAaHc
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 activities
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. cSaATC
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. cHDAIS
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 EATCcI
By virtue of this ambiguity, the laws of war dictate that the status of a building or
person is presumed to be protected, unless proven otherwise. 427 Moreover, the
principle of distinction requires combatants in an armed conflict to distinguish between
lawful targets 428 and protected targets. 429 In an actual armed conflict between the
U.S. and a third state, the Agreed Locations cannot be considered U.S. territory, since
ownership of territory even in times of armed conflict does not change. 430
Hence, any armed attack by forces of a third state against an Agreed Location can
only be legitimate under international humanitarian law if it is against a bona fide U.S.
military base, facility, or installation that directly contributes to the military effort of the
U.S. Moreover, the third state's forces must take all measures to ensure that they have
complied with the principle of distinction (between combatants and non-combatants).
There is, then, ample legal protection for the Philippines under international law
that would ensure its territorial integrity and national security in the event an Agreed
Location is subjected to attack. As EDCA stands, it does not create the situation so feared
by petitioners one in which the Philippines, while not participating in an armed conflict,
would be legitimately targeted by an enemy of the U.S. 431
In the second place, this is a policy question about the wisdom of allowing the
presence of U.S. personnel within our territory and is therefore outside the scope of
judicial review.
Evidently, the concept of giving foreign troops access to "agreed" locations, areas,
or facilities within the military base of another sovereign state is nothing new on the
international plane. In fact, this arrangement has been used as the framework for several
defense cooperation agreements, such as in the following:
1. 2006 U.S.-Bulgaria Defense Cooperation Agreement 432
2. 2009 U.S.-Colombia Defense Cooperation Agreement 433
3. 2009 U.S.-Poland Status of Forces Agreement 434
4. 2014 U.S.-Australia Force Posture Agreement 435
5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement 436
In all of these arrangements, the host state grants U.S. forces access to their
military bases. 437 That access is without rental or similar costs to the U.S. 438 Further,
U.S. forces are allowed to undertake construction activities in, and make alterations and
improvements to, the agreed locations, facilities, or areas. 439 As in EDCA, the host
states retain ownership and jurisdiction over the said bases. 440
In fact, some of the host states in these agreements give specific military-related
rights to the U.S. For example, under Article IV (1) of the U.S.-Bulgaria Defense
Cooperation Agreement,"the United States forces ...are authorized access to and may
use agreed facilities and areas ...for staging and deploying of forces and materiel, with
the purpose of conducting ...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 ...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, ...operations support (and construction and use of temporary structures
incident to operations support),training services, ...storage services, ...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; ...;support and related activities; ...;temporary accommodation of personnel;
communications" and agreed activities. 447 DHITCc
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 ...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 ...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. CAacTH
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-à-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 VII (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. IAETDc
That calamity brought out the best in the Filipinos as thousands upon thousands
volunteered their help, their wealth, and their prayers to those affected. It also brought to
the fore the value of having friends in the international community.
In order to keep the peace in its archipelago in this region of the world, and to
sustain itself at the same time against the destructive forces of nature, the Philippines will
need friends. Who they are, and what form the friendships will take, are for the President
to decide. The only restriction is what the Constitution itself expressly prohibits. It appears
that this overarching concern for balancing constitutional requirements against the
dictates of necessity was what led to EDCA.
As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains
consistent with existing laws and treaties that it purports to implement.
WHEREFORE,we hereby DISMISS the petitions.
SO ORDERED.
||| (Saguisag v. Ochoa, Jr., G.R. Nos. 212426 & 212444, [January 12, 2016], 777 PHIL 280-
699)
EN BANC
[G.R. No. 162230. April 28, 2010.]
ISABELITA C. VINUYA, VICTORIA C. DELA PEÑA, HERMINIHILDA
MANIMBO, LEONOR H. SUMAWANG, CANDELARIA L. SOLIMAN,
MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO,
LOURDES M. NAVARO, FRANCISCA M. ATENCIO, ERLINDA
MANALASTAS, TARCILA M. SAMPANG, ESTER M. PALACIO, MAXIMA
R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA, FLORENCIA M.
DELA PEÑA, EUGENIA M. LALU, JULIANA G. MAGAT, CECILIA
SANGUYO, ANA ALONZO, RUFINA P. MALLARI, ROSARIO M.
ALARCON, RUFINA C. GULAPA, ZOILA B. MANALUS, CORAZON C.
CALMA, MARTA A. GULAPA, TEODORA M. HERNANDEZ, FERMIN B.
DELA PEÑA, MARIA DELA PAZ B. CULALA, ESPERANZA MANAPOL,
JUANITA M. BRIONES, VERGINIA M. GUEVARRA, MAXIMA ANGULO,
EMILIA SANGIL, TEOFILA R. PUNZALAN, JANUARIA G. GARCIA,
PERLA B. BALINGIT, BELEN A. CULALA, PILAR Q. GALANG, ROSARIO
C. BUCO, GAUDENCIA C. DELA PEÑA, RUFINA Q. CATACUTAN,
FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA M. DELA
CRUZ, PETRONILA O. DELA CRUZ, ZENAIDA P. DELA CRUZ,
 CORAZON M. SUBA, EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ,
ROSALINA M. BUCO, PATRICIA A. BERNARDO, LUCILA H. PAYAWAL,
MAGDALENA LIWAG, ESTER C. BALINGIT, JOVITA A. DAVID, EMILIA
C. MANGILIT, VERGINIA M. BANGIT, GUILLERMA S. BALINGIT,
TERECITA PANGILINAN, MAMERTA C. PUNO, CRISENCIANA C.
GULAPA, SEFERINA S. TURLA, MAXIMA B. TURLA, LEONICIA G.
GUEVARRA, ROSALINA M. CULALA, CATALINA Y. MANIO, MAMERTA
T. SAGUM, CARIDAD L. TURLA, et al. In their capacity and as members
of the "Malaya Lolas Organization", petitioners, vs. THE HONORABLE
EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE HONORABLE
SECRETARY OF FOREIGN AFFAIRS DELIA DOMINGO-ALBERT, THE
HONORABLE SECRETARY OF JUSTICE MERCEDITAS N. GUTIERREZ,
and THE HONORABLE SOLICITOR GENERAL ALFREDO L.
BENIPAYO, respondents.
DECISION
DEL CASTILLO, J p:
The Treaty of Peace with Japan, insofar as it barred future claims such
as those asserted by plaintiffs in these actions, exchanged full compensation
of plaintiffs for a future peace. History has vindicated the wisdom of that
bargain. And while full compensation for plaintiffs' hardships, in the purely
economic sense, has been denied these former prisoners and countless other
survivors of the war, the immeasurable bounty of life for themselves and their
posterity in a free society and in a more peaceful world services the debt. 1
There is a broad range of vitally important areas that must be regularly decided by
the Executive Department without either challenge or interference by the Judiciary. One
such area involves the delicate arena of foreign relations. It would be strange indeed if
the courts and the executive spoke with different voices in the realm of foreign policy.
Precisely because of the nature of the questions presented, and the lapse of more than
60 years since the conduct complained of, we make no attempt to lay down general
guidelines covering other situations not involved here, and confine the opinion only to the
very questions necessary to reach a decision on this matter.
Factual Antecedents
This is an original Petition for Certiorari under Rule 65 of the Rules of Court with
an application for the issuance of a writ of preliminary mandatory injunction against the
Office of the Executive Secretary, the Secretary of the Department of Foreign Affairs
(DFA), the Secretary of the Department of Justice (DOJ), and the Office of the Solicitor
General (OSG).
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit
organization registered with the Securities and Exchange Commission, established for
the purpose of providing aid to the victims of rape by Japanese military forces in the
Philippines during the Second World War. DHcSIT
Petitioners narrate that during the Second World War, the Japanese army attacked
villages and systematically raped the women as part of the destruction of the village.
Their communities were bombed, houses were looted and burned, and civilians were
publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the
women and held them in houses or cells, where they were repeatedly raped, beaten, and
abused by Japanese soldiers. As a result of the actions of their Japanese tormentors, the
petitioners have spent their lives in misery, having endured physical injuries, pain and
disability, and mental and emotional suffering. 2
Petitioners claim that since 1998, they have approached the Executive Department
through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the
Japanese officials and military officers who ordered the establishment of the "comfort
women" stations in the Philippines. However, officials of the Executive Department
declined to assist the petitioners, and took the position that the individual claims of the
comfort women for compensation had already been fully satisfied by Japan's compliance
with the Peace Treaty between the Philippines and Japan.
Issues
Hence, this petition where petitioners pray for this court to (a) declare that
respondents committed grave abuse of discretion amounting to lack or excess of
discretion in refusing to espouse their claims for the crimes against humanity and war
crimes committed against them; and (b) compel the respondents to espouse their claims
for official apology and other forms of reparations against Japan before the International
Court of Justice (ICJ) and other international tribunals.
Petitioners' arguments
Petitioners argue that the general waiver of claims made by the Philippine
government in the Treaty of Peace with Japan is void. They claim that the comfort women
system established by Japan, and the brutal rape and enslavement of petitioners
constituted a crime against humanity, 3 sexual slavery, 4 and torture. 5 They allege that
the prohibition against these international crimes is jus cogens norms from which no
derogation is possible; as such, in waiving the claims of Filipina comfort women and
failing to espouse their complaints against Japan, the Philippine government is in breach
of its legal obligation not to afford impunity for crimes against humanity. Finally,
petitioners assert that the Philippine government's acceptance of the "apologies" made
by Japan as well as funds from the Asian Women's Fund (AWF) were contrary to
international law.
Respondents' Arguments
Respondents maintain that all claims of the Philippines and its nationals relative to
the war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral
Reparations Agreement of 1956. 6
Article 14 of the Treaty of Peace 7 provides: HCIaDT
Article 14. Claims and Property.
a) It is recognized that Japan should pay reparations to the Allied
Powers for the damage and suffering caused by it during the war.
Nevertheless it is also recognized that the resources of Japan are
not presently sufficient, if it is to maintain a viable economy, to
make complete reparation for all such damage and suffering and
at the present time meet its other obligations.
b) Except as otherwise provided in the present Treaty, the Allied
Powers waive all reparations claims of the Allied Powers, other
claims of the Allied Powers and their nationals arising out of any
 actions taken by Japan and its nationals in the course of the
prosecution of the war, and claims of the Allied Powers for direct
military costs of occupation.
In addition, respondents argue that the apologies made by Japan 8 have been
satisfactory, and that Japan had addressed the individual claims of the women through
the atonement money paid by the Asian Women's Fund.
Historical Background
The comfort women system was the tragic legacy of the Rape of Nanking. In
December 1937, Japanese military forces captured the city of Nanking in China and
began a "barbaric campaign of terror" known as the Rape of Nanking, which included the
rapes and murders of an estimated 20,000 to 80,000 Chinese women, including young
girls, pregnant mothers, and elderly women. 9
In reaction to international outcry over the incident, the Japanese government
sought ways to end international condemnation 10 by establishing the "comfort women"
system. Under this system, the military could simultaneously appease soldiers' sexual
appetites and contain soldiers' activities within a regulated environment. 11 Comfort
stations would also prevent the spread of venereal disease among soldiers and
discourage soldiers from raping inhabitants of occupied territories. 12
Daily life as a comfort woman was "unmitigated misery." 13 The military forced
victims into barracks-style stations divided into tiny cubicles where they were forced to
live, sleep, and have sex with as many 30 soldiers per day. 14 The 30 minutes allotted
for sexual relations with each soldier were 30-minute increments of unimaginable horror
for the women. 15 Disease was rampant. 16 Military doctors regularly examined the
women, but these checks were carried out to prevent the spread of venereal diseases;
little notice was taken of the frequent cigarette burns, bruises, bayonet stabs and even
broken bones inflicted on the women by soldiers.
Fewer than 30% of the women survived the war. 17 Their agony continued in
having to suffer with the residual physical, psychological, and emotional scars from their
former lives. Some returned home and were ostracized by their families. Some committed
suicide. Others, out of shame, never returned home. 18 TcEaDS
Efforts to Secure Reparation
The most prominent attempts to compel the Japanese government to accept legal
responsibility and pay compensatory damages for the comfort women system were
through a series of lawsuits, discussion at the United Nations (UN), resolutions by various
nations, and the Women's International Criminal Tribunal. The Japanese government, in
turn, responded through a series of public apologies and the creation of the AWF. 19
Lawsuits
In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit in
Japan by former comfort women against the Japanese government. The Tokyo District
Court however dismissed their case. 20 Other suits followed, 21 but the Japanese
government has, thus far, successfully caused the dismissal of every case. 22
Undoubtedly frustrated by the failure of litigation before Japanese courts, victims
of the comfort women system brought their claims before the United States (US). On
September 18, 2000, 15 comfort women filed a class action lawsuit in the US District
Court for the District of Columbia 23 "seeking money damages for [allegedly] having been
subjected to sexual slavery and torture before and during World War II," in violation of
"both positive and customary international law." The case was filed pursuant to the Alien
Tort Claims Act ("ATCA"), 24 which allowed the plaintiffs to sue the Japanese
government in a US federal district court. 25 On October 4, 2001, the district court
dismissed the lawsuit due to lack of jurisdiction over Japan, stating that "[t]here is no
question that this court is not the appropriate forum in which plaintiffs may seek to reopen
. . . discussions nearly half a century later . . . [E]ven if Japan did not enjoy sovereign
immunity, plaintiffs' claims are non-justiciable and must be dismissed." EHTIcD
The District of Columbia Court of Appeals affirmed the lower court's dismissal of
the case. 26 On appeal, the US Supreme Court granted the women's petition for writ
of certiorari, vacated the judgment of the District of Columbia Court of Appeals, and
remanded the case. 27 On remand, the Court of Appeals affirmed its prior decision,
noting that "much as we may feel for the plight of the appellants, the courts of the US
simply are not authorized to hear their case." 28 The women again brought their case to
the US Supreme Court which denied their petition for writ of certiorari on February 21,
2006.
Efforts at the United Nations
In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by
Japan (KCWS), submitted a petition to the UN Human Rights Commission (UNHRC),
asking for assistance in investigating crimes committed by Japan against Korean women
and seeking reparations for former comfort women. 29 The UNHRC placed the issue on
its agenda and appointed Radhika Coomaraswamy as the issue's special investigator. In
1996, Coomaraswamy issued a Report reaffirming Japan's responsibility in forcing
Korean women to act as sex slaves for the imperial army, and made the
following recommendations:
A. At the national level
137. The Government of Japan should:
(a) Acknowledge that the system of comfort stations set up by the Japanese
Imperial Army during the Second World War was a violation of its
obligations under international law and accept legal responsibility for
that violation;
(b) Pay compensation to individual victims of Japanese military sexual slavery
according to principles outlined by the Special Rapporteur of the Sub-
Commission on Prevention of Discrimination and Protection of
Minorities on the right to restitution, compensation and rehabilitation for
victims of grave violations of human rights and fundamental freedoms.
A special administrative tribunal for this purpose should be set up with
a limited time-frame since many of the victims are of a very advanced
age;
(c) Make a full disclosure of documents and materials in its possession with
regard to comfort stations and other related activities of the Japanese
Imperial Army during the Second World War;
(d) Make a public apology in writing to individual women who have come
forward and can be substantiated as women victims of Japanese
military sexual slavery;
(e) Raise awareness of these issues by amending educational curricula to
reflect historical realities; TADaCH
 (f) Identify and punish, as far as possible, perpetrators involved in the
recruitment and institutionalization of comfort stations during the
Second World War.
Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on
Prevention of Discrimination and Protection of Minorities, also presented a report to the
Sub-Committee on June 22, 1998 entitled Contemporary Forms of Slavery: Systematic
Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict. The report
included an appendix entitled An Analysis of the Legal Liability of the Government of
Japan for 'Comfort Women Stations' established during the Second World War, 30 which
contained the following findings:
68. The present report concludes that the Japanese Government
remains liable for grave violations of human rights and humanitarian law,
violations that amount in their totality to crimes against humanity. The
Japanese Government's arguments to the contrary, including arguments that
seek to attack the underlying humanitarian law prohibition of enslavement and
rape, remain as unpersuasive today as they were when they were first raised
before the Nuremberg war crimes tribunal more than 50 years ago. In addition,
the Japanese Government's argument that Japan has already settled all
claims from the Second World War through peace treaties and reparations
agreements following the war remains equally unpersuasive. This is due, in
large part, to the failure until very recently of the Japanese Government to
admit the extent of the Japanese military's direct involvement in the
establishment and maintenance of these rape centres. The Japanese
Government's silence on this point during the period in which peace and
reparations agreements between Japan and other Asian Governments were
being negotiated following the end of the war must, as a matter of law and
justice, preclude Japan from relying today on these peace treaties to
extinguish liability in these cases.
69. The failure to settle these claims more than half a century after the
cessation of hostilities is a testament to the degree to which the lives of women
continue to be undervalued. Sadly, this failure to address crimes of a sexual
nature committed on a massive scale during the Second World War has added
to the level of impunity with which similar crimes are committed today. The
Government of Japan has taken some steps to apologize and atone for the
rape and enslavement of over 200,000 women and girls who were brutalized
in "comfort stations" during the Second World War. However, anything less
than full and unqualified acceptance by the Government of Japan of legal
liability and the consequences that flow from such liability is wholly
inadequate. It must now fall to the Government of Japan to take the necessary
final steps to provide adequate redress.
The UN, since then, has not taken any official action directing Japan to provide the
reparations sought.
Women's International War Crimes
Tribunal
The Women's International War Crimes Tribunal (WIWCT) was a "people's
tribunal" established by a number of Asian women and human rights organizations,
supported by an international coalition of non-governmental organizations. 31 First
proposed in 1998, the WIWCT convened in Tokyo in 2000 in order to "adjudicate Japan's
military sexual violence, in particular the enslavement of comfort women, to bring those
responsible for it to justice, and to end the ongoing cycle of impunity for wartime sexual
violence against women." ADCEcI
After examining the evidence for more than a year, the "tribunal" issued its verdict
on December 4, 2001, finding the former Emperor Hirohito and the State of Japan guilty
of crimes against humanity for the rape and sexual slavery of women. 32 It bears
stressing, however, that although the tribunal included prosecutors, witnesses, and
judges, its judgment was not legally binding since the tribunal itself was organized by
private citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of California, along with
six co-sponsor representatives, introduced House Resolution 121 which called for
Japanese action in light of the ongoing struggle for closure by former comfort women.
The Resolution was formally passed on July 30, 2007, 33 and made four distinct
demands:
[I]t is the sense of the House of Representatives that the Government
of Japan (1) should formally acknowledge, apologize, and accept historical
responsibility in a clear and unequivocal manner for its Imperial Armed Forces'
coercion of young women into sexual slavery, known to the world as "comfort
women", during its colonial and wartime occupation of Asia and the Pacific
Islands from the 1930s through the duration of World War II; (2) would help to
resolve recurring questions about the sincerity and status of prior statements
if the Prime Minister of Japan were to make such an apology as a public
statement in his official capacity; (3) should clearly and publicly refute any
claims that the sexual enslavement and trafficking of the "comfort women" for
the Japanese Imperial Army never occurred; and (4) should educate current
and future generations about this horrible crime while following the
recommendations of the international community with respect to the "comfort
women." 34
In December 2007, the European Parliament, the governing body of the European
Union, drafted a resolution similar to House Resolution 121. 35 Entitled, "Justice for
Comfort Women," the resolution demanded: (1) a formal acknowledgment of
responsibility by the Japanese government; (2) a removal of the legal obstacles
preventing compensation; and (3) unabridged education of the past. The resolution also
stressed the urgency with which Japan should act on these issues, stating: "the right of
individuals to claim reparations against the government should be expressly recognized
in national law, and cases for reparations for the survivors of sexual slavery, as a crime
under international law, should be prioritized, taking into account the age of the
survivors." EScAID
The Canadian and Dutch parliaments have each followed suit in drafting
resolutions against Japan. Canada's resolution demands the Japanese government to
issue a formal apology, to admit that its Imperial Military coerced or forced hundreds of
thousands of women into sexual slavery, and to restore references in Japanese textbooks
to its war crimes. 36 The Dutch parliament's resolution calls for the Japanese government
to uphold the 1993 declaration of remorse made by Chief Cabinet Secretary Yohei Kono.
The Foreign Affairs Committee of the United Kingdom's Parliament also produced
a report in November, 2008 entitled, "Global Security: Japan and Korea" which
concluded that Japan should acknowledge the pain caused by the issue of comfort
women in order to ensure cooperation between Japan and Korea.
Statements of Remorse made by
representatives of the Japanese
government
Various officials of the Government of Japan have issued the following public
statements concerning the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993
The Government of Japan has been conducting a study on the issue of
wartime "comfort women" since December 1991. I wish to announce the
findings as a result of that study.
As a result of the study which indicates that comfort stations were
operated in extensive areas for long periods, it is apparent that there existed
a great number of comfort women. Comfort stations were operated in
response to the request of the military authorities of the day. The then
Japanese military was, directly or indirectly, involved in the establishment and
management of the comfort stations and the transfer of comfort women. The
recruitment of the comfort women was conducted mainly by private recruiters
who acted in response to the request of the military. The Government study
has revealed that in many cases they were recruited against their own will,
through coaxing coercion, etc., and that, at times, administrative/military
personnel directly took part in the recruitments. They lived in misery at comfort
stations under a coercive atmosphere.
As to the origin of those comfort women who were transferred to the
war areas, excluding those from Japan, those from the Korean Peninsula
accounted for a large part. The Korean Peninsula was under Japanese rule in
those days, and their recruitment, transfer, control, etc., were conducted
generally against their will, through coaxing, coercion, etc.
Undeniably, this was an act, with the involvement of the military
authorities of the day, that severely injured the honor and dignity of many
women. The Government of Japan would like to take this opportunity once
again to extend its sincere apologies and remorse to all those, irrespective of
place of origin, who suffered immeasurable pain and incurable physical and
psychological wounds as comfort women.
It is incumbent upon us, the Government of Japan, to continue to
consider seriously, while listening to the views of learned circles, how best we
can express this sentiment.
We shall face squarely the historical facts as described above instead
of evading them, and take them to heart as lessons of history. We hereby
reiterated our firm determination never to repeat the same mistake by forever
engraving such issues in our memories through the study and teaching of
history.
As actions have been brought to court in Japan and interests have been
shown in this issue outside Japan, the Government of Japan shall continue to
pay full attention to this matter, including private researched related thereto.
b) Prime Minister Tomiichi Murayama's Statement in 1994
On the issue of wartime "comfort women", which seriously stained the
honor and dignity of many women, I would like to take this opportunity once
again to express my profound and sincere remorse and apologies"
c) Letters from the Prime Minister of Japan to Individual Comfort Women ETHaDC
The issue of comfort women, with the involvement of the Japanese
military authorities at that time, was a grave affront to the honor and dignity of
a large number of women.
As Prime Minister of Japan, I thus extend anew my most sincere
apologies and remorse to all the women who endured immeasurable and
painful experiences and suffered incurable physical and psychological
wounds as comfort women.
I believe that our country, painfully aware of its moral responsibilities,
with feelings of apology and remorse, should face up squarely to its past
history and accurately convey it to future generations.
d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005
Solemnly reflecting upon the many instances of colonial rule and acts
of aggression that occurred in modern world history, and recognizing that
Japan carried out such acts in the past and inflicted suffering on the people of
other countries, especially in Asia, the Members of this House hereby express
deep remorse. (Resolution of the House of Representatives adopted on June
9, 1995)
e)Various Public Statements by Japanese Prime Minister Shinzo Abe
I have talked about this matter in the Diet sessions last year, and
recently as well, and to the press. I have been consistent. I will stand by the
Kono Statement. This is our consistent position. Further, we have been
apologizing sincerely to those who suffered immeasurable pain and incurable
psychological wounds as comfort women. Former Prime Ministers, including
Prime Ministers Koizumi and Hashimoto, have issued letters to the comfort
women. I would like to be clear that I carry the same feeling. This has not
changed even slightly. (Excerpt from Remarks by Prime Minister Abe at an
Interview by NHK, March 11, 2007).
I am apologizing here and now. I am apologizing as the Prime Minister
and it is as stated in the statement by the Chief Cabinet Secretary Kono.
(Excerpt from Remarks by Prime Minister Abe at the Budget Committee, the
House of Councilors, the Diet of Japan, March 26, 2007).
I am deeply sympathetic to the former comfort women who suffered
hardships, and I have expressed my apologies for the extremely agonizing
circumstances into which they were placed. (Excerpt from Telephone
Conference by Prime Minister Abe to President George W. Bush, April 3,
2007).
I have to express sympathy from the bottom of my heart to those people
who were taken as wartime comfort women. As a human being, I would like
to express my sympathies, and also as prime minister of Japan I need to
apologize to them. My administration has been saying all along that we
continue to stand by the Kono Statement. We feel responsible for having
forced these women to go through that hardship and pain as comfort women
 under the circumstances at the time. (Excerpt from an interview article "A
Conversation with Shinzo Abe" by the Washington Post, April 22, 2007).
. . . both personally and as Prime Minister of Japan, my heart goes out
in sympathy to all those who suffered extreme hardships as comfort women;
and I expressed my apologies for the fact that they were forced to endure such
extreme and harsh conditions. Human rights are violated in many parts of the
world during the 20th Century; therefore we must work to make the 21st
Century a wonderful century in which no human rights are violated. And the
Government of Japan and I wish to make significant contributions to that end.
(Excerpt from Prime Minister Abe's remarks at the Joint Press Availability after
the summit meeting at Camp David between Prime Minister Abe and
President Bush, April 27, 2007). acEHCD
The Asian Women's Fund
Established by the Japanese government in 1995, the AWF represented the
government's concrete attempt to address its moral responsibility by offering monetary
compensation to victims of the comfort women system. 37 The purpose of the AWF was
to show atonement of the Japanese people through expressions of apology and remorse
to the former wartime comfort women, to restore their honor, and to demonstrate Japan's
strong respect for women. 38
The AWF announced three programs for former comfort women who applied for
assistance: (1) an atonement fund paying ¥2 million (approximately $20,000) to each
woman; (2) medical and welfare support programs, paying ¥2.5-3 million ($25,000-
$30,000) for each woman; and (3) a letter of apology from the Japanese Prime Minister
to each woman. Funding for the program came from the Japanese government and
private donations from the Japanese people. As of March 2006, the AWF provided ¥700
million (approximately $7 million) for these programs in South Korea, Taiwan, and the
Philippines; ¥380 million (approximately $3.8 million) in Indonesia; and ¥242 million
(approximately $2.4 million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine government signed a
Memorandum of Understanding for medical and welfare support programs for former
comfort women. Over the next five years, these were implemented by the Department of
Social Welfare and Development.
Our Ruling
Stripped down to its essentials, the issue in this case is whether the Executive
Department committed grave abuse of discretion in not espousing petitioners' claims for
official apology and other forms of reparations against Japan.
The petition lacks merit.
From a Domestic Law Perspective, the
Executive Department has the exclusive
prerogative to determine whether to
espouse petitioners' claims against
Japan.
Baker v. Cart 39 remains the starting point for analysis under the political question
doctrine. There the US Supreme Court explained that:
. . . Prominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional commitment of the
issue to a coordinate political department or a lack of judicially discoverable
and manageable standards for resolving it, or the impossibility of deciding
without an initial policy determination of a kind clearly for non-judicial
discretion; or the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political
decision already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on question. DSEIcT
In Tañada v. Cuenco, 40 we held that political questions refer "to those questions
which, under the Constitution, are to be decided by the people in their sovereign capacity,
or in regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues dependent upon the
wisdom, not legality of a particular measure."
Certain types of cases often have been found to present political questions. 41 One
such category involves questions of foreign relations. It is well-established that "[t]he
conduct of the foreign relations of our government is committed by the Constitution to the
executive and legislative 'the political' departments of the government, and the
propriety of what may be done in the exercise of this political power is not subject to
judicial inquiry or decision." 42 The US Supreme Court has further cautioned that
decisions relating to foreign policy
are delicate, complex, and involve large elements of prophecy. They
are and should be undertaken only by those directly responsible to the people
whose welfare they advance or imperil. They are decisions of a kind for which
the Judiciary has neither aptitude, facilities nor responsibility. 43
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. 44 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., 45 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 Bayan v. Executive
Secretary 46 and Pimentel v. Executive Secretary; 47 its overreaching principle was,
perhaps, best articulated in (now Chief) Justice Puno's dissent in Secretary of Justice v.
Lantion: 48 EaISDC
. . . 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.
The Executive Department has determined that taking up petitioners' cause would
be inimical to our country's foreign policy interests, and could disrupt our relations with
Japan, thereby creating serious implications for stability in this region. For us to overturn
the Executive Department's determination would mean an assessment of the foreign
policy judgments by a coordinate political branch to which authority to make that judgment
has been constitutionally committed.
In any event, it cannot reasonably be maintained that the Philippine government
was without authority to negotiate the Treaty of Peace with Japan. And it is equally true
that, since time immemorial, when negotiating peace accords and settling international
claims:
. . . [g]overnments have dealt with . . . private claims as their own,
treating them as national assets, and as counters, 'chips', in international
bargaining. Settlement agreements have lumped, or linked, claims deriving
from private debts with others that were intergovernmental in origin, and
concessions in regard to one category of claims might be set off against
concessions in the other, or against larger political considerations unrelated
to debts. 49
Indeed, except as an agreement might otherwise provide, international settlements
generally wipe out the underlying private claims, thereby terminating any recourse under
domestic law. In Ware v. Hylton, 50 a case brought by a British subject to recover a debt
confiscated by the Commonwealth of Virginia during the war, Justice Chase wrote:
I apprehend that the treaty of peace abolishes the subject of the war,
and that after peace is concluded, neither the matter in dispute, nor the
conduct of either party, during the war, can ever be revived, or brought into
contest again. All violences, injuries, or damages sustained by the
government, or people of either, during the war, are buried in oblivion; and all
those things are implied by the very treaty of peace; and therefore not
necessary to be expressed. Hence it follows, that the restitution of, or
compensation for, British property confiscated, or extinguished, during the
war, by any of the United States, could only be provided for by the treaty of
peace; and if there had been no provision, respecting these subjects, in the
treaty, they could not be agitated after the treaty, by the British government,
much less by her subjects in courts of justice. (Emphasis supplied). aIcDCA
This practice of settling claims by means of a peace treaty is certainly nothing new.
For instance, in Dames & Moore v. Regan, 51 the US Supreme Court held:
Not infrequently in affairs between nations, outstanding claims by
nationals of one country against the government of another country are
"sources of friction" between the two sovereigns. United States v. Pink, 315
U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942). To resolve these
difficulties, nations have often entered into agreements settling the claims of
their respective nationals. As one treatise writer puts it, international
agreements settling claims by nationals of one state against the government
of another "are established international practice reflecting traditional
international theory." L. Henkin, Foreign Affairs and the Constitution 262
(1972). Consistent with that principle, the United States has repeatedly
exercised its sovereign authority to settle the claims of its nationals against
foreign countries. . . . Under such agreements, the President has agreed to
renounce or extinguish claims of United States nationals against foreign
governments in return for lump-sum payments or the establishment of
arbitration procedures. To be sure, many of these settlements were
encouraged by the United States claimants themselves, since a claimant's
only hope of obtaining any payment at all might lie in having his Government
negotiate a diplomatic settlement on his behalf. But it is also undisputed that
the "United States has sometimes disposed of the claims of its citizens without
their consent, or even without consultation with them, usually without
exclusive regard for their interests, as distinguished from those of the nation
as a whole." Henkin, supra, at 262-263. Accord, Restatement (Second) of
Foreign Relations Law of the United States § 213 (1965) (President "may
waive or settle a claim against a foreign state . . . [even] without the consent
of the [injured] national"). It is clear that the practice of settling claims
continues today.
Respondents explain that the Allied Powers concluded the Peace Treaty with
Japan not necessarily for the complete atonement of the suffering caused by Japanese
aggression during the war, not for the payment of adequate reparations, but for security
purposes. The treaty sought to prevent the spread of communism in Japan, which
occupied a strategic position in the Far East. Thus, the Peace Treaty compromised
individual claims in the collective interest of the free world.
This was also the finding in a similar case involving American victims of Japanese
slave labor during the war. 52 In a consolidated case in the Northern District of
California, 53 the court dismissed the lawsuits filed, relying on the 1951 peace treaty with
Japan, 54 because of the following policy considerations:
The official record of treaty negotiations establishes that a fundamental
goal of the agreement was to settle the reparations issue once and for all. As
the statement of the chief United States negotiator, John Foster Dulles, makes
clear, it was well understood that leaving open the possibility of future
claims would be an unacceptable impediment to a lasting peace:
 Reparation is usually the most controversial aspect of
peacemaking. The present peace is no exception. dctai
On the one hand, there are claims both vast and just. Japan's
aggression caused tremendous cost, losses and suffering.
On the other hand, to meet these claims, there stands a Japan
presently reduced to four home islands which are unable to produce the
food its people need to live, or the raw materials they need to work. . . .
The policy of the United States that Japanese liability for reparations
should be sharply limited was informed by the experience of six years of
United States-led occupation of Japan. During the occupation the Supreme
Commander of the Allied Powers (SCAP) for the region, General Douglas
MacArthur, confiscated Japanese assets in conjunction with the task of
managing the economic affairs of the vanquished nation and with a view to
reparations payments. It soon became clear that Japan's financial
condition would render any aggressive reparations plan an exercise in
futility. Meanwhile, the importance of a stable, democratic Japan as a
bulwark to communism in the region increased. At the end of 1948,
MacArthur expressed the view that "[t]he use of reparations as a weapon to
retard the reconstruction of a viable economy in Japan should be combated
with all possible means" and "recommended that the reparations issue be
settled finally and without delay."
That this policy was embodied in the treaty is clear not only from the
negotiations history but also from the Senate Foreign Relations Committee
report recommending approval of the treaty by the Senate. The committee
noted, for example:
Obviously insistence upon the payment of reparations in any
proportion commensurate with the claims of the injured countries and
their nationals would wreck Japan's economy, dissipate any credit that
it may possess at present, destroy the initiative of its people, and create
misery and chaos in which the seeds of discontent and communism
would flourish. In short, [it] would be contrary to the basic purposes and
policy of . . . the United States . . . .
We thus hold that, from a municipal law perspective, that certiorari will not lie. As
a general principle and particularly here, where such an extraordinary length of time
has lapsed between the treaty's conclusion and our consideration the Executive must
be given ample discretion to assess the foreign policy considerations of espousing a
claim against Japan, from the standpoint of both the interests of the petitioners and those
of the Republic, and decide on that basis if apologies are sufficient, and whether further
steps are appropriate or necessary.
The Philippines is not under any
international obligation to espouse
petitioners' claims.
In the international sphere, traditionally, the only means available for individuals to
bring a claim within the international legal system has been when the individual is able to
persuade a government to bring a claim on the individual's behalf. 55 Even then, it is not
the individual's rights that are being asserted, but rather, the state's own rights. Nowhere
is this position more clearly reflected than in the dictum of the Permanent Court of
International Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions
Case: AECDHS
By taking up the case of one of its subjects and by resorting to
diplomatic action or international judicial proceedings on his behalf, a State is
in reality asserting its own right to ensure, in the person of its subjects, respect
for the rules of international law. The question, therefore, whether the present
dispute originates in an injury to a private interest, which in point of fact is the
case in many international disputes, is irrelevant from this standpoint. Once a
State has taken up a case on behalf of one of its subjects before an
international tribunal, in the eyes of the latter the State is sole claimant. 56
Since the exercise of diplomatic protection is the right of the State, reliance on the
right is within the absolute discretion of states, and the decision whether to exercise the
discretion may invariably be influenced by political considerations other than the legal
merits of the particular claim. 57 As clearly stated by the ICJ in Barcelona Traction:
The Court would here observe that, within the limits prescribed by
international law, a State may exercise diplomatic protection by whatever
means and to whatever extent it thinks fit, for it is its own right that the
State is asserting. Should the natural or legal person on whose behalf it
is acting consider that their rights are not adequately protected, they
have no remedy in international law. All they can do is resort to national
law, if means are available, with a view to fathering their cause or obtaining
redress. The municipal legislator may lay upon the State an obligation to
protect its citizens abroad, and may also confer upon the national a right to
demand the performance of that obligation, and clothe the right with
corresponding sanctions. However, all these questions remain within the
province of municipal law and do not affect the position
internationally. 58 (Emphasis supplied)
The State, therefore, is the sole judge to decide whether its protection will be
granted, to what extent it is granted, and when will it cease. It retains, in this respect, a
discretionary power the exercise of which may be determined by considerations of a
political or other nature, unrelated to the particular case.
The International Law Commission's (ILC's) Draft Articles on Diplomatic Protection
fully support this traditional view. They (i) state that "the right of diplomatic protection
belongs to or vests in the State," 59 (ii) affirm its discretionary nature by clarifying that
diplomatic protection is a "sovereign prerogative" of the State; 60 and (iii) stress that the
state "has the right to exercise diplomatic protection on behalf of a national. It is under no
duty or obligation to do so." 61
It has been argued, as petitioners argue now, that the State has a duty to protect
its nationals and act on his/her behalf when rights are injured. 62 However, at present,
there is no sufficient evidence to establish a general international obligation for States to
exercise diplomatic protection of their own nationals abroad. 63 Though, perhaps
desirable, neither state practice nor opinio juris has evolved in such a direction. If it is a
duty internationally, it is only a moral and not a legal duty, and there is no means of
enforcing its fulfillment. 64 SECcAI
We fully agree that rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary international
law. 65 However, petitioners take quite a theoretical leap in claiming that these
proscriptions automatically imply that that the Philippines is under a non-derogable
obligation to prosecute international crimes, particularly since petitioners do not demand
the imputation of individual criminal liability, but seek to recover monetary reparations
from the state of Japan. Absent the consent of states, an applicable treaty regime, or a
directive by the Security Council, there is no non-derogable duty to institute proceedings
against Japan. Indeed, precisely because of states' reluctance to directly prosecute
claims against another state, recent developments support the modern trend to empower
individuals to directly participate in suits against perpetrators of international
crimes. 66 Nonetheless, notwithstanding an array of General Assembly resolutions
calling for the prosecution of crimes against humanity and the strong policy arguments
warranting such a rule, the practice of states does not yet support the present existence
of an obligation to prosecute international crimes. 67 Of course a customary duty of
prosecution is ideal, but we cannot find enough evidence to reasonably assert its
existence. To the extent that any state practice in this area is widespread, it is in the
practice of granting amnesties, immunity, selective prosecution, orde facto impunity to
those who commit crimes against humanity." 68
Even the invocation of jus cogens norms and erga omnes obligations will not alter
this analysis. Even if we sidestep the question of whether jus cogens norms existed in
1951, petitioners have not deigned to show that the crimes committed by the Japanese
army violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that
the duty to prosecute perpetrators of international crimes is an erga omnes obligation or
has attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has been
used as a legal term describing obligations owed by States towards the community of
states as a whole. The concept was recognized by the ICJ in Barcelona Traction:
. . . an essential distinction should be drawn between the obligations of
a State towards the international community as a whole, and those arising vis-
à-vis another State in the field of diplomatic protection. By their very nature,
the former are the concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they
are obligations erga omnes.
Such obligations derive, for example, in contemporary international law,
from the outlawing of acts of aggression, and of genocide, as also from the
principles and rules concerning the basic rights of the human person, including
protection from slavery and racial discrimination. Some of the corresponding
rights of protection have entered into the body of general international law . .
. others are conferred by international instruments of a universal or quasi-
universal character.
The Latin phrase, 'erga omnes,' has since become one of the rallying cries of those
sharing a belief in the emergence of a value-based international public order. However,
as is so often the case, the reality is neither so clear nor so bright. Whatever the relevance
of obligations erga omnes as a legal concept, its full potential remains to be realized in
practice. 69 SHECcD
The term is closely connected with the international law concept of jus cogens. In
international law, the term "jus cogens" (literally, "compelling law") refers to norms that
command peremptory authority, superseding conflicting treaties and custom. Jus
cogens norms are considered peremptory in the sense that they are mandatory, do not
admit derogation, and can be modified only by general international norms of equivalent
authority. 70
Early strains of the jus cogens doctrine have existed since the 1700s, 71 but
peremptory norms began to attract greater scholarly attention with the publication of
Alfred von Verdross's influential 1937 article, Forbidden Treaties in International
Law. 72 The recognition of jus cogens gained even more force in the 1950s and 1960s
with the ILC's preparation of the Vienna Convention on the Law of
Treaties (VCLT). 73 Though there was a consensus that certain international norms had
attained the status of jus cogens, 74 the ILC was unable to reach a consensus on the
proper criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus cogens, the ILC
concluded ruefully in 1963 that "there is not as yet any generally accepted criterion by
which to identify a general rule of international law as having the character of jus
cogens." 75 In a commentary accompanying the draft convention, the ILC indicated that
"the prudent course seems to be to . . . leave the full content of this rule to be worked out
in State practice and in the jurisprudence of international tribunals." 76 Thus, while the
existence of jus cogens in international law is undisputed, no consensus exists on its
substance, 77 beyond a tiny core of principles and rules. 78
Of course, we greatly sympathize with the cause of petitioners, and we cannot
begin to comprehend the unimaginable horror they underwent at the hands of the
Japanese soldiers. We are also deeply concerned that, in apparent contravention of
fundamental principles of law, the petitioners appear to be without a remedy to challenge
those that have offended them before appropriate fora. Needless to say, our government
should take the lead in protecting its citizens against violation of their fundamental human
rights. Regrettably, it is not within our power to order the Executive Department to take
up the petitioners' cause. Ours is only the power to urge and exhort the Executive
Department to take up petitioners' cause.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.
||| (Vinuya v. Romulo, G.R. No. 162230, [April 28, 2010], 633 PHIL 538-589)
EN BANC
[G.R. No. 118295. May 2, 1997.]
WIGBERTO E. TAÑADA and ANNA DOMINIQUE COSETENG, as
members of the Philippine Senate and as taxpayers; GREGORIO
ANDOLANA and JOKER ARROYO as members of the House of
Representatives and as taxpayers; NICANOR P. PERLAS and HORACIO
R. MORALES, both as taxpayers: CIVIL LIBERTIES UNION, NATIONAL
ECONOMIC PROTECTIONISM ASSOCIATION, CENTER FOR
ALTERNATIVE DEVELOPMENT INITIATIVES, LIKAS-KAYANG
KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL
RECONSTRUCTION MOVEMENT, DEMOKRATIKONG KILUSAN NG
MAGBUBUKID NG PILIPINAS, INC., and PHILIPPINE PEASANT
INSTITUTE, in representation of various taxpayers and as non-
governmental organizations, petitioners, vs. EDGARDO ANGARA,
ALBERTO ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON
ALVAREZ, AGAPITO AQUINO, RODOLFO BIAZON, NEPTALI
GONZALES, ERNESTO HERRERA, JOSE LINA, GLORIA MACAPAGAL-
 ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN OSMEÑA,
SANTANINA RASUL, RAMON REVILLA, RAUL ROCO, FRANCISCO
TATAD and FREDDIE WEBB, in their respective capacities as members
of the Philippine Senate who concurred in the ratification by the
President of the Philippines of the Agreement Establishing the World
Trade Organization; SALVADOR ENRIQUEZ, in his capacity as Secretary
of Budget and Management; CARIDAD VALDEHUESA, in her capacity as
National Treasurer; RIZALINO NAVARRO, in his capacity as Secretary of
Trade and Industry; ROBERTO SEBASTIAN, in his capacity as Secretary
of Agriculture; ROBERTO DE OCAMPO, in his capacity as Secretary of
Finance; ROBERTO ROMULO, in his capacity as Secretary of Foreign
Affairs; and TEOFISTO T. GUINGONA, in his capacity as Executive
Secretary, respondents.
Abelardo T . Domondon for petitioners.
The Solicitor General for respondents.
SYLLABUS
1. REMEDIAL LAW; ACTIONS; ESTOPPEL, SUBJECT TO WAIVER. 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.
2. ID.; ID.; PARTIES; LOCUS STANDI; SUBJECT TO WAIVER. 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.
3. ID.; ID.; PETITION SEEKING TO NULLIFY ACT OF SENATE ON GROUND THAT
IT CONTRAVENES THE CONSTITUTION, A JUSTICIABLE QUESTION. 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." 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."
4. ID.; SUPREME COURT; JUDICIAL POWER; SCOPE. The jurisdiction of this
Court to adjudicate the matters raised in the petition is clearly set out in the 1987
Constitution, 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. As explained by former Chief Justice
Roberto Concepcion, "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, 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.
5. ID.; SPECIAL CIVIL ACTIONS; CERTIORARI, PROHIBITION AND MANDAMUS;
APPROPRIATE REMEDIES TO REVIEW ACTS OF LEGISLATIVE AND EXECUTIVE
OFFICIALS. 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.
6. POLITICAL LAW; CONSTITUTION; DECLARATION OF PRINCIPLES AND
STATE POLICIES; AIDS OR GUIDES IN THE EXERCISE OF JUDICIAL AND
LEGISLATIVE POWERS. 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 is called
the "basic political creed of the nation" by Dean Vicente Sinco. These principles in Article II
are not intended to be self-executing principles ready for enforcement through the courts.
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, 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."
7. ID.; ID.; THOUGH IT MANDATES A BIAS IN FAVOR OF FILIPINO GOODS,
SERVICES, LABOR AND ENTERPRISES, IT RECOGNIZES THE NEED FOR BUSINESS
EXCHANGE WITH THE REST OF THE WORLD. 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. 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.
8. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; JOINING THE
WORLD TRADE ORGANIZATION, NOT A GRAVE ABUSE OF DISCRETION. 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." GATT 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.
9. POLITICAL LAW; CONSTITUTION; DECLARATION OF PRINCIPLES AND
STATE POLICIES; POLICY OF "SELF-RELIANT AND INDEPENDENT NATIONAL
ECONOMY" DOES NOT RULE OUT ENTRY OF FOREIGN INVESTMENTS, GOODS AND
SERVICES. 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."
10. POLITICAL LAW; INTERNATIONAL LAW; WORLD TRADE LAW
ORGANIZATION/GENERAL AGREEMENT ON TARIFFS AND TRADE; RELIANCE ON
"MOST FAVORED NATIONS", CONSTITUTIONAL. 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 reciprocal", 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.
11. REMEDIAL LAW; ACTIONS; QUESTIONS INVOLVING "JUDGMENT CALLS",
NOT SUBJECT TO JUDICIAL REVIEW. 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.
12. POLITICAL LAW; SOVEREIGNTY; SUBJECT TO RESTRICTIONS AND
LIMITATIONS VOLUNTARILY AGREED TO BY THE STATE; CASE AT BAR. 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. 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." 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. 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."
13. ID.; ID.; ID.; ID. 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." 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." Apart from the UN Treaty, the
Philippines has entered into many other international pacts both bilateral and multilateral
that involve limitations on Philippine sovereignty 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. 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."
14. ID.; ID.; ID.; WORLD TRADE ORGANIZATION; PARAGRAPH 1, ARTICLE 34 OF
THE GENERAL PROVISIONS AND BASIC PRINCIPLES OF THE AGREEMENT ON
TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (TRIPS); DOES
NOT INTRUDE ON THE POWER OF THE SUPREME COURT TO PROMULGATE RULES
ON PLEADING, PRACTICE AND PROCEDURES. Petitioners aver that paragraph 1,
Article 34 (Process Patents: Burden of Proof) of the General Provisions and Basic Principles
of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) intrudes
on the power of the Supreme Court to promulgate rules concerning pleading, practice and
procedures. A WTO Member is required to provide a rule of disputable (note 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 was made by the patented process.
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 is 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 a 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 adjustments in legislation and rules of procedure
will not be substantial.
15. ID.; ID.; ID.; ID.; MINISTERIAL DECLARATION AND DECISIONS AND THE
UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES, NOT SUBJECT TO
CONCURRENCE BY 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."
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 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 provision of this Agreement which invoke joint
action, and generally with a view to facilitating the operation and furthering the objectives of
this Agreement." 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."
16. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; RESORT
THERETO ON GROUND OF GRAVE ABUSE OF DISCRETION AVAILABLE ONLY
WHERE THERE IS NO PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY
COURSE OF LAW. 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.
17. ID.; ID.; ID.; GRAVE ABUSE OF DISCRETION, CONSTRUED. By grave abuse
of discretion is meant such capricious and whimsical exercise of judgment as is equivalent
to lack of jurisdiction. 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. Failure on the part of the petitioner to show grave abuse of discretion
will result in the dismissal of the petition.
18. ID.; ID.; ID.; CONCURRENCE BY THE SENATE IN THE WORLD TRADE
ORGANIZATION, NOT A GRAVE ABUSE OF DISCRETION. 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. 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.
DECISION
PANGANIBAN, J : p
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." prll
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 1a
1b 1c
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."cdta
On August 13, 1994, the members of the Philippine Senate received another letter
from the President of the Philippines 4 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 I
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 the 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 signed 7 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."cdti
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 or 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: cdt
(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. LibLex
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
xxx xxx xxx
Sec. 19. The State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos.
xxx xxx xxx
Article XII
NATIONAL ECONOMY AND PATRIMONY
xxx xxx xxx
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.
xxx xxx xxx
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 III 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. LLjur
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 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 the Constitution;
and (4) that the WTO Agreement contains sufficient provisions to protect developing
countries like the Philippines from the harshness of sudden trade liberalization. LLphil
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 them, 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 broad
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 granting 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:
'Section 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.' (Emphases 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." cdasia
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:
"Section 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 and
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 rules 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. aisadc
"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. cdtai
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 framework 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." cdtech
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. cda
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." casia
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 (note 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 is 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. cdt
"A final act, sometimes called protocol de clôture, 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 framework 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. prcd
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 of 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. cdasia
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. cda
SO ORDERED
||| (Tañada v. Angara, G.R. No. 118295, [May 2, 1997], 338 PHIL 546-606)
SECOND DIVISION
[G.R. NO. 139325 : April 12, 2005]
PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B.
NARCISO, SR. MARIANI DIMARANAN, SFIC, and JOEL C.
LAMANGAN in their behalf and on behalf of the Class Plaintiffs in
Class Action No. MDL 840, United States District Court of
Hawaii, Petitioner, v. HON. SANTIAGO JAVIER RANADA, in his
capacity as Presiding Judge of Branch 137, Regional Trial Court,
Makati City, and the ESTATE OF FERDINAND E. MARCOS, through
its court appointed legal representatives in Class Action MDL
840, United States District Court of Hawaii, namely: Imelda R.
Marcos and Ferdinand Marcos, Jr., Respondents.
DECISION
TINGA, J.:
Our martial law experience bore strange unwanted fruits, and we have yet to
finish weeding out its bitter crop. While the restoration of freedom and the
fundamental structures and processes of democracy have been much lauded,
according to a significant number, the changes, however, have not sufficiently
healed the colossal damage wrought under the oppressive conditions of the
martial law period. The cries of justice for the tortured, the murdered, and
the desaparecidos arouse outrage and sympathy in the hearts of the fair-
minded, yet the dispensation of the appropriate relief due them cannot be
extended through the same caprice or whim that characterized the ill-wind of
martial rule. The damage done was not merely personal but institutional, and
the proper rebuke to the iniquitous past has to involve the award of reparations
due within the confines of the restored rule of law.
The petitioners in this case are prominent victims of human rights
violations1 who, deprived of the opportunity to directly confront the man who
once held absolute rule over this country, have chosen to do battle instead with
the earthly representative, his estate. The clash has been for now interrupted by
a trial court ruling, seemingly comported to legal logic, that required the
petitioners to pay a whopping filing fee of over Four Hundred Seventy-Two Million
Pesos (P472,000,000.00) in order that they be able to enforce a judgment
awarded them by a foreign court. There is an understandable temptation to
cast the struggle within the simplistic confines of a morality tale, and to employ
short-cuts to arrive at what might seem the desirable solution. But easy,
reflexive resort to the equity principle all too often leads to a result that may be
morally correct, but legally wrong.
Nonetheless, the application of the legal principles involved in this case will
comfort those who maintain that our substantive and procedural laws, for all
their perceived ambiguity and susceptibility to myriad interpretations, are
inherently fair and just. The relief sought by the petitioners is expressly
mandated by our laws and conforms to established legal principles. The granting
of this petition for certiorari is warranted in order to correct the legally infirm
and unabashedly unjust ruling of the respondent judge.
The essential facts bear little elaboration. On 9 May 1991, a complaint was filed
with the United States District Court (US District Court), District of Hawaii,
against the Estate of former Philippine President Ferdinand E. Marcos (Marcos
Estate). The action was brought forth by ten Filipino citizens 2 who each alleged
having suffered human rights abuses such as arbitrary detention, torture and
rape in the hands of police or military forces during the Marcos regime.3 The
Alien Tort Act was invoked as basis for the US District Court's jurisdiction over
the complaint, as it involved a suit by aliens for tortious violations of international
law.4 These plaintiffs brought the action on their own behalf and on behalf of a
class of similarly situated individuals, particularly consisting of all current civilian
citizens of the Philippines, their heirs and beneficiaries, who between 1972 and
1987 were tortured, summarily executed or had disappeared while in the custody
of military or paramilitary groups. Plaintiffs alleged that the class consisted of
approximately ten thousand (10,000) members; hence, joinder of all these
persons was impracticable.
The institution of a class action suit was warranted under Rule 23(a) and
(b)(1)(B) of the US Federal Rules of Civil Procedure, the provisions of which were
invoked by the plaintiffs. Subsequently, the US District Court certified the case
as a class action and created three (3) sub-classes of torture, summary
execution and disappearance victims.5 Trial ensued, and subsequently a jury
rendered a verdict and an award of compensatory and exemplary damages in
favor of the plaintiff class. Then, on 3 February 1995, the US District Court,
presided by Judge Manuel L. Real, rendered a Final Judgment (Final
Judgment) awarding the plaintiff class a total of One Billion Nine Hundred Sixty
Four Million Five Thousand Eight Hundred Fifty Nine Dollars and Ninety Cents
($1,964,005,859.90). The Final Judgment was eventually affirmed by the US
Court of Appeals for the Ninth Circuit, in a decision rendered on 17 December
1996.6
On 20 May 1997, the present petitioners filed Complaint with the Regional Trial
Court, City of Makati (Makati RTC) for the enforcement of the Final
Judgment. They alleged that they are members of the plaintiff class in whose
favor the US District Court awarded damages.7 They argued that since the
Marcos Estate failed to file a petition for certiorari with the US Supreme Court
after the Ninth Circuit Court of Appeals had affirmed the Final Judgment, the
decision of the US District Court had become final and executory, and hence
should be recognized and enforced in the Philippines, pursuant to Section 50,
Rule 39 of the Rules of Court then in force.8
On 5 February 1998, the Marcos Estate filed a motion to dismiss, raising, among
others, the non-payment of the correct filing fees. It alleged that petitioners
had only paid Four Hundred Ten Pesos (P410.00) as docket and filing fees,
notwithstanding the fact that they sought to enforce a monetary amount of
damages in the amount of over Two and a Quarter Billion US Dollars (US$2.25
Billion). The Marcos Estate cited Supreme Court Circular No. 7, pertaining to
the proper computation and payment of docket fees. In response, the
petitioners claimed that an action for the enforcement of a foreign judgment is
not capable of pecuniary estimation; hence, a filing fee of only Four Hundred Ten
Pesos (P410.00) was proper, pursuant to Section 7(c) of Rule 141.9
On 9 September 1998, respondent Judge Santiago Javier Ranada10 of the Makati
RTC issued the subject Order dismissing the complaint without prejudice.
Respondent judge opined that contrary to the petitioners' submission, the
subject matter of the complaint was indeed capable of pecuniary estimation, as
it involved a judgment rendered by a foreign court ordering the payment of
definite sums of money, allowing for easy determination of the value of the
foreign judgment. On that score, Section 7(a) of Rule 141 of the Rules of Civil
Procedure would find application, and the RTC estimated the proper amount of
filing fees was approximately Four Hundred Seventy Two Million Pesos, which
obviously had not been paid.
Not surprisingly, petitioners filed a Motion for Reconsideration, which Judge
Ranada denied in an Order dated 28 July 1999. From this denial, petitioners filed
a Petition for Certiorari under Rule 65 assailing the twin orders of respondent
judge.11 They prayed for the annulment of the questioned orders, and an order
directing the reinstatement of Civil Case No. 97-1052 and the conduct of
appropriate proceedings thereon.
Petitioners submit that their action is incapable of pecuniary estimation as the
subject matter of the suit is the enforcement of a foreign judgment, and not an 1. Less than P 100,00.00 ' P 500.00
action for the collection of a sum of money or recovery of damages. They also
point out that to require the class plaintiffs to pay Four Hundred Seventy Two
Million Pesos (P472,000,000.00) in filing fees would negate and render inutile 2. P 100,000.00 or more but less than P 150,000.00 ' P 800.00
the liberal construction ordained by the Rules of Court, as required by Section 6,
Rule 1 of the Rules of Civil Procedure, particularly the inexpensive disposition of
3. P 150,000.00 or more but less than P 200,000.00 ' P 1,000.00
every action.

Petitioners invoke Section 11, Article III of the Bill of Rights of the Constitution,
which provides that "Free access to the courts and quasi-judicial bodies and
adequate legal assistance shall not be denied to any person by reason of
poverty," a mandate which is essentially defeated by the required exorbitant
filing fee. The adjudicated amount of the filing fee, as arrived at by the RTC, was
characterized as indisputably unfair, inequitable, and unjust.
The Commission on Human Rights (CHR) was permitted to intervene in this
case.12 It urged that the petition be granted and a judgment rendered, ordering
the enforcement and execution of the District Court judgment in accordance with
Section 48, Rule 39 of the 1997 Rules of Civil Procedure. For the CHR, the Makati
RTC erred in interpreting the action for the execution of a foreign judgment as a
new case, in violation of the principle that once a case has been decided between
the same parties in one country on the same issue with finality, it can no longer
be relitigated again in another country.13 The CHR likewise invokes the principle
of comity, and of vested rights.
The Court's disposition on the issue of filing fees will prove a useful
jurisprudential guidepost for courts confronted with actions enforcing foreign
judgments, particularly those lodged against an estate. There is no basis for the
issuance a limited pro hac vice ruling based on the special circumstances of the
petitioners as victims of martial law, or on the emotionally-charged allegation of
human rights abuses.
An examination of Rule 141 of the Rules of Court readily evinces that the
respondent judge ignored the clear letter of the law when he concluded that the
filing fee be computed based on the total sum claimed or the stated value of the
property in litigation.
In dismissing the complaint, the respondent judge relied on Section 7(a), Rule
141 as basis for the computation of the filing fee of over P472 Million. The
provision states:
SEC. 7. Clerk of Regional Trial Court. -
(a) For filing an action or a permissive counterclaim or money claim against
an estate not based on judgment, or for filing with leave of court a third-
party, fourth-party, etc., complaint, or a complaint in intervention, and for all
clerical services in the same time, if the total sum claimed, exclusive of interest,
or the started value of the property in litigation, is:
4. P 200,000.00 or more but less than P 250,000.00 ' P 1,500.00
5. P 250,000.00 or more but less than P 300,00.00 ' P 1,750.00
6. P 300,000.00 or more but not more ' P 2,000.00
than P 400,000.00
7. P 350,000.00 or more but not more than ' P 2,250.00
P400,000.00
8. For each P 1,000.00 in excess of P 400,000.00 ' P 10.00
(Emphasis supplied)
Obviously, the above-quoted provision covers, on one hand, ordinary actions,
permissive counterclaims, third-party, etc. complaints and complaints-in-
interventions, and on the other, money claims against estates which are not
based on judgment. Thus, the relevant question for purposes of the present
petition is whether the action filed with the lower court is a "money claim against
an estate not based on judgment."
Petitioners' complaint may have been lodged against an estate, but it is clearly
based on a judgment, the Final Judgment of the US District Court. The provision
does not make any distinction between a local judgment and a foreign judgment,
and where the law does not distinguish, we shall not distinguish.
A reading of Section 7 in its entirety reveals several instances wherein the filing
fee is computed on the basis of the amount of the relief sought, or on the value
of the property in litigation. The filing fee for requests for extrajudicial
foreclosure of mortgage is based on the amount of indebtedness or the
mortgagee's claim.14 In special proceedings involving properties such as for the
allowance of wills, the filing fee is again based on the value of the property.15 The
aforecited rules evidently have no application to petitioners' complaint.
Petitioners rely on Section 7(b), particularly the proviso on actions where the
value of the subject matter cannot be estimated. The provision reads in full:
SEC. 7. Clerk of Regional Trial Court. -
(b) For filing
1. Actions where the value
of the subject matter
cannot be estimated --- P 600.00
2. Special civil actions except
judicial foreclosure which
shall be governed by
paragraph (a) above --- P 600.00
3. All other actions not
involving property --- P 600.00
In a real action, the assessed value of the property, or if there is none, the
estimated value, thereof shall be alleged by the claimant and shall be the basis
in computing the fees.
It is worth noting that the provision also provides that in real actions, the
assessed value or estimated value of the property shall be alleged by the
claimant and shall be the basis in computing the fees. Yet again, this provision
does not apply in the case at bar. A real action is one where the plaintiff seeks
the recovery of real property or an action affecting title to or recovery of
possession of real property.16 Neither the complaint nor the award of damages
adjudicated by the US District Court involves any real property of the Marcos
Estate.
Thus, respondent judge was in clear and serious error when he concluded that
the filing fees should be computed on the basis of the schematic table of Section
7(a), as the action involved pertains to a claim against an estate based on
judgment. What provision, if any, then should apply in determining the filing fees
for an action to enforce a foreign judgment?chanroblesvirtualawlibrary
To resolve this question, a proper understanding is required on the nature and
effects of a foreign judgment in this jurisdiction.
The rules of comity, utility and convenience of nations have established a usage
among civilized states by which final judgments of foreign courts of competent
jurisdiction are reciprocally respected and rendered efficacious under certain
conditions that may vary in different countries.17 This principle was prominently
affirmed in the leading American case of Hilton v. Guyot18 and expressly
recognized in our jurisprudence beginning with Ingenholl v. Walter E. Olsen &
Co.19 The conditions required by the Philippines for recognition and enforcement
of a foreign judgment were originally contained in Section 311 of the Code of
Civil Procedure, which was taken from the California Code of Civil Procedure
which, in turn, was derived from the California Act of March 11,
1872.20 Remarkably, the procedural rule now outlined in Section 48, Rule 39 of
the Rules of Civil Procedure has remained unchanged down to the last word in
nearly a century. Section 48 states:
SEC. 48. Effect of foreign judgments. 'The effect of a judgment of a
tribunal of a foreign country, having jurisdiction to pronounce the judgment is
as follows:
(a) In case of a judgment upon a specific thing, the judgment is conclusive upon
the title to the thing;
(b) In case of a judgment against a person, the judgment is presumptive
evidence of a right as between the parties and their successors in interest by a
subsequent title;
In either case, the judgment or final order may be repelled by evidence of a want
of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of
law or fact.
There is an evident distinction between a foreign judgment in an action in
rem and one in personam. For an action in rem, the foreign judgment is deemed
conclusive upon the title to the thing, while in an action in personam, the foreign
judgment is presumptive, and not conclusive, of a right as between the parties
and their successors in interest by a subsequent title.21 However, in both cases,
the foreign judgment is susceptible to impeachment in our local courts on the
grounds of want of jurisdiction or notice to the party, 22 collusion, fraud,23 or clear
mistake of law or fact.24 Thus, the party aggrieved by the foreign judgment is
entitled to defend against the enforcement of such decision in the local forum.
It is essential that there should be an opportunity to challenge the foreign
judgment, in order for the court in this jurisdiction to properly determine its
efficacy.25
It is clear then that it is usually necessary for an action to be filed in order to
enforce a foreign judgment26, even if such judgment has conclusive effect as in
the case of in rem actions, if only for the purpose of allowing the losing party an
opportunity to challenge the foreign judgment, and in order for the court to
properly determine its efficacy.27 Consequently, the party attacking a foreign
judgment has the burden of overcoming the presumption of its validity.28
The rules are silent as to what initiatory procedure must be undertaken in order
to enforce a foreign judgment in the Philippines. But there is no question that
the filing of a civil complaint is an appropriate measure for such purpose. A civil
action is one by which a party sues another for the enforcement or protection of
a right,29 and clearly an action to enforce a foreign judgment is in essence a
vindication of a right prescinding either from a "conclusive judgment upon title"
or the "presumptive evidence of a right."30 Absent perhaps a statutory grant of
jurisdiction to a quasi-judicial body, the claim for enforcement of judgment must
be brought before the regular courts.31
There are distinctions, nuanced but discernible, between the cause of action
arising from the enforcement of a foreign judgment, and that arising from the
facts or allegations that occasioned the foreign judgment. They may pertain to
the same set of facts, but there is an essential difference in the right-duty
correlatives that are sought to be vindicated. For example, in a complaint for
damages against a tortfeasor, the cause of action emanates from the violation
of the right of the complainant through the act or omission of the respondent.
On the other hand, in a complaint for the enforcement of a foreign judgment
awarding damages from the same tortfeasor, for the violation of the same right
through the same manner of action, the cause of action derives not from the
tortious act but from the foreign judgment itself.
More importantly, the matters for proof are different. Using the above example,
the complainant will have to establish before the court the tortious act or
omission committed by the tortfeasor, who in turn is allowed to rebut these
factual allegations or prove extenuating circumstances. Extensive litigation is
thus conducted on the facts, and from there the right to and amount of damages
are assessed. On the other hand, in an action to enforce a foreign judgment, the
matter left for proof is the foreign judgment itself, and not the facts from which
it prescinds.
As stated in Section 48, Rule 39, the actionable issues are generally restricted
to a review of jurisdiction of the foreign court, the service of personal notice,
collusion, fraud, or mistake of fact or law. The limitations on review is in
consonance with a strong and pervasive policy in all legal systems to limit
repetitive litigation on claims and issues.32 Otherwise known as the policy of
preclusion, it seeks to protect party expectations resulting from previous
litigation, to safeguard against the harassment of defendants, to insure that the
task of courts not be increased by never-ending litigation of the same disputes,
and - in a larger sense - to promote what Lord Coke in the Ferrer's Case of 1599
stated to be the goal of all law: "rest and quietness."33 If every judgment of a
foreign court were reviewable on the merits, the plaintiff would be forced back
on his/her original cause of action, rendering immaterial the previously
concluded litigation.34
Petitioners appreciate this distinction, and rely upon it to support the proposition
ment of a foreign
it applies in this case, is counter-intuitive, and thus deserves strict scrutiny. For
in all practical intents and purposes, the matter at hand is capable of pecuniary
estimation, down to the last cent. In the assailed Order, the respondent judge
pounced upon this point without equivocation:
The Rules use the term "where the value of the subject matter cannot be
estimated." The subject matter of the present case is the judgment rendered by
the foreign court ordering defendant to pay plaintiffs definite sums of money, as
and for compensatory damages. The Court finds that the value of the foreign
judgment can be estimated; indeed, it can even be easily determined. The Court
is not minded to distinguish between the enforcement of a judgment and the
amount of said judgment, and separate the two, for purposes of determining the
correct filing fees. Similarly, a plaintiff suing on promissory note for P1 million
cannot be allowed to pay only P400 filing fees (sic), on the reasoning that the
subject matter of his suit is not the P1 million, but the enforcement of the
promissory note, and that the value of such "enforcement" cannot be
estimated.35
The jurisprudential standard in gauging whether the subject matter of an action
is capable of pecuniary estimation is well-entrenched. The Marcos Estate
cites Singsong v. Isabela Sawmill and Raymundo v. Court of Appeals, which
ruled:
[I]n determining whether an action is one the subject matter of which is not
capable of pecuniary estimation this Court has adopted the criterion of first
ascertaining the nature of the principal action or remedy sought. If it is primarily
for the recovery of a sum of money, the claim is considered capable of pecuniary
estimation, and whether jurisdiction is in the municipal courts or in the courts of
first instance would depend on the amount of the claim. However, where the
basic issue is something other than the right to recover a sum of money, where
the money claim is purely incidental to, or a consequence of, the principal relief
sought, this Court has considered such actions as cases where the subject of the
litigation may not be estimated in terms of money, and are cognizable
exclusively by courts of first instance (now Regional Trial Courts).
On the other hand, petitioners cite the ponencia of Justice JBL Reyes in Lapitan
v. Scandia,36 from which the rule in Singsong and Raymundo actually derives,
but which incorporates this additional nuance omitted in the latter cases:
xxx However, where the basic issue is something other than the right to recover
a sum of money, where the money claim is purely incidental to, or a consequence
of, the principal relief sought, like in suits to have the defendant perform
his part of the contract (specific performance) and in actions for
support, or for annulment of judgment or to foreclose a mortgage, this
Court has considered such actions as cases where the subject of the litigation
may not be estimated in terms of money, and are cognizable exclusively by
courts of first instance.37
Petitioners go on to add that among the actions the Court has recognized as
being incapable of pecuniary estimation include legality of conveyances and
money deposits,38 validity of a mortgage,39 the right to support,40 validity of
documents,41 rescission of contracts,42 specific performance,43 and validity or
annulment of judgments.44 It is urged that an action for enforcement of a foreign
judgment belongs to the same class.
This is an intriguing argument, but ultimately it is self-evident that while the
subject matter of the action is undoubtedly the enforcement of a foreign
judgment, the effect of a providential award would be the adjudication of a sum
of money. Perhaps in theory, such an action is primarily for "the enforcement of
the foreign judgment," but there is a certain obtuseness to that sort of argument
since there is no denying that the enforcement of the foreign judgment will
necessarily result in the award of a definite sum of money.
But before we insist upon this conclusion past beyond the point of reckoning, we
must examine its possible ramifications. Petitioners raise the point that a
declaration that an action for enforcement of foreign judgment may be capable
of pecuniary estimation might lead to an instance wherein a first level court such
as the Municipal Trial Court would have jurisdiction to enforce a foreign
judgment. But under the statute defining the jurisdiction of first level courts, B.P.
129, such courts are not vested with jurisdiction over actions for the enforcement
of foreign judgments.
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts in civil cases. - Metropolitan Trial Courts, Municipal
Trial Courts, and Municipal Circuit Trial Courts shall exercise:
(1) Exclusive original jurisdiction over civil actions and probate proceedings,
testate and intestate, including the grant of provisional remedies in proper cases,
where the value of the personal property, estate, or amount of the demand does
not exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila
where such personal property, estate, or amount of the demand does not exceed
Two hundred thousand pesos (P200,000.00) exclusive of interest damages of
whatever kind, attorney's fees, litigation expenses, and costs, the amount of
which must be specifically alleged: Provided, That where there are several
claims or causes of action between the same or different parties, embodied in
the same complaint, the amount of the demand shall be the totality of the claims
in all the causes of action, irrespective of whether the causes of action arose out
of the same or different transactions;
(2) Exclusive original jurisdiction over cases of forcible entry and unlawful
detainer: Provided, That when, in such cases, the defendant raises the question
of ownership in his pleadings and the question of possession cannot be resolved
without deciding the issue of ownership, the issue of ownership shall be resolved
only to determine the issue of possession.
(3) Exclusive original jurisdiction in all civil actions which involve title to, or
possession of, real property, or any interest therein where the assessed value of
the property or interest therein does not exceed Twenty thousand pesos
(P20,000.00) or, in civil actions in Metro Manila, where such assessed value does
not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of
whatever kind, attorney's fees, litigation expenses and costs: Provided, That
value of such property shall be determined by the assessed value of the adjacent
lots.45
Section 33 of B.P. 129 refers to instances wherein the cause of action or subject
matter pertains to an assertion of rights and interests over property or a sum of
money. But as earlier pointed out, the subject matter of an action to enforce a
foreign judgment is the foreign judgment itself, and the cause of action arising
from the adjudication of such judgment.
An examination of Section 19(6), B.P. 129 reveals that the instant complaint for
enforcement of a foreign judgment, even if capable of pecuniary estimation,
would fall under the jurisdiction of the Regional Trial Courts, thus negating the
fears of the petitioners. Indeed, an examination of the provision indicates that it
can be relied upon as jurisdictional basis with respect to actions for enforcement
of foreign judgments, provided that no other court or office is vested jurisdiction
over such complaint:
Sec. 19. Jurisdiction in civil cases. - Regional Trial Courts shall exercise exclusive
original jurisdiction:
xxx
(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person
or body exercising jurisdiction or any court, tribunal, person or body exercising
judicial or quasi-judicial functions.
Thus, we are comfortable in asserting the obvious, that the complaint to enforce
the US District Court judgment is one capable of pecuniary estimation. But at
the same time, it is also an action based on judgment against an estate, thus
placing it beyond the ambit of Section 7(a) of Rule 141. What provision then
governs the proper computation of the filing fees over the instant complaint? For
this case and other similarly situated instances, we find that it is covered by
Section 7(b)(3), involving as it does, "other actions not involving property."
Notably, the amount paid as docket fees by the petitioners on the premise that
it was an action incapable of pecuniary estimation corresponds to the same
amount required for "other actions not involving property." The petitioners thus
paid the correct amount of filing fees, and it was a grave abuse of discretion for
respondent judge to have applied instead a clearly inapplicable rule and
dismissed the complaint.
There is another consideration of supreme relevance in this case, one which
should disabuse the notion that the doctrine affirmed in this decision is grounded
solely on the letter of the procedural rule. We earlier adverted to the the
internationally recognized policy of preclusion, 46 as well as the principles of
comity, utility and convenience of nations47 as the basis for the evolution of the
rule calling for the recognition and enforcement of foreign judgments. The US
Supreme Court in Hilton v. Guyot48 relied heavily on the concept of comity, as
especially derived from the landmark treatise of Justice Story in his
Commentaries on the Conflict of Laws of 1834.49 Yet the notion of "comity" has
since been criticized as one "of dim contours" 50 or suffering from a number of
fallacies.51 Other conceptual bases for the recognition of foreign judgments have
evolved such as the vested rights theory or the modern doctrine of obligation. 52
There have been attempts to codify through treaties or multilateral agreements
the standards for the recognition and enforcement of foreign judgments, but
these have not borne fruition. The members of the European Common Market
accede to the Judgments Convention, signed in 1978, which eliminates as to
participating countries all of such obstacles to recognition such as reciprocity
and révision au fond.53 The most ambitious of these attempts is the Convention
on the Recognition and Enforcement of Foreign Judgments in Civil and
Commercial Matters, prepared in 1966 by the Hague Conference of International
Law.54 While it has not received the ratifications needed to have it take effect,55 it
is recognized as representing current scholarly thought on the topic.56 Neither
the Philippines nor the United States are signatories to the Convention.
Yet even if there is no unanimity as to the applicable theory behind the
recognition and enforcement of foreign judgments or a universal treaty rendering
it obligatory force, there is consensus that the viability of such recognition and
enforcement is essential. Steiner and Vagts note:
. . . The notion of unconnected bodies of national law on private international
law, each following a quite separate path, is not one conducive to the growth of
a transnational community encouraging travel and commerce among its
members. There is a contemporary resurgence of writing stressing the identity
or similarity of the values that systems of public and private international law
seek to further - a community interest in common, or at least reasonable, rules
on these matters in national legal systems. And such generic principles as
reciprocity play an important role in both fields.57
Salonga, whose treatise on private international law is of worldwide renown,
points out:
Whatever be the theory as to the basis for recognizing foreign judgments, there
can be little dispute that the end is to protect the reasonable expectations and
demands of the parties. Where the parties have submitted a matter for
adjudication in the court of one state, and proceedings there are not tainted with
irregularity, they may fairly be expected to submit, within the state or elsewhere,
to the enforcement of the judgment issued by the court.58
There is also consensus as to the requisites for recognition of a foreign judgment
and the defenses against the enforcement thereof. As earlier discussed, the
exceptions enumerated in Section 48, Rule 39 have remain unchanged since the
time they were adapted in this jurisdiction from long standing American rules.
The requisites and exceptions as delineated under Section 48 are but a
restatement of generally accepted principles of international law. Section 98 of
The Restatement, Second, Conflict of Laws, states that "a valid judgment
rendered in a foreign nation after a fair trial in a contested proceeding will be
recognized in the United States," and on its face, the term "valid" brings into
play requirements such notions as valid jurisdiction over the subject matter and
parties.59 Similarly, the notion that fraud or collusion may preclude the
enforcement of a foreign judgment finds affirmation with foreign jurisprudence
and commentators,60 as well as the doctrine that the foreign judgment must not
constitute "a clear mistake of law or fact." 61 And finally, it has been recognized
that "public policy" as a defense to the recognition of judgments serves as an
umbrella for a variety of concerns in international practice which may lead to a
denial of recognition.62
The viability of the public policy defense against the enforcement of a foreign
judgment has been recognized in this jurisdiction.63 This defense allows for the
application of local standards in reviewing the foreign judgment, especially when
such judgment creates only a presumptive right, as it does in cases wherein the
judgment is against a person.64 The defense is also recognized within the
international sphere, as many civil law nations adhere to a broad public policy
exception which may result in a denial of recognition when the foreign court, in
the light of the choice-of-law rules of the recognizing court, applied the wrong
law to the case.65 The public policy defense can safeguard against possible
abuses to the easy resort to offshore litigation if it can be demonstrated that the
original claim is noxious to our constitutional values.
There is no obligatory rule derived from treaties or conventions that requires the
Philippines to recognize foreign judgments, or allow a procedure for the
enforcement thereof. However, generally accepted principles of international
law, by virtue of the incorporation clause of the Constitution, form part of the
laws of the land even if they do not derive from treaty obligations.66 The classical
formulation in international law sees those customary rules accepted as binding
result from the combination two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known as
the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the
latter element is a belief that the practice in question is rendered obligatory by
the existence of a rule of law requiring it.67
While the definite conceptual parameters of the recognition and enforcement of
foreign judgments have not been authoritatively established, the Court can
assert with certainty that such an undertaking is among those generally accepted
principles of international law.68 As earlier demonstrated, there is a widespread
practice among states accepting in principle the need for such recognition and
enforcement, albeit subject to limitations of varying degrees. The fact that there
is no binding universal treaty governing the practice is not indicative of a
widespread rejection of the principle, but only a disagreement as to the
imposable specific rules governing the procedure for recognition and
enforcement.
Aside from the widespread practice, it is indubitable that the procedure for
recognition and enforcement is embodied in the rules of law, whether statutory
or jurisprudential, adopted in various foreign jurisdictions. In the Philippines, this
is evidenced primarily by Section 48, Rule 39 of the Rules of Court which has
existed in its current form since the early 1900s. Certainly, the Philippine legal
system has long ago accepted into its jurisprudence and procedural rules the
viability of an action for enforcement of foreign judgment, as well as the
requisites for such valid enforcement, as derived from internationally accepted
doctrines. Again, there may be distinctions as to the rules adopted by each
particular state,69 but they all prescind from the premise that there is a rule of
law obliging states to allow for, however generally, the recognition and
enforcement of a foreign judgment. The bare principle, to our mind, has attained
the status of opinio juris in international practice.
This is a significant proposition, as it acknowledges that the procedure and
requisites outlined in Section 48, Rule 39 derive their efficacy not merely from
the procedural rule, but by virtue of the incorporation clause of the
Constitution. Rules of procedure are promulgated by the Supreme Court,70 and
could very well be abrogated or revised by the high court itself. Yet the Supreme
Court is obliged, as are all State components, to obey the laws of the land,
including generally accepted principles of international law which form part
thereof, such as those ensuring the qualified recognition and enforcement of
foreign judgments.71
Thus, relative to the enforcement of foreign judgments in the Philippines, it
emerges that there is a general right recognized within our body of laws, and
affirmed by the Constitution, to seek recognition and enforcement of foreign
judgments, as well as a right to defend against such enforcement on the grounds
of want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact.
The preclusion of an action for enforcement of a foreign judgment in this country
merely due to an exhorbitant assessment of docket fees is alien to generally
accepted practices and principles in international law. Indeed, there are grave
concerns in conditioning the amount of the filing fee on the pecuniary award or
the value of the property subject of the foreign decision. Such pecuniary award
will almost certainly be in foreign denomination, computed in accordance with
the applicable laws and standards of the forum.72 The vagaries of inflation, as
well as the relative low-income capacity of the Filipino, to date may very well
translate into an award virtually unenforceable in this country, despite its integral
validity, if the docket fees for the enforcement thereof were predicated on the
amount of the award sought to be enforced. The theory adopted by respondent
judge and the Marcos Estate may even lead to absurdities, such as if applied to
an award involving real property situated in places such as the United States or
Scandinavia where real property values are inexorably high. We cannot very well
require that the filing fee be computed based on the value of the foreign property
as determined by the standards of the country where it is located.
As crafted, Rule 141 of the Rules of Civil Procedure avoids unreasonableness, as
it recognizes that the subject matter of an action for enforcement of a foreign
judgment is the foreign judgment itself, and not the right-duty correlatives that
resulted in the foreign judgment. In this particular circumstance, given that the
complaint is lodged against an estate and is based on the US District Court's Final
Judgment, this foreign judgment may, for purposes of classification under the
governing procedural rule, be deemed as subsumed under Section 7(b)(3) of
Rule 141, i.e., within the class of "all other actions not involving property." Thus,
only the blanket filing fee of minimal amount is required.
Finally, petitioners also invoke Section 11, Article III of the Constitution, which
states that "[F]ree access to the courts and quasi-judicial bodies and adequate
legal assistance shall not be denied to any person by reason of poverty." Since
the provision is among the guarantees ensured by the Bill of Rights, it certainly
gives rise to a demandable right. However, now is not the occasion to elaborate
on the parameters of this constitutional right. Given our preceding discussion, it
is not necessary to utilize this provision in order to grant the relief sought by the
petitioners. It is axiomatic that the constitutionality of an act will not be resolved
by the courts if the controversy can be settled on other grounds 73 or unless the
resolution thereof is indispensable for the determination of the case.74
One more word. It bears noting that Section 48, Rule 39 acknowledges that
the Final Judgment is not conclusive yet, but presumptive evidence of a right of
the petitioners against the Marcos Estate. Moreover, the Marcos Estate is not
precluded to present evidence, if any, of want of jurisdiction, want of notice to
the party, collusion, fraud, or clear mistake of law or fact. This ruling, decisive
as it is on the question of filing fees and no other, does not render verdict on the
enforceability of the Final Judgment before the courts under the jurisdiction of
the Philippines, or for that matter any other issue which may legitimately be
presented before the trial court. Such issues are to be litigated before the trial
court, but within the confines of the matters for proof as laid down in Section
48, Rule 39. On the other hand, the speedy resolution of this claim by the trial
court is encouraged, and contumacious delay of the decision on the merits will
not be brooked by this Court.
WHEREFORE, the petition is GRANTED. The assailed orders are NULLIFIED and
SET ASIDE, and a new order REINSTATING Civil Case No. 97-1052 is hereby
issued. No costs.
SO ORDERED.