Province of North Cotabato vs GRP Panel on Ancestral Domain, et al. GR No.

183591, October
14, 2008, 568 SCRA 402
DECISION

CARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers of the President in pursuing the peace
process. While the facts surrounding this controversy center on the armed conflict in Mindanao
between the government and the Moro Islamic Liberation Front (MILF), the legal issue involved has a
bearing on all areas in the country where there has been a long-standing armed conflict. Yet again, the
Court is tasked to perform a delicate balancing act. It must uncompromisingly delineate the bounds
within which the President may lawfully exercise her discretion, but it must do so in strict adherence to
the Constitution, lest its ruling unduly restricts the freedom of action vested by that same Constitution in
the Chief Executive precisely to enable her to pursue the peace process effectively.

I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through the
Chairpersons of their respective peace negotiating panels, were scheduled to sign a Memorandum of
Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of
2001 in Kuala Lumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, under the leadership of the late
Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then headed by Nur
Misuari, on the ground, among others, of what Salamat perceived to be the manipulation of the MNLF
away from an Islamic basis towards Marxist-Maoist orientations.[1]

The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon
motion of petitioners, specifically those who filed their cases before the scheduled signing of the MOA-
AD, this Court issued a Temporary Restraining Order enjoining the GRP from signing the same.

The MOA-AD was preceded by a long process of negotiation and the concluding of several prior
agreements between the two parties beginning in 1996, when the GRP-MILF peace negotiations began.
On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General Cessation of
Hostilities. The following year, they signed the General Framework of Agreement of Intent on August 27,
1998.
The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the same
contained, among others, the commitment of the parties to pursue peace negotiations, protect and
respect human rights, negotiate with sincerity in the resolution and pacific settlement of the conflict,
and refrain from the use of threat or force to attain undue advantage while the peace negotiations on
the substantive agenda are on-going.[2]

Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF
peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of municipalities
in Central Mindanao and, in March 2000, it took control of the town hall of Kauswagan, Lanao del Norte.
[3] In response, then President Joseph Estrada declared and carried out an "all-out-war" against the
MILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was
suspended and the government sought a resumption of the peace talks. The MILF, according to a
leading MILF member, initially responded with deep reservation, but when President Arroyo asked the
Government of Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF to
return to the negotiating table, the MILF convened its Central Committee to seriously discuss the matter
and, eventually, decided to meet with the GRP.[4]

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian
government, the parties signing on the same date the Agreement on the General Framework for the
Resumption of Peace Talks Between the GRP and the MILF. The MILF thereafter suspended all its
military actions.[5]

Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the outcome
of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the basic
principles and agenda on the following aspects of the negotiation: Security Aspect, Rehabilitation
Aspect, and Ancestral Domain Aspect. With regard to the Ancestral Domain Aspect, the parties in Tripoli
Agreement 2001 simply agreed "that the same be discussed further by the Parties in their next
meeting."

A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended with
the signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading
to a ceasefire status between the parties. This was followed by the Implementing Guidelines on the
Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which was signed
on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between
government forces and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by
Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad's position as chief peace
negotiator was taken over by Mohagher Iqbal.[6]

In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to
the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be signed last August
5, 2008.

II. Statement of the proceedings

Before the Court is what is perhaps the most contentious "consensus" ever embodied in an instrument -
the MOA-AD which is assailed principally by the present petitions bearing docket numbers 183591,
183752, 183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain[7] and the
Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato[8] and Vice-Governor Emmanuel Piñol filed a petition,
docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance of Writ of
Preliminary Injunction and Temporary Restraining Order.[9] Invoking the right to information on matters
of public concern, petitioners seek to compel respondents to disclose and furnish them the complete
and official copies of the MOA-AD including its attachments, and to prohibit the slated signing of the
MOA-AD, pending the disclosure of the contents of the MOA-AD and the holding of a public consultation
thereon. Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional.[10]

This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and
Prohibition[11] filed by the City of Zamboanga,[12] Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and
Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners herein moreover
pray that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or Bangsamoro
Juridical Entity and, in the alternative, that the MOA-AD be declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and
directing public respondents and their agents to cease and desist from formally signing the MOA-AD.[13]
The Court also required the Solicitor General to submit to the Court and petitioners the official copy of
the final draft of the MOA-AD,[14] to which she complied.[15]
Meanwhile, the City of Iligan[16] filed a petition for Injunction and/or Declaratory Relief, docketed as
G.R. No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the same had
already been signed, from implementing the same, and that the MOA-AD be declared unconstitutional.
Petitioners herein additionally implead Executive Secretary Eduardo Ermita as respondent.

The Province of Zamboanga del Norte,[17] Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep.
Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members[18] of the Sangguniang Panlalawigan of
Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and Prohibition,[19]
docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared null and void and
without operative effect, and that respondents be enjoined from executing the MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for
Prohibition,[20] docketed as G.R. No. 183962, praying for a judgment prohibiting and permanently
enjoining respondents from formally signing and executing the MOA-AD and or any other agreement
derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional and illegal.
Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel represented by
its Chairman Mohagher Iqbal.

Various parties moved to intervene and were granted leave of court to file their petitions-/comments-in-
intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas, former Senate President
Franklin Drilon and Atty. Adel Tamano, the City of Isabela[21] and Mayor Cherrylyn Santos-Akbar, the
Province of Sultan Kudarat[22] and Gov. Suharto Mangudadatu, the Municipality of Linamon in Lanao
del Norte,[23] Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member
Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo
Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance
Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and Development
(MMMPD) filed their respective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed
Comments on the petitions, while some of petitioners submitted their respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive Department
shall thoroughly review the MOA-AD and pursue further negotiations to address the issues hurled
against it, and thus moved to dismiss the cases. In the succeeding exchange of pleadings, respondents'
motion was met with vigorous opposition from petitioners.

The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following
principal issues:
Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official copies of the final
draft of the Memorandum of Agreement (MOA); and

(ii) insofar as the prohibition aspect involving the Local Government Units is concerned, if it is
considered that consultation has become fait accompli with the finalization of the draft;

Whether the constitutionality and the legality of the MOA is ripe for adjudication;

Whether respondent Government of the Republic of the Philippines Peace Panel committed grave abuse
of discretion amounting to lack or excess of jurisdiction when it negotiated and initiated the MOA vis-à-
vis ISSUES Nos. 4 and 5;

Whether there is a violation of the people's right to information on matters of public concern (1987
Constitution, Article III, Sec. 7) under a state policy of full disclosure of all its transactions involving public
interest (1987 Constitution, Article II, Sec. 28) including public consultation under Republic Act No. 7160
(LOCAL GOVERNMENT CODE OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is an
appropriate remedy;

Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING
itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical,
territorial or political subdivision not recognized by law;

b) to revise or amend the Constitution and existing laws to conform to the MOA;

c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in
violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section
3(g) & Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so bind the Government of the
Republic of the Philippines;

Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga, Iligan and
Isabela, and the Municipality of Linamon, Lanao del Norte in/from the areas covered by the projected
Bangsamoro Homeland is a justiciable question; and

Whether desistance from signing the MOA derogates any prior valid commitments of the Government
of the Republic of the Philippines.[24]

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties
submitted their memoranda on time.

III. Overview of the MOA-AD

As a necessary backdrop to the consideration of the objections raised in the subject five petitions and six
petitions-in-intervention against the MOA-AD, as well as the two comments-in-intervention in favor of
the MOA-AD, the Court takes an overview of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier agreements
between the GRP and MILF, but also two agreements between the GRP and the MNLF: the 1976 Tripoli
Agreement, and the Final Peace Agreement on the Implementation of the 1976 Tripoli Agreement,
signed on September 2, 1996 during the administration of President Fidel Ramos.

The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous Region in
Muslim Mindanao (ARMM)[25] and the Indigenous Peoples Rights Act (IPRA),[26] and several
international law instruments - the ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in
Independent Countries in relation to the UN Declaration on the Rights of the Indigenous Peoples, and
the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment emanating
from the regime of dar-ul-mua'hada (or territory under compact) and dar-ul-sulh (or territory under
peace agreement) that partakes the nature of a treaty device."

During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple
dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The first
referred to those lands where Islamic laws held sway, while the second denoted those lands where
Muslims were persecuted or where Muslim laws were outlawed or ineffective.[27] This way of viewing
the world, however, became more complex through the centuries as the Islamic world became part of
the international community of nations.

As Muslim States entered into treaties with their neighbors, even with distant States and inter-
governmental organizations, the classical division of the world into dar-ul-Islam and dar-ul-harb
eventually lost its meaning. New terms were drawn up to describe novel ways of perceiving non-Muslim
territories. For instance, areas like dar-ul-mua'hada (land of compact) and dar-ul-sulh (land of treaty)
referred to countries which, though under a secular regime, maintained peaceful and cooperative
relations with Muslim States, having been bound to each other by treaty or agreement. Dar-ul-aman
(land of order), on the other hand, referred to countries which, though not bound by treaty with Muslim
States, maintained freedom of religion for Muslims.[28]

It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ul-mua'hada
and dar-ul-sulh simply refers to all other agreements between the MILF and the Philippine government -
the Philippines being the land of compact and peace agreement - that partake of the nature of a treaty
device, "treaty" being broadly defined as "any solemn agreement in writing that sets out
understandings, obligations, and benefits for both parties which provides for a framework that
elaborates the principles declared in the [MOA-AD]."[29]

The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and starts
with its main body.

The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles, Territory,
Resources, and Governance.

A. Concepts and Principles

This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples of
Mindanao to identify themselves and be accepted as `Bangsamoros.'" It defines "Bangsamoro people"
as the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the
Sulu archipelago at the time of conquest or colonization, and their descendants whether mixed or of full
blood, including their spouses.[30]

Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not only "Moros"
as traditionally understood even by Muslims,[31] but all indigenous peoples of Mindanao and its
adjacent islands. The MOA-AD adds that the freedom of choice of indigenous peoples shall be
respected. What this freedom of choice consists in has not been specifically defined.

The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is vested
exclusively in the Bangsamoro people by virtue of their prior rights of occupation.[32] Both parties to
the MOA-AD acknowledge that ancestral domain does not form part of the public domain.[33]

The Bangsamoro people are acknowledged as having the right to self-governance, which right is said to
be rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates
and the Pat a Pangampong ku Ranaw. The sultanates were described as states or "karajaan/kadatuan"
resembling a body politic endowed with all the elements of a nation-state in the modern sense.[34]

The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past suzerain
authority of the sultanates. As gathered, the territory defined as the Bangsamoro homeland was ruled
by several sultanates and, specifically in the case of the Maranao, by the Pat a Pangampong ku Ranaw, a
confederation of independent principalities (pangampong) each ruled by datus and sultans, none of
whom was supreme over the others.[35]

The MOA-AD goes on to describe the Bangsamoro people as "the `First Nation' with defined territory
and with a system of government having entered into treaties of amity and commerce with foreign
nations."

The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory,
particularly those known as Indians. In Canada, each of these indigenous peoples is equally entitled to
be called "First Nation," hence, all of them are usually described collectively by the plural "First
Nations."[36] To that extent, the MOA-AD, by identifying the Bangsamoro people as "the First Nation" -
suggesting its exclusive entitlement to that designation - departs from the Canadian usage of the term.

The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it grants
the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.[37]
B. Territory

The territory of the Bangsamoro homeland is described as the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region.[38]

More specifically, the core of the BJE is defined as the present geographic area of the ARMM - thus
constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City.
Significantly, this core also includes certain municipalities of Lanao del Norte that voted for inclusion in
the ARMM in the 2001 plebiscite.[39]

Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are
grouped into two categories, Category A and Category B. Each of these areas is to be subjected to a
plebiscite to be held on different dates, years apart from each other. Thus, Category A areas are to be
subjected to a plebiscite not later than twelve (12) months following the signing of the MOA-AD.[40]
Category B areas, also called "Special Intervention Areas," on the other hand, are to be subjected to a
plebiscite twenty-five (25) years from the signing of a separate agreement - the Comprehensive
Compact.[41]

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within
its "internal waters," defined as extending fifteen (15) kilometers from the coastline of the BJE area;[42]
that the BJE shall also have "territorial waters," which shall stretch beyond the BJE internal waters up to
the baselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao;
and that within these territorial waters, the BJE and the "Central Government" (used interchangeably
with RP) shall exercise joint jurisdiction, authority and management over all natural resources.[43]
Notably, the jurisdiction over the internal waters is not similarly described as "joint."

The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central
Government and the BJE, in favor of the latter, through production sharing and economic cooperation
agreement.[44] The activities which the Parties are allowed to conduct on the territorial waters are
enumerated, among which are the exploration and utilization of natural resources, regulation of
shipping and fishing activities, and the enforcement of police and safety measures.[45] There is no
similar provision on the sharng of minerals and allowed activities with respect to the internal waters of
the BJE.

C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with
foreign countries and shall have the option to establish trade missions in those countries. Such
relationships and understandings, however, are not to include aggression against the GRP. The BJE may
also enter into environmental cooperation agreements.[46]

The external defense of the BJE is to remain the duty and obligation of the Central Government. The
Central Government is also bound to "take necessary steps to ensure the BJE's participation in
international meetings and events" like those of the ASEAN and the specialized agencies of the UN. The
BJE is to be entitled to participate in Philippine official missions and delegations for the negotiation of
border agreements or protocols for environmental protection and equitable sharing of incomes and
revenues involving the bodies of water adjacent to or between the islands forming part of the ancestral
domain.[47]

With regard to the right of exploring for, producing, and obtaining all potential sources of energy,
petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested in
the BJE "as the party having control within its territorial jurisdiction." This right carries the proviso that,
"in times of national emergency, when public interest so requires," the Central Government may, for a
fixed period and under reasonable terms as may be agreed upon by both Parties, assume or direct the
operation of such resources.[48]

The sharing between the Central Government and the BJE of total production pertaining to natural
resources is to be 75:25 in favor of the BJE.[49]

The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust
dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization
shall be acknowledged. Whenever restoration is no longer possible, reparation is to be in such form as
mutually determined by the Parties.[50]

The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining
concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management
Agreements (IFMA), and other land tenure instruments granted by the Philippine Government, including
those issued by the present ARMM.[51]

D. Governance
The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the
implementation of the Comprehensive Compact. This compact is to embody the "details for the
effective enforcement" and "the mechanisms and modalities for the actual implementation" of the
MOA-AD. The MOA-AD explicitly provides that the participation of the third party shall not in any way
affect the status of the relationship between the Central Government and the BJE.[52]

The "associative" relationship between the Central Government and the BJE

The MOA-AD describes the relationship of the Central Government and the BJE as "associative,"
characterized by shared authority and responsibility. And it states that the structure of governance is to
be based on executive, legislative, judicial, and administrative institutions with defined powers and
functions in the Comprehensive Compact.

The MOA-AD provides that its provisions requiring "amendments to the existing legal framework" shall
take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid amendments,
with due regard to the non-derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact. As will be discussed later, much of the present controversy
hangs on the legality of this provision.

The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service,
electoral, financial and banking, education, legislation, legal, economic, police and internal security
force, judicial system and correctional institutions, the details of which shall be discussed in the
negotiation of the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and
Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF, respectively.
Notably, the penultimate paragraph of the MOA-AD identifies the signatories as "the representatives of
the Parties," meaning the GRP and MILF themselves, and not merely of the negotiating panels.[53] In
addition, the signature page of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin Abd
Razak, Special Adviser to the Prime Minister of Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry,
Adviser to Organization of the Islamic Conference (OIC) Secretary General and Special Envoy for Peace
Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo, Secretary of
Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of
whom were scheduled to sign the Agreement last August 5, 2008.

Annexed to the MOA-AD are two documents containing the respective lists cum maps of the provinces,
municipalities, and barangays under Categories A and B earlier mentioned in the discussion on the
strand on TERRITORY.
IV. PROCEDURAL ISSUES

A. Ripeness

The power of judicial review is limited to actual cases or controversies.[54] Courts decline to issue
advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions.[55] The
limitation of the power of judicial review to actual cases and controversies defines the role assigned to
the judiciary in a tripartite allocation of power, to assure that the courts will not intrude into areas
committed to the other branches of government.[56]

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute.
There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing
law and jurisprudence.[57] The Court can decide the constitutionality of an act or treaty only when a
proper case between opposing parties is submitted for judicial determination.[58]

Related to the requirement of an actual case or controversy is the requirement of ripeness. A question is
ripe for adjudication when the act being challenged has had a direct adverse effect on the individual
challenging it.[59] For a case to be considered ripe for adjudication, it is a prerequisite that something
had then been accomplished or performed by either branch before a court may come into the picture,
[60] and the petitioner must allege the existence of an immediate or threatened injury to itself as a
result of the challenged action.[61] He must show that he has sustained or is immediately in danger of
sustaining some direct injury as a result of the act complained of.[62]

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the
present petitions, reasoning that

The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative
enactments as well as constitutional processes aimed at attaining a final peaceful agreement. Simply
put, the MOA-AD remains to be a proposal that does not automatically create legally demandable rights
and obligations until the list of operative acts required have been duly complied with. x x x

xxxx
In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to pass upon
issues based on hypothetical or feigned constitutional problems or interests with no concrete bases.
Considering the preliminary character of the MOA-AD, there are no concrete acts that could possibly
violate petitioners' and intervenors' rights since the acts complained of are mere contemplated steps
toward the formulation of a final peace agreement. Plainly, petitioners and intervenors' perceived
injury, if at all, is merely imaginary and illusory apart from being unfounded and based on mere
conjectures. (Underscoring supplied)

The Solicitor General cites[63] the following provisions of the MOA-AD:

TERRITORY

xxxx

Toward this end, the Parties enter into the following stipulations:

xxxx

Without derogating from the requirements of prior agreements, the Government stipulates to conduct
and deliver, using all possible legal measures, within twelve (12) months following the signing of the
MOA-AD, a plebiscite covering the areas as enumerated in the list and depicted in the map as Category
A attached herein (the "Annex"). The Annex constitutes an integral part of this framework agreement.
Toward this end, the Parties shall endeavor to complete the negotiations and resolve all outstanding
issues on the Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD.

xxxx

GOVERNANCE

xxxx

The Parties agree that mechanisms and modalities for the actual implementation of this MOA-AD shall
be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into
force upon the signing of a Comprehensive Compact and upon effecting the necessary changes to the
legal framework with due regard to non-derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact.[64] (Underscoring supplied)

The Solicitor General's arguments fail to persuade.

Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In Pimentel,
Jr. v. Aguirre,[65] this Court held:

x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, the
dispute is said to have ripened into a judicial controversy even without any other overt act. Indeed, even
a singular violation of the Constitution and/or the law is enough to awaken judicial duty.

xxxx

By the same token, when an act of the President, who in our constitutional scheme is a coequal of
Congress, is seriously alleged to have infringed the Constitution and the laws x x x settling the dispute
becomes the duty and the responsibility of the courts.[66]

In Santa Fe Independent School District v. Doe,[67] the United States Supreme Court held that the
challenge to the constitutionality of the school's policy allowing student-led prayers and speeches
before games was ripe for adjudication, even if no public prayer had yet been led under the policy,
because the policy was being challenged as unconstitutional on its face.[68]

That the law or act in question is not yet effective does not negate ripeness. For example, in New York v.
United States,[69]decided in 1992, the United States Supreme Court held that the action by the State of
New York challenging the provisions of the Low-Level Radioactive Waste Policy Act was ripe for
adjudication even if the questioned provision was not to take effect until January 1, 1996, because the
parties agreed that New York had to take immediate action to avoid the provision's consequences.[70]

The present petitions pray for Certiorari,[71] Prohibition, and Mandamus. Certiorari and Prohibition are
remedies granted by law when any tribunal, board or officer has acted, in the case of certiorari, or is
proceeding, in the case of prohibition, without or in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction.[72] Mandamus is a remedy granted by law when
any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which
the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes
another from the use or enjoyment of a right or office to which such other is entitled.[73] Certiorari,
Mandamus and Prohibition are appropriate remedies to raise constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and executive officials.[74]
The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on
February 28, 2001.[75] The said executive order requires that "[t]he government's policy framework for
peace, including the systematic approach and the administrative structure for carrying out the
comprehensive peace process x x x be governed by this Executive Order."[76]

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the
MOA-AD without consulting the local government units or communities affected, nor informing them of
the proceedings. As will be discussed in greater detail later, such omission, by itself, constitutes a
departure by respondents from their mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The MOA-
AD provides that "any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon the signing of a Comprehensive Compact and upon effecting the necessary
changes to the legal framework," implying an amendment of the Constitution to accommodate the
MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of the Constitution. Such
act constitutes another violation of its authority. Again, these points will be discussed in more detail
later.

As the petitions allege acts or omissions on the part of respondent that exceed their authority, by
violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the petitions
make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case or controversy
ripe for adjudication exists. When an act of a branch of government 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.
[77]

B. Locus Standi

For a party to have locus standi, one must allege "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."[78]

Because constitutional cases are often public actions in which the relief sought is likely to affect other
persons, a preliminary question frequently arises as to this interest in the constitutional question raised.
[79]
When suing as a citizen, the person complaining must allege that he has been or is about to be denied
some right or privilege to which he is lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute or act complained of.[80] When the issue concerns a
public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.
[81]

For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally disbursed
or deflected to an illegal purpose, or that there is a wastage of public funds through the enforcement of
an invalid or unconstitutional law.[82] The Court retains discretion whether or not to allow a taxpayer's
suit.[83]

In the case of a legislator or member of Congress, an act of the Executive that injures the institution of
Congress causes a derivative but nonetheless substantial injury that can be questioned by legislators. A
member of the House of Representatives has standing to maintain inviolate the prerogatives, powers
and privileges vested by the Constitution in his office.[84]

An organization may be granted standing to assert the rights of its members,[85] but the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to
preserve the rule of law does not suffice to clothe it with standing.[86]

As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an interest of
its own, and of the other LGUs.[87]

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the
requirements of the law authorizing intervention,[88] such as a legal interest in the matter in litigation,
or in the success of either of the parties.

In any case, the Court has discretion to relax the procedural technicality on locus standi, given the liberal
attitude it has exercised, highlighted in the case of David v. Macapagal-Arroyo,[89]where technicalities
of procedure were brushed aside, the constitutional issues raised being of paramount public interest or
of transcendental importance deserving the attention of the Court in view of their seriousness, novelty
and weight as precedents.[90] The Court's forbearing stance on locus standi on issues involving
constitutional issues has for its purpose the protection of fundamental rights.

In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether the
other branches of government have kept themselves within the limits of the Constitution and the laws
and have not abused the discretion given them, has brushed aside technical rules of procedure.[91]
In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of Zamboanga
del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752)
and petitioners-in-intervention Province of Sultan Kudarat, City of Isabela and Municipality of Linamon
have locus standi in view of the direct and substantial injury that they, as LGUs, would suffer as their
territories, whether in whole or in part, are to be included in the intended domain of the BJE. These
petitioners allege that they did not vote for their inclusion in the ARMM which would be expanded to
form the BJE territory. Petitioners' legal standing is thus beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have no
standing as citizens and taxpayers for their failure to specify that they would be denied some right or
privilege or there would be wastage of public funds. The fact that they are a former Senator, an
incumbent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no consequence.
Considering their invocation of the transcendental importance of the issues at hand, however, the Court
grants them standing.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that
government funds would be expended for the conduct of an illegal and unconstitutional plebiscite to
delineate the BJE territory. On that score alone, they can be given legal standing. Their allegation that
the issues involved in these petitions are of "undeniable transcendental importance" clothes them with
added basis for their personality to intervene in these petitions.

With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate and
a citizen to enforce compliance by respondents of the public's constitutional right to be informed of the
MOA-AD, as well as on a genuine legal interest in the matter in litigation, or in the success or failure of
either of the parties. He thus possesses the requisite standing as an intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of Davao City, a
taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP Palawan
chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and member of the Sangguniang
Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any proper legal interest
in the present petitions. Just the same, the Court exercises its discretion to relax the procedural
technicality on locus standi given the paramount public interest in the issues at hand.

Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an advocacy
group for justice and the attainment of peace and prosperity in Muslim Mindanao; and Muslim Legal
Assistance Foundation Inc., a non-government organization of Muslim lawyers, allege that they stand to
be benefited or prejudiced, as the case may be, in the resolution of the petitions concerning the MOA-
AD, and prays for the denial of the petitions on the grounds therein stated. Such legal interest suffices to
clothe them with standing.

B. Mootness

Respondents insist that the present petitions have been rendered moot with the satisfaction of all the
reliefs prayed for by petitioners and the subsequent pronouncement of the Executive Secretary that
"[n]o matter what the Supreme Court ultimately decides[,] the government will not sign the MOA."[92]

In lending credence to this policy decision, the Solicitor General points out that the President had
already disbanded the GRP Peace Panel.[93]

In David v. Macapagal-Arroyo,[94] this Court held that the "moot and academic" principle not being a
magical formula that automatically dissuades courts in resolving a case, it will decide cases, otherwise
moot and academic, if it finds that (a) there is a grave violation of the Constitution;[95] (b) the situation
is of exceptional character and paramount public interest is involved;[96] (c) the constitutional issue
raised requires formulation of controlling principles to guide the bench, the bar, and the public;[97] and
(d) the case is capable of repetition yet evading review.[98]

Another exclusionary circumstance that may be considered is where there is a voluntary cessation of the
activity complained of by the defendant or doer. Thus, once a suit is filed and the doer voluntarily ceases
the challenged conduct, it does not automatically deprive the tribunal of power to hear and determine
the case and does not render the case moot especially when the plaintiff seeks damages or prays for
injunctive relief against the possible recurrence of the violation.[99]

The present petitions fall squarely into these exceptions to thus thrust them into the domain of judicial
review. The grounds cited above in David are just as applicable in the present cases as they were, not
only in David, but also in Province of Batangas v. Romulo[100] and Manalo v. Calderon[101] where the
Court similarly decided them on the merits, supervening events that would ordinarily have rendered the
same moot notwithstanding.

Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual
dissolution of the GRP Peace Panel did not moot the present petitions. It bears emphasis that the signing
of the MOA-AD did not push through due to the Court's issuance of a Temporary Restraining Order.

Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus
points," especially given its nomenclature, the need to have it signed or initialed by all the parties
concerned on August 5, 2008, and the far-reaching Constitutional implications of these "consensus
points," foremost of which is the creation of the BJE.

In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to
amend and effect necessary changes to the existing legal framework for certain provisions of the MOA-
AD to take effect. Consequently, the present petitions are not confined to the terms and provisions of
the MOA-AD, but to other on-going and future negotiations and agreements necessary for its
realization. The petitions have not, therefore, been rendered moot and academic simply by the public
disclosure of the MOA-AD,[102] the manifestation that it will not be signed as well as the disbanding of
the GRP Panel not withstanding.

Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest, involving a
significant part of the country's territory and the wide-ranging political modifications of affected LGUs.
The assertion that the MOA-AD is subject to further legal enactments including possible Constitutional
amendments more than ever provides impetus for the Court to formulate controlling principles to guide
the bench, the bar, the public and, in this case, the government and its negotiating entity.

Respondents cite Suplico v. NEDA, et al.[103] where the Court did not "pontificat[e] on issues which no
longer legitimately constitute an actual case or controversy [as this] will do more harm than good to the
nation as a whole."

The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and
eventually cancelled was a stand-alone government procurement contract for a national broadband
network involving a one-time contractual relation between two parties--the government and a private
foreign corporation. As the issues therein involved specific government procurement policies and
standard principles on contracts, the majority opinion in Suplico found nothing exceptional therein, the
factual circumstances being peculiar only to the transactions and parties involved in the controversy.

The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part of a series of agreements necessary to carry
out the Tripoli Agreement 2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said
Tripoli Agreement is the third such component to be undertaken following the implementation of the
Security Aspect in August 2001 and the Humanitarian, Rehabilitation and Development Aspect in May
2002.

Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor
General, has stated that "no matter what the Supreme Court ultimately decides[,] the government will
not sign the MOA[-AD]," mootness will not set in in light of the terms of the Tripoli Agreement 2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the
Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which could contain
similar or significantly drastic provisions. While the Court notes the word of the Executive Secretary that
the government "is committed to securing an agreement that is both constitutional and equitable
because that is the only way that long-lasting peace can be assured," it is minded to render a decision on
the merits in the present petitions to formulate controlling principles to guide the bench, the bar, the
public and, most especially, the government in negotiating with the MILF regarding Ancestral Domain.

Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio
Panganiban in Sanlakas v. Reyes[104] in which he stated thatthe doctrine of "capable of repetition yet
evading review" can override mootness, "provided the party raising it in a proper case has been and/or
continue to be prejudiced or damaged as a direct result of their issuance." They contend that the Court
must have jurisdiction over the subject matter for the doctrine to be invoked.

The present petitions all contain prayers for Prohibition over which this Court exercises original
jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory
Relief, the Court will treat it as one for Prohibition as it has far reaching implications and raises questions
that need to be resolved.[105] At all events, the Court has jurisdiction over most if not the rest of the
petitions.

Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine
immediately referred to as what it had done in a number of landmark cases.[106] There is a reasonable
expectation that petitioners, particularly the Provinces of North Cotabato, Zamboanga del Norte and
Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again
be subjected to the same problem in the future as respondents' actions are capable of repetition, in
another or any form.

It is with respect to the prayers for Mandamus that the petitions have become moot, respondents
having, by Compliance of August 7, 2008, provided this Court and petitioners with official copies of the
final draft of the MOA-AD and its annexes. Too, intervenors have been furnished, or have procured for
themselves, copies of the MOA-AD.

V. SUBSTANTIVE ISSUES

As culled from the Petitions and Petitions-in-Intervention, there are basically two SUBSTANTIVE issues to
be resolved, one relating to the manner in which the MOA-AD was negotiated and finalized, the other
relating to its provisions, viz:

Did respondents violate constitutional and statutory provisions on public consultation and the right to
information when they negotiated and later initialed the MOA-AD?

Do the contents of the MOA-AD violate the Constitution and the laws?

On the first Substantive issue

Petitioners invoke their constitutional right to information on matters of public concern, as provided in
Section 7, Article III on the Bill of Rights:

Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.[107]

As early as 1948, in Subido v. Ozaeta,[108] the Court has recognized the statutory right to examine and
inspect public records, a right which was eventually accorded constitutional status.

The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987
Constitution, has been recognized as a self-executory constitutional right.[109]

In the 1976 case of Baldoza v. Hon. Judge Dimaano,[110] the Court ruled that access to public records is
predicated on the right of the people to acquire information on matters of public concern since,
undoubtedly, in a democracy, the pubic has a legitimate interest in matters of social and political
significance.

x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free
exchange of information in a democracy. There can be no realistic perception by the public of the
nation's problems, nor a meaningful democratic decision-making if they are denied access to
information of general interest. Information is needed to enable the members of society to cope with
the exigencies of the times. As has been aptly observed: "Maintaining the flow of such information
depends on protection for both its acquisition and its dissemination since, if either process is
interrupted, the flow inevitably ceases." x x x[111]

In the same way that free discussion enables members of society to cope with the exigencies of their
time, access to information of general interest aids the people in democratic decision-making by giving
them a better perspective of the vital issues confronting the nation[112] so that they may be able to
criticize and participate in the affairs of the government in a responsible, reasonable and effective
manner. It is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public
that a government remains responsive to the changes desired by the people.[113]

The MOA-AD is a matter of public concern

That the subject of the information sought in the present cases is a matter of public concern[114] faces
no serious challenge. In fact, respondents admit that the MOA-AD is indeed of public concern.[115] In
previous cases, the Court found that the regularity of real estate transactions entered in the Register of
Deeds,[116] the need for adequate notice to the public of the various laws,[117] the civil service
eligibility of a public employee,[118] the proper management of GSIS funds allegedly used to grant loans
to public officials,[119] the recovery of the Marcoses' alleged ill-gotten wealth,[120] and the identity of
party-list nominees,[121] among others, are matters of public concern. Undoubtedly, the MOA-AD
subject of the present cases is of public concern, involving as it does the sovereignty and territorial
integrity of the State, which directly affects the lives of the public at large.

Matters of public concern covered by the right to information include steps and negotiations leading to
the consummation of the contract. In not distinguishing as to the executory nature or commercial
character of agreements, the Court has categorically ruled:

x x x [T]he right to information "contemplates inclusion of negotiations leading to the consummation of

the transaction. " Certainly, a consummated contract is not a requirement for the exercise of the right to
information. Otherwise, the people can never exercise the right if no contract is consummated, and if
one is consummated, it may be too late for the public to expose its defects.

Requiring a consummated contract will keep the public in the dark until the contract, which may be
grossly disadvantageous to the government or even illegal, becomes fait accompli. This negates the
State policy of full transparency on matters of public concern, a situation which the framers of the
Constitution could not have intended. Such a requirement will prevent the citizenry from participating in
the public discussion of any proposed contract, effectively truncating a basic right enshrined in the Bill of
Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the State of its
avowed "policy of full disclosure of all its transactions involving public interest."[122] (Emphasis and
italics in the original)

Intended as a "splendid symmetry"[123] to the right to information under the Bill of Rights is the policy
of public disclosure under Section 28, Article II of the Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of
full public disclosure of all its transactions involving public interest.[124]

The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of
access to information on matters of public concern found in the Bill of Rights. The right to information
guarantees the right of the people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands.[125]

The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in
a genuinely open democracy, with the people's right to know as the centerpiece. It is a mandate of the
State to be accountable by following such policy.[126] These provisions are vital to the exercise of the
freedom of expression and essential to hold public officials at all times accountable to the people.[127]

Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission
so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force
and effect until after Congress shall have provided it.

MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the
implementing law will have to be enacted by Congress, Mr. Presiding Officer.[128]

The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is
enlightening.

MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman
correctly as having said that this is not a self-executing provision? It would require a legislation by
Congress to implement?

MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from
Commissioner Regalado, so that the safeguards on national interest are modified by the clause "as may
be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress may
provide for reasonable safeguards on the sole ground national interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the
climate of the conduct of public affairs but, of course, Congress here may no longer pass a law revoking
it, or if this is approved, revoking this principle, which is inconsistent with this policy.[129] (Emphasis
supplied)

Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As
Congress cannot revoke this principle, it is merely directed to provide for "reasonable safeguards." The
complete and effective exercise of the right to information necessitates that its complementary
provision on public disclosure derive the same self-executory nature. Since both provisions go hand-in-
hand, it is absurd to say that the broader[130] right to information on matters of public concern is
already enforceable while the correlative duty of the State to disclose its transactions involving public
interest is not enforceable until there is an enabling law. Respondents cannot thus point to the absence
of an implementing legislation as an excuse in not effecting such policy.

An essential element of these freedoms is to keep open a continuing dialogue or process of

communication between the government and the people. It is in the interest of the State that the
channels for free political discussion be maintained to the end that the government may perceive and
be responsive to the people's will.[131] Envisioned to be corollary to the twin rights to information and
disclosure is the design for feedback mechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate? Will
the government provide feedback mechanisms so that the people can participate and can react where
the existing media facilities are not able to provide full feedback mechanisms to the government? I
suppose this will be part of the government implementing operational mechanisms.

MR. OPLE. Yes. I think through their elected representatives and that is how these courses take place.
There is a message and a feedback, both ways.

xxxx

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?

I think when we talk about the feedback network, we are not talking about public officials but also
network of private business o[r] community-based organizations that will be reacting. As a matter of
fact, we will put more credence or credibility on the private network of volunteers and voluntary
community-based organizations. So I do not think we are afraid that there will be another OMA in the
making.[132] (Emphasis supplied)

The imperative of a public consultation, as a species of the right to information, is evident in the
"marching orders" to respondents. The mechanics for the duty to disclose information and to conduct
public consultation regarding the peace agenda and process is manifestly provided by E.O. No. 3.[133]
The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the contribution
of civil society to the comprehensive peace process by institutionalizing the people's participation.

One of the three underlying principles of the comprehensive peace process is that it "should be
community-based, reflecting the sentiments, values and principles important to all Filipinos" and "shall
be defined not by the government alone, nor by the different contending groups only, but by all Filipinos
as one community."[134] Included as a component of the comprehensive peace process is consensus-
building and empowerment for peace, which includes "continuing consultations on both national and
local levels to build consensus for a peace agenda and process, and the mobilization and facilitation of
people's participation in the peace process."[135]

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate "continuing"
consultations, contrary to respondents' position that plebiscite is "more than sufficient
consultation."[136]

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to
"[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace partners to seek
relevant information, comments, recommendations as well as to render appropriate and timely reports
on the progress of the comprehensive peace process."[137] E.O. No. 3 mandates the establishment of
the NPF to be "the principal forum for the PAPP to consult with and seek advi[c]e from the peace
advocates, peace partners and concerned sectors of society on both national and local levels, on the
implementation of the comprehensive peace process, as well as for government[-]civil society dialogue
and consensus-building on peace agenda and initiatives."[138]

In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a corollary to
the constitutional right to information and disclosure.

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion when he failed to carry out the pertinent consultation.
The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of
the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise
thereof.

The Court may not, of course, require the PAPP to conduct the consultation in a particular way or
manner. It may, however, require him to comply with the law and discharge the functions within the
authority granted by the President.[139]

Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying
the denial of petitioners' right to be consulted. Respondents' stance manifests the manner by which
they treat the salient provisions of E.O. No. 3 on people's participation. Such disregard of the express
mandate of the President is not much different from superficial conduct toward token provisos that
border on classic lip service.[140] It illustrates a gross evasion of positive duty and a virtual refusal to
perform the duty enjoined.

As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the
premises. The argument defies sound reason when contrasted with E.O. No. 3's explicit provisions on
continuing consultation and dialogue on both national and local levels. The executive order even
recognizes the exercise of the public's right even before the GRP makes its official recommendations or
before the government proffers its definite propositions.[141] It bear emphasis that E.O. No. 3 seeks to
elicit relevant advice, information, comments and recommendations from the people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their
unqualified disclosure of the official copies of the final draft of the MOA-AD. By unconditionally
complying with the Court's August 4, 2008 Resolution, without a prayer for the document's disclosure in
camera, or without a manifestation that it was complying therewith ex abundante ad cautelam.

Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to "require
all national agencies and offices to conduct periodic consultations with appropriate local government
units, non-governmental and people's organizations, and other concerned sectors of the community
before any project or program is implemented in their respective jurisdictions"[142] is well-taken. The
LGC chapter on intergovernmental relations puts flesh into this avowed policy:

Prior Consultations Required. - No project or program shall be implemented by government authorities

unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior
approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such
projects are to be implemented shall not be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the Constitution.[143] (Italics and underscoring supplied)

In Lina, Jr. v. Hon. Paño,[144] the Court held that the above-stated policy and above-quoted provision of
the LGU apply only to national programs or projects which are to be implemented in a particular local
community. Among the programs and projects covered are those that are critical to the environment
and human ecology including those that may call for the eviction of a particular group of people residing
in the locality where these will be implemented.[145] The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people,[146] which
could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants
from their total environment.

With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are
represented herein by petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have,
under the IPRA, the right to participate fully at all levels of decision-making in matters which may affect
their rights, lives and destinies.[147] The MOA-AD, an instrument recognizing ancestral domain, failed to
justify its non-compliance with the clear-cut mechanisms ordained in said Act,[148] which entails,
among other things, the observance of the free and prior informed consent of the ICCs/IPs.

Notably, the IPRA does not grant the Executive Department or any government agency the power to
delineate and recognize an ancestral domain claim by mere agreement or compromise. The recognition
of the ancestral domain is the raison d'etre of the MOA-AD, without which all other stipulations or
"consensus points" necessarily must fail. In proceeding to make a sweeping declaration on ancestral
domain, without complying with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents
clearly transcended the boundaries of their authority. As it seems, even the heart of the MOA-AD is still
subject to necessary changes to the legal framework. While paragraph 7 on Governance suspends the
effectivity of all provisions requiring changes to the legal framework, such clause is itself invalid, as will
be discussed in the following section.

Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and
available always to public cognizance. This has to be so if the country is to remain democratic, with
sovereignty residing in the people and all government authority emanating from them.[149]

ON THE SECOND SUBSTANTIVE ISSUE

With regard to the provisions of the MOA-AD, there can be no question that they cannot all be
accommodated under the present Constitution and laws. Respondents have admitted as much in the
oral arguments before this Court, and the MOA-AD itself recognizes the need to amend the existing legal
framework to render effective at least some of its provisions. Respondents, nonetheless, counter that
the MOA-AD is free of any legal infirmity because any provisions therein which are inconsistent with the
present legal framework will not be effective until the necessary changes to that framework are made.
The validity of this argument will be considered later. For now, the Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws as presently worded.

In general, the objections against the MOA-AD center on the extent of the powers conceded therein to
the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local
government under present laws, and even go beyond those of the present ARMM. Before assessing
some of the specific powers that would have been vested in the BJE, however, it would be useful to turn
first to a general idea that serves as a unifying link to the different provisions of the MOA-AD, namely,
the international law concept of association. Significantly, the MOA-AD explicitly alludes to this concept,
indicating that the Parties actually framed its provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4

on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-AD most clearly uses it to
describe the envisioned relationship between the BJE and the Central Government.

4. The relationship between the Central Government and the Bangsamoro juridical entity shall be
associative characterized by shared authority and responsibility with a structure of governance based on
executive, legislative, judicial and administrative institutions with defined powers and functions in the
comprehensive compact. A period of transition shall be established in a comprehensive peace compact
specifying the relationship between the Central Government and the BJE. (Emphasis and underscoring
supplied)

The nature of the "associative" relationship may have been intended to be defined more precisely in the
still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of "association" in
international law, and the MOA-AD - by its inclusion of international law instruments in its TOR- placed
itself in an international legal context, that concept of association may be brought to bear in
understanding the use of the term "associative" in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish durable links. In the
basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while
maintaining its international status as a state. Free associations represent a middle ground between
integration and independence. x x x[150] (Emphasis and underscoring supplied)

For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia
(FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands,[151] are associated
states of the U.S. pursuant to a Compact of Free Association. The currency in these countries is the U.S.
dollar, indicating their very close ties with the U.S., yet they issue their own travel documents, which is a
mark of their statehood. Their international legal status as states was confirmed by the UN Security
Council and by their admission to UN membership.
According to their compacts of free association, the Marshall Islands and the FSM generally have the
capacity to conduct foreign affairs in their own name and right, such capacity extending to matters such
as the law of the sea, marine resources, trade, banking, postal, civil aviation, and cultural relations. The
U.S. government, when conducting its foreign affairs, is obligated to consult with the governments of
the Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to or affecting
either government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the
authority and obligation to defend them as if they were part of U.S. territory. The U.S. government,
moreover, has the option of establishing and using military areas and facilities within these associated
states and has the right to bar the military personnel of any third country from having access to these
territories for military purposes.

It bears noting that in U.S. constitutional and international practice, free association is understood as an
international association between sovereigns. The Compact of Free Association is a treaty which is
subordinate to the associated nation's national constitution, and each party may terminate the
association consistent with the right of independence. It has been said that, with the admission of the
U.S.-associated states to the UN in 1990, the UN recognized that the American model of free association
is actually based on an underlying status of independence.[152]

In international practice, the "associated state" arrangement has usually been used as a transitional
device of former colonies on their way to full independence. Examples of states that have passed
through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla,
Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.[153]

Back to the MOA-AD, it contains many provisions which are consistent with the international legal
concept of association, specifically the following: the BJE's capacity to enter into economic and trade
relations with foreign countries, the commitment of the Central Government to ensure the BJE's
participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing
responsibility of the Central Government over external defense. Moreover, the BJE's right to participate
in Philippine official missions bearing on negotiation of border agreements, environmental protection,
and sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming
part of the ancestral domain, resembles the right of the governments of FSM and the Marshall Islands to
be consulted by the U.S. government on any foreign affairs matter affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the
status of an associated state or, at any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an
"associative" relationship with the national government. Indeed, the concept implies powers that go
beyond anything ever granted by the Constitution to any local or regional government. It also implies
the recognition of the associated entity as a state. The Constitution, however, does not contemplate any
state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status
that aims to prepare any part of Philippine territory for independence.

Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for its
validity the amendment of constitutional provisions, specifically the following provisions of Article X:

SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces,
cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.

SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras
consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social structures, and other relevant characteristics within
the framework of this Constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines .

The BJE is a far more powerful

entity than the autonomous region

recognized in the Constitution

It is not merely an expanded version of the ARMM, the status of its relationship with the national
government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name
as it meets the criteria of a state laid down in the Montevideo Convention,[154] namely, a permanent
population, a defined territory, a government, and a capacity to enter into relations with other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine
territory, the spirit animating it - which has betrayed itself by its use of the concept of association - runs
counter to the national sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between the national government and the BJE being
itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the
MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws.

Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall be
effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for
the purpose, provided that only provinces, cities, and geographic areas voting favorably in such
plebiscite shall be included in the autonomous region." (Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is
covered by the term "autonomous region" in the constitutional provision just quoted, the MOA-AD
would still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the
present geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which
voted for inclusion in the ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan
and Tangkal - are automatically part of the BJE without need of another plebiscite, in contrast to the
areas under Categories A and B mentioned earlier in the overview. That the present components of the
ARMM and the above-mentioned municipalities voted for inclusion therein in 2001, however, does not
render another plebiscite unnecessary under the Constitution, precisely because what these areas voted
for then was their inclusion in the ARMM, not the BJE.

The MOA-AD, moreover, would not

comply with Article X, Section 20 of

the Constitution

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and
national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1)

Administrative organization;

(2)

Creation of sources of revenues;

(3)

Ancestral domain and natural resources;

(4)

Personal, family, and property relations;

(5)

Regional urban and rural planning development;

(6)

Economic, social, and tourism development;

(7)

Educational policies;

(8)

Preservation and development of the cultural heritage; and

(9)

Such other matters as may be authorized by law for the promotion of the general welfare of the people
of the region. (Underscoring supplied)

Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would
require an amendment that would expand the above-quoted provision. The mere passage of new
legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since any
new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with other
provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE
with treaty-making power in order to accommodate paragraph 4 of the strand on RESOURCES which
states: "The BJE is free to enter into any economic cooperation and trade relations with foreign
countries: provided, however, that such relationships and understandings do not include aggression
against the Government of the Republic of the Philippines x x x." Under our constitutional system, it is
only the President who has that power. Pimentel v. Executive Secretary[155] instructs:

In our system of government, the President, being the head of state, is regarded as the sole organ and
authority in external relations and is the country's sole representative with foreign nations. As the chief
architect of foreign policy, the President acts as the country's mouthpiece with respect to international
affairs. Hence, the President is vested with the authority to deal with foreign states and governments,
extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise
transact the business of foreign relations. In the realm of treaty-making, the President has the sole
authority to negotiate with other states. (Emphasis and underscoring supplied)

Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD
is to be effected. That constitutional provision states: "The State recognizes and promotes the rights of
indigenous cultural communities within the framework of national unity and development."
(Underscoring supplied) An associative arrangement does not uphold national unity. While there may be
a semblance of unity because of the associative ties between the BJE and the national government, the
act of placing a portion of Philippine territory in a status which, in international practice, has generally
been a preparation for independence, is certainly not conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing
statutory law, among which are R.A. No. 9054[156] or the Organic Act of the ARMM, and the IPRA.[157]

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of
"Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and Principles states:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be
accepted as "Bangsamoros". The Bangsamoro people refers to those who are natives or original
inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time
of conquest or colonization of its descendants whether mixed or of full blood. Spouses and their
descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be
respected. (Emphasis and underscoring supplied)

This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the
Organic Act, which, rather than lumping together the identities of the Bangsamoro and other indigenous
peoples living in Mindanao, clearly distinguishes between Bangsamoro people and Tribal peoples, as
follows:

"As used in this Organic Act, the phrase "indigenous cultural community" refers to Filipino citizens
residing in the autonomous region who are:

(a) Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish them
from other sectors of the national community; and

(b) Bangsa Moro people. These are citizens who are believers in Islam and who have retained some or all
of their own social, economic, cultural, and political institutions."

Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of
ancestral domains. The MOA-AD's manner of delineating the ancestral domain of the Bangsamoro
people is a clear departure from that procedure. By paragraph 1 of Territory, the Parties simply agree
that, subject to the delimitations in the agreed Schedules, "[t]he Bangsamoro homeland and historic
territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the
aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic
region."

Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the
following provisions thereof:

SECTION 52. Delineation Process. -- The identification and delineation of ancestral domains shall be
done in accordance with the following procedures:
xxxx

b) Petition for Delineation. -- The process of delineating a specific perimeter may be initiated by the
NCIP with the consent of the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP,
by a majority of the members of the ICCs/IPs;

c) Delineation Proper. -- The official delineation of ancestral domain boundaries including census of all
community members therein, shall be immediately undertaken by the Ancestral Domains Office upon
filing of the application by the ICCs/IPs concerned. Delineation will be done in coordination with the
community concerned and shall at all times include genuine involvement and participation by the
members of the communities concerned;

d) Proof Required. -- Proof of Ancestral Domain Claims shall include the testimony of elders or
community under oath, and other documents directly or indirectly attesting to the possession or
occupation of the area since time immemorial by such ICCs/IPs in the concept of owners which shall be
any one (1) of the following authentic documents:

1)

Written accounts of the ICCs/IPs customs and traditions;

2)

Written accounts of the ICCs/IPs customs and traditions;

3)

Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places
and old villages;

4)

Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs
concerned with other ICCs/IPs;

5)

Survey plans and sketch maps;

6)

Anthropological data;

7)

Genealogical surveys;
8)

Pictures and descriptive histories of traditional communal forests and hunting grounds;

9)

Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills,
terraces and the like; and

10)

Write-ups of names and places derived from the native dialect of the community.

e) Preparation of Maps. -- On the basis of such investigation and the findings of fact based thereon, the
Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete with technical
descriptions, and a description of the natural features and landmarks embraced therein;

f) Report of Investigation and Other Documents. -- A complete copy of the preliminary census and a
report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP;

g) Notice and Publication. -- A copy of each document, including a translation in the native language of
the ICCs/IPs concerned shall be posted in a prominent place therein for at least fifteen (15) days. A copy
of the document shall also be posted at the local, provincial and regional offices of the NCIP, and shall be
published in a newspaper of general circulation once a week for two (2) consecutive weeks to allow
other claimants to file opposition thereto within fifteen (15) days from date of such publication:
Provided, That in areas where no such newspaper exists, broadcasting in a radio station will be a valid
substitute: Provided, further, That mere posting shall be deemed sufficient if both newspaper and radio
station are not available;

h) Endorsement to NCIP. -- Within fifteen (15) days from publication, and of the inspection process, the
Ancestral Domains Office shall prepare a report to the NCIP endorsing a favorable action upon a claim
that is deemed to have sufficient proof. However, if the proof is deemed insufficient, the Ancestral
Domains Office shall require the submission of additional evidence: Provided, That the Ancestral
Domains Office shall reject any claim that is deemed patently false or fraudulent after inspection and
verification: Provided, further, That in case of rejection, the Ancestral Domains Office shall give the
applicant due notice, copy furnished all concerned, containing the grounds for denial. The denial shall be
appealable to the NCIP: Provided, furthermore, That in cases where there are conflicting claims among
ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office shall cause the
contending parties to meet and assist them in coming up with a preliminary resolution of the conflict,
without prejudice to its full adjudication according to the section below.

xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a
discussion of not only the Constitution and domestic statutes, but also of international law is in order,
for

Article II, Section 2 of the Constitution states that the Philippines "adopts the

generally accepted principles of international law as part of the law of the land."

Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,[158] held that the
Universal Declaration of Human Rights is part of the law of the land on account of which it ordered the
release on bail of a detained alien of Russian descent whose deportation order had not been executed
even after two years. Similarly, the Court in Agustin v. Edu[159] applied the aforesaid constitutional
provision to the 1968 Vienna Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of "peoples," understood not
merely as the entire population of a State but also a portion thereof. In considering the question of
whether the people of Quebec had a right to unilaterally secede from Canada, the Canadian Supreme
Court in REFERENCE RE SECESSION OF QUEBEC[160] had occasion to acknowledge that "the right of a
people to self-determination is now so widely recognized in international conventions that the principle
has acquired a status beyond `convention' and is considered a general principle of international law."

Among the conventions referred to are the International Covenant on Civil and Political Rights[161] and
the International Covenant on Economic, Social and Cultural Rights[162] which state, in Article 1 of both
covenants, that all peoples, by virtue of the right of self-determination, "freely determine their political
status and freely pursue their economic, social, and cultural development."

The people's right to self-determination should not, however, be understood as extending to a unilateral
right of secession. A distinction should be made between the right of internal and external self-
determination. REFERENCE RE SECESSION OF QUEBEC is again instructive:

"(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish that the right to self-determination of a
people is normally fulfilled through internal self-determination - a people's pursuit of its political,
economic, social and cultural development within the framework of an existing state. A right to external
self-determination (which in this case potentially takes the form of the assertion of a right to unilateral
secession) arises in only the most extreme of cases and, even then, under carefully defined
circumstances. x x x
External self-determination can be defined as in the following statement from the Declaration on
Friendly Relations, supra, as

The establishment of a sovereign and independent State, the free association or integration with an
independent State or the emergence into any other political status freely determined by a people
constitute modes of implementing the right of self-determination by that people. (Emphasis added)

127. The international law principle of self-determination has evolved within a framework of respect for
the territorial integrity of existing states. The various international documents that support the
existence of a people's right to self-determination also contain parallel statements supportive of the
conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing
state's territorial integrity or the stability of relations between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)

The Canadian Court went on to discuss the exceptional cases in which the right to external self-
determination can arise, namely, where a people is under colonial rule, is subject to foreign domination
or exploitation outside a colonial context, and - less definitely but asserted by a number of
commentators - is blocked from the meaningful exercise of its right to internal self-determination. The
Court ultimately held that the population of Quebec had no right to secession, as the same is not under
colonial rule or foreign domination, nor is it being deprived of the freedom to make political choices and
pursue economic, social and cultural development, citing that Quebec is equitably represented in
legislative, executive and judicial institutions within Canada, even occupying prominent positions
therein.

The exceptional nature of the right of secession is further exemplified in the REPORT OF THE
INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION.
[163] There, Sweden presented to the Council of the League of Nations the question of whether the
inhabitants of the Aaland Islands should be authorized to determine by plebiscite if the archipelago
should remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council,
before resolving the question, appointed an International Committee composed of three jurists to
submit an opinion on the preliminary issue of whether the dispute should, based on international law,
be entirely left to the domestic jurisdiction of Finland. The Committee stated the rule as follows:

x x x [I]n the absence of express provisions in international treaties, the right of disposing of national
territory is essentially an attribute of the sovereignty of every State. Positive International Law does not
recognize the right of national groups, as such, to separate themselves from the State of which they
form part by the simple expression of a wish, any more than it recognizes the right of other States to
claim such a separation. Generally speaking, the grant or refusal of the right to a portion of its
population of determining its own political fate by plebiscite or by some other method, is, exclusively, an
attribute of the sovereignty of every State which is definitively constituted. A dispute between two
States concerning such a question, under normal conditions therefore, bears upon a question which
International Law leaves entirely to the domestic jurisdiction of one of the States concerned. Any other
solution would amount to an infringement of sovereign rights of a State and would involve the risk of
creating difficulties and a lack of stability which would not only be contrary to the very idea embodied in
term "State," but would also endanger the interests of the international community. If this right is not
possessed by a large or small section of a nation, neither can it be held by the State to which the
national group wishes to be attached, nor by any other State. (Emphasis and underscoring supplied)

The Committee held that the dispute concerning the Aaland Islands did not refer to a question which is
left by international law to the domestic jurisdiction of Finland, thereby applying the exception rather
than the rule elucidated above. Its ground for departing from the general rule, however, was a very
narrow one, namely, the Aaland Islands agitation originated at a time when Finland was undergoing
drastic political transformation. The internal situation of Finland was, according to the Committee, so
abnormal that, for a considerable time, the conditions required for the formation of a sovereign State
did not exist. In the midst of revolution, anarchy, and civil war, the legitimacy of the Finnish national
government was disputed by a large section of the people, and it had, in fact, been chased from the
capital and forcibly prevented from carrying out its duties. The armed camps and the police were
divided into two opposing forces. In light of these circumstances, Finland was not, during the relevant
time period, a "definitively constituted" sovereign state. The Committee, therefore, found that Finland
did not possess the right to withhold from a portion of its population the option to separate itself - a
right which sovereign nations generally have with respect to their own populations.

Turning now to the more specific category of indigenous peoples, this term has been used, in
scholarship as well as international, regional, and state practices, to refer to groups with distinct
cultures, histories, and connections to land (spiritual and otherwise) that have been forcibly
incorporated into a larger governing society. These groups are regarded as "indigenous" since they are
the living descendants of pre-invasion inhabitants of lands now dominated by others. Otherwise stated,
indigenous peoples, nations, or communities are culturally distinctive groups that find themselves
engulfed by settler societies born of the forces of empire and conquest.[164] Examples of groups who
have been regarded as indigenous peoples are the Maori of New Zealand and the aboriginal peoples of
Canada.

As with the broader category of "peoples," indigenous peoples situated within states do not have a
general right to independence or secession from those states under international law,[165] but they do
have rights amounting to what was discussed above as the right to internal self-determination.

In a historic development last September 13, 2007, the UN General Assembly adopted the United
Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly
Resolution 61/295. The vote was 143 to 4, the Philippines being included among those in favor, and the
four voting against being Australia, Canada, New Zealand, and the U.S. The Declaration clearly
recognized the right of indigenous peoples to self-determination, encompassing the right to autonomy
or self-government, to wit:

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right they freely determine
their political status and freely pursue their economic, social and cultural development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-
government in matters relating to their internal and local affairs, as well as ways and means for financing
their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic,
social and cultural institutions, while retaining their right to participate fully, if they so choose, in the
political, economic, social and cultural life of the State.

Self-government, as used in international legal discourse pertaining to indigenous peoples, has been
understood as equivalent to "internal self-determination."[166] The extent of self-determination
provided for in the UN DRIP is more particularly defined in its subsequent articles, some of which are
quoted hereunder:

Article 8

Indigenous peoples and individuals have the right not to be subjected to forced assimilation or
destruction of their culture.

States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of
their cultural values or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of
their rights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed
against them.

Article 21

Indigenous peoples have the right, without discrimination, to the improvement of their economic and
social conditions, including, inter alia, in the areas of education, employment, vocational training and
retraining, housing, sanitation, health and social security.

States shall take effective measures and, where appropriate, special measures to ensure continuing
improvement of their economic and social conditions. Particular attention shall be paid to the rights and
special needs of indigenous elders, women, youth, children and persons with disabilities.

Article 26

Indigenous peoples have the right to the lands, territories and resources which they have traditionally
owned, occupied or otherwise used or acquired.

Indigenous peoples have the right to own, use, develop and control the lands, territories and resources
that they possess by reason of traditional ownership or other traditional occupation or use, as well as
those which they have otherwise acquired.

States shall give legal recognition and protection to these lands, territories and resources. Such
recognition shall be conducted with due respect to the customs, traditions and land tenure systems of
the indigenous peoples concerned.

Article 30

Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by
a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples
concerned.

States shall undertake effective consultations with the indigenous peoples concerned, through
appropriate procedures and in particular through their representative institutions, prior to using their
lands or territories for military activities.

Article 32
Indigenous peoples have the right to determine and develop priorities and strategies for the
development or use of their lands or territories and other resources.

States shall consult and cooperate in good faith with the indigenous peoples concerned through their
own representative institutions in order to obtain their free and informed consent prior to the approval
of any project affecting their lands or territories and other resources, particularly in connection with the
development, utilization or exploitation of mineral, water or other resources.

States shall provide effective mechanisms for just and fair redress for any such activities, and
appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or
spiritual impact.

Article 37

Indigenous peoples have the right to the recognition, observance and enforcement of treaties,
agreements and other constructive arrangements concluded with States or their successors and to have
States honour and respect such treaties, agreements and other constructive arrangements.

Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous
peoples contained in treaties, agreements and other constructive arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take the appropriate measures,
including legislative measures, to achieve the ends of this Declaration.

Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded as
embodying customary international law - a question which the Court need not definitively resolve here -
the obligations enumerated therein do not strictly require the Republic to grant the Bangsamoro people,
through the instrumentality of the BJE, the particular rights and powers provided for in the MOA-AD.
Even the more specific provisions of the UN DRIP are general in scope, allowing for flexibility in its
application by the different States.

There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples
their own police and internal security force. Indeed, Article 8 presupposes that it is the State which will
provide protection for indigenous peoples against acts like the forced dispossession of their lands - a
function that is normally performed by police officers. If the protection of a right so essential to
indigenous people's identity is acknowledged to be the responsibility of the State, then surely the
protection of rights less significant to them as such peoples would also be the duty of States. Nor is
there in the UN DRIP an acknowledgement of the right of indigenous peoples to the aerial domain and
atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous peoples to the lands,
territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate
States to grant indigenous peoples the near-independent status of an associated state. All the rights
recognized in that document are qualified in Article 46 as follows:

Nothing in this Declaration may be interpreted as implying for any State, people, group or person any
right to engage in any activity or to perform any act contrary to the Charter of the United Nations or
construed as authorizing or encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and independent States.

Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the
Constitution, it would not suffice to uphold the validity of the MOA-AD so as to render its compliance
with other laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with the
Constitution and the laws as presently worded. Respondents proffer, however, that the signing of the
MOA-AD alone would not have entailed any violation of law or grave abuse of discretion on their part,
precisely because it stipulates that the provisions thereof inconsistent with the laws shall not take effect
until these laws are amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE quoted
earlier, but which is reproduced below for convenience:

7. The Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD
shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur
effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into
force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal
framework with due regard to non derogation of prior agreements and within the stipulated timeframe
to be contained in the Comprehensive Compact.

Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming into
force until the necessary changes to the legal framework are effected. While the word "Constitution" is
not mentioned in the provision now under consideration or anywhere else in the MOA-AD, the term
"legal framework" is certainly broad enough to include the Constitution.

Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the
MOA-AD the provisions thereof regarding the associative relationship between the BJE and the Central
Government, have already violated the Memorandum of Instructions From The President dated March
1, 2001, which states that the "negotiations shall be conducted in accordance with x x x the principles of
the sovereignty and territorial integrity of the Republic of the Philippines." (Emphasis supplied)
Establishing an associative relationship between the BJE and the Central Government is, for the reasons
already discussed, a preparation for independence, or worse, an implicit acknowledgment of an
independent status already prevailing.

Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because the
suspensive clause is invalid, as discussed below.

The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3,
Section 5(c), which states that there shall be established Government Peace Negotiating Panels for
negotiations with different rebel groups to be "appointed by the President as her official emissaries to
conduct negotiations, dialogues, and face-to-face discussions with rebel groups." These negotiating
panels are to report to the President, through the PAPP on the conduct and progress of the
negotiations.

It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its
negotiations with the MILF, was not restricted by E.O. No. 3 only to those options available under the
laws as they presently stand. One of the components of a comprehensive peace process, which E.O. No.
3 collectively refers to as the "Paths to Peace," is the pursuit of social, economic, and political reforms
which may require new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which
reiterates Section 3(a), of E.O. No. 125,[167] states:

SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace process comprise the
processes known as the "Paths to Peace". These component processes are interrelated and not mutually
exclusive, and must therefore be pursued simultaneously in a coordinated and integrated fashion. They
shall include, but may not be limited to, the following:

PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and projects aimed at addressing the root causes
of internal armed conflicts and social unrest. This may require administrative action, new legislation or
even constitutional amendments.

x x x x (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address,

pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in Mindanao. The E.O.
authorized them to "think outside the box," so to speak. Hence, they negotiated and were set on signing
the MOA-AD that included various social, economic, and political reforms which cannot, however, all be
accommodated within the present legal framework, and which thus would require new legislation and
constitutional amendments.

The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it must be
asked
whether the President herself may exercise the power delegated to the GRP Peace Panel under E.O. No.
3, Sec. 4(a).

The President cannot delegate a power that she herself does not possess. May the President, in the
course of peace negotiations, agree to pursue reforms that would require new legislation and
constitutional amendments, or should the reforms be restricted only to those solutions which the
present laws allow? The answer to this question requires a discussion of

the extent of the President's power to conduct peace negotiations.

That the authority of the President to conduct peace negotiations with rebel groups is not explicitly
mentioned in the Constitution does not mean that she has no such authority. In Sanlakas v. Executive
Secretary,[168] in issue was the authority of the President to declare a state of rebellion - an authority
which is not expressly provided for in the Constitution. The Court held thus:

"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the
Court, by a slim 8-7 margin, upheld the President's power to forbid the return of her exiled predecessor.
The rationale for the majority's ruling rested on the President's

. . . unstated residual powers which are implied from the grant of executive power and which are
necessary for her to comply with her duties under the Constitution. The powers of the President are not
limited to what are expressly enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses
under the regime of Mr. Marcos, for the result was a limitation of specific powers of the President,
particularly those relating to the commander-in-chief clause, but not a diminution of the general grant
of executive power.

Thus, the President's authority to declare a state of rebellion springs in the main from her powers as
chief executive and, at the same time, draws strength from her Commander-in-Chief powers. x x x
(Emphasis and underscoring supplied)

Similarly, the President's power to conduct peace negotiations is implicitly included in her powers as
Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general
responsibility to promote public peace, and as Commander-in-Chief, she has the more specific duty to
prevent and suppress rebellion and lawless violence.[169]

As the experience of nations which have similarly gone through internal armed conflict will show,
however, peace is rarely attained by simply pursuing a military solution. Oftentimes, changes as far-
reaching as a fundamental reconfiguration of the nation's constitutional structure is required. The
observations of Dr. Kirsti Samuels are enlightening, to wit:

x x x [T]he fact remains that a successful political and governance transition must form the core of any
post-conflict peace-building mission. As we have observed in Liberia and Haiti over the last ten years,
conflict cessation without modification of the political environment, even where state-building is
undertaken through technical electoral assistance and institution- or capacity-building, is unlikely to
succeed. On average, more than 50 percent of states emerging from conflict return to conflict.
Moreover, a substantial proportion of transitions have resulted in weak or limited democracies.

The design of a constitution and its constitution-making process can play an important role in the
political and governance transition. Constitution-making after conflict is an opportunity to create a
common vision of the future of a state and a road map on how to get there. The constitution can be
partly a peace agreement and partly a framework setting up the rules by which the new democracy will
operate.[170]

In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace
agreements, observed that the typical way that peace agreements establish or confirm mechanisms for
demilitarization and demobilization is by linking them to new constitutional structures addressing
governance, elections, and legal and human rights institutions.[171]

In the Philippine experience, the link between peace agreements and constitution-making has been
recognized by no less than the framers of the Constitution. Behind the provisions of the Constitution on
autonomous regions[172] is the framers' intention to implement a particular peace agreement, namely,
the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then Undersecretary of
National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.

MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my
right to ask them if they are not covered by the other speakers. I have only two questions.

I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is
working very well; it has, in fact, diminished a great deal of the problems. So, my question is: since that
already exists, why do we have to go into something new?

MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right that
certain definite steps have been taken to implement the provisions of the Tripoli Agreement with
respect to an autonomous region in Mindanao . This is a good first step, but there is no question that
this is merely a partial response to the Tripoli Agreement itself and to the fuller standard of regional
autonomy contemplated in that agreement, and now by state policy.[173] (Emphasis supplied)

The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the
credit of their drafters, been partly successful. Nonetheless, the Filipino people are still faced with the
reality of an on-going conflict between the Government and the MILF. If the President is to be expected
to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she
must be given the leeway to explore, in the course of peace negotiations, solutions that may require
changes to the Constitution for their implementation. Being uniquely vested with the power to conduct
peace negotiations with rebel groups, the President is in a singular position to know the precise nature
of their grievances which, if resolved, may bring an end to hostilities.

The President may not, of course, unilaterally implement the solutions that she considers viable, but she
may not be prevented from submitting them as recommendations to Congress, which could then, if it is
minded, act upon them pursuant to the legal procedures for constitutional amendment and revision. In
particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3 of the
Constitution, to propose the recommended amendments or revision to the people, call a constitutional
convention, or submit to the electorate the question of calling such a convention.

While the President does not possess constituent powers - as those powers may be exercised only by
Congress, a Constitutional Convention, or the people through initiative and referendum - she may
submit proposals for constitutional change to Congress in a manner that does not involve the arrogation
of constituent powers.

In Sanidad v. COMELEC,[174] in issue was the legality of then President Marcos' act of directly
submitting proposals for constitutional amendments to a referendum, bypassing the interim National
Assembly which was the body vested by the 1973 Constitution with the power to propose such
amendments. President Marcos, it will be recalled, never convened the interim National Assembly. The
majority upheld the President's act, holding that "the urges of absolute necessity" compelled the
President as the agent of the people to act as he did, there being no interim National Assembly to
propose constitutional amendments. Against this ruling, Justices Teehankee and Muñoz Palma
vigorously dissented. The Court's concern at present, however, is not with regard to the point on which
it was then divided in that controversial case, but on that which was not disputed by either side.

Justice Teehankee's dissent,[175] in particular, bears noting. While he disagreed that the President may
directly submit proposed constitutional amendments to a referendum, implicit in his opinion is a
recognition that he would have upheld the President's action along with the majority had the President
convened the interim National Assembly and coursed his proposals through it. Thus Justice Teehankee
opined:

"Since the Constitution provides for the organization of the essential departments of government,
defines and delimits the powers of each and prescribes the manner of the exercise of such powers, and
the constituent power has not been granted to but has been withheld from the President or Prime
Minister, it follows that the President's questioned decrees proposing and submitting constitutional
amendments directly to the people (without the intervention of the interim National Assembly in whom
the power is expressly vested) are devoid of constitutional and legal basis."[176] (Emphasis supplied)

From the foregoing discussion, the principle may be inferred that the President - in the course of
conducting peace negotiations - may validly consider implementing even those policies that require
changes to the Constitution, but she may not unilaterally implement them without the intervention of
Congress, or act in any way as if the assent of that body were assumed as a certainty.

Since, under the present Constitution, the people also have the power to directly propose amendments
through initiative and referendum, the President may also submit her recommendations to the people,
not as a formal proposal to be voted on in a plebiscite similar to what President Marcos did in Sanidad,
but for their independent consideration of whether these recommendations merit being formally
proposed through initiative.

These recommendations, however, may amount to nothing more than the President's suggestions to
the people, for any further involvement in the process of initiative by the Chief Executive may vitiate its
character as a genuine "people's initiative." The only initiative recognized by the Constitution is that
which truly proceeds from the people. As the Court stated in Lambino v. COMELEC:[177]

"The Lambino Group claims that their initiative is the `people's voice.' However, the Lambino Group
unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the
COMELEC, that `ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria
Macapagal-Arroyo for constitutional reforms.' The Lambino Group thus admits that their `people's'
initiative is an `unqualified support to the agenda' of the incumbent President to change the
Constitution. This forewarns the Court to be wary of incantations of `people's voice' or `sovereign will' in
the present initiative."

It will be observed that the President has authority, as stated in her oath of office,[178] only to preserve
and defend the Constitution. Such presidential power does not, however, extend to allowing her to
change the Constitution, but simply to recommend proposed amendments or revision. As long as she
limits herself to recommending these changes and submits to the proper procedure for constitutional
amendments and revision, her mere recommendation need not be construed as an unconstitutional act.

The foregoing discussion focused on the President's authority to propose constitutional amendments,
since her authority to propose new legislation is not in controversy. It has been an accepted practice for
Presidents in this jurisdiction to propose new legislation. One of the more prominent instances the
practice is usually done is in the yearly State of the Nation Address of the President to Congress.
Moreover, the annual general appropriations bill has always been based on the budget prepared by the
President, which - for all intents and purposes - is a proposal for new legislation coming from the
President.[179]
The "suspensive clause" in the MOA-AD viewed in light of the above-discussed

standards

Given the limited nature of the President's authority to propose constitutional amendments, she cannot
guarantee to any third party that the required amendments will eventually be put in place, nor even be
submitted to a plebiscite. The most she could do is submit these proposals as recommendations either
to Congress or the people, in whom constituent powers are vested.

Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be
reconciled with the present Constitution and laws "shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework." This
stipulation does not bear the marks of a suspensive condition - defined in civil law as a future and
uncertain event - but of a term. It is not a question of whether the necessary changes to the legal
framework will be effected, but when. That there is no uncertainty being contemplated is plain from
what follows, for the paragraph goes on to state that the contemplated changes shall be "with due
regard to non derogation of prior agreements and within the stipulated timeframe to be contained in
the Comprehensive Compact."

Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal
framework contemplated in the MOA-AD - which changes would include constitutional amendments, as
discussed earlier. It bears noting that,

By the time these changes are put in place, the MOA-AD itself would be counted

among the "prior agreements" from which there could be no derogation.

What remains for discussion in the Comprehensive Compact would merely be the implementing details
for these "consensus points" and, notably, the deadline for effecting the contemplated changes to the
legal framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President's

authority to propose constitutional amendments, it being a virtual guarantee that the Constitution and
the laws of the Republic of the Philippines will certainly be adjusted to conform to all the "consensus
points" found in the MOA-AD. Hence, it must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a similar provision appearing in the
1996 final peace agreement between the MNLF and the GRP is most instructive.

As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two
phases. Phase I covered a three-year transitional period involving the putting up of new administrative
structures through Executive Order, such as the Special Zone of Peace and Development (SZOPAD) and
the Southern Philippines Council for Peace and Development (SPCPD), while Phase II covered the
establishment of the new regional autonomous government through amendment or repeal of R.A. No.
6734, which was then the Organic Act of the ARMM.

The stipulations on Phase II consisted of specific agreements on the structure of the expanded
autonomous region envisioned by the parties. To that extent, they are similar to the provisions of the
MOA-AD. There is, however, a crucial difference between the two agreements. While the MOA-AD
virtually guarantees that the "necessary changes to the legal framework" will be put in place, the GRP-
MNLF final peace agreement states thus: "Accordingly, these provisions [on Phase II] shall be
recommended by the GRP to Congress for incorporation in the amendatory or repealing law."

Concerns have been raised that the MOA-AD would have given rise to a binding international law
obligation on the part of the Philippines to change its Constitution in conformity thereto, on the ground
that it may be considered either as a binding agreement under international law, or a unilateral
declaration of the Philippine government to the international community that it would grant to the
Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support in
international law, however.

The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as
signatories. In addition, representatives of other nations were invited to witness its signing in Kuala
Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have had the status
of a binding international agreement had it been signed. An examination of the prevailing principles in
international law, however, leads to the contrary conclusion.

The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty[180] (the Lomé Accord case) of the
Special Court of Sierra Leone is enlightening. The Lomé Accord was a peace agreement signed on July 7,
1999 between the Government of Sierra Leone and the Revolutionary United Front (RUF), a rebel group
with which the Sierra Leone Government had been in armed conflict for around eight years at the time
of signing. There were non-contracting signatories to the agreement, among which were the
Government of the Togolese Republic, the Economic Community of West African States, and the UN.
On January 16, 2002, after a successful negotiation between the UN Secretary-General and the Sierra
Leone Government, another agreement was entered into by the UN and that Government whereby the
Special Court of Sierra Leone was established. The sole purpose of the Special Court, an international
court, was to try persons who bore the greatest responsibility for serious violations of international
humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since November 30,
1996.

Among the stipulations of the Lomé Accord was a provision for the full pardon of the members of the
RUF with respect to anything done by them in pursuit of their objectives as members of that
organization since the conflict began.

In the Lomé Accord case, the Defence argued that the Accord created an internationally binding
obligation not to prosecute the beneficiaries of the amnesty provided therein, citing, among other
things, the participation of foreign dignitaries and international organizations in the finalization of that
agreement. The Special Court, however, rejected this argument, ruling that the Lome Accord is not a
treaty and that it can only create binding obligations and rights between the parties in municipal law,
not in international law. Hence, the Special Court held, it is ineffective in depriving an international court
like it of jurisdiction.

"37.

In regard to the nature of a negotiated settlement of an internal armed conflict it is easy to assume and
to argue with some degree of plausibility, as Defence counsel for the defendants seem to have done,
that the mere fact that in addition to the parties to the conflict, the document formalizing the
settlement is signed by foreign heads of state or their representatives and representatives of
international organizations, means the agreement of the parties is internationalized so as to create
obligations in international law.

xxxx

40.

Almost every conflict resolution will involve the parties to the conflict and the mediator or facilitator of
the settlement, or persons or bodies under whose auspices the settlement took place but who are not at
all parties to the conflict, are not contracting parties and who do not claim any obligation from the
contracting parties or incur any obligation from the settlement.
41.

In this case, the parties to the conflict are the lawful authority of the State and the RUF which has no
status of statehood and is to all intents and purposes a faction within the state. The non-contracting
signatories of the Lomé Agreement were moral guarantors of the principle that, in the terms of Article
XXXIV of the Agreement, "this peace agreement is implemented with integrity and in good faith by both
parties". The moral guarantors assumed no legal obligation. It is recalled that the UN by its
representative appended, presumably for avoidance of doubt, an understanding of the extent of the
agreement to be implemented as not including certain international crimes.

42.

An international agreement in the nature of a treaty must create rights and obligations regulated by
international law so that a breach of its terms will be a breach determined under international law
which will also provide principle means of enforcement. The Lomé Agreement created neither rights nor
obligations capable of being regulated by international law. An agreement such as the Lomé Agreement
which brings to an end an internal armed conflict no doubt creates a factual situation of restoration of
peace that the international community acting through the Security Council may take note of. That,
however, will not convert it to an international agreement which creates an obligation enforceable in
international, as distinguished from municipal, law. A breach of the terms of such a peace agreement
resulting in resumption of internal armed conflict or creating a threat to peace in the determination of
the Security Council may indicate a reversal of the factual situation of peace to be visited with possible
legal consequences arising from the new situation of conflict created. Such consequences such as action
by the Security Council pursuant to Chapter VII arise from the situation and not from the agreement, nor
from the obligation imposed by it. Such action cannot be regarded as a remedy for the breach. A peace
agreement which settles an internal armed conflict cannot be ascribed the same status as one which
settles an international armed conflict which, essentially, must be between two or more warring States.
The Lomé Agreement cannot be characterised as an international instrument. x x x" (Emphasis, italics
and underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of States and international
organizations not parties to the Agreement would not have sufficed to vest in it a binding character
under international law.

In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration of
the Philippine State, binding under international law, that it would comply with all the stipulations
stated therein, with the result that it would have to amend its Constitution accordingly regardless of the
true will of the people. Cited as authority for this view is Australia v. France,[181] also known as the
Nuclear Tests Case, decided by the International Court of Justice (ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's nuclear tests in the
South Pacific. France refused to appear in the case, but public statements from its President, and similar
statements from other French officials including its Minister of Defence, that its 1974 series of
atmospheric tests would be its last, persuaded the ICJ to dismiss the case.[182] Those statements, the
ICJ held, amounted to a legal undertaking addressed to the international community, which required no
acceptance from other States for it to become effective.

Essential to the ICJ ruling is its finding that the French government intended to be bound to the
international community in issuing its public statements, viz:

43.

It is well recognized that declarations made by way of unilateral acts, concerning legal or factual
situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often
are, very specific. When it is the intention of the State making the declaration that it should become
bound according to its terms, that intention confers on the declaration the character of a legal
undertaking, the State being thenceforth legally required to follow a course of conduct consistent with
the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even
though not made within the context of international negotiations, is binding. In these circumstances,
nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any
reply or reaction from other States, is required for the declaration to take effect, since such a
requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the
pronouncement by the State was made.

44.

Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position in
relation to a particular matter with the intention of being bound-the intention is to be ascertained by
interpretation of the act. When States make statements by which their freedom of action is to be
limited, a restrictive interpretation is called for.

xxxx
51.

In announcing that the 1974 series of atmospheric tests would be the last, the French Government
conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests.
It was bound to assume that other States might take note of these statements and rely on their being
effective. The validity of these statements and their legal consequences must be considered within the
general framework of the security of international intercourse, and the confidence and trust which are
so essential in the relations among States. It is from the actual substance of these statements, and from
the circumstances attending their making, that the legal implications of the unilateral act must be
deduced. The objects of these statements are clear and they were addressed to the international
community as a whole, and the Court holds that they constitute an undertaking possessing legal effect.
The Court considers *270 that the President of the Republic, in deciding upon the effective cessation of
atmospheric tests, gave an undertaking to the international community to which his words were
addressed. x x x (Emphasis and underscoring supplied)

As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be
construed as a unilateral declaration only when the following conditions are present: the statements
were clearly addressed to the international community, the state intended to be bound to that
community by its statements, and that not to give legal effect to those statements would be detrimental
to the security of international intercourse. Plainly, unilateral declarations arise only in peculiar
circumstances.

The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the
ICJ entitled Burkina Faso v. Mali,[183] also known as the Case Concerning the Frontier Dispute. The
public declaration subject of that case was a statement made by the President of Mali, in an interview
by a foreign press agency, that Mali would abide by the decision to be issued by a commission of the
Organization of African Unity on a frontier dispute then pending between Mali and Burkina Faso.

Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a unilateral
act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on the peculiar
circumstances surrounding the French declaration subject thereof, to wit:

40.

In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual
circumstances in which the act occurred. For example, in the Nuclear Tests cases, the Court took the
view that since the applicant States were not the only ones concerned at the possible continuance of
atmospheric testing by the French Government, that Government's unilateral declarations had
`conveyed to the world at large, including the Applicant, its intention effectively to terminate these
tests` (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular circumstances of those
cases, the French Government could not express an intention to be bound otherwise than by unilateral
declarations. It is difficult to see how it could have accepted the terms of a negotiated solution with each
of the applicants without thereby jeopardizing its contention that its conduct was lawful. The
circumstances of the present case are radically different. Here, there was nothing to hinder the Parties
from manifesting an intention to accept the binding character of the conclusions of the Organization of
African Unity Mediation Commission by the normal method: a formal agreement on the basis of
reciprocity. Since no agreement of this kind was concluded between the Parties, the Chamber finds that
there are no grounds to interpret the declaration made by Mali's head of State on 11 April 1975 as a
unilateral act with legal implications in regard to the present case. (Emphasis and underscoring supplied)

Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral
declaration on the part of the Philippine State to the international community. The Philippine panel did
not draft the same with the clear intention of being bound thereby to the international community as a
whole or to any State, but only to the MILF. While there were States and international organizations
involved, one way or another, in the negotiation and projected signing of the MOA-AD, they participated
merely as witnesses or, in the case of Malaysia, as facilitator. As held in the Lomé Accord case, the mere
fact that in addition to the parties to the conflict, the peace settlement is signed by representatives of
states and international organizations does not mean that the agreement is internationalized so as to
create obligations in international law.

Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such
commitments would not be detrimental to the security of international intercourse - to the trust and
confidence essential in the relations among States.

In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina Faso
wherein, as already discussed, the Mali President's statement was not held to be a binding unilateral
declaration by the ICJ. As in that case, there was also nothing to hinder the Philippine panel, had it really
been its intention to be bound to other States, to manifest that intention by formal agreement. Here,
that formal agreement would have come about by the inclusion in the MOA-AD of a clear commitment
to be legally bound to the international community, not just the MILF, and by an equally clear indication
that the signatures of the participating states-representatives would constitute an acceptance of that
commitment. Entering into such a formal agreement would not have resulted in a loss of face for the
Philippine government before the international community, which was one of the difficulties that
prevented the French Government from entering into a formal agreement with other countries. That
the Philippine panel did not enter into such a formal agreement suggests that it had no intention to be
bound to the international community. On that ground, the MOA-AD may not be considered a unilateral
declaration under international law.

The MOA-AD not being a document that can bind the Philippines under international law
notwithstanding, respondents' almost consummated act of guaranteeing amendments to the legal
framework is, by itself, sufficient to constitute grave abuse of discretion. The grave abuse lies not in the
fact that they considered, as a solution to the Moro Problem, the creation of a state within a state, but
in their brazen willingness to guarantee that Congress and the sovereign Filipino people would give their
imprimatur to their solution. Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention, or the people themselves
through the process of initiative, for the only way that the Executive can ensure the outcome of the
amendment process is through an undue influence or interference with that process.

The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to
the Moros for the sake of peace, for it can change the Constitution in any it wants, so long as the change
is not inconsistent with what, in international law, is known as Jus Cogens.[184] Respondents, however,
may not preempt it in that decision.

SUMMARY

The petitions are ripe for adjudication. The failure of respondents to consult the local government units
or communities affected constitutes a departure by respondents from their mandate under E.O. No. 3.
Moreover, respondents exceeded their authority by the mere act of guaranteeing amendments to the
Constitution. Any alleged violation of the Constitution by any branch of government is a proper matter
for judicial review.

As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention and intervening
respondents the requisite locus standi in keeping with the liberal stance adopted in David v. Macapagal-
Arroyo.

Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual
dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the present
petitions provide an exception to the "moot and academic" principle in view of (a) the grave violation of
the Constitution involved; (b) the exceptional character of the situation and paramount public interest;
(c) the need to formulate controlling principles to guide the bench, the bar, and the public; and (d) the
fact that the case is capable of repetition yet evading review.

The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli
Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present
MOA-AD can be renegotiated or another one drawn up that could contain similar or significantly
dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been rendered moot in view of the
respondents' action in providing the Court and the petitioners with the official copy of the final draft of
the MOA-AD and its annexes.

The people's right to information on matters of public concern under Sec. 7, Article III of the Constitution
is in splendid symmetry with the state policy of full public disclosure of all its transactions involving
public interest under Sec. 28, Article II of the Constitution. The right to information guarantees the right
of the people to demand information, while Section 28 recognizes the duty of officialdom to give
information even if nobody demands. The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same self-executory
nature, subject only to reasonable safeguards or limitations as may be provided by law.

The contents of the MOA-AD is a matter of paramount public concern involving public interest in the
highest order. In declaring that the right to information contemplates steps and negotiations leading to
the consummation of the contract, jurisprudence finds no distinction as to the executory nature or
commercial character of the agreement.

An essential element of these twin freedoms is to keep a continuing dialogue or process of

communication between the government and the people. Corollary to these twin rights is the design for
feedback mechanisms. The right to public consultation was envisioned to be a species of these public
rights.

At least three pertinent laws animate these constitutional imperatives and justify the exercise of the
people's right to be consulted on relevant matters relating to the peace agenda.

One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local
levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser
on the Peace Process to conduct regular dialogues to seek relevant information, comments, advice, and
recommendations from peace partners and concerned sectors of society.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to
conduct consultations before any project or program critical to the environment and human ecology
including those that may call for the eviction of a particular group of people residing in such locality, is
implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests
ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to
the diaspora or displacement of a great number of inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut
procedure for the recognition and delineation of ancestral domain, which entails, among other things,
the observance of the free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral domain claim by mere
agreement or compromise.

The invocation of the doctrine of executive privilege as a defense to the general right to information or
the specific right to consultation is untenable. The various explicit legal provisions fly in the face of
executive secrecy. In any event, respondents effectively waived such defense after it unconditionally
disclosed the official copies of the final draft of the MOA-AD, for judicial compliance and public scrutiny.

In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he
failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160,
and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive,
arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal
to perform the duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship envisioned
between the GRP and the BJE, are unconstitutional , for the concept presupposes that the associated
entity is a state and implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present
legal framework will not be effective until that framework is amended, the same does not cure its
defect. The inclusion of provisions in the MOA-AD establishing an associative relationship between the
BJE and the Central Government is, itself, a violation of the Memorandum of Instructions From The
President dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is
worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will
eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make
such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent
powers vested only in Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome of the amendment
process is through an undue influence or interference with that process.

While the MOA-AD would not amount to an international agreement or unilateral declaration binding
on the Philippines under international law, respondents' act of guaranteeing amendments is, by itself,
already a constitutional violation that renders the MOA-AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are GIVEN
DUE COURSE and hereby GRANTED.

The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on
Peace of 2001 is declared contrary to law and the Constitution.

SO ORDERED.

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

Commissioner of Customs vs Eastern Sea Trading 3 SCRA 351

CONCEPCION, J.:

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

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

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

The latter is based upon the following premises, namely: that the Central Bank has no authority to
regulate transactions not involving foreign exchange; that the shipments in question are in the nature
of "no-dollar" imports; that, as such, the aforementioned shipments do not involve foreign exchange;
that, insofar as a Central Bank license and a certificate authorizing the importation or release of the
goods under consideration are required by Central Bank Circulars Nos. 44 and 45, the latter are null
and void; and that the seizure and forfeiture of the goods imported from Japan cannot be justified
under Executive Order No. 328, 1 not only because the same seeks to implement an executive
agreement2 — extending the effectivity of our 3 Trades and Financial Agreements 4 with Japan —
which (executive agreement), it believed, is of dubious validity, but, also, because there is no
governmental agency authorized to issue the import license required by the aforementioned
executive order.

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

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

Treaties are formal documents which require ratification with the approval of two thirds of the
Senate. Executive agreements become binding through executive action without the need of
a vote by the Senate or by Congress.

xxx           xxx           xxx

. . . the right of the Executive to enter into binding agreements without the necessity of

subsequent Congressional approval has been confirmed by long usage. From the earliest
days of our history we have entered into executive agreements covering such subjects as
commercial and consular relations, most-favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settlement of claims. The
validity of these has never been seriously questioned by our courts.

xxx           xxx           xxx

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

xxx           xxx           xxx

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

xxx           xxx           xxx

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

In this connection, Francis B. Sayre, former U.S. High Commissioner to the Philippines, said in his
work on "The Constitutionality of Trade Agreement Acts":

Agreements concluded by the President which fall short of treaties are commonly referred to
as executive agreements and are no less common in our scheme of government than are
the more formal instruments — treaties and conventions. They sometimes take the form of
exchanges of notes and at other times that of more formal documents denominated
"agreements" time or "protocols". The point where ordinary correspondence between this
and other governments ends and agreements — whether denominated executive
agreements or exchanges of notes or otherwise — begin, may sometimes be difficult of
ready ascertainment. It would be useless to undertake to discuss here the large variety of
executive agreements as such, concluded from time to time. Hundreds of executive
agreements, other than those entered into under the trade-agreements act, have been
negotiated with foreign governments. . . . It would seem to be sufficient, in order to show that
the trade agreements under the act of 1934 are not anomalous in character, that they are not
treaties, and that they have abundant precedent in our history, to refer to certain classes of
agreements heretofore entered into by the Executive without the approval of the Senate.
They cover such subjects as the inspection of vessels, navigation dues, income tax on
shipping profits, the admission of civil aircraft, customs matters, and commercial relations
generally, international claims, postal matters, the registration of trademarks and copyrights,
etcetera. Some of them were concluded not by specific congressional authorization but in
conformity with policies declared in acts of Congress with respect to the general subject
matter, such as tariff acts; while still others, particularly those with respect of the settlement
of claims against foreign governments, were concluded independently of any legislation." (39
Columbia Law Review, pp. 651, 755.)

The validity of the executive agreement in question is thus patent. In fact, the so-called Parity Rights
provided for in the Ordinance Appended to our Constitution were, prior thereto, the subject of an
executive agreement, made without the concurrence of two-thirds (2/3) of the Senate of the United
States.

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

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

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

Bayan vs Zamora, GR No. 138570, October 10, 2000, 342 SCRA 449

DECISION

BUENA, J.:

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

The antecedents unfold.

On March 14, 1947, the Philippines and the United States of America forged a Military Bases Agreement
which formalized, among others, the use of installations in the Philippine territory by United States
military personnel. To further strengthen their defense and security relationship, the Philippines and the
United States entered into a Mutual Defense Treaty on August 30, 1951. Under the treaty, the parties
agreed to respond to any external armed attack on their territory, armed forces, public vessels, and
aircraft.[1]
In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines and
the United States negotiated for a possible extension of the military bases agreement. On September
16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and
Security which, in effect, would have extended the presence of US military bases in the Philippines.[2]
With the expiration of the RP-US Military Bases Agreement, the periodic military exercises conducted
between the two countries were held in abeyance. Notwithstanding, the defense and security
relationship between the Philippines and the United States of America continued pursuant to the
Mutual Defense Treaty.

On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for Asia
Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo
Severino Jr., to exchange notes on "the complementing strategic interests of the United States and the
Philippines in the Asia-Pacific region." Both sides discussed, among other things, the possible elements
of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA led to a
consolidated draft text, which in turn resulted to a final series of conferences and negotiations[3] that
culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos approved
the VFA, which was respectively signed by public respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard on February 10, 1998.

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

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

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

On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-thirds
(2/3) vote[9] of its members. Senate Resolution No. 443 was then re-numbered as Senate Resolution
No. 18.[10]
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between respondent
Secretary Siazon and United States Ambassador Hubbard.

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

"Article I

Definitions

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

"Within this definition:

"1.

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

"2.

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

"Article II

Respect for Law

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

"Article III
Entry and Departure

"1.

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

"2.

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

"3.

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

"(a)

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

"(b)

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

"(c)

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

"4.

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

"5.

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

"Article IV
Driving and Vehicle Registration

"1.

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

"2.

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

"Article V

Criminal Jurisdiction

"1.

Subject to the provisions of this article:

(a)

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

(b)

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

"2.

(a)

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

(b)

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

(c)
For the purposes of this paragraph and paragraph 3 of this article, an offense relating to security means:

(1)

treason;

(2)

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

"3.

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

(a)

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

(b)

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

(1)

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

(2)

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

(c)

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

(d)

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

(e)

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

(f)

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

(g)

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

"4.

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

"5.

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

"6.

The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall
immediately reside with United States military authorities, if they so request, from the commission of
the offense until completion of all judicial proceedings. United States military authorities shall, upon
formal notification by the Philippine authorities and without delay, make such personnel available to
those authorities in time for any investigative or judicial proceedings relating to the offense with which
the person has been charged in extraordinary cases, the Philippine Government shall present its position
to the United States Government regarding custody, which the United States Government shall take into
full account. In the event Philippine judicial proceedings are not completed within one year, the United
States shall be relieved of any obligations under this paragraph. The one-year period will not include the
time necessary to appeal. Also, the one-year period will not include any time during which scheduled
trial procedures are delayed because United States authorities, after timely notification by Philippine
authorities to arrange for the presence of the accused, fail to do so.

"7.
Within the scope of their legal authority, United States and Philippine authorities shall assist each other
in the carrying out of all necessary investigation into offenses and shall cooperate in providing for the
attendance of witnesses and in the collection and production of evidence, including seizure and, in
proper cases, the delivery of objects connected with an offense.

"8.

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

"9.

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

(a)

To a prompt and speedy trial;

(b)

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

(c)

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

(d)

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

(e)

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

(f)

To have the service of a competent interpreter; and

(g)

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

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

"11.

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

"Article VI

Claims

"1.

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

"2.

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

"Article VII

Importation and Exportation

"1.

United States Government equipment, materials, supplies, and other property imported into or
acquired in the Philippines by or on behalf of the United States armed forces in connection with
activities to which this agreement applies, shall be free of all Philippine duties, taxes and other similar
charges. Title to such property shall remain with the United States, which may remove such property
from the Philippines at any time, free from export duties, taxes, and other similar charges. The
exemptions provided in this paragraph shall also extend to any duty, tax, or other similar charges which
would otherwise be assessed upon such property after importation into, or acquisition within, the
Philippines. Such property may be removed from the Philippines, or disposed of therein, provided that
disposition of such property in the Philippines to persons or entities not entitled to exemption from
applicable taxes and duties shall be subject to payment of such taxes, and duties and prior approval of
the Philippine Government.

"2.

Reasonable quantities of personal baggage, personal effects, and other property for the personal use of
United States personnel may be imported into and used in the Philippines free of all duties, taxes and
other similar charges during the period of their temporary stay in the Philippines. Transfers to persons
or entities in the Philippines not entitled to import privileges may only be made upon prior approval of
the appropriate Philippine authorities including payment by the recipient of applicable duties and taxes
imposed in accordance with the laws of the Philippines. The exportation of such property and of
property acquired in the Philippines by United States personnel shall be free of all Philippine duties,
taxes, and other similar charges.

"Article VIII

Movement of Vessels and Aircraft

"1.

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

"2.

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

"3.

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

"Article IX

Duration and Termination

"This agreement shall enter into force on the date on which the parties have notified each other in
writing through the diplomatic channel that they have completed their constitutional requirements for
entry into force. This agreement shall remain in force until the expiration of 180 days from the date on
which either party gives the other party notice in writing that it desires to terminate the agreement."

Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as legislators, non-
governmental organizations, citizens and taxpayers - assail the constitutionality of the VFA and impute
to herein respondents grave abuse of discretion in ratifying the agreement.

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

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

II

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

III

Does the VFA constitute an abdication of Philippine sovereignty?

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

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

IV

Does the VFA violate:

the equal protection clause under Section 1, Article III of the Constitution?
the Prohibition against nuclear weapons under Article II, Section 8?

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

LOCUS STANDI

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

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

In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have
sustained, or are in danger of sustaining any direct injury as a result of the enforcement of the VFA. As
taxpayers, petitioners have not established that the VFA involves the exercise by Congress of its taxing
or spending powers.[15] On this point, it bears stressing that a taxpayer's suit refers to a case where the
act complained of directly involves the illegal disbursement of public funds derived from taxation.[16]
Thus, in Bugnay Const. & Development Corp. vs. Laron[17], we held:

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

Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence of
any allegation by petitioners that public funds are being misspent or illegally expended, petitioners, as
taxpayers, have no legal standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Tañada, Agapito Aquino and Joker Arroyo, as petitioners-legislators,
do not possess the requisite locus standi to maintain the present suit. While this Court, in Phil.
Constitution Association vs. Hon. Salvador Enriquez,[18] sustained the legal standing of a member of the
Senate and the House of Representatives to question the validity of a presidential veto or a condition
imposed on an item in an appropriation bull, we cannot, at this instance, similarly uphold petitioners'
standing as members of Congress, in the absence of a clear showing of any direct injury to their person
or to the institution to which they belong.

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

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

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

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

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

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

Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,[24] this Court ruled that in cases of
transcendental importance, the Court may relax the standing requirements and allow a suit to prosper
even where there is no direct injury to the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question based on the doctrine of
separation of powers, which enjoins upon the departments of the government a becoming respect for
each others' acts,[25] this Court nevertheless resolves to take cognizance of the instant petitions.

APPLICABLE CONSTITUTIONAL PROVISION

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

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

"No treaty or international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate."

Section 25, Article XVIII, provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, the
requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not bases
but merely troops?

FR. BERNAS. Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thus, in international law, there is no difference between treaties and executive agreements in their
binding effect upon states concerned, as long as the negotiating functionaries have remained within
their powers.[38] International law continues to make no distinction between treaties and executive
agreements: they are equally binding obligations upon nations.[39]
In our jurisdiction, we have recognized the binding effect of executive agreements even without the
concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading,[40] we had
occasion to pronounce:

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

"x x x xxx xxx

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

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

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

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

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

Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the
Senate should be taken as a clear an unequivocal expression of our nation's consent to be bound by said
treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state or of the
government, as the case may be, through which the formal acceptance of the treaty is proclaimed.[43] A
State may provide in its domestic legislation the process of ratification of a treaty. The consent of the
State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such
ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be
required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the
intention of the State to sign the treaty subject to ratification appears from the full powers of its
representative, or was expressed during the negotiation.[44]

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

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

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

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

Equally important is Article 26 of the convention which provides that "Every treaty in force is binding
upon the parties to it and must be performed by them in good faith." This is known as the principle of
pacta sunt servanda which preserves the sanctity of treaties and have been one of the most
fundamental principles of positive international law, supported by the jurisprudence of international
tribunals.[49]
NO GRAVE ABUSE OF DISCRETION

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

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

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

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

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

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

As to the power to concur with treaties, the constitution lodges the same with the Senate alone. Thus,
once the Senate[56] performs that power, or exercises its prerogative within the boundaries prescribed
by the Constitution, the concurrence cannot, in like manner, be viewed to constitute an abuse of power,
much less grave abuse thereof. Corollarily, the Senate, in the exercise of its discretion and acting within
the limits of such power, may not be similarly faulted for having simply performed a task conferred and
sanctioned by no less than the fundamental law.

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

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

SO ORDERED.

Abaya vs Ebdane, et al. GR No. 167919, February 14, 2007

DECISION

CALLEJO, SR., J.:

Before the Court is the petition for certiorari and prohibition under Rule 65 of the Rules of Court
seeking to set aside and nullify Resolution No. PJHL-A-04-012 dated May 7, 2004 issued by the
Bids and Awards Committee (BAC) of the Department of Public Works and Highways (DPWH) and
approved by then DPWH Acting Secretary Florante Soriquez. The assailed resolution recommended
the award to private respondent China Road & Bridge Corporation of the contract for the
implementation of civil works for Contract Package No. I (CP I), which consists of the
improvement/rehabilitation of the San Andres (Codon)-Virac-Jct. Bago-Viga road, with the length of
79.818 kilometers, in the island province of Catanduanes.

The CP I project is one of the four packages comprising the project for the
improvement/rehabilitation of the Catanduanes Circumferential Road, covering a total length of
about 204.515 kilometers, which is the main highway in Catanduanes Province. The road section
(Catanduanes Circumferential Road) is part of the Arterial Road Links Development Project (Phase
IV) funded under Loan Agreement No. PH-P204 dated December 28, 1999 between the Japan Bank
for International Cooperation (JBIC) and the Government of the Republic of the Philippines.

Background

Based on the Exchange of Notes dated December 27, 1999, 1 the Government of Japan and the
Government of the Philippines, through their respective representatives, namely, Mr. Yoshihisa Ara,
Ambassador Extraordinary and Plenipotentiary of Japan to the Republic of the Philippines, and then
Secretary of Foreign Affairs Domingo L. Siazon, have reached an understanding concerning
Japanese loans to be extended to the Philippines. These loans were aimed at promoting our
country’s economic stabilization and development efforts.

The Exchange of Notes consisted of two documents: (1) a Letter from the Government of Japan,
signed by Ambassador Ara, addressed to then Secretary of Foreign Affairs Siazon, confirming the
understanding reached between the two governments concerning the loans to be extended by the
Government of Japan to the Philippines; and (2) a document denominated as Records of Discussion
where the salient terms of the loans as set forth by the Government of Japan, through the Japanese
delegation, were reiterated and the said terms were accepted by the Philippine delegation. Both
Ambassador Ara and then Secretary Siazon signed the Records of Discussion as representatives of
the Government of Japan and Philippine Government, respectively.

The Exchange of Notes provided that the loans to be extended by the Government of Japan to the
Philippines consisted of two loans: Loan I and Loan II. The Exchange of Notes stated in part:
 I

1. A loan in Japanese yen up to the amount of seventy-nine billion eight hundred and sixty-
one million yen (Y79,861,000,000) (hereinafter referred to as "the Loan I") will be extended,
in accordance with the relevant laws and regulations of Japan, to the Government of the
Republic of the Philippines (hereinafter referred to as "the Borrower I") by the Japan Bank for
International Cooperation (hereinafter referred to as "the Bank") to implement the projects
enumerated in the List A attached hereto (hereinafter referred to as "the List A") according to
the allocation for each project as specified in the List A.

2. (1) The Loan I will be made available by loan agreements to be concluded between the
Borrower I and the Bank. The terms and conditions of the Loan I as well as the procedure for
its utilization will be governed by said loan agreements which will contain, inter alia, the
following principles:

...

(2) Each of the loan agreements mentioned in sub-paragraph (1) above will be
concluded after the Bank is satisfied of the feasibility, including environmental
consideration, of the project to which such loan agreement relates.

3. (1) The Loan I will be made available to cover payments to be made by the Philippine
executing agencies to suppliers, contractors and/or consultants of eligible source countries
under such contracts as may be entered into between them for purchases of products and/or
services required for the implementation of the projects enumerated in the List A, provided
that such purchases are made in such eligible source countries for products produced in
and/or services supplied from those countries.

(2) The scope of eligible source countries mentioned in sub-paragraph (1) above will
be agreed upon between the authorities concerned of the two Governments.

(3) A part of the Loan I may be used to cover eligible local currency requirements for
the implementation of the projects enumerated in the List A.

4. With regard to the shipping and marine insurance of the products purchased under the
Loan I, the Government of the Republic of the Philippines will refrain from imposing any
restrictions that may hinder fair and free competition among the shipping and marine
insurance companies.

x x x x 2 
1awphi1.net

Pertinently, List A, which specified the projects to be financed under the Loan I, includes the Arterial
Road Links Development Project (Phase IV), to wit:

LIST A

Maximum amount in million yen)

1. Secondary Education Development and Improvement Project 7,210

2. Rural Water Supply Project (Phase V) 951

 3. Bohol Irrigation Project (Phase II) 6,078

4. Agrarian Reform Infrastructure Support Project (Phase II) 16,990

5. Arterial Road Links Development Project (Phase IV) 15,384

6. Cordillera Road Improvement Project 5,852

7. Philippines-Japan Friendship Highway Mindanao Section Rehabilitation Project (Phase II)

7,434

8. Rehabilitation and Maintenance of Bridges Along Arterial Roads Project (Phase IV) 5,068

9. Maritime Safety Improvement Project (Phase C) 4,714

10. Pinatubo Hazard Urgent Mitigation Project (Phase II) 9,013

11. Pasig-Marikina River Channel Improvement Project (Phase I) 1,167

Total 79,8613

The Exchange of Notes further provided that:

III

xxxx

3. The Government of the Republic of the Philippines will ensure that the products and/or services
mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of paragraph 4 of
Part II are procured in accordance with the guidelines for procurement of the Bank, which set
forth, inter alia, the procedures of international tendering to be followed except where such
procedures are inapplicable or inappropriate.

x x x x4

The Records of Discussion, which formed part of the Exchange of Notes, also stated in part, thus:

xxxx

1. With reference to sub-paragraph (3) of paragraph 3 of Part I of the Exchange of Notes concerning
the financing of eligible local currency requirements for the implementation of the projects mentioned
in the said sub-paragraph, the representative of the Japanese delegation stated that:

(1) such requirement of local currency as general administrative expenses, interest during
construction, taxes and duties, expenses concerning office, remuneration to employees of
the executing agencies and housing, not directly related to the implementation of the said
projects, as well as purchase of land properties, compensation and the like, however, will not
be considered as eligible for financing under the Loan I; and
 (2) the procurement of products and/or services will be made in accordance with the
procedures of international competitive tendering except where such procedures are
inapplicable and inappropriate.

x x x x5

Thus, in accordance with the agreement reached by the Government of Japan and the Philippine
Government, as expressed in the Exchange of Notes between the representatives of the two
governments, the Philippines obtained from and was granted a loan by the JBIC. Loan Agreement
No. PH-P204 dated December 28, 1999, in particular, stated as follows:

Loan Agreement No. PH-P204, dated December 28, 1999, between JAPAN BANK FOR
INTERNATIONAL COOPERATION and the GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES.

In the light of the contents of the Exchange of Notes between the Government of Japan and the
Government of the Republic of the Philippines dated December 27, 1999, concerning Japanese
loans to be extended with a view to promoting the economic stabilization and development efforts of
the Republic of the Philippines.

JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the BANK") and
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES (hereinafter referred to as "the
Borrower") herewith conclude the following Loan Agreement (hereinafter referred to as "the Loan
Agreement", which includes all agreements supplemental hereto).

x x x x6

Under the terms and conditions of Loan Agreement No. PH-P204, JBIC agreed to lend the Philippine
Government an amount not exceeding FIFTEEN BILLION THREE HUNDRED EIGHTY-FOUR
MILLION Japanese Yen (Y 15,384,000,000) as principal for the implementation of the Arterial Road
Links Development Project (Phase IV) on the terms and conditions set forth in the Loan Agreement
and in accordance with the relevant laws and regulations of Japan. 7 The said amount shall be used
for the purchase of eligible goods and services necessary for the implementation of the above-
mentioned project from suppliers, contractors or consultants. 8

Further, it was provided under the said loan agreement that other terms and conditions generally
applicable thereto shall be set forth in the General Terms and Conditions, dated November 1987,
issued by the Overseas Economic Cooperation Fund (OECF) and for the purpose, reference to "the
OECF" and "Fund" therein (General Terms and Conditions) shall be substituted by "the JBIC" and
"Bank," respectively.9 Specifically, the guidelines for procurement of all goods and services to be
financed out of the proceeds of the said loan shall be as stipulated in the Guidelines for Procurement
under OECF Loans dated December 1997 (herein referred to as JBIC Procurement Guidelines). 10

As mentioned earlier, the proceeds of Loan Agreement No. PH-P204 was to be used to finance the
Arterial Road Links Development Project (Phase IV), of which the Catanduanes Circumferential
Road was a part. This road section, in turn, was divided into four contract packages (CP):

CP I: San Andres (Codon)-Virac-Jct. Bato- Viga Road - 79.818 kms

CP II: Viga-Bagamanoc Road - 10.40 kms.

 CP III: Bagamanoc-Pandan Road - 47.50 kms.

CP IV: Pandan-Caramoran-Codon Road - 66.40 kms.11

Subsequently, the DPWH, as the government agency tasked to implement the project, caused the
publication of the "Invitation to Prequalify and to Bid" for the implementation of the CP I project in two
leading national newspapers, namely, the Manila Times and Manila Standard on November 22 and
29, and December 5, 2002.

A total of twenty-three (23) foreign and local contractors responded to the invitation by submitting
their accomplished prequalification documents on January 23, 2003. In accordance with the
established prequalification criteria, eight contractors were evaluated or considered eligible to bid as
concurred by the JBIC. One of them, however, withdrew; thus, only seven contractors submitted
their bid proposals.

The bid documents submitted by the prequalified contractors/bidders were examined to determine
their compliance with the requirements as
stipulated in Article 6 of the Instruction to Bidders. 12 After the lapse of the deadline for the submission
of bid proposals, the opening of the bids commenced immediately. Prior to the opening of the
respective bid proposals, it was announced that the Approved Budget for the Contract (ABC) was in
the amount of ₱738,710,563.67.

The result of the bidding revealed the following three lowest bidders and their respective bids vis-à-
vis the ABC:13

Original Bid As Read As-Corrected Bid Amount

Name of Bidder Variance
(Pesos) (Pesos)

1) China Road And Bridge

₱ 993,183,904.98 ₱952,564,821.71 28.95%
Corporation

2) Cavite Ideal Int’l Const.

₱1,099,926,598.11 ₱1,099,926,598.11 48.90%
Devt. Corp.

3) Italian Thai Dev’t. Public

₱1,125,022,075.34 ₱1,125,392,475.36 52.35%
Company, Ltd.

The bid of private respondent China Road & Bridge Corporation was corrected from the original
₱993,183,904.98 (with variance of 34.45% from the ABC) to ₱952,564,821.71 (with variance of
28.95% from the ABC) based on their letter clarification dated April 21, 2004. 14

After further evaluation of the bids, particularly those of the lowest three bidders, Mr. Hedifume
Ezawa, Project Manager of the Catanduanes Circumferential Road Improvement Project (CCRIP), in
his Contractor’s Bid Evaluation Report dated April 2004, recommended the award of the contract to
private respondent China Road & Bridge Corporation:

In accordance with the Guidelines for the Procurements under ODA [Official Development
Assistance] Loans, the Consultant hereby recommends the award of the contract for the
construction of CP I, San Andres (Codon) – Virac – Jct. Bato – Viga Section under the Arterial Road
Links Development Projects, Phase IV, JBIC Loan No. PH-P204 to the Lowest Complying Bidder,
China Road and Bridge Corporation, at its total corrected bid amount of Nine Hundred Fifty-Two
Million Five Hundred Sixty-Four Thousand Eight Hundred Twenty-One & 71/100 Pesos. 15
The BAC of the DPWH, with the approval of then Acting Secretary Soriquez, issued the assailed
Resolution No. PJHL-A-04-012 dated May 7, 2004 recommending the award in favor of private
respondent China Road & Bridge Corporation of the contract for the implementation of civil works for
CP I, San Andres (Codon) – Virac – Jct. Bato – Viga Road (Catanduanes Circumferential Road
Improvement Project) of the Arterial Roads Links Development Project, Phase IV, located in
Catanduanes Province, under JBIC Loan Agreement No. PH-P204. 16 On September 29, 2004, a
Contract of Agreement was entered into by and between the DPWH and private respondent China
Road & Bridge Corporation for the implementation of the CP I project.

The Parties

Petitioner Plaridel M. Abaya claims that he filed the instant petition as a taxpayer, former lawmaker,
and a Filipino citizen. Petitioner Plaridel C. Garcia likewise claims that he filed the suit as a taxpayer,
former military officer, and a Filipino citizen. Petitioner PMA ’59 Foundation, Inc., on the other hand,
is a non-stock, non-profit corporation organized under the existing Philippine laws. It claims that its
members are all taxpayers and alumni of the Philippine Military Academy. It is represented by its
President, Carlos L. Agustin.

Named as public respondents are the DPWH, as the government agency tasked with the
implementation of government infrastructure projects; the Department of Budget and Management
(DBM) as the government agency that authorizes the release and disbursement of public funds for
the implementation of government infrastructure projects; and the Department of Finance (DOF) as
the government agency that acts as the custodian and manager of all financial resources of the
government. Also named as individual public respondents are Hermogenes E. Ebdane, Jr., Emilia T.
Boncodin and Cesar V. Purisima in their capacities as former Secretaries of the DPWH, DBM and
DOF, respectively. On the other hand, public respondent Norma L. Lasala was impleaded in her
capacity as Treasurer of the Bureau of Treasury.

Private respondent China Road & Bridge Corporation is a duly organized corporation engaged in the
business of construction.

The Petitioners’ Case

The petitioners mainly seek to nullify DPWH Resolution No. PJHL-A-04-012 dated May 7, 2004,
which recommended the award to private respondent China Road & Bridge Corporation of the
contract for the implementation of the civil works of CP I. They also seek to annul the contract of
agreement subsequently entered into by and between the DPWH and private respondent China
Road & Bridge Corporation pursuant to the said resolution.

They pose the following issues for the Court’s resolution:

I. Whether or not Petitioners have standing to file the instant Petition.

II. Whether or not Petitioners are entitled to the issuance of a Writ of Certiorari reversing and
setting aside DPWH Resolution No. PJHL-A-04-012, recommending the award of the
Contract Agreement for the implementation of civil works for CPI, San Andres (CODON)-
VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD
IMPROVEMENT PROJECT) of the Arterial Road Links Development Project, Phase IV,
located in Catanduanes Province, under JBIC L/A No. PH-P204, to China Road & Bridge
Corporation.
 III. Whether or not the Contract Agreement executed by and between the Republic of the
Philippines, through the Department of Public Works and Highways, and the China Road &
Bridge Corporation, for the implementation of civil works for CPI, San Andres (CODON)-
VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD
IMPROVEMENT PROJECT) of the Arterial Road Links Development Project, Phase IV,
located in Catanduanes Province, under JBIC L/A No. PH-P204, is void ab initio.

IV. Whether or not Petitioners are entitled to the issuance of a Writ of Prohibition
permanently prohibiting the implementation of DPWH Resolution No. PJHL-A-04-012 and
the Contract Agreement executed by and between the Republic of the Philippines (through
the Department of Public Works and Highways) and the China Road & Bridge Corporation,
and the disbursement of public funds by the [D]epartment of [B]udget and [M]anagement for
such purpose.

V. Whether or not Petitioners are entitled to a Preliminary Injunction and/or a Temporary

Restraining Order immediately enjoining the implementation of DPWH Resolution No. PJHL-
A-04-012 and the Contract Agreement executed by and between the Republic of the
Philippines (through the Department of Public Works and Highways) and the China Road &
Bridge Corporation, and the disbursement of public funds by the Department of Budget and
Management for such purpose, during the pendency of this case. 17

Preliminarily, the petitioners assert that they have standing or locus standi to file the instant petition.
They claim that as taxpayers and concerned citizens, they have the right and duty to question the
expenditure of public funds on illegal acts. They point out that the Philippine Government allocates a
peso-counterpart for CP I, which amount is appropriated by Congress in the General Appropriations
Act; hence, funds that are being utilized in the implementation of the questioned project also partake
of taxpayers’ money. The present action, as a taxpayers’ suit, is thus allegedly proper.

They likewise characterize the instant petition as one of transcendental importance that warrants the
Court’s adoption of a liberal stance on the issue of standing. It cited several cases where the Court
brushed aside procedural technicalities in order to resolve issues involving paramount public interest
and transcendental importance. 18 Further, petitioner Abaya asserts that he possesses the requisite
standing as a former member of the House of Representatives and one of the principal authors of
Republic Act No. 9184 (RA 9184) 19 known as the Government Procurement Reform Act, the law
allegedly violated by the public respondents.

On the substantive issues, the petitioners anchor the instant petition on the contention that the
award of the contract to private respondent China Road & Bridge Corporation violates RA 9184,
particularly Section 31 thereof which reads:

SEC. 31. Ceiling for Bid Prices. – The ABC shall be the upper limit or ceiling for the Bid prices. Bid
prices that exceed this ceiling shall be disqualified outright from further participating in the bidding.
There shall be no lower limit to the amount of the award.

In relation thereto, the petitioners cite the definition of the ABC, thus:

SEC. 5. Definition of Terms. –

xxx
(a) Approved Budget for the Contract (ABC). – refers to the budget for the contract duly approved by
the Head of the Procuring Entity, as provided for in the General Appropriations Act and/or continuing
appropriations, in the case of National Government Agencies; the Corporate Budget for the contract
approved by the governing Boards, pursuant to E.O. No. 518, series of 1979, in the case of
Government-Owned and/or Controlled Corporations, Government Financial Institutions and State
Universities and Colleges; and the Budget for the contract approved by the respective Sanggunian,
in the case of Local Government Units.

xxx

The petitioners theorize that the foregoing provisions show the mandatory character of ceilings or
upper limits of every bid. Under the above-quoted provisions of RA 9184, all bids or awards should
not exceed the ceilings or upper limits; otherwise, the contract is deemed void and inexistent.

Resolution No. PJHL-A-04-012 was allegedly issued with grave abuse of discretion because it
recommended the award of the contract to private respondent China Road & Bridge Corporation
whose bid was more than ₱200 million overpriced based on the ABC. As such, the award is
allegedly illegal and unconscionable.

In this connection, the petitioners opine that the contract subsequently entered into by and between
the DPWH and private respondent China Road & Bridge Corporation is void ab initio for being
prohibited by RA 9184. They stress that Section 31 thereof expressly provides that "bid prices that
exceed this ceiling shall be disqualified outright from participating in the bidding." The upper limit or
ceiling is called the ABC and since the bid of private respondent China Road & Bridge Corporation
exceeded the ABC for the CP I project, it should have been allegedly disqualified from the bidding
process and should not, by law, have been awarded the said contract. They invoke Article 1409 of
the Civil Code:

ART. 1409. The following contracts are inexistent and void from the beginning:

(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public
order or public policy;

(2) Those which are absolutely simulated or fictitious;

(3) Those whose cause or object did not exist at the time of the transaction;

(4) Those whose object is outside the commerce of men;

(5) Those which contemplate an impossible service;

(6) Those where the intention of the parties relative to the principal object of the contract
cannot be ascertained;

(7) Those expressly prohibited or declared void by law.

For violating the above provision, the contract between the DPWH and private respondent China
Road & Bridge Corporation is allegedly inexistent and void ab initio and can produce no effects
whatsoever.
It is the contention of the petitioners that RA 9184 is applicable to both local- and foreign-funded
procurement contracts. They cite the following excerpt of the deliberations of the Bicameral
Conference Committee on the Disagreeing Provisions of Senate Bill No. 2248 and House Bill No.
4809:20

REP. ABAYA. Mr. Chairman, can we just propose additional amendments? Can we go back to
Section 4, Mr. Chairman?

THE CHAIRMAN (SEN. ANGARA). Section? Section ano, Del, 4? Definition – definition of terms.

REP. ABAYA. Sa House bill, it is sa scope and application.

THE CHAIRMAN (SEN. ANGARA). Okay.

REP. ABAYA. It should read as follows: "This Act shall apply to the procurement of goods, supplies
and materials, infrastructure projects and consulting services regardless of funding source whether
local or foreign by the government."

THE CHAIRMAN (SEN. ANGARA). Okay, accepted. We accept. The Senate accepts it. 21

xxx xxx xxx

THE CHAIRMAN (SEN ANGARA). Just take note of that ano. Medyo nga problematic ‘yan eh. Now,
just for the record Del, can you repeat again the justification for including foreign funded contracts
within the scope para malinaw because the World Bank daw might raise some objection to it.

REP. ABAYA. Well, Mr. Chairman, we should include foreign funded projects kasi these are the big
projects. To give an example, if you allow bids above government estimate, let’s say take the case of
500 million project, included in that 500 million is the 20 percent profit. If you allow them to bid above
government estimate, they will add another say 28 percent of (sic) 30 percent, 30 percent of 500
million is another 150 million. Ito, this is a rich source of graft money, aregluhan na lang, 150 million,
five contractors will gather, "O eto 20 million, 20 million, 20 million." So, it is rigged. ‘Yun ang practice
na nangyayari. If we eliminate that, if we have a ceiling then, it will not be very tempting kasi walang
extra money na pwedeng ibigay sa ibang contractor. So this promote (sic) collusion among bidders,
of course, with the cooperation of irresponsible officials of some agencies. So we should have a
ceiling to include foreign funded projects.22

The petitioners insist that Loan Agreement No. PH-P204 between the JBIC and the Philippine
Government is neither a treaty, an international nor an executive agreement that would bar the
application of RA 9184. They point out that to be considered a treaty, an international or an
executive agreement, the parties must be two sovereigns or States whereas in the case of Loan
Agreement No. PH-P204, the parties are the Philippine Government and the JBIC, a banking agency
of Japan, which has a separate juridical personality from the Japanese Government.

They further insist on the applicability of RA 9184 contending that while it took effect on January 26,
200323 and Loan Agreement No. PH-P204 was executed prior thereto or on December 28, 1999, the
actual procurement or award of the contract to private respondent China Road & Bridge Corporation
was done after the effectivity of RA 9184. The said law is allegedly specific as to its application,
which is on the actual procurement of infrastructure and other projects only, and not on the loan
agreements attached to such projects. Thus, the petition only prays for the annulment of Resolution
No. PJHL-A-04-012 as well as the contract between the DPWH and private respondent China Road
& Bridge Corporation. The petitioners clarify that they do not pray for the annulment of Loan
Agreement No. PH-P204. Since the subject procurement and award of the contract were done after
the effectivity of RA 9184, necessarily, the procurement rules established by that law allegedly apply,
and not Presidential Decree No. 1594 (PD 1594) 24 and Executive Order No. 40 (EO 40), series of
2001, 25 as contended by the respondents. The latter laws, including their implementing rules, have
allegedly been repealed by RA 9184. Even RA 4860, as amended, known as the Foreign
Borrowings Act, the petitioners posit, may have also been repealed or modified by RA 9184 insofar
as its provisions are inconsistent with the latter.

The petitioners also argue that the "Implementing Rules and Regulations (IRR) of RA 9184,
Otherwise Known as the Government Procurement Reform Act, Part A" (IRR-A) cited by the
respondents is not applicable as these rules only govern domestically-funded procurement
contracts. They aver that the implementing rules to govern foreign-funded procurement, as in the
present case, have yet to be drafted and in fact, there are concurrent resolutions drafted by both
houses of Congress for the Reconvening of the Joint Congressional Oversight Committee for the
formulation of the IRR for foreign-funded procurements under RA 9184.

The petitioners maintain that disbursement of public funds to implement a patently void and illegal
contract is itself illegal and must be enjoined. They bring to the Court’s attention the fact that the
works on the CP I project have already commenced as early as October 2004. They thus urge the
Court to issue a writ of certiorari to set aside Resolution No. PJHL-A-04-012 as well as to declare
null and void the contract entered into between the DPWH and private respondent China Road &
Bridge Corporation. They also pray for the issuance of a temporary restraining order and, eventually,
a writ of prohibition to permanently enjoin the DPWH from implementing Resolution No. PJHL-A-04-
012 and its contract with private respondent China Road & Bridge Corporation as well as the DBM
from disbursing funds for the said purpose.

The Respondents’ Counter-Arguments

The public respondents, namely the DPWH, DBM and DOF, and their respective named officials,
through the Office of the Solicitor General, urge the Court to dismiss the petition on grounds that the
petitioners have no locus standi and, in any case, Resolution No. PJHL-A-04-012 and the contract
between the DPWH and private respondent China Road & Bridge Corporation are valid.

According to the public respondents, a taxpayer’s locus standi was recognized in the following
cases: (a) where a tax measure is assailed as unconstitutional; 26 (b) where there is a question of
validity of election laws;27 (c) where legislators questioned the validity of any official action upon the
claim that it infringes on their prerogatives as legislators; 28 (d) where there is a claim of illegal
disbursement or wastage of public funds through the enforcement of an invalid or unconstitutional
law;29 (e) where it involves the right of members of the Senate or House of Representatives to
question the validity of a presidential veto or condition imposed on an item in an appropriation
bill;30 or (f) where it involves an invalid law, which when enforced will put the petitioner in imminent
danger of sustaining some direct injury as a result thereof, or that he has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to
some burdens or penalties by reason of the statute complained of. 31 None of the above
considerations allegedly obtains in the present case.

It is also the view of the public respondents that the fact that petitioner Abaya was a former
lawmaker would not suffice to confer locus standi on himself. Members of Congress may properly
challenge the validity of an official act of any department of the government only upon showing that
the assailed official act affects or impairs their rights and prerogatives as legislators.
The public respondents further assail the standing of the petitioners to file the instant suit claiming
that they failed to allege any specific injury suffered nor an interest that is direct and personal to
them. If at all, the interest or injuries claimed by the petitioners are allegedly merely of a general
interest common to all members of the public. Their interest is allegedly too vague, highly
speculative and uncertain to satisfy the requirements of locus standi.

The public respondents find it noteworthy that the petitioners do not raise issues of constitutionality
but only of contract law, which the petitioners not being privies to the agreement cannot raise. This is
following the principle that a stranger to a contract cannot sue either or both the contracting parties
to annul and set aside the same except when he is prejudiced on his rights and can show detriment
which would positively result to him from the implementation of the contract in which he has no
intervention. There being no particularized interest or elemental substantial injury necessary to
confer locus standi, the public respondents implore the Court to dismiss the petition.

On the merits, the public respondents maintain that the imposition of ceilings or upper limits on bid
prices in RA 9184 does not apply because the CP I project and the entire Catanduanes
Circumferential Road Improvement Project, financed by Loan Agreement No. PH-P204 executed
between the Philippine Government and the JBIC, is governed by the latter’s Procurement
Guidelines which precludes the imposition of ceilings on bid prices. Section 5.06 of the JBIC
Procurement Guidelines reads:

Section 5.06. Evaluation and Comparison of Bids.

xxx

(e) Any procedure under which bids above or below a predetermined bid value assessment are
automatically disqualified is not permitted.

It was explained that other foreign banks such as the Asian Development Bank (ADB) and the World
Bank (WB) similarly prohibit the bracketing or imposition of a ceiling on bid prices.

The public respondents stress that it was pursuant to Loan Agreement No. PH-P204 that the
assailed Resolution No. PJHL-A-04-012 and the subsequent contract between the DPWH and
private respondent China Road & Bridge Corporation materialized. They likewise aver that Loan
Agreement No. PH-P204 is governed by RA 4860, as amended, or the Foreign Borrowings Act.
Section 4 thereof states:

SEC. 4. In the contracting of any loan, credit or indebtedness under this Act, the President of the
Philippines may, when necessary, agree to waive or modify, the application of any law granting
preferences or imposing restrictions on international competitive bidding, including among others
[Act No. 4239, Commonwealth Act No. 138], the provisions of [CA 541], insofar as such provisions
do not pertain to constructions primarily for national defense or security purposes, [RA 5183];
Provided, however, That as far as practicable, utilization of the services of qualified domestic firms in
the prosecution of projects financed under this Act shall be encouraged: Provided, further, That in
case where international competitive bidding shall be conducted preference of at least fifteen per
centum shall be granted in favor of articles, materials or supplies of the growth, production or
manufacture of the Philippines: Provided, finally, That the method and procedure in comparison of
bids shall be the subject of agreement between the Philippine Government and the lending
institution.

DOJ Opinion No. 46, Series of 1987, is relied upon by the public respondents as it opined that an
agreement for the exclusion of foreign assisted projects from the coverage of local bidding
regulations does not contravene existing legislations because the statutory basis for foreign loan
agreements is RA 4860, as amended, and under Section 4 thereof, the President is empowered to
waive the application of any law imposing restrictions on the procurement of goods and services
pursuant to such loans.

Memorandum Circular Nos. 104 and 108, issued by the President, to clarify RA 4860, as amended,
and PD 1594, relative to the award of foreign-assisted projects, are also invoked by the public
respondents, to wit:

Memorandum Circular No. 104:

In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known as
the "Foreign Borrowings Act"

xxx

It is hereby clarified that foreign-assisted infrastructure projects may be exempted from the
application for the pertinent provisions of the Implementing Rules and Regulations (IRR) of
Presidential Decree (P.D.) No. 1594 relative to the method and procedure in the comparison of bids,
which matter may be the subject of agreement between the infrastructure agency concerned and the
lending institution. It should be made clear however that public bidding is still required and can only
be waived pursuant to existing laws.

Memorandum Circular No. 108:

In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known as
the "Foreign Borrowings Act", it is hereby clarified that, for projects supported in whole or in part by
foreign assistance awarded through international or local competitive bidding, the government
agency concerned may award the contract to the lowest evaluated bidder at his bid price consistent
with the provisions of the applicable loan/grant agreement.

Specifically, when the loan/grant agreement so stipulates, the government agency concerned may
award the contract to the lowest bidder even if his/its bid exceeds the approved agency estimate.

It is understood that the concerned government agency shall, as far as practicable, adhere closely to
the implementing rules and regulations of Presidential Decree No. 1594 during loan/grant
negotiation and the implementation of the projects.32

The public respondents characterize foreign loan agreements, including Loan Agreement No. PH-
P204, as executive agreements and, as such, should be observed pursuant to the fundamental
principle in international law of pacta sunt servanda. 33 They cite Section 20 of Article VII of the
Constitution as giving the President the authority to contract foreign loans:

SEC. 20. The President may contract or guarantee foreign loans on behalf of the Republic of the
Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may
be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the
calendar year, submit to the Congress a complete report of its decisions on applications for loans to
be contracted or guaranteed by the Government or Government-owned and Controlled Corporations
which would have the effect of increasing the foreign debt, and containing other matters as may be
provided by law.
The Constitution, the public respondents emphasize, recognizes the enforceability of executive
agreements in the same way that it recognizes generally accepted principles of international law as
forming part of the law of the land. 34 This recognition allegedly buttresses the binding effect of
executive agreements to which the Philippine Government is a signatory. It is pointed out by the
public respondents that executive agreements are essentially contracts governing the rights and
obligations of the parties. A contract, being the law between the parties, must be faithfully adhered to
by them. Guided by the fundamental rule of pacta sunt servanda, the Philippine Government bound
itself to perform in good faith its duties and obligations under Loan Agreement No. PH-P204.

The public respondents further argue against the applicability of RA 9184 stating that it was signed
into law on January 10, 2003. 35 On the other hand, Loan Agreement No. PH-P204 was executed on
December 28, 1999, where the laws then in force on government procurements were PD 1594 and
EO 40. The latter law (EO 40), in particular, excluded from its application "any existing and future
government commitments with respect to the bidding and award of contracts financed partly or
wholly with funds from international financing institutions as well as from bilateral and other similar
foreign sources."

The applicability of EO 40, not RA 9184, is allegedly bolstered by the fact that the "Invitation to
Prequalify and to Bid" for the implementation of the CP I project was published in two leading
national newspapers, namely, the Manila Times and Manila Standard on November 22, 29 and
December 5, 2002, or before the signing into law of RA 9184 on January 10, 2003. In this
connection, the public respondents point to Section 77 of IRR-A, which reads:

SEC. 77. Transitory Clause. –

In all procurement activities, if the advertisement or invitation for bids was issued prior to the
effectivity of the Act, the provisions of EO 40 and its IRR, PD 1594 and its IRR, RA 7160 and its IRR,
or other applicable laws as the case may be, shall govern.

In cases where the advertisements or invitations for bids were issued after the effectivity of the Act
but before the effectivity of this IRR-A, procuring entities may continue adopting the procurement
procedures, rules and regulations provided in EO 40 and its IRR, or other applicable laws, as the
case may be.

Section 4 of RA 9184 is also invoked by the public respondents as it provides:

SEC. 4. Scope and Applications. – This Act shall apply to the Procurement of Infrastructure Projects,
Goods and Consulting Services, regardless of source of funds, whether local or foreign, by all
branches and instrumentalities of government, its departments, offices and agencies, including
government-owned and/or –controlled corporations and local government units, subject to the
provisions of Commonwealth Act No. 138. Any treaty or international or executive agreement
affecting the subject matter of this Act to which the Philippine government is a signatory shall be
observed.

It is also the position of the public respondents that even granting arguendo that Loan Agreement
No. PH-P204 were an ordinary loan contract, still, RA 9184 is inapplicable under the non-impairment
clause36 of the Constitution. The said loan agreement expressly provided that the procurement of
goods and services for the project financed by the same shall be governed by the Guidelines for
Procurement under OECF Loans dated December 1997. Further, Section 5.06 of the JBIC
Procurement Guidelines categorically provides that "[a]ny procedure under which bids above or
below a predetermined bid value assessment are automatically disqualified is not permitted."
The public respondents explain that since the contract is the law between the parties and Loan
Agreement No. PH-P204 states that the JBIC Procurement Guidelines shall govern the parties’
relationship and further dictates that there be no ceiling price for the bidding, it naturally follows that
any subsequent law passed contrary to the letters of the said contract would have no effect with
respect to the parties’ rights and obligations arising therefrom.

To insist on the application of RA 9184 on the bidding for the CP I project would, notwithstanding the
terms and conditions of Loan Agreement No. PH-P204, allegedly violate the constitutional provision
on non-impairment of obligations and contracts, and destroy vested rights duly acquired under the
said loan agreement.

Lastly, the public respondents deny that there was illegal disbursement of public funds by the DBM.
They asseverate that all the releases made by the DBM for the implementation of the entire Arterial
Road Links Project – Phase IV, which includes the Catanduanes Circumferential Road Improvement
Project, were covered by the necessary appropriations made by law, specifically the General
Appropriations Act (GAA). Further, the requirements and procedures prescribed for the release of
the said funds were duly complied with.

For its part, private respondent China Road & Bridge Corporation similarly assails the standing of the
petitioners, either as taxpayers or, in the case of petitioner Abaya, as a former lawmaker, to file the
present suit. In addition, it is also alleged that, by filing the petition directly to this Court, the
petitioners failed to observe the hierarchy of courts.

On the merits, private respondent China Road & Bridge Corporation asserts that the applicable law
to govern the bidding of the CP I project was EO 40, not RA 9184, because the former was the law
governing the procurement of government projects at the time that it was bidded out. EO 40 was
issued by the Office of the President on October 8, 2001 and Section 1 thereof states that:

SEC. 1. Scope and Application. This Executive Order shall apply to the procurement of: (a) goods,
supplies, materials and related services; (b) civil works; and (c) consulting services, by all National
Government agencies, including State Universities and Colleges (SUCs), Government-Owned or
Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs), hereby referred to
as the ‘Agencies.’ This Executive Order shall cover the procurement process from the pre-
procurement conference up to the award of contract.

xxx

The Invitation to Prequalify and to Bid was first published on November 22, 2002. On the other hand,
RA 9184 was signed into law only on January 10, 2003. Since the law in effect at the time the
procurement process was initiated was EO 40, private respondent China Road & Bridge Corporation
submits that it should be the said law which should govern the entire procurement process relative to
the CP I project.

EO 40 expressly recognizes as an exception from the application of the provisions thereof on

approved budget ceilings, those projects financed by international financing institutions (IFIs) and
foreign bilateral sources. Section 1 thereof, quoted in part earlier, further states:

SEC. 1. Scope and Application. x x x

Nothing in this Order shall negate any existing and future government commitments with respect to
the bidding and award of contracts financed partly or wholly with funds from international financing
institutions as well as from bilateral and other similar foreign sources.

Section 1.2 of the Implementing Rules and Regulations of EO 40 is likewise invoked as it provides:

For procurement financed wholly or partly from Official Development Assistance (ODA) funds from
International Financing Institutions (IFIs), as well as from bilateral and other similar foreign sources,
the corresponding loan/grant agreement governing said funds as negotiated and agreed upon by
and between the Government and the concerned IFI shall be observed.

Private respondent China Road & Bridge Corporation thus postulates that following EO 40, the
procurement of goods and services for the CP I project should be governed by the terms and
conditions of Loan Agreement No. PH-P204 entered into between the JBIC and the Philippine
Government. Pertinently, Section 5.06 of the JBIC Procurement Guidelines prohibits the setting of
ceilings on bid prices.

Private respondent China Road & Bridge Corporation claims that when it submitted its bid for the CP
I project, it relied in good faith on the provisions of EO 40. It was allegedly on the basis of the said
law that the DPWH awarded the project to private respondent China Road & Bridge Coporation even
if its bid was higher than the ABC. Under the circumstances, RA 9184 could not be applied
retroactively for to do so would allegedly impair the vested rights of private respondent China Road
& Bridge Corporation arising from its contract with the DPWH.

It is also contended by private respondent China Road & Bridge Corporation that even assuming
arguendo that RA 9184 could be applied retroactively, it is still the terms of Loan Agreement No. PH-
P204 which should govern the procurement of goods and services for the CP I project. It supports its
theory by characterizing the said loan agreement, executed pursuant to the Exchange of Notes
between the Government of Japan and the Philippine Government, as an executive agreement.

Private respondent China Road & Bridge Corporation, like the public respondents, cites RA 4860 as
the basis for the Exchange of Notes and Loan Agreement No. PH-P204. As an international or
executive agreement, the Exchange of Notes and Loan Agreement No. PH-P204 allegedly created a
legally binding obligation on the parties.

The following excerpt of the deliberations of the Bicameral Conference Committee on the
Disagreeing Provision of Senate Bill No. 2248 and House Bill No. 4809 is cited by private
respondent China Road & Bridge Corporation to support its contention that it is the intent of the
lawmakers to exclude from the application of RA 9184 those foreign-funded projects:

xxx

REP. MARCOS. Yes, Mr. Chairman, to respond and to put into the record, a justification for the
inclusion of foreign contracts, may we just state that foreign contracts have, of course, been brought
into the ambit of the law because of the Filipino counterpart for this foreign projects, they are no
longer strictly foreign in nature but fall under the laws of the Philippine government.

THE CHAIRMAN (SEN. ANGARA). Okay. I think that’s pretty clear. I think the possible concern is
that some ODA are with strings attached especially the Japanese. The Japanese are quite strict
about that, that they are (sic) even provide the architect and the design, etcetera, plus, of course, the
goods that will be supplied.
Now, I think we’ve already provided that this is open to all and we will recognize our international
agreements so that this bill will not also restrict the flow of foreign funding, because some countries
now make it a condition that they supply both services and goods especially the Japanese.

So I think we can put a sentence that we continue to honor our international obligations, di ba
Laura?

MR. ENCARNACION. Actually, subject to any treaty.

THE CHAIRMAN (SEN. ANGARA). ‘Yun pala eh. That should allay their anxiety and concern. Okay,
buti na lang for the record para malaman nila na we are conscious sa ODA. 37

Private respondent China Road & Bridge Corporation submits that based on the provisions of the
Exchange of Notes and Loan Agreement No. PH-P204, it was rightfully and legally awarded the CP I
project. It urges the Court to dismiss the petition for lack of merit.

The Court’s Rulings

Petitioners, as taxpayers, possess locus standi to file the present suit

Briefly stated, locus standi is "a right of appearance in a court of justice on a given question." 38 More
particularly, it is a party’s personal and substantial interest in a case such that he has sustained or
will sustain direct injury as a result of the governmental act being challenged. It calls for more than
just a generalized grievance. The term "interest" means a material interest, an interest in issue
affected by the decree, as distinguished from mere interest in the question involved, or a mere
incidental interest.39 Standing or locus standi is a peculiar concept in constitutional law 40 and the
rationale for requiring a party who challenges the constitutionality of a statute to allege such a
personal stake in the outcome of the controversy is "to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions."41

Locus standi, however, is merely a matter of procedure 42 and it has been recognized that in some
cases, suits are not brought by parties who have been personally injured by the operation of a law or
any other government act but by concerned citizens, taxpayers or voters who actually sue in the
public interest.43 Consequently, the Court, in a catena of cases, 44 has invariably adopted a liberal
stance on locus standi, including those cases involving taxpayers.

The prevailing doctrine in taxpayer’s suits is to allow taxpayers to question contracts entered into by
the national government or government- owned or controlled corporations allegedly in contravention
of law.45 A taxpayer is allowed to sue where there is a claim that public funds are illegally disbursed,
or that public money is being deflected to any improper purpose, or that there is a wastage of public
funds through the enforcement of an invalid or unconstitutional law. 46 Significantly, a taxpayer need
not be a party to the contract to challenge its validity. 47

In the present case, the petitioners are suing as taxpayers. They have sufficiently demonstrated that,
notwithstanding the fact that the CP I project is primarily financed from loans obtained by the
government from the JBIC, nonetheless, taxpayers’ money would be or is being spent on the project
considering that the Philippine Government is required to allocate a peso-counterpart therefor. The
public respondents themselves admit that appropriations for these foreign-assisted projects in the
GAA are composed of the loan proceeds and the peso-counterpart. The counterpart funds, the
Solicitor General explains, refer to the component of the project cost to be financed from
government-appropriated funds, as part of the government’s commitment in the implementation of
the project.48 Hence, the petitioners correctly asserted their standing since a part of the funds being
utilized in the implementation of the CP I project partakes of taxpayers’ money.

Further, the serious legal questions raised by the petitioners, e.g., whether RA 9184 applies to the
CP I project, in particular, and to foreign-funded government projects, in general, and the fact that
public interest is indubitably involved considering the public expenditure of millions of pesos, warrant
the Court to adopt in the present case its liberal policy on locus standi.

In any case, for reasons which will be discussed shortly, the substantive arguments raised by the
petitioners fail to persuade the Court as it holds that Resolution No. PJHL-A-04-012 is valid. As a
corollary, the subsequent contract entered into by and between the DPWH and private respondent
China Road & Bridge Corporation is likewise valid.

History of Philippine Procurement Laws

It is necessary, at this point, to give a brief history of Philippine laws pertaining to procurement
through public bidding. The United States Philippine Commission introduced the American practice
of public bidding through Act No. 22, enacted on October 15, 1900, by requiring the Chief Engineer,
United States Army for the Division of the Philippine Islands, acting as purchasing agent under the
control of the then Military Governor, to advertise and call for a competitive bidding for the purchase
of the necessary materials and lands to be used for the construction of highways and bridges in the
Philippine Islands.49 Act No. 74, enacted on January 21, 1901 by the Philippine Commission,
required the General Superintendent of Public Instruction to purchase office supplies through
competitive public bidding.50 Act No. 82, approved on January 31, 1901, and Act No. 83, approved
on February 6, 1901, required the municipal and provincial governments, respectively, to hold
competitive public biddings in the making of contracts for public works and the purchase of office
supplies.51

On June 21, 1901, the Philippine Commission, through Act No. 146, created the Bureau of Supply
and with its creation, public bidding became a popular policy in the purchase of supplies, materials
and equipment for the use of the national government, its subdivisions and instrumentalities. 52 On
February 3, 1936, then President Manuel L. Quezon issued Executive Order No. 16 declaring as a
matter of general policy that government contracts for public service or for furnishing supplies,
materials and equipment to the government should be subjected to public bidding. 53 The requirement
of public bidding was likewise imposed for public works of construction or repair pursuant to the
Revised Administrative Code of 1917.

Then President Diosdado Macapagal, in Executive Order No. 40 dated June 1, 1963, reiterated the
directive that no government contract for public service or for furnishing supplies, materials and
equipment to the government or any of its branches, agencies or instrumentalities, should be
entered into without public bidding except for very extraordinary reasons to be determined by a
Committee constituted thereunder. Then President Ferdinand Marcos issued PD 1594 prescribing
guidelines for government infrastructure projects and Section 4 54 thereof stated that they should
generally be undertaken by contract after competitive public bidding.

Then President Corazon Aquino issued Executive Order No. 301 (1987) prescribing guidelines for
government negotiated contracts. Pertinently, Section 62 of the Administrative Code of 1987
reiterated the requirement of competitive public bidding in government projects. In 1990, Congress
passed RA 6957,55 which authorized the financing, construction, operation and maintenance of
infrastructure by the private sector. RA 7160 was likewise enacted by Congress in 1991 and it
contains provisions governing the procurement of goods and locally-funded civil works by the local
government units.

Then President Fidel Ramos issued Executive Order No. 302 (1996), providing guidelines for the
procurement of goods and supplies by the national government. Then President Joseph Ejercito
Estrada issued Executive Order No. 201 (2000), providing additional guidelines in the procurement
of goods and supplies by the national government. Thereafter, he issued Executive Order No. 262
(2000) amending EO 302 (1996) and EO 201 (2000).

On October 8, 2001, President Gloria Macapagal-Arroyo issued EO 40, the law mainly relied upon
by the respondents, entitled Consolidating Procurement Rules and Procedures for All National
Government Agencies, Government-Owned or Controlled Corporations and Government Financial
Institutions, and Requiring the Use of the Government Procurement System. It accordingly repealed,
amended or modified all executive issuances, orders, rules and regulations or parts thereof
inconsistent therewith.56

On January 10, 2003, President Arroyo signed into law RA 9184. It took effect on January 26, 2004,
or fifteen days after its publication in two newspapers of general circulation. 57 It expressly repealed,
among others, EO 40, EO 262 (2000), EO 302(1996) and PD 1594, as amended:

SEC. 76. Repealing Clause. —This law repeals Executive Order No. 40, series of 2001, entitled
"Consolidating Procurement Rules and Procedures for All National Government Agencies,
Government Owned or Controlled Corporations and/or Government Financial Institutions, and
Requiring the Use of the Government Electronic Procurement System"; Executive Order No. 262,
series of 1996, entitled "Amending Executive Order No. 302, series of 1996, entitled Providing
Policies, Guidelines, Rules and Regulations for the Procurement of Goods/Supplies by the National
Government" and Section 3 of Executive Order No. 201, series of 2000, entitled "Providing
Additional Policies and Guidelines in the Procurement of Goods/Supplies by the National
Government"; Executive Order No. 302, series of 1996, entitled "Providing Policies, Guidelines,
Rules and Regulations for the Procurement of Goods/Supplies by the National Government" and
Presidential Decree No. 1594 dated June 11, 1978, entitled "Prescribing Policies, Guidelines, Rules
and Regulations for Government Infrastructure Contracts." This law amends Title Six, Book Two of
Republic Act No. 7160, otherwise known as the "Local Government Code of 1991"; the relevant
provisions of Executive Order No. 164, series of 1987, entitled "Providing Additional Guidelines in
the Processing and Approval of Contracts of the National Government"; and the relevant provisions
of Republic Act No. 7898 dated February 23, 1995, entitled "An Act Providing for the Modernization
of the Armed Forces of the Philippines and for Other Purposes." Any other law, presidential decree
or issuance, executive order, letter of instruction, administrative order, proclamation, charter, rule or
regulation and/or parts thereof contrary to or inconsistent with the provisions of this Act is hereby
repealed, modified or amended accordingly.

In addition to these laws, RA 4860, as amended, must be mentioned as Section 4 thereof provides
that "[i]n the contracting of any loan, credit or indebtedness under this Act, the President of the
Philippines may, when necessary, agree to waive or modify the application of any law granting
preferences or imposing restrictions on international competitive bidding x x x Provided, finally, That
the method and procedure in the comparison of bids shall be the subject of agreement between the
Philippine Government and the lending institution."

EO 40, not RA 9184, is applicable to the procurement

process undertaken for the CP I project. RA 9184

cannot be given retroactive application.

It is not disputed that with respect to the CP I project, the Invitation to Prequalify and to Bid for its
implementation was published in two leading national newspapers, namely, the Manila Times and
Manila Standard on November 22, 29 and December 5, 2002. At the time, the law in effect was EO
40. On the other hand, RA 9184 took effect two months later or on January 26, 2003. Further, its full
implementation was even delayed as IRR-A was only approved by President Arroyo on September
18, 2003 and subsequently published on September 23, 2003 in the Manila Times and Malaya
newspapers.58

The provisions of EO 40 apply to the procurement process pertaining to the CP I project as it is

explicitly provided in Section 1 thereof that:

SEC. 1. Scope and Application. – This Executive Order shall apply to see procurement of (a) goods,
supplies, materials and related service; (b) civil works; and (c) consulting services, by all National
Government agencies, including State Universities and Colleges (SUCs), Government-Owned or –
Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs), hereby referred to
as "Agencies." This Executive Order shall cover the procurement process from the pre-procurement
conference up to the award of the contract.

Nothing in this Order shall negate any existing and future government commitments with respect to
the bidding and award of contracts financed partly or wholly with funds from international financing
institutions as well as from bilateral and similar foreign sources.

The procurement process basically involves the following steps: (1) pre-procurement conference; (2)
advertisement of the invitation to bid; (3) pre-bid conference; (4) eligibility check of prospective
bidders; (5) submission and receipt of bids; (6) modification and withdrawal of bids; (7) bid opening
and examination; (8) bid evaluation; (9) post qualification; (10) award of contract and notice to
proceed.59 Clearly then, when the Invitation to Prequalify and to Bid for the implementation of the CP
I project was published on November 22, 29 and December 5, 2002, the procurement process
thereof had already commenced and the application of EO 40 to the procurement process for the CP
I project had already attached.

RA 9184 cannot be applied retroactively to govern the procurement process relative to the CP I
project because it is well settled that a law or regulation has no retroactive application unless it
expressly provides for retroactivity. 60 Indeed, Article 4 of the Civil Code is clear on the matter: "[l]aws
shall have no retroactive effect, unless the contrary is provided." In the absence of such categorical
provision, RA 9184 will not be applied retroactively to the CP I project whose procurement process
commenced even before the said law took effect.

That the legislators did not intend RA 9184 to have retroactive effect could be gleaned from the IRR-
A formulated by the Joint Congressional Oversight Committee (composed of the Chairman of the
Senate Committee on Constitutional Amendments and Revision of Laws, and two members thereof
appointed by the Senate President and the Chairman of the House Committee on Appropriations,
and two members thereof appointed by the Speaker of the House of Representatives) and the
Government Procurement Policy Board (GPPB). Section 77 of the IRR-A states, thus:

SEC. 77. Transitory Clause

In all procurement activities, if the advertisement or invitation for bids was issued prior to the
effectivity of the Act, the provisions of E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7160 and its
IRR, or other applicable laws, as the case may be, shall govern.
In cases where the advertisements or invitations for bids were issued after the effectivity of the Act
but before the effectivity of this IRR-A, procuring entities may continue adopting the procurement
procedures, rules and regulations provided in E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7160
and its IRR, or other applicable laws, as the case may be.

In other words, under IRR-A, if the advertisement of the invitation for bids was issued prior to the
effectivity of RA 9184, such as in the case of the CP I project, the provisions of EO 40 and its IRR,
and PD 1594 and its IRR in the case of national government agencies, and RA 7160 and its IRR in
the case of local government units, shall govern.

Admittedly, IRR-A covers only fully domestically-funded procurement activities from procurement
planning up to contract implementation and that it is expressly stated that IRR-B for foreign-funded
procurement activities shall be subject of a subsequent issuance. 61 Nonetheless, there is no reason
why the policy behind Section 77 of IRR-A cannot be applied to foreign-funded procurement projects
like the CP I project. Stated differently, the policy on the prospective or non-retroactive application of
RA 9184 with respect to domestically-funded procurement projects cannot be any different with
respect to foreign-funded procurement projects like the CP I project. It would be incongruous, even
absurd, to provide for the prospective application of RA 9184 with respect to domestically-funded
procurement projects and, on the other hand, as urged by the petitioners, apply RA 9184
retroactively with respect to foreign- funded procurement projects. To be sure, the lawmakers could
not have intended such an absurdity.

Thus, in the light of Section 1 of EO 40, Section 77 of IRR-A, as well as the fundamental rule
embodied in Article 4 of the Civil Code on prospectivity of laws, the Court holds that the procurement
process for the implementation of the CP I project is governed by EO 40 and its IRR, not RA 9184.

Under EO 40, the award of the contract to private

respondent China Road & Bridge Corporation is valid

Section 25 of EO 40 provides that "[t]he approved budget of the contract shall be the upper limit or
ceiling of the bid price. Bid prices which exceed this ceiling shall be disqualified outright from further
participating in the bidding. There shall be no lower limit to the amount of the award. x x x" It should
be observed that this text is almost similar to the wording of Section 31 of RA 9184, relied upon by
the petitioners in contending that since the bid price of private respondent China Road & Bridge
Corporation exceeded the ABC, then it should not have been awarded the contract for the CP I
project.

Nonetheless, EO 40 expressly recognizes as an exception to its scope and application those

government commitments with respect to bidding and award of contracts financed partly or wholly
with funds from international financing institutions as well as from bilateral and other similar foreign
sources. The pertinent portion of Section 1 of EO 40 is quoted anew:

SEC. 1. Scope and Application. – x x x

Nothing in this Order shall negate any existing and future government commitments with respect to
the bidding and award of contracts financed partly or wholly with funds from international financing
institutions as well as from bilateral and similar foreign sources.

In relation thereto, Section 4 of RA 4860, as amended, was correctly cited by the respondents as
likewise authorizing the President, in the contracting of any loan, credit or indebtedness thereunder,
"when necessary, agree to waive or modify the application of any law granting preferences or
imposing restrictions on international competitive bidding x x x." The said provision of law further
provides that "the method and procedure in the comparison of bids shall be the subject of agreement
between the Philippine Government and the lending institution."

Consequently, in accordance with these applicable laws, the procurement of goods and services for
the CP I project is governed by the corresponding loan agreement entered into by the government
and the JBIC, i.e., Loan Agreement No. PH-P204. The said loan agreement stipulated that the
procurement of goods and services for the Arterial Road Links Development Project (Phase IV), of
which CP I is a component, is to be governed by the JBIC Procurement Guidelines. Section 5.06,
Part II (International Competitive Bidding) thereof quoted earlier reads:

Section 5.06. Evaluation and Comparison of Bids

xxx

(e) Any procedure under which bids above or below a predetermined bid value assessment are
automatically disqualified is not permitted.62

It is clear that the JBIC Procurement Guidelines proscribe the imposition of ceilings on bid prices. On
the other hand, it enjoins the award of the contract to the bidder whose bid has been determined to
be the lowest evaluated bid. The pertinent provision, quoted earlier, is reiterated, thus:

Section 5.09. Award of Contract

The contract is to be awarded to the bidder whose bid has been determined to be the lowest
evaluated bid and who meets the appropriate standards of capability and financial resources. A
bidder shall not be required as a condition of award to undertake responsibilities or work not
stipulated in the specifications or to modify the bid. 63

Since these terms and conditions are made part of Loan Agreement No. PH-P204, the government
is obliged to observe and enforce the same in the procurement of goods and services for the CP I
project. As shown earlier, private respondent China Road & Bridge Corporation’s bid was the lowest
evaluated bid, albeit 28.95% higher than the ABC. In accordance with the JBIC Procurement
Guidelines, therefore, it was correctly awarded the contract for the CP I project.

Even if RA 9184 were to be applied retroactively, the terms of the Exchange of Notes dated
December 27, 1999 and Loan Agreement No. PH-P204 would still govern the procurement for the
CP I project

For clarity, Section 4 of RA 9184 is quoted anew, thus:

SEC. 4. Scope and Applications. – This Act shall apply to the Procurement of Infrastructure Projects,
Goods and Consulting Services, regardless of source of funds, whether local or foreign, by all
branches and instrumentalities of government, its departments, offices and agencies, including
government-owned and/or –controlled corporations and local government units, subject to the
provisions of Commonwealth Act No. 138. Any treaty or international or executive agreement
affecting the subject matter of this Act to which the Philippine government is a signatory shall be
observed.
The petitioners, in order to place the procurement process undertaken for the CP I project within the
ambit of RA 9184, vigorously assert that Loan Agreement No. PH-P204 is neither a treaty, an
international agreement nor an executive agreement. They cite Executive Order No. 459 dated
November 25, 1997 where the three agreements are defined in this wise:

a) International agreement – shall refer to a contract or understanding, regardless of

nomenclature, entered into between the Philippines and another government in written form
and governed by international law, whether embodied in a single instrument or in two or
more related instruments.

b) Treaties – international agreements entered into by the Philippines which require

legislative concurrence after executive ratification. This term may include compacts like
conventions, declarations, covenants and acts.

c) Executive agreements – similar to treaties except that they do not require legislative
concurrence.64

The petitioners mainly argue that Loan Agreement No. PH-P204 does not fall under any of the three
categories because to be any of the three, an agreement had to be one where the parties are the
Philippines as a State and another State. The JBIC, the petitioners maintain, is a Japanese banking
agency, which presumably has a separate juridical personality from the Japanese Government.

The petitioners’ arguments fail to persuade. The Court holds that Loan Agreement No. PH-P204
taken in conjunction with the Exchange of Notes dated December 27, 1999 between the Japanese
Government and the Philippine Government is an executive agreement.

To recall, Loan Agreement No. PH-P204 was executed by and between the JBIC and the Philippine
Government pursuant to the Exchange of Notes executed by and between Mr. Yoshihisa Ara,
Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and then Foreign Affairs
Secretary Siazon, in behalf of their respective governments. The Exchange of Notes expressed that
the two governments have reached an understanding concerning Japanese loans to be extended to
the Philippines and that these loans were aimed at promoting our country’s economic stabilization
and development efforts.

Loan Agreement No. PH-P204 was subsequently executed and it declared that it was so entered by
the parties "[i]n the light of the contents of the Exchange of Notes between the Government of Japan
and the Government of the Republic of the Philippines dated December 27, 1999, concerning
Japanese loans to be extended with a view to promoting the economic stabilization and
development efforts of the Republic of the Philippines." 65 Under the circumstances, the JBIC may
well be considered an adjunct of the Japanese Government. Further, Loan Agreement No. PH-P204
is indubitably an integral part of the Exchange of Notes. It forms part of the Exchange of Notes such
that it cannot be properly taken independent thereof.

In this connection, it is well to understand the definition of an "exchange of notes" under international
law. The term is defined in the United Nations Treaty Collection in this wise:

An "exchange of notes" is a record of a routine agreement that has many similarities with the private
law contract. The agreement consists of the exchange of two documents, each of the parties being
in the possession of the one signed by the representative of the other. Under the usual procedure,
the accepting State repeats the text of the offering State to record its assent. The signatories of the
letters may be government Ministers, diplomats or departmental heads. The technique of exchange
of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid
the process of legislative approval. 66

It is stated that "treaties, agreements, conventions, charters, protocols, declarations, memoranda of

understanding, modus vivendi and exchange of notes" all refer to "international instruments binding
at international law."67 It is further explained that-

Although these instruments differ from each other by title, they all have common features and
international law has applied basically the same rules to all these instruments. These rules are the
result of long practice among the States, which have accepted them as binding norms in their mutual
relations. Therefore, they are regarded as international customary law. Since there was a general
desire to codify these customary rules, two international conventions were negotiated. The 1969
Vienna Convention on the Law of Treaties ("1969 Vienna Convention"), which entered into force on
27 January 1980, contains rules for treaties concluded between States. The 1986 Vienna
Convention on the Law of Treaties between States and International Organizations ("1986 Vienna
Convention"), which has still not entered into force, added rules for treaties with international
organizations as parties. Both the 1969 Vienna Convention and the 1986 Vienna Convention do not
distinguish between the different designations of these instruments. Instead, their rules apply to all of
those instruments as long as they meet the common requirements. 68

Significantly, an exchange of notes is considered a form of an executive agreement, which becomes

binding through executive action without the need of a vote by the Senate or Congress. The
following disquisition by Francis B. Sayre, former United States High Commissioner to the
Philippines, entitled "The Constitutionality of Trade Agreement Acts," quoted in Commissioner of
Customs v. Eastern Sea Trading,69 is apropos:

Agreements concluded by the President which fall short of treaties are commonly referred to as
executive agreements and are no less common in our scheme of government than are the more
formal instruments – treaties and conventions. They sometimes take the form of exchange of notes
and at other times that of more formal documents denominated "agreements" or "protocols". The
point where ordinary correspondence between this and other governments ends and agreements –
whether denominated executive agreements or exchange of notes or otherwise – begin, may
sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the
large variety of executive agreements as such, concluded from time to time. Hundreds of executive
agreements, other than those entered into under the trade-agreements act, have been negotiated
with foreign governments. x x x70

The Exchange of Notes dated December 27, 1999, stated, inter alia, that the Government of Japan
would extend loans to the Philippines with a view to promoting its economic stabilization and
development efforts; Loan I in the amount of Y79,8651,000,000 would be extended by the JBIC to
the Philippine Government to implement the projects in the List A (including the Arterial Road Links
Development Project - Phase IV); and that such loan (Loan I) would be used to cover payments to
be made by the Philippine executing agencies to suppliers, contractors and/or consultants of eligible
source countries under such contracts as may be entered into between them for purchases of
products and/or services required for the implementation of the projects enumerated in the List
A.71 With respect to the procurement of the goods and services for the projects, it bears reiterating
that as stipulated:

3. The Government of the Republic of the Philippines will ensure that the products and/or services
mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of paragraph 4 of
Part II are procured in accordance with the guidelines for procurement of the Bank, which set
forth, inter alia, the procedures of international tendering to be followed except where such
procedures are inapplicable or inappropriate. 72

The JBIC Procurements Guidelines, as quoted earlier, forbids any procedure under which bids
above or below a predetermined bid value assessment are automatically disqualified. Succinctly put,
it absolutely prohibits the imposition of ceilings on bids.

Under the fundamental principle of international law of pacta sunt servanda, 73 which is, in fact,
embodied in Section 4 of RA 9184 as it provides that "[a]ny treaty or international or executive
agreement affecting the subject matter of this Act to which the Philippine government is a signatory
shall be observed," the DPWH, as the executing agency of the projects financed by Loan Agreement
No. PH-P204, rightfully awarded the contract for the implementation of civil works for the CP I project
to private respondent China Road & Bridge Corporation.

WHEREFORE, premises considered, the petition is DISMISSED.

SO ORDERED.

Secretary of Justice vs Lantion, GR No. 139465.

MELO, J.:

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

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

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

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

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

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

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

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

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

(p. 14, Rollo.)

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

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

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

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

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

Evaluation by this Department of the aforementioned documents is not a preliminary

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

It is only after the filing of the petition for extradition when the person sought to be extradited
will be furnished by the court with copies of the petition, request and extradition documents
and this Department will not pose any objection to a request for ample time to evaluate said
documents.

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

3. This Department is not in a position to hold in abeyance proceedings in connection with an

extradition request. Article 26 of the Vienna Convention on the Law of Treaties, to which we
are a party provides that "[E]very treaty in force is binding upon the parties to it and must be
performed by them in good faith". Extradition is a tool of criminal law enforcement and to be
effective, requests for extradition or surrender of accused or convicted persons must be
processed expeditiously.

(pp. 77-78, Rollo.)

Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional
Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the
Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation,
for mandamus (to compel herein petitioner to furnish private respondent the extradition documents,
to give him access thereto, and to afford him an opportunity to comment on, or oppose, the
extradition request, and thereafter to evaluate the request impartially, fairly and
objectively); certiorari (to set aside herein petitioner's letter dated July 13, 1999); and prohibition (to
restrain petitioner from considering the extradition request and from filing an extradition petition in
court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any
act directed to the extradition of private respondent to the United States), with an application for the
issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-105, Rollo).
The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to
Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable
Ralph C. Lantion.

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

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

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

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

SO ORDERED.

(pp. 110-111, Rollo.)

Forthwith, petitioner initiated the instant proceedings, arguing that:

PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE:

I.

BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS

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

II.

PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES

UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW;

III.
 THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE,
FORMALLY AND SUBSTANTIALLY DEFICIENT; AND

IV.

PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND

ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY.

(pp. 19-20, Rollo.)

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

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

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

(pp. 120-121, Rollo.)

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

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

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

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

The Extradition Request

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6. Documents, statements, or other types of information specified in paragraph 3 or

paragraph 4 of said Article, as applicable.

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

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

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

9. A copy of the charging document.

(Paragraph 3, ibid.)

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

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

The Extradition Petition

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

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

The Extradition Hearing

The Extradition Law does not specifically indicate whether the extradition proceeding is criminal,
civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the
hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and not
inconsistent with the summary nature of the proceedings, shall apply. During the hearing, Section 8
of the Decree provides that the attorney having charge of the case may, upon application by the
Requesting State, represent the latter throughout the proceedings.
Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving
the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition
(Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final
and immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal
in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the
required 15-day period to file brief (Section 13, ibid.).

The trial court determines whether or not the offense mentioned in the petition is extraditable based
on the application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-
US Extradition Treaty. The trial court also determines whether or not the offense for which
extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition Treaty).
1âwphi1.nêt

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

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

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

The two Departments seem to have misread the scope of their duties and authority, one abdicating
its powers and the other enlarging its commission. The Department of Foreign Affairs, moreover,
has, through the Solicitor General, filed a manifestation that it is adopting the instant petition as its
own, indirectly conveying the message that if it were to evaluate the extradition request, it would not
allow private respondent to participate in the process of evaluation.
Plainly then, the record cannot support the presumption of regularity that the Department of Foreign
Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a
well-founded judgment that the request and its annexed documents satisfy the requirements of law.
The Secretary of Justice, eminent as he is in the field of law, could not privately review the papers all
by himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or
his undersecretary, in less than one day, make the more authoritative determination?

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

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

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

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

The above description in Ruperto applies to an administrative body authorized to evaluate

extradition documents. The body has no power to adjudicate in regard to the rights and obligations
of both the Requesting State and the prospective extraditee. Its only power is to determine whether
the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the
basis of an extradition petition. Such finding is thus merely initial and not final. The body has no
power to determine whether or not the extradition should be effected. That is the role of the court.
The body's power is limited to an initial finding of whether or not the extradition petition can be filed
in court.
It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is
characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition
process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This
deprivation can be effected at two stages: First, the provisional arrest of the prospective extraditee
pending the submission of the request. This is so because the Treaty provides that in case of
urgency, a contracting party may request the provisional arrest of the person sought pending
presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be
automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree
No. 1069 provides for a shorter period of 20 days after which the arrested person could be
discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the
provisions only mean that once a request is forwarded to the Requested State, the prospective
extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9,
RP-US Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the
purpose of this detention is to prevent his possible flight from the Requested State. Second, the
temporary arrest of the prospective extraditee during the pendency of the extradition petition in court
(Section 6, Presidential Decree No. 1069).

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

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

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

Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a

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

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

By comparison, a favorable action in an extradition request exposes a person to eventual extradition

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

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

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

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

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

Due process is comprised of two components — substantive due process which requires the
intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property,
and procedural due process which consists of the two basic rights of notice and hearing, as well as
the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993
Ed., pp. 102-106).

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

In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule

112 of the Rules of Court guarantees the respondent's basic due process rights, granting him the
right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the
right to submit counter-affidavits and other supporting documents within ten days from receipt
thereof. Moreover, the respondent shall have the right to examine all other evidence submitted by
the complainant.

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

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

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

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

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

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

American jurisprudence distinguishes between interstate rendition or extradition which is based on

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

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

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

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

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

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

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

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

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

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

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

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

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

The establishment of prompt efficacious procedures to achieve legitimate state ends is a

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When the individual himself is involved in official government action because said action has a direct
bearing on his life, and may either cause him some kind of deprivation or injury, he actually invokes
the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to
information on matters of public concern. As to an accused in a criminal proceeding, he invokes
Section 14, particularly the right to be informed of the nature and cause of the accusation against
him.

The right to information is implemented by the right of access to information within the control of the
government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337).
Such information may be contained in official records, and in documents and papers pertaining to
official acts, transactions, or decisions.

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

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

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

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

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

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

Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the
evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition
request and the supporting documents.

We disagree.

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

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

A libertarian approach is thus called for under the premises.

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

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

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

How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners
of Presidential Decree No. 1069?

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

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

(at p. 671)

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

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

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

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

SO ORDERED.

G.R. No. L-7995             May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and
partnerships adversely affected. by Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of
Manila, respondents.

Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent
Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City
Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.

LABRADOR, J.:

I. The case and issue, in general

This Court has before it the delicate task of passing upon the validity and constitutionality of a
legislative enactment, fundamental and far-reaching in significance. The enactment poses questions
of due process, police power and equal protection of the laws. It also poses an important issue of
fact, that is whether the conditions which the disputed law purports to remedy really or actually exist.
Admittedly springing from a deep, militant, and positive nationalistic impulse, the law purports to
protect citizen and country from the alien retailer. Through it, and within the field of economy it
regulates, Congress attempts to translate national aspirations for economic independence and
national security, rooted in the drive and urge for national survival and welfare, into a concrete and
tangible measures designed to free the national retailer from the competing dominance of the alien,
so that the country and the nation may be free from a supposed economic dependence and
bondage. Do the facts and circumstances justify the enactment?

II. Pertinent provisions of Republic Act No. 1180

Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes
the retail trade business. The main provisions of the Act are: (1) a prohibition against persons, not
citizens of the Philippines, and against associations, partnerships, or corporations the capital of
which are not wholly owned by citizens of the Philippines, from engaging directly or indirectly in the
retail trade; (2) an exception from the above prohibition in favor of aliens actually engaged in said
business on May 15, 1954, who are allowed to continue to engaged therein, unless their licenses are
forfeited in accordance with the law, until their death or voluntary retirement in case of natural
persons, and for ten years after the approval of the Act or until the expiration of term in case of
juridical persons; (3) an exception therefrom in favor of citizens and juridical entities of the United
States; (4) a provision for the forfeiture of licenses (to engage in the retail business) for violation of
the laws on nationalization, control weights and measures and labor and other laws relating to trade,
commerce and industry; (5) a prohibition against the establishment or opening by aliens actually
engaged in the retail business of additional stores or branches of retail business, (6) a provision
requiring aliens actually engaged in the retail business to present for registration with the proper
authorities a verified statement concerning their businesses, giving, among other matters, the nature
of the business, their assets and liabilities and their offices and principal offices of judicial entities;
and (7) a provision allowing the heirs of aliens now engaged in the retail business who die, to
continue such business for a period of six months for purposes of liquidation.

III. Grounds upon which petition is based-Answer thereto

Petitioner, for and in his own behalf and on behalf of other alien residents corporations and
partnerships adversely affected by the provisions of Republic Act. No. 1180, brought this action to
obtain a judicial declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance
and all other persons acting under him, particularly city and municipal treasurers, from enforcing its
provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it denies to alien
residents the equal protection of the laws and deprives of their liberty and property without due
process of law ; (2) the subject of the Act is not expressed or comprehended in the title thereof; (3)
the Act violates international and treaty obligations of the Republic of the Philippines; (4) the
provisions of the Act against the transmission by aliens of their retail business thru hereditary
succession, and those requiring 100% Filipino capitalization for a corporation or entity to entitle it to
engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and Section 8 of
Article XIV of the Constitution.

In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was
passed in the valid exercise of the police power of the State, which exercise is authorized in the
Constitution in the interest of national economic survival; (2) the Act has only one subject embraced
in the title; (3) no treaty or international obligations are infringed; (4) as regards hereditary
succession, only the form is affected but the value of the property is not impaired, and the institution
of inheritance is only of statutory origin.

IV. Preliminary consideration of legal principles involved

a. The police power. —

There is no question that the Act was approved in the exercise of the police power, but petitioner
claims that its exercise in this instance is attended by a violation of the constitutional requirements of
due process and equal protection of the laws. But before proceeding to the consideration and
resolution of the ultimate issue involved, it would be well to bear in mind certain basic and
fundamental, albeit preliminary, considerations in the determination of the ever recurrent conflict
between police power and the guarantees of due process and equal protection of the laws. What is
the scope of police power, and how are the due process and equal protection clauses related to it?
What is the province and power of the legislature, and what is the function and duty of the courts?
These consideration must be clearly and correctly understood that their application to the facts of the
case may be brought forth with clarity and the issue accordingly resolved.

It has been said the police power is so far - reaching in scope, that it has become almost impossible
to limit its sweep. As it derives its existence from the very existence of the State itself, it does not
need to be expressed or defined in its scope; it is said to be co-extensive with self-protection and
survival, and as such it is the most positive and active of all governmental processes, the most
essential, insistent and illimitable. Especially is it so under a modern democratic framework where
the demands of society and of nations have multiplied to almost unimaginable proportions; the field
and scope of police power has become almost boundless, just as the fields of public interest and
public welfare have become almost all-embracing and have transcended human foresight.
Otherwise stated, as we cannot foresee the needs and demands of public interest and welfare in this
constantly changing and progressive world, so we cannot delimit beforehand the extent or scope of
police power by which and through which the State seeks to attain or achieve interest or welfare. So
it is that Constitutions do not define the scope or extent of the police power of the State; what they
do is to set forth the limitations thereof. The most important of these are the due process clause and
the equal protection clause.

b. Limitations on police power. —

The basic limitations of due process and equal protection are found in the following provisions of our
Constitution:

SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of
law, nor any person be denied the equal protection of the laws. (Article III, Phil. Constitution)

These constitutional guarantees which embody the essence of individual liberty and freedom in
democracies, are not limited to citizens alone but are admittedly universal in their application, without
regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220,
226.)

c. The, equal protection clause. —

The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is directed or by territory within which is to operate. It
does not demand absolute equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to privileges conferred and liabilities
enforced. The equal protection clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all persons within such class, and
reasonable grounds exists for making a distinction between those who fall within such class and
those who do not. (2 Cooley, Constitutional Limitations, 824-825.)

d. The due process clause. —

The due process clause has to do with the reasonableness of legislation enacted in pursuance of the
police power. Is there public interest, a public purpose; is public welfare involved? Is the Act
reasonably necessary for the accomplishment of the legislature's purpose; is it not unreasonable,
arbitrary or oppressive? Is there sufficient foundation or reason in connection with the matter
involved; or has there not been a capricious use of the legislative power? Can the aims conceived
be achieved by the means used, or is it not merely an unjustified interference with private interest?
These are the questions that we ask when the due process test is applied.

The conflict, therefore, between police power and the guarantees of due process and equal
protection of the laws is more apparent than real. Properly related, the power and the guarantees
are supposed to coexist. The balancing is the essence or, shall it be said, the indispensable means
for the attainment of legitimate aspirations of any democratic society. There can be no absolute
power, whoever exercise it, for that would be tyranny. Yet there can neither be absolute liberty, for
that would mean license and anarchy. So the State can deprive persons of life, liberty and property,
provided there is due process of law; and persons may be classified into classes and groups,
provided everyone is given the equal protection of the law. The test or standard, as always, is
reason. The police power legislation must be firmly grounded on public interest and welfare, and a
reasonable relation must exist between purposes and means. And if distinction and classification
has been made, there must be a reasonable basis for said distinction.

e. Legislative discretion not subject to judicial review. —

Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must
not be overlooked, in the first place, that the legislature, which is the constitutional repository of
police power and exercises the prerogative of determining the policy of the State, is by force of
circumstances primarily the judge of necessity, adequacy or reasonableness and wisdom, of any law
promulgated in the exercise of the police power, or of the measures adopted to implement the public
policy or to achieve public interest. On the other hand, courts, although zealous guardians of
individual liberty and right, have nevertheless evinced a reluctance to interfere with the exercise of
the legislative prerogative. They have done so early where there has been a clear, patent or
palpable arbitrary and unreasonable abuse of the legislative prerogative. Moreover, courts are not
supposed to override legitimate policy, and courts never inquire into the wisdom of the law.

V. Economic problems sought to be remedied

With the above considerations in mind, we will now proceed to delve directly into the issue involved.
If the disputed legislation were merely a regulation, as its title indicates, there would be no question
that it falls within the legitimate scope of legislative power. But it goes further and prohibits a group of
residents, the aliens, from engaging therein. The problem becomes more complex because its
subject is a common, trade or occupation, as old as society itself, which from the immemorial has
always been open to residents, irrespective of race, color or citizenship.

a. Importance of retail trade in the economy of the nation. —

In a primitive economy where families produce all that they consume and consume all that they
produce, the dealer, of course, is unknown. But as group life develops and families begin to live in
communities producing more than what they consume and needing an infinite number of things they
do not produce, the dealer comes into existence. As villages develop into big communities and
specialization in production begins, the dealer's importance is enhanced. Under modern conditions
and standards of living, in which man's needs have multiplied and diversified to unlimited extents
and proportions, the retailer comes as essential as the producer, because thru him the infinite variety
of articles, goods and needed for daily life are placed within the easy reach of consumers. Retail
dealers perform the functions of capillaries in the human body, thru which all the needed food and
supplies are ministered to members of the communities comprising the nation.

There cannot be any question about the importance of the retailer in the life of the community. He
ministers to the resident's daily needs, food in all its increasing forms, and the various little gadgets
and things needed for home and daily life. He provides his customers around his store with the rice
or corn, the fish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths to sell,
even the needle and the thread to sew them or darn the clothes that wear out. The retailer,
therefore, from the lowly peddler, the owner of a small sari-sari store, to the operator of a department
store or, a supermarket is so much a part of day-to-day existence.

b. The alien retailer's trait. —

The alien retailer must have started plying his trades in this country in the bigger centers of
population (Time there was when he was unknown in provincial towns and villages). Slowly but
gradually be invaded towns and villages; now he predominates in the cities and big centers of
population. He even pioneers, in far away nooks where the beginnings of community life appear,
ministering to the daily needs of the residents and purchasing their agricultural produce for sale in
the towns. It is an undeniable fact that in many communities the alien has replaced the native
retailer. He has shown in this trade, industry without limit, and the patience and forbearance of a
slave.

Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and
insolent neighbors and customers are made in his face, but he heeds them not, and he forgets and
forgives. The community takes note of him, as he appears to be harmless and extremely useful.

c. Alleged alien control and dominance. —

There is a general feeling on the part of the public, which appears to be true to fact, about the
controlling and dominant position that the alien retailer holds in the nation's economy. Food and
other essentials, clothing, almost all articles of daily life reach the residents mostly through him. In
big cities and centers of population he has acquired not only predominance, but apparent control
over distribution of almost all kinds of goods, such as lumber, hardware, textiles, groceries, drugs,
sugar, flour, garlic, and scores of other goods and articles. And were it not for some national
corporations like the Naric, the Namarco, the Facomas and the Acefa, his control over principal
foods and products would easily become full and complete.

Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is
said that the fear is unfounded and the threat is imagined; in another, it is charged that the law is
merely the result of radicalism and pure and unabashed nationalism. Alienage, it is said, is not an
element of control; also so many unmanageable factors in the retail business make control virtually
impossible. The first argument which brings up an issue of fact merits serious consideration. The
others are matters of opinion within the exclusive competence of the legislature and beyond our
prerogative to pass upon and decide.

The best evidence are the statistics on the retail trade, which put down the figures in black and
white. Between the constitutional convention year (1935), when the fear of alien domination and
control of the retail trade already filled the minds of our leaders with fears and misgivings, and the
year of the enactment of the nationalization of the retail trade act (1954), official statistics
unmistakably point out to the ever-increasing dominance and control by the alien of the retail trade,
as witness the following tables:
 Assets Gross Sales
Year and No.- Per cent
Per cent
Retailers Establishment Pesos Distributio Pesos
Distribution
Nationality s n
1941
:
Filipino .. 106,671 200,323,13 55.82 174,181,92 51.74
........ 8 4
Chinese 15,356 118,348,69 32.98 148,813,23 44.21
........... 2 9
Others .. 1,646 40,187,090 11.20 13,630,239 4.05
..........
1947
:
Filipino .. 111,107 208,658,94 65.05 279,583,33 57.03
........ 6 3
Chinese 13,774 106,156,21 33.56 205,701,13 41.96
........... 8 4
Others .. 354 8,761,260 .49 4,927,168 1.01
.........
1948 (Census
: )
Filipino .. 113,631 213,342,26 67.30 467,161,66 60.51
........ 4 7
Chinese 12,087 93,155,459 29.38 294,894,22 38.20
.......... 7
Others .. 422 10,514,675 3.32 9,995,402 1.29
........
1949
:
Filipino .. 113,659 213,451,60 60.89 462,532,90 53.47
........ 2 1
Chinese 16,248 125,223,33 35.72 392,414,87 45.36
.......... 6 5
Others .. 486 12,056,365 3.39 10,078,364 1.17
........
1951
:
Filipino .. 119,352 224,053,62 61.09 466,058,05 53.07
....... 0 2
Chinese 17,429 134,325,30 36.60 404,481,38 46.06
.......... 3 4
Others .. 347 8,614,025 2.31 7,645,327 87
........
AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT

Item Gross
Year and Retailer's
Assets Sales
Nationality
(Pesos) (Pesos)

1941:

Filipino ............................................. 1,878 1,633

Chinese ............................................ 7,707 9,691

..

Others .............................................. 24,415 8,281

.

1947:

Filipino ............................................. 1,878 2,516

Chinese ........................................... 7,707 14,934

Others .............................................. 24,749 13,919

1948: (Census)

Filipino ............................................. 1,878 4,111

Chinese ............................................ 7,707 24,398

.

Others .............................................. 24,916 23,686

1949:

Filipino ............................................. 1,878 4,069

Chinese ............................................ 7,707 24,152

..

Others .............................................. 24,807 20,737

1951:

Filipino ............................................. 1,877 3,905

Chinese ............................................ 7,707 33,207

.

Others .............................................. 24,824 22,033

.
 (Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of
Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics,
Department of Commerce and Industry; pp. 18-19 of Answer.)

The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small..

The above figures reveal that in percentage distribution of assests and gross sales, alien
participation has steadily increased during the years. It is true, of course, that Filipinos have the
edge in the number of retailers, but aliens more than make up for the numerical gap through their
assests and gross sales which average between six and seven times those of the very many Filipino
retailers. Numbers in retailers, here, do not imply superiority; the alien invests more capital, buys and
sells six to seven times more, and gains much more. The same official report, pointing out to the
known predominance of foreign elements in the retail trade, remarks that the Filipino retailers were
largely engaged in minor retailer enterprises. As observed by respondents, the native investment is
thinly spread, and the Filipino retailer is practically helpless in matters of capital, credit, price and
supply.

d. Alien control and threat, subject of apprehension in Constitutional convention. —

It is this domination and control, which we believe has been sufficiently shown to exist, that is the
legislature's target in the enactment of the disputed nationalization would never have been adopted.
The framers of our Constitution also believed in the existence of this alien dominance and control
when they approved a resolution categorically declaring among other things, that "it is the sense of
the Convention that the public interest requires the nationalization of the retail trade; . . . ." (II
Aruego, The Framing of the Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That
was twenty-two years ago; and the events since then have not been either pleasant or comforting.
Dean Sinco of the University of the Philippines College of Law, commenting on the patrimony clause
of the Preamble opines that the fathers of our Constitution were merely translating the general
preoccupation of Filipinos "of the dangers from alien interests that had already brought under their
control the commercial and other economic activities of the country" (Sinco, Phil. Political Law, 10th
ed., p. 114); and analyzing the concern of the members of the constitutional convention for the
economic life of the citizens, in connection with the nationalistic provisions of the Constitution, he
says:

But there has been a general feeling that alien dominance over the economic life of the
country is not desirable and that if such a situation should remain, political independence
alone is no guarantee to national stability and strength. Filipino private capital is not big
enough to wrest from alien hands the control of the national economy. Moreover, it is but of
recent formation and hence, largely inexperienced, timid and hesitant. Under such
conditions, the government as the instrumentality of the national will, has to step in and
assume the initiative, if not the leadership, in the struggle for the economic freedom of the
nation in somewhat the same way that it did in the crusade for political freedom. Thus . . . it
(the Constitution) envisages an organized movement for the protection of the nation not only
against the possibilities of armed invasion but also against its economic subjugation by alien
interests in the economic field. (Phil. Political Law by Sinco, 10th ed., p. 476.)

Belief in the existence of alien control and predominance is felt in other quarters. Filipino
businessmen, manufacturers and producers believe so; they fear the dangers coming from alien
control, and they express sentiments of economic independence. Witness thereto is Resolution No.
1, approved on July 18, 1953, of the Fifth National convention of Filipino Businessmen, and a similar
resolution, approved on March 20, 1954, of the Second National Convention of Manufacturers and
Producers. The man in the street also believes, and fears, alien predominance and control; so our
newspapers, which have editorially pointed out not only to control but to alien stranglehold. We,
therefore, find alien domination and control to be a fact, a reality proved by official statistics, and felt
by all the sections and groups that compose the Filipino community.

e. Dangers of alien control and dominance in retail. —

But the dangers arising from alien participation in the retail trade does not seem to lie in the
predominance alone; there is a prevailing feeling that such predominance may truly endanger the
national interest. With ample capital, unity of purpose and action and thorough organization, alien
retailers and merchants can act in such complete unison and concert on such vital matters as the
fixing of prices, the determination of the amount of goods or articles to be made available in the
market, and even the choice of the goods or articles they would or would not patronize or distribute,
that fears of dislocation of the national economy and of the complete subservience of national
economy and of the consuming public are not entirely unfounded. Nationals, producers and
consumers alike can be placed completely at their mercy. This is easily illustrated. Suppose an
article of daily use is desired to be prescribed by the aliens, because the producer or importer does
not offer them sufficient profits, or because a new competing article offers bigger profits for its
introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating it from
their stocks, offering the new one as a substitute. Hence, the producers or importers of the
prescribed article, or its consumers, find the article suddenly out of the prescribed article, or its
consumers, find the article suddenly out of circulation. Freedom of trade is thus curtailed and free
enterprise correspondingly suppressed.

We can even go farther than theoretical illustrations to show the pernicious influences of alien
domination. Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact
within judicial notice, which courts of justice may not properly overlook or ignore in the interests of
truth and justice, that there exists a general feeling on the part of the public that alien participation in
the retail trade has been attended by a pernicious and intolerable practices, the mention of a few of
which would suffice for our purposes; that at some time or other they have cornered the market of
essential commodities, like corn and rice, creating artificial scarcities to justify and enhance profits to
unreasonable proportions; that they have hoarded essential foods to the inconvenience and
prejudice of the consuming public, so much so that the Government has had to establish the
National Rice and Corn Corporation to save the public from their continuous hoarding practices and
tendencies; that they have violated price control laws, especially on foods and essential
commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No. 1168),
authorizing their immediate and automatic deportation for price control convictions; that they have
secret combinations among themselves to control prices, cheating the operation of the law of supply
and demand; that they have connived to boycott honest merchants and traders who would not cater
or yield to their demands, in unlawful restraint of freedom of trade and enterprise. They are believed
by the public to have evaded tax laws, smuggled goods and money into and out of the land, violated
import and export prohibitions, control laws and the like, in derision and contempt of lawful authority.
It is also believed that they have engaged in corrupting public officials with fabulous bribes, indirectly
causing the prevalence of graft and corruption in the Government. As a matter of fact appeals to
unscrupulous aliens have been made both by the Government and by their own lawful diplomatic
representatives, action which impliedly admits a prevailing feeling about the existence of many of the
above practices.

The circumstances above set forth create well founded fears that worse things may come in the
future. The present dominance of the alien retailer, especially in the big centers of population,
therefore, becomes a potential source of danger on occasions of war or other calamity. We do not
have here in this country isolated groups of harmless aliens retailing goods among nationals; what
we have are well organized and powerful groups that dominate the distribution of goods and
commodities in the communities and big centers of population. They owe no allegiance or loyalty to
the State, and the State cannot rely upon them in times of crisis or emergency. While the national
holds his life, his person and his property subject to the needs of his country, the alien may even
become the potential enemy of the State.

f. Law enacted in interest of national economic survival and security. —

We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is
not the product of racial hostility, prejudice or discrimination, but the expression of the legitimate
desire and determination of the people, thru their authorized representatives, to free the nation from
the economic situation that has unfortunately been saddled upon it rightly or wrongly, to its
disadvantage. The law is clearly in the interest of the public, nay of the national security itself, and
indisputably falls within the scope of police power, thru which and by which the State insures its
existence and security and the supreme welfare of its citizens.

VI. The Equal Protection Limitation

a. Objections to alien participation in retail trade. — The next question that now poses solution is,
Does the law deny the equal protection of the laws? As pointed out above, the mere fact of alienage
is the root and cause of the distinction between the alien and the national as a trader. The alien
resident owes allegiance to the country of his birth or his adopted country; his stay here is for
personal convenience; he is attracted by the lure of gain and profit. His aim or purpose of stay, we
admit, is neither illegitimate nor immoral, but he is naturally lacking in that spirit of loyalty and
enthusiasm for this country where he temporarily stays and makes his living, or of that spirit of
regard, sympathy and consideration for his Filipino customers as would prevent him from taking
advantage of their weakness and exploiting them. The faster he makes his pile, the earlier can the
alien go back to his beloved country and his beloved kin and countrymen. The experience of the
country is that the alien retailer has shown such utter disregard for his customers and the people on
whom he makes his profit, that it has been found necessary to adopt the legislation, radical as it may
seem.

Another objection to the alien retailer in this country is that he never really makes a genuine
contribution to national income and wealth. He undoubtedly contributes to general distribution, but
the gains and profits he makes are not invested in industries that would help the country's economy
and increase national wealth. The alien's interest in this country being merely transient and
temporary, it would indeed be ill-advised to continue entrusting the very important function of retail
distribution to his hands.

The practices resorted to by aliens in the control of distribution, as already pointed out above, their
secret manipulations of stocks of commodities and prices, their utter disregard of the welfare of their
customers and of the ultimate happiness of the people of the nation of which they are mere guests,
which practices, manipulations and disregard do not attend the exercise of the trade by the
nationals, show the existence of real and actual, positive and fundamental differences between an
alien and a national which fully justify the legislative classification adopted in the retail trade
measure. These differences are certainly a valid reason for the State to prefer the national over the
alien in the retail trade. We would be doing violence to fact and reality were we to hold that no
reason or ground for a legitimate distinction can be found between one and the other.

b. Difference in alien aims and purposes sufficient basis for distinction. —

The above objectionable characteristics of the exercise of the retail trade by the aliens, which are
actual and real, furnish sufficient grounds for legislative classification of retail traders into nationals
and aliens. Some may disagree with the wisdom of the legislature's classification. To this we answer,
that this is the prerogative of the law-making power. Since the Court finds that the classification is
actual, real and reasonable, and all persons of one class are treated alike, and as it cannot be said
that the classification is patently unreasonable and unfounded, it is in duty bound to declare that the
legislature acted within its legitimate prerogative and it can not declare that the act transcends the
limit of equal protection established by the Constitution.

Broadly speaking, the power of the legislature to make distinctions and classifications among
persons is not curtailed or denied by the equal protection of the laws clause. The legislative power
admits of a wide scope of discretion, and a law can be violative of the constitutional limitation only
when the classification is without reasonable basis. In addition to the authorities we have earlier
cited, we can also refer to the case of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369,
which clearly and succinctly defined the application of equal protection clause to a law sought to be
voided as contrary thereto:

. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the
state the power to classify in the adoption of police laws, but admits of the exercise of the
wide scope of discretion in that regard, and avoids what is done only when it is without any
reasonable basis, and therefore is purely arbitrary. 2. A classification having some
reasonable basis does not offend against that clause merely because it is not made with
mathematical nicety, or because in practice it results in some inequality. 3. When the
classification in such a law is called in question, if any state of facts reasonably can be
conceived that would sustain it, the existence of that state of facts at the time the law was
enacted must be assumed. 4. One who assails the classification in such a law must carry the
burden of showing that it does not rest upon any reasonable basis but is essentially
arbitrary."

c. Authorities recognizing citizenship as basis for classification. —

The question as to whether or not citizenship is a legal and valid ground for classification has
already been affirmatively decided in this jurisdiction as well as in various courts in the United
States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761
of the Philippine Legislature was in issue, because of a condition therein limiting the ownership of
vessels engaged in coastwise trade to corporations formed by citizens of the Philippine Islands or
the United States, thus denying the right to aliens, it was held that the Philippine Legislature did not
violate the equal protection clause of the Philippine Bill of Rights. The legislature in enacting the law
had as ultimate purpose the encouragement of Philippine shipbuilding and the safety for these
Islands from foreign interlopers. We held that this was a valid exercise of the police power, and all
presumptions are in favor of its constitutionality. In substance, we held that the limitation of domestic
ownership of vessels engaged in coastwise trade to citizens of the Philippines does not violate the
equal protection of the law and due process or law clauses of the Philippine Bill of Rights. In
rendering said decision we quoted with approval the concurring opinion of Justice Johnson in the
case of Gibbons vs. Ogden, 9 Wheat., I, as follows:

"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts
licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is
distinctly of that character, and forms part of an extensive system, the object of which is to
encourage American shipping, and place them on an equal footing with the shipping of other
nations. Almost every commercial nation reserves to its own subjects a monopoly of its
coasting trade; and a countervailing privilege in favor of American shipping is contemplated,
 in the whole legislation of the United States on this subject. It is not to give the vessel an
American character, that the license is granted; that effect has been correctly attributed to
the act of her enrollment. But it is to confer on her American privileges, as contra
distinguished from foreign; and to preserve the Government from fraud by foreigners; in
surreptitiously intruding themselves into the American commercial marine, as well as frauds
upon the revenue in the trade coastwise, that this whole system is projected."

The rule in general is as follows:

Aliens are under no special constitutional protection which forbids a classification otherwise
justified simply because the limitation of the class falls along the lines of nationality. That
would be requiring a higher degree of protection for aliens as a class than for similar classes
than for similar classes of American citizens. Broadly speaking, the difference in status
between citizens and aliens constitutes a basis for reasonable classification in the exercise
of police power. (2 Am., Jur. 468-469.)

In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of

hawkers and peddlers, which provided that no one can obtain a license unless he is, or has declared
his intention, to become a citizen of the United States, was held valid, for the following reason: It
may seem wise to the legislature to limit the business of those who are supposed to have regard for
the welfare, good order and happiness of the community, and the court cannot question this
judgment and conclusion. In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a statute which
prevented certain persons, among them aliens, from engaging in the traffic of liquors, was found not
to be the result of race hatred, or in hospitality, or a deliberate purpose to discriminate, but was
based on the belief that an alien cannot be sufficiently acquainted with "our institutions and our life
as to enable him to appreciate the relation of this particular business to our entire social fabric", and
was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed. 115
(1926), the U.S. Supreme Court had under consideration an ordinance of the city of Cincinnati
prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held that plainly irrational
discrimination against aliens is prohibited, but it does not follow that alien race and allegiance may
not bear in some instances such a relation to a legitimate object of legislation as to be made the
basis of permitted classification, and that it could not state that the legislation is clearly wrong; and
that latitude must be allowed for the legislative appraisement of local conditions and for the
legislative choice of methods for controlling an apprehended evil. The case of State vs. Carrol, 124
N. E. 129 (Ohio, 1919) is a parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30
(Washington, 1922), the business of pawn brooking was considered as having tendencies injuring
public interest, and limiting it to citizens is within the scope of police power. A similar statute denying
aliens the right to engage in auctioneering was also sustained in Wright vs. May, L.R.A., 1915 P. 151
(Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said that
aliens are judicially known to have different interests, knowledge, attitude, psychology and loyalty,
hence the prohibitions of issuance of licenses to them for the business of pawnbroker, pool, billiard,
card room, dance hall, is not an infringement of constitutional rights. In Templar vs. Michigan State
Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of aliens as
barbers was held void, but the reason for the decision was the court's findings that the exercise of
the business by the aliens does not in any way affect the morals, the health, or even the
convenience of the community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479
(1947), a California statute banning the issuance of commercial fishing licenses to person ineligible
to citizenship was held void, because the law conflicts with Federal power over immigration, and
because there is no public interest in the mere claim of ownership of the waters and the fish in them,
so there was no adequate justification for the discrimination. It further added that the law was the
outgrowth of antagonism toward the persons of Japanese ancestry. However, two Justices
dissented on the theory that fishing rights have been treated traditionally as natural resources.
In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed
a tax on every employer of foreign-born unnaturalized male persons over 21 years of age, was
declared void because the court found that there was no reason for the classification and the tax
was an arbitrary deduction from the daily wage of an employee.

d. Authorities contra explained. —

It is true that some decisions of the Federal court and of the State courts in the United States hold
that the distinction between aliens and citizens is not a valid ground for classification. But in this
decision the laws declared invalid were found to be either arbitrary, unreasonable or capricious, or
were the result or product of racial antagonism and hostility, and there was no question of public
interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States
Supreme Court declared invalid a Philippine law making unlawful the keeping of books of account in
any language other than English, Spanish or any other local dialect, but the main reasons for the
decisions are: (1) that if Chinese were driven out of business there would be no other system of
distribution, and (2) that the Chinese would fall prey to all kinds of fraud, because they would be
deprived of their right to be advised of their business and to direct its conduct. The real reason for
the decision, therefore, is the court's belief that no public benefit would be derived from the
operations of the law and on the other hand it would deprive Chinese of something indispensable for
carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed 220 (1885) an ordinance conferring
powers on officials to withhold consent in the operation of laundries both as to persons and place,
was declared invalid, but the court said that the power granted was arbitrary, that there was no
reason for the discrimination which attended the administration and implementation of the law, and
that the motive thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900),
a law prohibiting aliens to engage as hawkers and peddlers was declared void, because the
discrimination bore no reasonable and just relation to the act in respect to which the classification
was proposed.

The case at bar is radically different, and the facts make them so. As we already have said, aliens
do not naturally possess the sympathetic consideration and regard for the customers with whom
they come in daily contact, nor the patriotic desire to help bolster the nation's economy, except in so
far as it enhances their profit, nor the loyalty and allegiance which the national owes to the land.
These limitations on the qualifications of the aliens have been shown on many occasions and
instances, especially in times of crisis and emergency. We can do no better than borrow the
language of Anton vs. Van Winkle, 297 F. 340, 342, to drive home the reality and significance of the
distinction between the alien and the national, thus:

. . . . It may be judicially known, however, that alien coming into this country are without the
intimate knowledge of our laws, customs, and usages that our own people have. So it is
likewise known that certain classes of aliens are of different psychology from our fellow
countrymen. Furthermore, it is natural and reasonable to suppose that the foreign born,
whose allegiance is first to their own country, and whose ideals of governmental environment
and control have been engendered and formed under entirely different regimes and political
systems, have not the same inspiration for the public weal, nor are they as well disposed
toward the United States, as those who by citizenship, are a part of the government itself.
Further enlargement, is unnecessary. I have said enough so that obviously it cannot be
affirmed with absolute confidence that the Legislature was without plausible reason for
making the classification, and therefore appropriate discriminations against aliens as it
relates to the subject of legislation. . . . .

VII. The Due Process of Law Limitation.

a. Reasonability, the test of the limitation; determination by legislature decisive. —

We now come to due process as a limitation on the exercise of the police power. It has been stated
by the highest authority in the United States that:

. . . . And the guaranty of due process, as has often been held, demands only that the law
shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a
real and substantial relation to the subject sought to be attained. . . . .

xxx     xxx     xxx

So far as the requirement of due process is concerned and in the absence of other
constitutional restriction a state is free to adopt whatever economic policy may reasonably be
deemed to promote public welfare, and to enforce that policy by legislation adapted to its
purpose. The courts are without authority either to declare such policy, or, when it is declared
by the legislature, to override it. If the laws passed are seen to have a reasonable relation to
a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of
due process are satisfied, and judicial determination to that effect renders a court  functus
officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)

Another authority states the principle thus:

. . . . Too much significance cannot be given to the word "reasonable" in considering the
scope of the police power in a constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to inquire whether the restriction
it imposes on rights secured to individuals by the Bill of Rights are unreasonable, and not
whether it imposes any restrictions on such rights. . . .

xxx     xxx     xxx

. . . . A statute to be within this power must also be reasonable in its operation upon the
persons whom it affects, must not be for the annoyance of a particular class, and must not
be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)

In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:

. . . . To justify the state in thus interposing its authority in behalf of the public, it must appear,
first, that the interests of the public generally, as distinguished from those of a particular
class, require such interference; and second, that the means are reasonably necessary for
the accomplishment of the purpose, and not unduly oppressive upon individuals. . . .

Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of
constitutionality:

In determining whether a given act of the Legislature, passed in the exercise of the police
power to regulate the operation of a business, is or is not constitutional, one of the first
questions to be considered by the court is whether the power as exercised has a sufficient
foundation in reason in connection with the matter involved, or is an arbitrary, oppressive,
and capricious use of that power, without substantial relation to the health, safety, morals,
comfort, and general welfare of the public.

b. Petitioner's argument considered. —

Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges
long ago recognized as essential to the orderly pursuant of happiness by free men; that it is a gainful
and honest occupation and therefore beyond the power of the legislature to prohibit and penalized.
This arguments overlooks fact and reality and rests on an incorrect assumption and premise, i.e.,
that in this country where the occupation is engaged in by petitioner, it has been so engaged by him,
by the alien in an honest creditable and unimpeachable manner, without harm or injury to the
citizens and without ultimate danger to their economic peace, tranquility and welfare. But the
Legislature has found, as we have also found and indicated, that the privilege has been so grossly
abused by the alien, thru the illegitimate use of pernicious designs and practices, that he now enjoys
a monopolistic control of the occupation and threatens a deadly stranglehold on the nation's
economy endangering the national security in times of crisis and emergency.

The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the
facts and circumstances, but this, Is the exclusion in the future of aliens from the retail trade
unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious form and
manner in which the aliens have heretofore engaged therein? As thus correctly stated the answer is
clear. The law in question is deemed absolutely necessary to bring about the desired legislative
objective, i.e., to free national economy from alien control and dominance. It is not necessarily
unreasonable because it affects private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test
of reasonableness of a law is the appropriateness or adequacy under all circumstances of the
means adopted to carry out its purpose into effect (Id.) Judged by this test, disputed legislation,
which is not merely reasonable but actually necessary, must be considered not to have infringed the
constitutional limitation of reasonableness.

The necessity of the law in question is explained in the explanatory note that accompanied the bill,
which later was enacted into law:

This bill proposes to regulate the retail business. Its purpose is to prevent persons who are
not citizens of the Philippines from having a strangle hold upon our economic life. If the
persons who control this vital artery of our economic life are the ones who owe no allegiance
to this Republic, who have no profound devotion to our free institutions, and who have no
permanent stake in our people's welfare, we are not really the masters of our destiny. All
aspects of our life, even our national security, will be at the mercy of other people.

In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who
are not citizens of the Philippines of their means of livelihood. While this bill seeks to take
away from the hands of persons who are not citizens of the Philippines a power that can be
wielded to paralyze all aspects of our national life and endanger our national security it
respects existing rights.

The approval of this bill is necessary for our national survival.

If political independence is a legitimate aspiration of a people, then economic independence is none

the less legitimate. Freedom and liberty are not real and positive if the people are subject to the
economic control and domination of others, especially if not of their own race or country. The
removal and eradication of the shackles of foreign economic control and domination, is one of the
noblest motives that a national legislature may pursue. It is impossible to conceive that legislation
that seeks to bring it about can infringe the constitutional limitation of due process. The attainment of
a legitimate aspiration of a people can never be beyond the limits of legislative authority.

c. Law expressly held by Constitutional Convention to be within the sphere of legislative action. —
The framers of the Constitution could not have intended to impose the constitutional restrictions of
due process on the attainment of such a noble motive as freedom from economic control and
domination, thru the exercise of the police power. The fathers of the Constitution must have given to
the legislature full authority and power to enact legislation that would promote the supreme
happiness of the people, their freedom and liberty. On the precise issue now before us, they
expressly made their voice clear; they adopted a resolution expressing their belief that the legislation
in question is within the scope of the legislative power. Thus they declared the their Resolution:

That it is the sense of the Convention that the public interest requires the nationalization of
retail trade; but it abstain from approving the amendment introduced by the Delegate for
Manila, Mr. Araneta, and others on this matter because it is convinced that the National
Assembly is authorized to promulgate a law which limits to Filipino and American citizens the
privilege to engage in the retail trade. (11 Aruego, The Framing of the Philippine
Constitution, quoted on pages 66 and 67 of the Memorandum for the Petitioner.)

It would do well to refer to the nationalistic tendency manifested in various provisions of the
Constitution. Thus in the preamble, a principle objective is the conservation of the patrimony of the
nation and as corollary the provision limiting to citizens of the Philippines the exploitation,
development and utilization of its natural resources. And in Section 8 of Article XIV, it is provided that
"no franchise, certificate, or any other form of authorization for the operation of the public utility shall
be granted except to citizens of the Philippines." The nationalization of the retail trade is only a
continuance of the nationalistic protective policy laid down as a primary objective of the Constitution.
Can it be said that a law imbued with the same purpose and spirit underlying many of the provisions
of the Constitution is unreasonable, invalid and unconstitutional?

The seriousness of the Legislature's concern for the plight of the nationals as manifested in the
approval of the radical measures is, therefore, fully justified. It would have been recreant to its duties
towards the country and its people would it view the sorry plight of the nationals with the
complacency and refuse or neglect to adopt a remedy commensurate with the demands of public
interest and national survival. As the repository of the sovereign power of legislation, the Legislature
was in duty bound to face the problem and meet, through adequate measures, the danger and threat
that alien domination of retail trade poses to national economy.

d. Provisions of law not unreasonable. —

A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the
Legislature has been. The law is made prospective and recognizes the right and privilege of those
already engaged in the occupation to continue therein during the rest of their lives; and similar
recognition of the right to continue is accorded associations of aliens. The right or privilege is denied
to those only upon conviction of certain offenses. In the deliberations of the Court on this case,
attention was called to the fact that the privilege should not have been denied to children and heirs
of aliens now engaged in the retail trade. Such provision would defeat the law itself, its aims and
purposes. Beside, the exercise of legislative discretion is not subject to judicial review. It is well
settled that the Court will not inquire into the motives of the Legislature, nor pass upon general
matters of legislative judgment. The Legislature is primarily the judge of the necessity of an
enactment or of any of its provisions, and every presumption is in favor of its validity, and though the
Court may hold views inconsistent with the wisdom of the law, it may not annul the legislation if not
palpably in excess of the legislative power. Furthermore, the test of the validity of a law attacked as
a violation of due process, is not its reasonableness, but its unreasonableness, and we find the
provisions are not unreasonable. These principles also answer various other arguments raised
against the law, some of which are: that the law does not promote general welfare; that thousands of
aliens would be thrown out of employment; that prices will increase because of the elimination of
competition; that there is no need for the legislation; that adequate replacement is problematical; that
there may be general breakdown; that there would be repercussions from foreigners; etc. Many of
these arguments are directed against the supposed wisdom of the law which lies solely within the
legislative prerogative; they do not import invalidity.

VIII. Alleged defect in the title of the law

A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is
misleading or deceptive, as it conceals the real purpose of the bill which is to nationalize the retail
business and prohibit aliens from engaging therein. The constitutional provision which is claimed to
be violated in Section 21 (1) of Article VI, which reads:

No bill which may be enacted in the law shall embrace more than one subject which shall be
expressed in the title of the bill.

What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the
legislators or the public of the nature, scope and consequences of the law or its operation (I
Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the
provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate" does not
and may not readily and at first glance convey the idea of "nationalization" and "prohibition", which
terms express the two main purposes and objectives of the law. But "regulate" is a broader term
than either prohibition or nationalization. Both of these have always been included within the term
regulation.

Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may
prohibit the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page
41 of Answer.)

Within the meaning of the Constitution requiring that the subject of every act of the
Legislature shall be stated in the tale, the title to regulate the sale of intoxicating liquors, etc."
sufficiently expresses the subject of an act prohibiting the sale of such liquors to minors and
to persons in the habit of getting intoxicated; such matters being properly included within the
subject of regulating the sale. (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of
Answer.)

The word "regulate" is of broad import, and necessarily implies some degree of restraint and
prohibition of acts usually done in connection with the thing to be regulated. While word
regulate does not ordinarily convey meaning of prohibit, there is no absolute reason why it
should not have such meaning when used in delegating police power in connection with a
thing the best or only efficacious regulation of which involves suppression. (State vs. Morton,
162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)

The general rule is for the use of general terms in the title of a bill; it has also been said that the title
need not be an index to the entire contents of the law (I Sutherland, Statutory Construction, See.
4803, p. 345.) The above rule was followed the title of the Act in question adopted the more general
term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules
for the regulation of the retail trade which may not be included in the terms "nationalization" or
"prohibition"; so were the title changed from "regulate" to "nationalize" or "prohibit", there would have
been many provisions not falling within the scope of the title which would have made the Act invalid.
The use of the term "regulate", therefore, is in accord with the principle governing the drafting of
statutes, under which a simple or general term should be adopted in the title, which would include all
other provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be embraced in its title is
to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the
enactment into law of matters which have received the notice, action and study of the legislators or
of the public. In the case at bar it cannot be claimed that the legislators have been appraised of the
nature of the law, especially the nationalization and the prohibition provisions. The legislators took
active interest in the discussion of the law, and a great many of the persons affected by the
prohibitions in the law conducted a campaign against its approval. It cannot be claimed, therefore,
that the reasons for declaring the law invalid ever existed. The objection must therefore, be
overruled.

IX. Alleged violation of international treaties and obligations

Another subordinate argument against the validity of the law is the supposed violation thereby of the
Charter of the United Nations and of the Declaration of the Human Rights adopted by the United
Nations General Assembly. We find no merit in the Nations Charter imposes no strict or legal
obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United
Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains nothing more than a
mere recommendation or a common standard of achievement for all peoples and all nations (Id. p.
39.) That such is the import of the United Nations Charter aid of the Declaration of Human Rights
can be inferred the fact that members of the United Nations Organizations, such as Norway and
Denmark, prohibit foreigners from engaging in retail trade, and in most nations of the world laws
against foreigners engaged in domestic trade are adopted.

The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18,
1947 is also claimed to be violated by the law in question. All that the treaty guarantees is equality of
treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But
the nationals of China are not discriminating against because nationals of all other countries, except
those of the United States, who are granted special rights by the Constitution, are all prohibited from
engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty
is always subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed.
257, 260), and the same may never curtail or restrict the scope of the police power of the State
(plaston vs. Pennsylvania, 58 L. ed. 539.)

X. Conclusion

Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real
actual threat and danger to national economy posed by alien dominance and control of the retail
business and free citizens and country from dominance and control; that the enactment clearly falls
within the scope of the police power of the State, thru which and by which it protects its own
personality and insures its security and future; that the law does not violate the equal protection
clause of the Constitution because sufficient grounds exist for the distinction between alien and
citizen in the exercise of the occupation regulated, nor the due process of law clause, because the
law is prospective in operation and recognizes the privilege of aliens already engaged in the
occupation and reasonably protects their privilege; that the wisdom and efficacy of the law to carry
out its objectives appear to us to be plainly evident — as a matter of fact it seems not only
appropriate but actually necessary — and that in any case such matter falls within the prerogative of
the Legislature, with whose power and discretion the Judicial department of the Government may
not interfere; that the provisions of the law are clearly embraced in the title, and this suffers from no
duplicity and has not misled the legislators or the segment of the population affected; and that it
cannot be said to be void for supposed conflict with treaty obligations because no treaty has actually
been entered into on the subject and the police power may not be curtailed or surrendered by any
treaty or any other conventional agreement.
Some members of the Court are of the opinion that the radical effects of the law could have been
made less harsh in its impact on the aliens. Thus it is stated that the more time should have been
given in the law for the liquidation of existing businesses when the time comes for them to close. Our
legal duty, however, is merely to determine if the law falls within the scope of legislative authority
and does not transcend the limitations of due process and equal protection guaranteed in the
Constitution. Remedies against the harshness of the law should be addressed to the Legislature;
they are beyond our power and jurisdiction.

The petition is hereby denied, with costs against petitioner.

Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix,
JJ., concur.

Separate Opinions

PADILLA, J., concurring and dissenting:

I agree to the proposition, principle or rule that courts may not inquire into the wisdom of an the Act
passed by the Congress and duly approved by the President of the Republic. But the rule does not
preclude courts from inquiring and determining whether the Act offends against a provision or
provisions of the Constitution. I am satisfied that the Act assailed as violative of the due process of
law and the equal protection of the laws clauses of the Constitution does not infringe upon them,
insofar as it affects associations, partnership or corporations, the capital of which is not wholly
owned by the citizens of the Philippines, and aliens, who are not and have not been engaged in the
retail business. I am, however, unable to persuade myself that it does not violate said clauses
insofar as the Act applies to associations and partnerships referred to in the Act and to aliens, who
are and have heretofore been engaged in said business. When they did engage in the retail
business there was no prohibition on or against them to engage in it. They assumed and believed in
good faith they were entitled to engaged in the business. The Act allows aliens to continue in
business until their death or voluntary retirement from the business or forfeiture of their license; and
corporations, associations or partnership, the capital of which is not wholly owned by the citizens of
the Philippines to continue in the business for a period of ten years from the date of the approval of
the Act (19 June 1954) or until the expiry of term of the existence of the association or partnership or
corporation, whichever event comes first. The prohibition on corporations, the capital of which is not
wholly owned by citizens of the Philippines, to engage in the retail business for a period of more than
ten years from the date of the approval of the Act or beyond the term of their corporate existence,
whichever event comes first, is valid and lawful, because the continuance of the existence of such
corporations is subject to whatever the Congress may impose reasonably upon them by subsequent
legislation.1 But the prohibition to engage in the retail business by associations and partnerships, the
capital of which is not wholly owned by citizen of the Philippines, after ten years from the date of the
approval of the Act, even before the end of the term of their existence as agreed upon by the
associates and partners, and by alien heirs to whom the retail business is transmitted by the death of
an alien engaged in the business, or by his executor or administrator, amounts to a deprivation of
their property without due process of law. To my mind, the ten-year period from the date of the
approval of the Act or until the expiration of the term of the existence of the association and
partnership, whichever event comes first, and the six-month period granted to alien heirs of a
deceased alien, his executor or administrator, to liquidate the business, do not cure the defect of the
law, because the effect of the prohibition is to compel them to sell or dispose of their business. The
price obtainable at such forced sale of the business would be inadequate to reimburse and
compensate the associates or partners of the associations or partnership, and the alien heirs of a
deceased alien, engaged in the retail business for the capital invested in it. The stock of
merchandise bought and sold at retail does not alone constitute the business. The goodwill that the
association, partnership and the alien had built up during a long period of effort, patience and
perseverance forms part of such business. The constitutional provisions that no person shall be
deprived of his property without due process of law 2 and that no person shall be denied the equal
protection of the laws3 would have no meaning as applied to associations or partnership and alien
heirs of an alien engaged in the retail business if they were to be compelled to sell or dispose of their
business within ten years from the date of the approval of the Act and before the end of the term of
the existence of the associations and partnership as agreed upon by the associations and partners
and within six months after the death of their predecessor-in-interest.

The authors of the Constitution were vigilant, careful and zealous in the safeguard of the ownership
of private agricultural lands which together with the lands of the public domain constitute the
priceless patrimony and mainstay of the nation; yet, they did not deem it wise and prudent to deprive
aliens and their heirs of such lands. 4

For these reasons, I am of the opinion that section 1 of the Act, insofar as it compels associations
and partnership referred to therein to wind up their retail business within ten years from the date of
the approval of the Act even before the expiry of the term of their existence as agreed upon by the
associates and partners and section 3 of the Act, insofar as it compels the aliens engaged in the
retail business in his lifetime his executor or administrator, to liquidate the business, are invalid, for
they violate the due process of law and the equal protection of the laws clauses of the Constitution.

G.R. No. 151445 April 11, 2002

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

vs.

HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCEY GLORIA MACAPAGAL-ARROYO,

and HONORABLE ANGELO REYES in his capacity as Secretary of National Defense, respondents.

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

SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors,

vs.

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

DISSENTING OPINION
SEPARATE OPINION

DE LEON, JR., J.:

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

The facts are as follows:

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

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

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

On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari
and prohibition, attacking the constitutionality of the joint exercise.2 They were joined subsequently by
SANLAKAS and PARTIDO NG MANGGAGAWA, both party-Iist organizations, who filed a petition-in-
intervention on February 11, 2002.
Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO,
on the other hand, aver that certain members of their organization are residents of Zamboanga and
Sulu, and hence will be directly affected by the operations being conducted in Mindanao. They likewise
pray for a relaxation on the rules relative to locus standi citing the unprecedented importance of the
issue involved.

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

I. POLICY LEVEL

1. The Exercise shall be consistent with the Philippine Constitution and all its activities shall be in
consonance with the laws of the land and the provisions of the RP-US Visiting Forces Agreement (VFA).

2. The conduct of this training Exercise is in accordance with pertinent United Nations resolutions
against global terrorism as understood by the respective parties.

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

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

5. The exercise shall be conducted and completed within a period of not more than six months, with the
projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the
Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six month
Exercise period.
6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to
Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further advising,
assisting and training exercises shall be conducted in Malagutay and the Zamboanga area. Related
activities in Cebu will be for support of the Exercise.

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

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

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

II. EXERCISE LEVEL

1. TRAINING

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

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

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

2. ADMINISTRATION & LOGISTICS

a. RP and US participants shall be given a country and area briefing at the start of the Exercise. This
briefing shall acquaint US Forces on the culture and sensitivities of the Filipinos and the provisions of the
VF A. The briefing shall also promote the full cooperation on the part of the RP and US participants for
the successful conduct of the Exercise.
b. RP and US participating forces may share, in accordance with their respective laws and regulations, in
the use of their resources, equipment and other assets. They will use their respective logistics channels.

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

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

3. PUBLIC AFFAIRS

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

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

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

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

Petitioners Lim and Ersando present the following arguments:

THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) in 1951 TO
PROVIDE MUTUAL MILITARY ASSIST ANCE IN ACCORDANCE WITH THE 'CONSTITUTIONAL PROCESSE-S'
OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR, MEANING
A THIRD COUNTRY AGAINST ONE OF THEM.
BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN BASILAN
CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES TO AN ARMED
EXTERNAL ATTACK TO WARRANT U.S. MILITARY ASSISTANCE UNDER THE MDT OF 1951.

II

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

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

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

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

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

Given the primordial importance of the issue involved, it will suffice to reiterate our view on this point in
a related case:
Notwithstanding, in view of the paramount importance and the constitutional significance of the issues
raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural
barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases,
where we had occasion to rule:

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

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

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

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

Although courts generally avoid having to decide a constitutional question based on the doctrine of
separation of powers, which enjoins upon the department of the government a becoming respect for
each other's act, this Court nevertheless resolves to take cognizance of the instant petition.6

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

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

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

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

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

SECTION 3. INTERPRETATION OF TREATIES

Article 31

General rule of interpretation

1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given to the
tenus of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text,
including its preamble and annexes:

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

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

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

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

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

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32

Supplementary means of interpretation

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

(a) leaves the meaning ambiguous or obscure; or

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

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

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

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

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

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to
assume that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls
under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the
history and intent of the Mutual Defense Treaty and the V FA support the conclusion that combat-
related activities -as opposed to combat itself -such as the one subject of the instant petition, are indeed
authorized.
That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under the terms of
the VFA, what may US forces legitimately do in furtherance of their aim to provide advice, assistance
and training in the global effort against terrorism? Differently phrased, may American troops actually
engage in combat in Philippine territory? The Terms of Reference are explicit enough. Paragraph 8 of
section I stipulates that US exercise participants may not engage in combat "except in self-defense." We
wryly note that this sentiment is admirable in the abstract but difficult in implementation. The target of
"Balikatan 02-1 I" the Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to
their very doorstep. They cannot be expected to pick and choose their targets for they will not have the
luxury of doing so. We state this point if only to signify our awareness that the parties straddle a fine
line, observing the honored legal maxim "Nemo potest facere per alium quod non potest facere per
directum."11 The indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1 " is
actually a war principally conducted by the United States government, and that the provision on self-
defense serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on
this matter thereby becomes crucial.

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

Article 2

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

xxx xxx xxx xxx

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

xxx xxx xxx xxx

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

xxx xxx xxx xxx

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

xxx xxx xxx xxx

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

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

xxx xxx xxx xxx

The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that
"[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the members of the Senate."12 Even more pointedly, the Transitory Provisions state:

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

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

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

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

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

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

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

The Supreme Court shall have the following powers:

xxx xxx xxx xxx

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

(A) All cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
xxx xxx xxx xxx

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

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

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

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

It is all too apparent that the determination thereof involves basically a question of fact. On this point,
we must concur with the Solicitor General that the present subject matter is not a fit topic for a special
civil action for certiorari. We have held in too many instances that questions of fact are not entertained
in such a remedy. The sole object of the writ is to correct errors of jurisdiction or grave abuse of
discretion: The phrase "grave abuse of discretion" has a precise meaning in law, denoting abuse of
discretion "too patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to
perform the duty enjoined or act in contemplation of law, or where the power is exercised in an
arbitrary and despotic manner by reason of passion and personal hostility."19
In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts.20

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

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

SO ORDERED.

G.R. No. 158088 July 6, 2005

SENATOR AQUILINO PIMENTEL, JR., REP. ETTA ROSALES, PHILIPPINE COALITION FOR THE
ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL COURT, TASK FORCE DETAINEES OF THE
PHILIPPINES, FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCES, BIANCA HACINTHA R. ROQUE,
HARRISON JACOB R. ROQUE, AHMED PAGLINAWAN, RON P. SALO,* LEAVIDES G. DOMINGO, EDGARDO
CARLO VISTAN, NOEL VILLAROMAN, CELESTE CEMBRANO, LIZA ABIERA, JAIME ARROYO, MARWIL
LLASOS, CRISTINA ATENDIDO, ISRAFEL FAGELA, and ROMEL BAGARES, Petitioners,

vs.

OFFICE OF THE EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, and the DEPARTMENT OF FOREIGN
AFFAIRS, represented by HON. BLAS OPLE, Respondents.

DECISION

PUNO J.:

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

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

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

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

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

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

A petition for mandamus may be filed when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from
an office, trust, or station.6 We have held that to be given due course, a petition for mandamus must
have been instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or
person which unlawfully excludes said party from the enjoyment of a legal right. The petitioner in every
case must therefore be an aggrieved party in the sense that he possesses a clear legal right to be
enforced and a direct interest in the duty or act to be performed.7 The Court will exercise its power of
judicial review only if the case is brought before it by a party who has the legal standing to raise the
constitutional or legal question. "Legal standing" means a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the government act that is
being challenged. The term "interest" is material interest, an interest in issue and to be affected by the
decree, as distinguished from mere interest in the question involved, or a mere incidental interest.8

The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to file the
suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the House of
Representatives and Chairperson of its Committee on Human Rights; the Philippine Coalition for the
Establishment of the International Criminal Court which is composed of individuals and corporate
entities dedicated to the Philippine ratification of the Rome Statute; the Task Force Detainees of the
Philippines, a juridical entity with the avowed purpose of promoting the cause of human rights and
human rights victims in the country; the Families of Victims of Involuntary Disappearances, a juridical
entity duly organized and existing pursuant to Philippine Laws with the avowed purpose of promoting
the cause of families and victims of human rights violations in the country; Bianca Hacintha Roque and
Harrison Jacob Roque, aged two (2) and one (1), respectively, at the time of filing of the instant petition,
and suing under the doctrine of inter-generational rights enunciated in the case of Oposa vs. Factoran,
Jr.;9 and a group of fifth year working law students from the University of the Philippines College of Law
who are suing as taxpayers.

The question in standing is whether a party has alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions.10

We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit.
The other petitioners maintain their standing as advocates and defenders of human rights, and as
citizens of the country. They have not shown, however, that they have sustained or will sustain a direct
injury from the non-transmittal of the signed text of the Rome Statute to the Senate. Their contention
that they will be deprived of their remedies for the protection and enforcement of their rights does not
persuade. The Rome Statute is intended to complement national criminal laws and courts. Sufficient
remedies are available under our national laws to protect our citizens against human rights violations
and petitioners can always seek redress for any abuse in our domestic courts.

As regards Senator Pimentel, it has been held that "to the extent the powers of Congress are impaired,
so is the power of each member thereof, since his office confers a right to participate in the exercise of
the powers of that institution."11 Thus, legislators have the standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in their office and are allowed to sue to
question the validity of any official action which they claim infringes their prerogatives as legislators. The
petition at bar invokes the power of the Senate to grant or withhold its concurrence to a treaty entered
into by the executive branch, in this case, the Rome Statute. The petition seeks to order the executive
branch to transmit the copy of the treaty to the Senate to allow it to exercise such authority. Senator
Pimentel, as member of the institution, certainly has the legal standing to assert such authority of the
Senate.

We now go to the substantive issue.

The core issue in this petition for mandamus is whether the Executive Secretary and the Department of
Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by
a member of the Philippine Mission to the United Nations even without the signature of the President.

We rule in the negative.

In our system of government, the President, being the head of state, is regarded as the sole organ and
authority in external relations and is the country’s sole representative with foreign nations.12 As the
chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations.13 In the realm of treaty-making, the President has
the sole authority to negotiate with other states.

Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of
the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987
Constitution provides that "no treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate." The 1935 and the 1973
Constitution also required the concurrence by the legislature to the treaties entered into by the
executive. Section 10 (7), Article VII of the 1935 Constitution provided:

Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the Members
of the Senate, to make treaties xxx.

Section 14 (1) Article VIII of the 1973 Constitution stated:

Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective unless
concurred in by a majority of all the Members of the Batasang Pambansa.
The participation of the legislative branch in the treaty-making process was deemed essential to provide
a check on the executive in the field of foreign relations.14 By requiring the concurrence of the
legislature in the treaties entered into by the President, the Constitution ensures a healthy system of
checks and balance necessary in the nation’s pursuit of political maturity and growth.15

In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean
that the power to ratify treaties belongs to the Senate.

We disagree.

Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:

The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of
the instruments of ratification. The treaty may then be submitted for registration and publication under
the U.N. Charter, although this step is not essential to the validity of the agreement as between the
parties.

Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his
authorized representatives. These representatives are provided with credentials known as full powers,
which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice
for one of the parties to submit a draft of the proposed treaty which, together with the counter-
proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or
protracted, depending on the issues involved, and may even "collapse" in case the parties are unable to
come to an agreement on the points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature.
This step is primarily intended as a means of authenticating the instrument and for the purpose of
symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the
state in cases where ratification of the treaty is required. The document is ordinarily signed in
accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy
which he will bring home to his own state.

Ratification, which is the next step, is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the
contracting states to examine the treaty more closely and to give them an opportunity to refuse to be
bound by it should they find it inimical to their interests. It is for this reason that most treaties are made
subject to the scrutiny and consent of a department of the government other than that which
negotiated them.

xxx

The last step in the treaty-making process is the exchange of the instruments of ratification, which
usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the
parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the
instrument is deemed effective upon its signature.16 [emphasis supplied]

Petitioners’ arguments equate the signing of the treaty by the Philippine representative with ratification.
It should be underscored that the signing of the treaty and the ratification are two separate and distinct
steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means
of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed
by the state’s authorized representative in the diplomatic mission. Ratification, on the other hand, is the
formal act by which a state confirms and accepts the provisions of a treaty concluded by its
representative. It is generally held to be an executive act, undertaken by the head of the state or of the
government.17 Thus, Executive Order No. 459 issued by President Fidel V. Ramos on November 25,
1997 provides the guidelines in the negotiation of international agreements and its ratification. It
mandates that after the treaty has been signed by the Philippine representative, the same shall be
transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare
the ratification papers and forward the signed copy of the treaty to the President for ratification. After
the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the
Senate for concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign
Affairs shall comply with the provisions of the treaty to render it effective. Section 7 of Executive Order
No. 459 reads:

Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. — The
domestic requirements for the entry into force of a treaty or an executive agreement, or any
amendment thereto, shall be as follows:

A. Executive Agreements.

i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their signing
for the preparation of the ratification papers. The transmittal shall include the highlights of the
agreements and the benefits which will accrue to the Philippines arising from them.
ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall
transmit the agreements to the President of the Philippines for his ratification. The original signed
instrument of ratification shall then be returned to the Department of Foreign Affairs for appropriate
action.

B. Treaties.

i. All treaties, regardless of their designation, shall comply with the requirements provided in sub-
paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of
Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the
ratification by the President. A certified true copy of the treaties, in such numbers as may be required by
the Senate, together with a certified true copy of the ratification instrument, shall accompany the
submission of the treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with
the provision of the treaties in effecting their entry into force.

Petitioners’ submission that the Philippines is bound under treaty law and international law to ratify the
treaty which it has signed is without basis. The signature does not signify the final consent of the state to
the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute
itself requires that the signature of the representatives of the states be subject to ratification,
acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty
are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state
expresses its willingness to be bound by the provisions of such treaty. After the treaty is signed by the
state’s representative, the President, being accountable to the people, is burdened with the
responsibility and the duty to carefully study the contents of the treaty and ensure that they are not
inimical to the interest of the state and its people. Thus, the President has the discretion even after the
signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna
Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the
head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It
has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its
plenipotentiaries.18 There is no legal obligation to ratify a treaty, but it goes without saying that the
refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise,
the other state would be justified in taking offense.19

It should be emphasized that under our Constitution, the power to ratify is vested in the President,
subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or
withholding its consent, or concurrence, to the ratification.20 Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification,
refuse to ratify it.21 Although the refusal of a state to ratify a treaty which has been signed in its behalf
is a serious step that should not be taken lightly,22 such decision is within the competence of the
President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no
jurisdiction over actions seeking to enjoin the President in the performance of his official duties.23 The
Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its
jurisdiction to compel the executive branch of the government to transmit the signed text of Rome
Statute to the Senate.

IN VIEW WHEREOF, the petition is DISMISSED.

SO ORDERED.

G.R. No. 106064 October 13, 2005

Spouses Renato Constantino, Jr. and Lourdes Constantino and their minor children Renato
Redentor, Anna Marika Lissa, Nina Elissa, and Anna Karmina, Freedom From Debt Coalition,
and Filomeno Sta. Ana III, Petitioners,
vs.
Hon. Jose B. Cuisia, in his capacity as Governor of the Central Bank, Hon. Ramon del
Rosario, in his capacity as Secretary of Finance, Hon. Emmanuel V. Pelaez, in his capacity as
Philippine Debt Negotiating Chairman, and the NATIONAL TREASURER, Respondents.

DECISION

Tinga, J.:

The quagmire that is the foreign debt problem has especially confounded developing nations around
the world for decades. It has defied easy solutions acceptable both to debtor countries and their
creditors. It has also emerged as cause celebre for various political movements and grassroots
activists and the wellspring of much scholarly thought and debate.

The present petition illustrates some of the ideological and functional differences between experts on
how to achieve debt relief. However, this being a court of law, not an academic forum or a
convention on development economics, our resolution has to hinge on the presented legal issues
which center on the appreciation of the constitutional provision that empowers the President to
contract and guarantee foreign loans. The ultimate choice is between a restrictive reading of the
constitutional provision and an alimentative application thereof consistent with time-honored
principles on executive power and the alter ego doctrine.

This Petition for Certiorari, Prohibition and Mandamus assails said contracts which were entered into
pursuant to the Philippine Comprehensive Financing Program for 1992 ("Financing Program" or
"Program"). It seeks to enjoin respondents from executing additional debt-relief contracts pursuant
thereto. It also urges the Court to issue an order compelling the Secretary of Justice to institute
criminal and administrative cases against respondents for acts which circumvent or negate the
provisions Art. XII of the Constitution. 1

Parties and Facts

The petition was filed on 17 July 1992 by petitioners spouses Renato Constantino, Jr. and Lourdes
Constantino and their minor children, Renato Redentor, Anna Marika Lissa, Nina Elissa, and Anna
Karmina, Filomeno Sta. Ana III, and the Freedom from Debt Coalition, a non-stock, non-profit, non-
government organization that advocates a "pro-people and just Philippine debt policy." 2 Named
respondents were the then Governor of the Bangko Sentral ng Pilipinas, the Secretary of Finance,
the National Treasurer, and the Philippine Debt Negotiation Chairman Emmanuel V. Pelaez. 3 All
respondents were members of the Philippine panel tasked to negotiate with the country’s foreign
creditors pursuant to the Financing Program.

The operative facts are sparse and there is little need to elaborate on them.

The Financing Program was the culmination of efforts that began during the term of former President
Corazon Aquino to manage the country’s external debt problem through a negotiation-oriented debt
strategy involving cooperation and negotiation with foreign creditors. 4 Pursuant to this strategy, the
Aquino government entered into three restructuring agreements with representatives of foreign
creditor governments during the period of 1986 to 1991. 5 During the same period, three similarly-
oriented restructuring agreements were executed with commercial bank creditors. 6

On 28 February 1992, the Philippine Debt Negotiating Team, chaired by respondent Pelaez,
negotiated an agreement with the country’s Bank Advisory Committee, representing all foreign
commercial bank creditors, on the Financing Program which respondents characterized as "a multi-
option financing

package."7 The Program was scheduled to be executed on 24 July 1992 by respondents in behalf of

the Republic. Nonetheless, petitioners alleged that even prior to the execution of the Program
respondents had already implemented its "buyback component" when on 15 May 1992, the
Philippines bought back ₱1.26 billion of external debts pursuant to the Program. 8

The petition sought to enjoin the ratification of the Program, but the Court did not issue any injunctive
relief. Hence, it came to pass that the Program was signed in London as scheduled. The petition still
has to be resolved though as petitioners seek the annulment "of

any and all acts done by respondents, their subordinates and any other public officer pursuant to the
agreement and program in question." 9 Even after the signing of the Program, respondents
themselves acknowledged that the remaining principal objective of the petition is to set aside
respondents’ actions.10

Petitioners characterize the Financing Program as a package offered to the country’s foreign
creditors consisting of two debt-relief options. 11 The first option was a cash buyback of portions of the
Philippine foreign debt at a discount. 12 The second option allowed creditors to convert existing
Philippine debt instruments into any of three kinds of bonds/securities: (1) new money bonds with a
five-year grace period and 17 years final maturity, the purchase of which would allow the creditors to
convert their eligible debt papers into bearer bonds with the same terms; (2) interest-reduction bonds
with a maturity of 25 years; and (3) principal-collateralized interest-reduction bonds with a maturity of
25 years.13
On the other hand, according to respondents the Financing Program would cover about U.S. $5.3
billion of foreign commercial debts and it was expected to deal comprehensively with the commercial
bank debt problem of the country and pave the way for the country’s access to capital
markets.14 They add that the Program carried three basic options from which foreign bank lenders
could choose, namely: to lend money, to exchange existing restructured Philippine debts with an
interest reduction bond; or to exchange the same Philippine debts with a principal collateralized
interest reduction bond.15

Issues for Resolution

Petitioners raise several issues before this Court.

First, they object to the debt-relief contracts entered into pursuant to the Financing Program as
beyond the powers granted to the President under Section 20,

Article VII of the Constitution. 16 The provision states that the President may contract or guarantee
foreign loans in behalf of the Republic. It is claimed that the buyback and securitization/bond
conversion schemes are neither "loans" nor "guarantees," and hence beyond the power of the
President to execute.

Second, according to petitioners even assuming that the contracts under the Financing Program are
constitutionally permissible, yet it is only the President who may exercise the power to enter into
these contracts and such power may not be delegated to respondents.

Third, petitioners argue that the Financing Program violates several constitutional policies and that
contracts executed or to be executed pursuant thereto were or will be done by respondents with
grave abuse of discretion amounting to lack or excess of jurisdiction.

Petitioners contend that the Financing Program was made available for debts that were either
fraudulently contracted or void. In this regard, petitioners rely on a 1992 Commission on Audit (COA)
report which identified several "behest" loans as either contracted or guaranteed fraudulently during
the Marcos regime.17 They posit that since these and other similar debts, such as the ones pertaining
to the Bataan Nuclear Power Plant, 18 were eligible for buyback or conversion under the Program, the
resultant relief agreements pertaining thereto would be void for being waivers of the Republic’s right
to repudiate the void or fraudulently contracted loans.

For their part, respondents dispute the points raised by petitioners. They also question the standing
of petitioners to institute the present petition and the justiciability of the issues presented.

The Court shall tackle the procedural questions ahead of the substantive issues.

The Court’s Rulings

Standing of Petitioners

The individual petitioners are suing as citizens of the Philippines; those among them who are of age
are suing in their additional capacity as taxpayers. 19 It is not indicated in what capacity the Freedom
from Debt Coalition is suing.

Respondents point out that petitioners have no standing to file the present suit since the rule
allowing taxpayers to assail executive or legislative acts has been applied only to cases where the
constitutionality of a statute is involved. At the same time, however, they urge this Court to exercise
its wide discretion and waive petitioners’ lack of standing. They invoke the transcendental
importance of resolving the validity of the questioned debt-relief contracts and others of similar
import.

The recent trend on locus standi has veered towards a liberal treatment in taxpayer’s suits. In Tatad
v. Garcia Jr.,20 this Court reiterated that the "prevailing doctrines in taxpayer’s suits are to allow
taxpayers to question contracts entered into by the national government or government owned and
controlled corporations allegedly in contravention of law." 21 A taxpayer is allowed to sue where there
is a claim that public funds are illegally disbursed, or that public money is being deflected to any
improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or
unconstitutional law.22

Moreover, a ruling on the issues of this case will not only determine the validity or invalidity of the
subject pre-termination and bond-conversion of foreign debts but also create a precedent for other
debts or debt-related contracts executed or to be executed in behalf of the President of the
Philippines by the Secretary of Finance. Considering the reported Philippine debt of ₱3.80 trillion as
of November 2004, the foreign public borrowing component of which reached ₱1.81 trillion in
November, equivalent to 47.6% of total government borrowings, 23 the importance of the issues
raised and the magnitude of the public interest involved are indubitable.

Thus, the Court’s cognizance of this petition is also based on the consideration that the
determination of the issues presented will have a bearing on the state of the country’s economy, its
international financial ratings, and perhaps even the Filipinos’ way of life. Seen in this light, the
transcendental importance of the issues herein presented cannot be doubted.

Where constitutional issues are properly raised in the context of alleged facts, procedural questions
acquire a relatively minor significance. 24 We thus hold that by the very nature of the power wielded
by the President, the effect of using this power on the economy, and the well-being in general of the
Filipino nation, the Court must set aside the procedural barrier of standing and rule on the justiciable
issues presented by the parties.

Ripeness/Actual Case Dimension

Even as respondents concede the transcendental importance of the issues at bar, in

their Rejoinder they ask this Court to dismiss the Petition. Allegedly, petitioners’ arguments are mere
attempts at abstraction. 25 Respondents are correct to some degree. Several issues, as shall be
discussed in due course, are not ripe for adjudication.

The allegation that respondents waived the Philippines’ right to repudiate void and fraudulently
contracted loans by executing the debt-relief agreements is, on many levels, not justiciable.

In the first place, records do not show whether the so-called behest loans–or other allegedly void or
fraudulently contracted loans for that matter–were subject of the debt-relief contracts entered into
under the Financing Program.

Moreover, asserting a right to repudiate void or fraudulently contracted loans begs the question of
whether indeed particular loans are void or fraudulently contracted. Fraudulently contracted loans
are voidable and, as such, valid and enforceable until annulled by the courts. On the other hand,
void contracts that have already been fulfilled must be declared void in view of the maxim that no
one is allowed to take the law in his own hands. 26 Petitioners’ theory depends on a prior annulment
or declaration of nullity of the pre-existing loans, which thus far have not been submitted to this
Court. Additionally, void contracts are unratifiable by their very nature; they are null and void ab
initio. Consequently, from the viewpoint of civil law, what petitioners present as the Republic’s "right
to repudiate" is yet a contingent right, one which cannot be allowed as an anticipatory basis for
annulling the debt-relief contracts. Petitioners’ contention that the debt-relief agreements are
tantamount to waivers of the Republic’s "right to repudiate" so-called behest loans is without legal
foundation.

It may not be amiss to recognize that there are many advocates of the position that the Republic
should renege on obligations that are considered as "illegitimate." However, should the executive
branch unilaterally, and possibly even without prior court determination of the validity or invalidity of
these contracts, repudiate or otherwise declare to the international community its resolve not to
recognize a certain set of "illegitimate" loans, adverse repercussions 27 would come into play. Dr.
Felipe Medalla, former Director General of the National Economic Development Authority, has
warned, thus:

One way to reduce debt service is to repudiate debts, totally or selectively. Taken to its limit,
however, such a strategy would put the Philippines at such odds with too many enemies. Foreign
commercial banks by themselves and without the cooperation of creditor governments, especially
the United States, may not be in a position to inflict much damage, but concerted sanctions from
commercial banks, multilateral financial institutions and creditor governments would affect not only
our sources of credit but also our access to markets for our exports and the level of development
assistance. . . . [T]he country might face concerted sanctions even if debts were repudiated only
selectively.

The point that must be stressed is that repudiation is not an attractive alternative if net payments to
creditors in the short and medium-run can be reduced through an agreement (as opposed to a
unilaterally set ceiling on debt service payments) which provides for both rescheduling of principal
and capitalization of interest, or its equivalent in new loans, which would make it easier for the
country to pay interest.28

Sovereign default is not new to the Philippine setting. In October 1983, the Philippines declared a
moratorium on principal payments on its external debts that eventually

lasted four years,29 that virtually closed the country’s access to new foreign money 30 and drove
investors to leave the Philippine market, resulting in some devastating consequences. 31 It would
appear then that this beguilingly attractive and dangerously simplistic solution deserves the utmost
circumspect cogitation before it is resorted to.

In any event, the discretion on the matter lies not with the courts but with the executive. Thus, the
Program was conceptualized as an offshoot of the decision made by then

President Aquino that the Philippines should recognize its sovereign debts 32 despite the controversy
that engulfed many debts incurred during the Marcos era. It is a scheme whereby the Philippines
restructured its debts following a negotiated approach instead of a default approach to manage the
bleak Philippine debt situation.

As a final point, petitioners have no real basis to fret over a possible waiver of the right to repudiate
void contracts. Even assuming that spurious loans had become the subject of debt-relief contracts,
respondents unequivocally assert that the Republic did not waive any right to repudiate void or
fraudulently contracted loans, it having incorporated a "no-waiver" clause in the agreements. 33

Substantive Issues
It is helpful to put the matter in perspective before moving on to the merits. The Financing Program
extinguished portions of the country’s pre-existing loans

through either debt buyback or bond-conversion. The buyback approach essentially pre-terminated
portions of public debts while the bond-conversion scheme extinguished public debts through the
obtention of a new loan by virtue of a sovereign bond issuance, the proceeds of which in turn were
used for terminating the original loan.

First Issue: The Scope of Section 20, Article VII

For their first constitutional argument, petitioners submit that the buyback and bond-conversion
schemes do not constitute the loan "contract" or "guarantee" contemplated in the Constitution and
are consequently prohibited. Sec. 20, Art. VII of the Constitution provides, viz:

The President may contract or guarantee foreign loans in behalf of the Republic of the Philippines
with the prior concurrence of the Monetary Board and subject to such limitations as may be provided
under law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar
year, submit to the Congress a complete report of its decisions on applications for loans to be
contracted or guaranteed by the government or government-owned and controlled corporations
which would have the effect of increasing the foreign debt, and containing other matters as may be
provided by law.

On Bond-conversion

Loans are transactions wherein the owner of a property allows another party to use the property and
where customarily, the latter promises to return the property after a specified period with payment for
its use, called interest. 34 On the other hand, bonds are interest-bearing or discounted government or
corporate securities that obligate the issuer to pay the bondholder a specified sum of money, usually
at specific intervals, and to repay the principal amount of the loan at maturity. 35 The word "bond"
means contract, agreement, or guarantee. All of these terms are applicable to the securities known
as bonds. An investor who purchases a bond is lending money to the issuer, and the bond
represents the issuer’s contractual promise to pay interest and repay principal according to specific
terms. A short-term bond is often called a note.36

The language of the Constitution is simple and clear as it is broad. It allows the President to contract
and guarantee foreign loans. It makes no prohibition on the issuance of certain kinds of loans or
distinctions as to which kinds of debt instruments are more onerous than others. This Court may not
ascribe to the Constitution meanings and restrictions that would unduly burden the powers of the
President. The plain, clear and unambiguous language of the Constitution should be construed in a
sense that will allow the full exercise of the power provided therein. It would be the worst kind of
judicial legislation if the courts were to misconstrue and change the meaning of the organic act.

The only restriction that the Constitution provides, aside from the prior concurrence of the Monetary
Board, is that the loans must be subject to limitations provided by law. In this regard, we note that
Republic Act (R.A.) No. 245 as amended by Pres. Decree (P.D.) No. 142, s. 1973, entitled An Act
Authorizing the Secretary of Finance to Borrow to Meet Public Expenditures Authorized by Law, and
for Other Purposes, allows foreign loans to be contracted in the form of, inter alia, bonds. Thus:

Sec. 1. In order to meet public expenditures authorized by law or to provide for the purchase,
redemption, or refunding of any obligations, either direct or guaranteed of the Philippine
Government, the Secretary of Finance, with the approval of the President of the Philippines,
after consultation with the Monetary Board, is authorized to borrow from time to time on the
credit of the Republic of the Philippines such sum or sums as in his judgment may be
necessary, and to issue therefor evidences of indebtedness of the Philippine Government."

Such evidences of indebtedness may be of the following types:

....

c. Treasury bonds, notes, securities or other evidences of indebtedness having maturities of

one year or more but not exceeding twenty-five years from the date of issue. (Emphasis
supplied.)

Under the foregoing provisions, sovereign bonds may be issued not only to supplement government
expenditures but also to provide for the purchase, 37 redemption,38 or refunding39 of any obligation,
either direct or guaranteed, of the Philippine Government.

Petitioners, however, point out that a supposed difference between contracting a loan and issuing
bonds is that the former creates a definite creditor-debtor relationship between the parties while the
latter does not.40 They explain that a contract of loan enables the debtor to restructure or novate the
loan, which benefit is lost upon the conversion of the debts to bearer bonds such that "the
Philippines surrenders the novatable character of a loan contract for the irrevocable and
unpostponable demandability of a bearer bond." 41 Allegedly, the Constitution prohibits the President
from issuing bonds which are "far more onerous" than loans. 42

This line of thinking is flawed to say the least. The negotiable character of the subject bonds is not
mutually exclusive with the Republic’s freedom to negotiate with bondholders for the revision of the
terms of the debt. Moreover, the securities market provides some flexibility–if the Philippines wants
to pay in advance, it can buy out its bonds in the market; if interest rates go down but the Philippines
does not have money to retire the bonds, it can replace the old bonds with new ones; if it defaults on
the bonds, the bondholders shall organize and bring about a re-negotiation or settlement. 43 In fact,
several countries have restructured their sovereign bonds in view either of

inability and/or unwillingness to pay the indebtedness. 44 Petitioners have not presented a plausible
reason that would preclude the Philippines from acting in a similar fashion, should it so opt.

This theory may even be dismissed in a perfunctory manner since petitioners are merely expecting
that the Philippines would opt to restructure the bonds but with the negotiable character of the
bonds, would be prevented from so doing. This is a contingency which petitioners do not assert as
having come to pass or even imminent. Consummated acts of the executive cannot be struck down
by this Court merely on the basis of petitioners’ anticipatory cavils.

On the Buyback Scheme

In their Comment, petitioners assert that the power to pay public debts lies with Congress and was
deliberately

withheld by the Constitution from the President. 45 It is true that in the balance of power between the
three branches of government, it is Congress that manages the country’s coffers by virtue of its
taxing and spending powers. However, the law-making authority has promulgated a law ordaining an
automatic appropriations provision for debt servicing 46 by virtue of which the President is empowered
to execute debt payments without the need for further appropriations. Regarding these legislative
enactments, this Court has held, viz:
Congress … deliberates or acts on the budget proposals of the President, and Congress in the
exercise of its own judgment and wisdom formulates an appropriation act precisely following the
process established by the Constitution, which specifies that no money may be paid from the
Treasury except in accordance with an appropriation made by law.

Debt service is not included in the General Appropriation Act, since authorization therefor already
exists under RA Nos. 4860 and 245, as amended, and PD 1967. Precisely in the light of this
subsisting authorization as embodied in said Republic Acts and PD for debt service, Congress does
not concern itself with details for implementation by the Executive, but largely with annual levels and
approval thereof upon due deliberations as part of the whole obligation program for the year. Upon
such approval, Congress has spoken and cannot be said to have delegated its wisdom to the
Executive, on whose part lies the implementation or execution of the legislative wisdom. 47

Specific legal authority for the buyback of loans is established under Section 2 of Republic Act (R.A.)
No. 240, viz:

Sec. 2. The Secretary of Finance shall cause to be paid out of any moneys in the National
Treasury not otherwise appropriated, or from any sinking funds provided for the purpose by
law, any interest falling due, or accruing, on any portion of the public debt authorized by law.
He shall also cause to be paid out of any such money, or from any such sinking funds the
principal amount of any obligations which have matured, or which have been called for
redemption or for which redemption has been demanded in accordance with terms prescribed by
him prior to date of issue: Provided, however, That he may, if he so chooses and if the holder is
willing, exchange any such obligation with any other direct or guaranteed obligation or obligations of
the Philippine Government of equivalent value. In the case of interest-bearing obligations, he shall
pay not less than their face value; in the case of obligations issued at a discount he shall pay the
face value at maturity; or, if redeemed prior to maturity, such portion of the face value as is
prescribed by the terms and conditions under which such obligations were originally
issued. (Emphasis supplied.)

The afore-quoted provisions of law specifically allow the President to pre-terminate debts without
further action from Congress.

Petitioners claim that the buyback scheme is neither a guarantee nor a loan since its underlying
intent is to extinguish debts that are not yet due and demandable. 48 Thus, they suggest that contracts
entered pursuant to the buyback scheme are unconstitutional for not being among those
contemplated in Sec. 20, Art. VII of the Constitution.

Buyback is a necessary power which springs from the grant of the foreign borrowing power. Every
statute is understood, by implication, to contain all such provisions as may be necessary to
effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which
it grants, including all such collateral and subsidiary consequences as may be fairly and logically
inferred from its terms.49 The President is not empowered to borrow money from foreign banks and
governments on the credit of the Republic only to be left bereft of authority to implement the
payment despite appropriations therefor.

Even petitioners concede that "[t]he Constitution, as a rule, does not enumerate–let alone enumerate
all–the acts which the President (or any other public officer) may not

do,"50 and "[t]he fact that the Constitution does not explicitly bar the President from exercising a
power does not mean that he or she does not have that power." 51 It is inescapable from the
standpoint of reason and necessity that the authority to contract foreign loans and guarantees
without restrictions on payment or manner thereof coupled with the availability of the corresponding
appropriations, must include the power to effect payments or to make payments unavailing by either
restructuring the loans or even refusing to make any payment altogether.

More fundamentally, when taken in the context of sovereign debts, a buyback is simply the purchase
by the sovereign issuer of its own debts at a discount. Clearly then, the objection to the validity of the
buyback scheme is without basis.

Second Issue: Delegation of Power

Petitioners stress that unlike other powers which may be validly delegated by the President, the
power to incur foreign debts is expressly reserved by the Constitution in the person of the President.
They argue that the gravity by which the exercise of the power will affect the Filipino nation requires
that the President alone must exercise this power. They submit that the requirement of prior
concurrence of an entity specifically named by the Constitution–the Monetary Board–reinforces the
submission that not respondents but the President "alone and personally" can validly bind the
country.

Petitioners’ position is negated both by explicit constitutional 52 and legal53 imprimaturs, as well as the
doctrine of qualified political agency.

The evident exigency of having the Secretary of Finance implement the decision of the President to
execute the debt-relief contracts is made manifest by the fact that the process of establishing and
executing a strategy for managing the government’s debt is deep within the realm of the expertise of
the Department of Finance, primed as it is to raise the required amount of funding, achieve its risk
and cost objectives, and meet any other sovereign debt management goals. 54

If, as petitioners would have it, the President were to personally exercise every aspect of the foreign
borrowing power, he/she would have to pause from running the country long enough to focus on a
welter of time-consuming detailed activities–the propriety of incurring/guaranteeing loans, studying
and choosing among the many methods that may be taken toward this end, meeting countless times
with creditor representatives to negotiate, obtaining the concurrence of the Monetary Board,
explaining and defending the negotiated deal to the public, and more often than not, flying to the
agreed place of execution to sign the documents. This sort of constitutional interpretation would
negate the very existence of cabinet positions and the respective expertise which the holders thereof
are accorded and would unduly hamper the President’s effectivity in running the government.

Necessity thus gave birth to the doctrine of qualified political agency, later adopted in Villena v.
Secretary of the Interior55 from American jurisprudence, viz:

With reference to the Executive Department of the government, there is one purpose which is
crystal-clear and is readily visible without the projection of judicial searchlight, and that is the
establishment of a single, not plural, Executive. The first section of Article VII of the Constitution,
dealing with the Executive Department, begins with the enunciation of the principle that "The
executive power shall be vested in a President of the Philippines." This means that the President of
the Philippines is the Executive of the Government of the Philippines, and no other. The heads of the
executive departments occupy political positions and hold office in an advisory capacity, and, in the
language of Thomas Jefferson, "should be of the President's bosom confidence" (7 Writings, Ford
ed., 498), and, in the language of Attorney-General Cushing (7 Op., Attorney-General, 453), "are
subject to the direction of the President." Without minimizing the importance of the heads of the
various departments, their personality is in reality but the projection of that of the President. Stated
otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme Court of the United
States, "each head of a department is, and must be, the President's alter ego in the matters of that
department where the President is required by law to exercise authority" (Myers vs. United States,
47 Sup. Ct. Rep., 21 at 30; 272 U. S., 52 at 133; 71 Law. ed., 160). 56

As it was, the backdrop consisted of a major policy determination made by then President Aquino
that sovereign debts have to be respected and the concomitant reality that the Philippines did not
have enough funds to pay the debts. Inevitably, it fell upon the Secretary of Finance, as the alter
ego of the President regarding "the sound and efficient management of the financial resources of the
Government,"57 to formulate a scheme for the implementation of the policy publicly expressed by the
President herself.

Nevertheless, there are powers vested in the President by the Constitution which may not be
delegated to or exercised by an agent or alter ego of the President. Justice Laurel, in
his ponencia in Villena, makes this clear:

Withal, at first blush, the argument of ratification may seem plausible under the circumstances, it
should be observed that there are certain acts which, by their very nature, cannot be validated by
subsequent approval or ratification by the President. There are certain constitutional powers and
prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no
amount of approval or ratification will validate the exercise of any of those powers by any other
person. Such, for instance, in his power to suspend the writ of habeas corpus and proclaim martial
law (PAR. 3, SEC. 11, Art. VII) and the exercise by him of the benign prerogative of mercy (par. 6,
sec. 11, idem).58

These distinctions hold true to this day. There are certain presidential powers which arise out of
exceptional circumstances, and if exercised, would involve the suspension of fundamental freedoms,
or at least call for the supersedence of executive prerogatives over those exercised by co-equal
branches of government. The declaration of martial law, the suspension of the writ of habeas corpus,
and the exercise of the pardoning power notwithstanding the judicial determination of guilt of the
accused, all fall within this special class that demands the exclusive exercise by the President of the
constitutionally vested power. The list is by no means exclusive, but there must be a showing that
the executive power in question is of similar gravitas and exceptional import.

We cannot conclude that the power of the President to contract or guarantee foreign debts falls
within the same exceptional class. Indubitably, the decision to contract or guarantee foreign debts is
of vital public interest, but only

akin to any contractual obligation undertaken by the sovereign, which arises not from any
extraordinary incident, but from the established functions of governance.

Another important qualification must be made. The Secretary of Finance or any designated alter
ego of the President is bound to secure the latter’s prior consent to or subsequent ratification of his
acts. In the matter of contracting or guaranteeing foreign loans, the repudiation by the President of
the very acts performed in this regard by the alter ego will definitely have binding effect. Had
petitioners herein succeeded in demonstrating that the President actually withheld approval and/or
repudiated the Financing Program, there could be a cause of action to nullify the acts of
respondents. Notably though, petitioners do not assert that respondents pursued the Program
without prior authorization of the President or that the terms of the contract were agreed upon
without the President’s authorization. Congruent with the avowed preference of then President
Aquino to honor and restructure existing foreign debts, the lack of showing that she countermanded
the acts of respondents leads us to conclude that said acts carried presidential approval.
With constitutional parameters already established, we may also note, as a source of suppletory
guidance, the provisions of R.A. No. 245. The afore-quoted Section 1 thereof empowers the
Secretary of Finance with the approval of the President and after consultation 59 of the Monetary
Board, "to borrow from time to time on the credit of the Republic of the Philippines such sum or sums
as in his judgment may be necessary, and to issue therefor evidences of indebtedness of the
Philippine Government." Ineluctably then, while the President wields the borrowing power it is the
Secretary of Finance who normally carries out its thrusts.

In our recent rulings in Southern Cross Cement Corporation v. The Philippine Cement
Manufacturers Corp.,60 this Court had occasion to examine the authority granted by Congress to the
Department of Trade and Industry (DTI) Secretary to impose safeguard measures pursuant to the
Safeguard Measures Act. In doing so, the Court was impelled to construe Section 28(2), Article VI of
the Constitution, which allowed Congress, by law, to authorize the President to "fix within specified
limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the
national development program of the Government." 61

While the Court refused to uphold the broad construction of the grant of power as preferred by the
DTI Secretary, it nonetheless tacitly acknowledged that Congress could designate the DTI
Secretary, in his capacity as alter ego of the President, to exercise the authority vested on the chief
executive under Section 28(2), Article VI.62 At the same time, the Court emphasized that since
Section 28(2), Article VI authorized Congress to impose limitations and restrictions on the authority
of the President to impose tariffs and imposts, the DTI Secretary was necessarily subjected to the
same restrictions that Congress could impose on the President in the exercise of this taxing power.

Similarly, in the instant case, the Constitution allocates to the President the exercise of the foreign
borrowing power "subject to such limitations as may be provided under law." Following Southern
Cross, but in line with the limitations as defined in Villena, the presidential prerogative may be
exercised by the President’s alter ego, who in this case is the Secretary of Finance.

It bears emphasis that apart from the Constitution, there is also a relevant statute, R.A. No. 245, that
establishes the parameters by which the alter ego may act in behalf of the President with respect to
the borrowing power. This law expressly provides that the Secretary of Finance may enter into
foreign borrowing contracts. This law neither amends nor goes contrary to the Constitution but
merely implements the subject provision in a manner consistent with the structure of the Executive
Department and the alter ego doctine. In this regard, respondents have declared that they have
followed the restrictions provided under R.A. No. 245, 63 which include the requisite presidential
authorization and which, in the absence of proof and even allegation to the contrary, should be
regarded in a fashion congruent with the presumption of regularity bestowed on acts done by public
officials.

Moreover, in praying that the acts of the respondents, especially that of the Secretary of Finance, be
nullified as being in violation of a restrictive constitutional interpretation, petitioners in effect would
have this Court declare R.A. No. 245 unconstitutional. We will not strike

down a law or provisions thereof without so much as a direct attack thereon when simple and logical
statutory construction would suffice.

Petitioners also submit that the unrestricted character of the Financing Program violates the framers’
intent behind Section 20, Article VII to restrict the power of the President. This intent, petitioners
note, is embodied in the proviso in Sec. 20, Art. VII, which states that said power is "subject to such
limitations as may be provided under law." However, as previously discussed, the debt-relief
contracts are governed by the terms of R.A. No. 245, as amended by P.D. No. 142 s. 1973, and
therefore were not developed in an unrestricted setting.

Third Issue: Grave Abuse of Discretion and

Violation of Constitutional Policies

We treat the remaining issues jointly, for in view of the foregoing determination, the general
allegation of grave abuse of discretion on the part of respondents would arise from the purported
violation of various state policies as expressed in the Constitution.

Petitioners allege that the Financing Program violates the constitutional state policies to promote a
social order that will "ensure the prosperity and independence of the nation" and free "the people
from poverty,64 foster "social justice in all phases of national development," 65 and develop a self-
reliant and independent national economy effectively controlled by Filipinos;" 66 thus, the contracts
executed or to be executed pursuant thereto were or would be tainted by a grave abuse of discretion
amounting to lack or excess of jurisdiction.

Respondents cite the following in support of the propriety of their acts: 67 (1) a Department of Finance
study showing that as a result of the implementation of voluntary debt reductions schemes, the
country’s debt stock was reduced by U.S. $4.4 billion as of December 1991; 68 (2) revelations made
by independent individuals made in a hearing before the Senate Committee on Economic Affairs
indicating that the assailed agreements would bring about substantial benefits to the country; 69 and
(3) the Joint Legislative-Executive Foreign Debt Council’s endorsement of the approval of the
financing package containing the debt-

relief agreements and issuance of a Motion to Urge the Philippine Debt Negotiating Panel to
continue with the negotiation on the aforesaid package. 70

Even with these justifications, respondents aver that their acts are within the arena of political
questions which, based on the doctrine of separation of powers, 71 the judiciary must leave without
interference lest the courts substitute their judgment for that of the official concerned and decide a
matter which by its nature or law is for the latter alone to decide. 72

On the other hand, in furtherance of their argument on respondents’ violation of constitutional

policies, petitioners cite an article of Jude Esguerra, The 1992 Buyback and Securitization
Agreement with Philippine Commercial Bank Creditors,73 in illustrating a best-case scenario in
entering the subject debt-relief agreements. The computation results in a yield of $218.99 million,
rather

than the $2,041.00 million claimed by the debt negotiators. 74 On the other hand, the worst-case
scenario allegedly is that a net amount of $1.638 million will flow out of the country as a result of the
debt package.75

Assuming the accuracy of the foregoing for the nonce, despite the watered-down parameters of
petitioners’ computations, we can make no conclusion other than that respondents’ efforts were
geared towards debt-relief with marked positive results and towards achieving the constitutional
policies which petitioners so hastily declare as having been violated by respondents. We recognize
that as with other schemes dependent on volatile market and economic structures, the contracts
entered into by respondents may possibly have a net outflow and therefore negative result.
However, even petitioners call this latter event the worst-case scenario. Plans are seldom foolproof.
To ask the Court to strike down debt-relief contracts, which, according to independent third party
evaluations using historically-suggested rates would result in "substantial debt-relief," 76 based merely
on the possibility of petitioners’ worst-case scenario projection, hardly seems reasonable.

Moreover, the policies set by the Constitution as litanized by petitioners are not a panacea that can
annul every governmental act sought to be struck down. The gist of petitioners’ arguments on
violation of constitutional policies and grave abuse of discretion boils down to their allegation that the
debt-relief agreements entered into by respondents do not deliver the kind of debt-relief that
petitioners would want. Petitioners cite the aforementioned article in stating that that "the agreement
achieves little that cannot be gained through less complicated means like postponing (rescheduling)
principal payments,"77 thus:

[T]he price of success in putting together this "debt-relief package" (indicates) the possibility that a
simple rescheduling agreement may well turn out to be less expensive than this comprehensive
"debt-relief" package. This means that in the next six years the humble and simple rescheduling
process may well be the lesser evil because there is that distinct possibility that less money will flow
out of the country as a result.

Note must be taken that from these citations, petitioners submit that there is possibly a better way to
go about debt rescheduling and, on that basis, insist that the acts of respondents must be struck
down. These are rather tenuous grounds to condemn the subject agreements as violative of
constitutional principles.

Conclusion

The raison d’ etre of the Financing Program is to manage debts incurred by the Philippines in a
manner that will lessen the burden on the Filipino taxpayers–thus the term "debt-relief agreements."
The measures objected to by petitioners were not aimed at incurring more debts but at terminating
pre-existing debts and were backed by the know-how of the country’s economic managers as
affirmed by third party empirical analysis.

That the means employed to achieve the goal of debt-relief do not sit well with petitioners is beyond
the power of this Court to remedy. The exercise of the power of judicial review is merely to check–
not supplant–the Executive, or to simply ascertain whether he has gone beyond the constitutional
limits of his jurisdiction but not to exercise the power vested in him or to determine the wisdom of his
act.78 In cases where the main purpose is to nullify governmental acts whether as unconstitutional or
done with grave abuse of discretion, there is a strong presumption in favor of the validity of the
assailed acts. The heavy onus is in on petitioners to overcome the presumption of regularity.

We find that petitioners have not sufficiently established any basis for the Court to declare the acts of
respondents as unconstitutional.

WHEREFORE the petition is hereby DISMISSED. No costs.

SO ORDERED.

G.R. No. 173034             October 9, 2007

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR.
ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR.
JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR.
DAVID J. LOZADA, AND DR. NEMESIO T. GAKO, respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

The Court and all parties involved are in agreement that the best nourishment for an infant is
mother's milk. There is nothing greater than for a mother to nurture her beloved child straight from
her bosom. The ideal is, of course, for each and every Filipino child to enjoy the unequaled benefits
of breastmilk. But how should this end be attained?

Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify
Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and
Regulations of Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant
International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR).
Petitioner posits that the RIRR is not valid as it contains provisions that are not constitutional and go
beyond the law it is supposed to implement.

Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the
Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a
co-respondent since respondents issued the questioned RIRR in their capacity as officials of said
executive agency.1

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986
by virtue of the legislative powers granted to the president under the Freedom Constitution. One of
the preambular clauses of the Milk Code states that the law seeks to give effect to Article 11 2 of the
International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World
Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the
effect that breastfeeding should be supported, promoted and protected, hence, it should be ensured
that nutrition and health claims are not permitted for breastmilk substitutes.

In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of
said instrument provides that State Parties should take appropriate measures to diminish infant and
child mortality, and ensure that all segments of society, specially parents and children, are informed
of the advantages of breastfeeding.

On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.

However, on June 28, 2006, petitioner, representing its members that are manufacturers of
breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.

The main issue raised in the petition is whether respondents officers of the DOH acted without or in
excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction,
and in violation of the provisions of the Constitution in promulgating the RIRR. 3
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from
implementing the questioned RIRR.

After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19,
2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to wit:

The Court hereby sets the following issues:

1. Whether or not petitioner is a real party-in-interest;

2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and
Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;

2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code);

2.2 Whether pertinent international agreements 1 entered into by the Philippines are part of
the law of the land and may be implemented by the DOH through the RIRR; If in the
affirmative, whether the RIRR is in accord with the international agreements;

2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause
and are in restraint of trade; and

2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.

_____________

1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef "2002
Global Strategy on Infant and Young Child Feeding;" and (3) various World Health Assembly
(WHA) Resolutions.

The parties filed their respective memoranda.

The petition is partly imbued with merit.

On the issue of petitioner's standing

With regard to the issue of whether petitioner may prosecute this case as the real party-in-interest,
the Court adopts the view enunciated in Executive Secretary v. Court of Appeals, 4 to wit:

The modern view is that an association has standing to complain of injuries to its members.
This view fuses the legal identity of an association with that of its members.  An association
has standing to file suit for its workers despite its lack of direct interest if its members
are affected by the action. An organization has standing to assert the concerns of its
constituents.

xxxx

x x x We note that, under its Articles of Incorporation, the respondent was organized x x x to
act as the representative of any individual, company, entity or association on matters related
to the manpower recruitment industry, and to perform other acts and activities necessary to
 accomplish the purposes embodied therein. The respondent is, thus, the appropriate
party to assert the rights of its members, because it and its members are in every
practical sense identical. x x x The respondent [association] is but the medium
through which its individual members seek to make more effective the expression of
their voices and the redress of their grievances. 5 (Emphasis supplied)

which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court ruled
that an association has the legal personality to represent its members because the results of the
case will affect their vital interests.7

Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in
Executive Secretary, that the association is formed "to represent directly or through approved
representatives the pharmaceutical and health care industry before the Philippine Government and
any of its agencies, the medical professions and the general public." 8 Thus, as an organization,
petitioner definitely has an interest in fulfilling its avowed purpose of representing members who are
part of the pharmaceutical and health care industry. Petitioner is duly authorized 9 to take the
appropriate course of action to bring to the attention of government agencies and the courts any
grievance suffered by its members which are directly affected by the RIRR. Petitioner, which is
mandated by its Amended Articles of Incorporation to represent the entire industry, would be remiss
in its duties if it fails to act on governmental action that would affect any of its industry members, no
matter how few or numerous they are. Hence, petitioner, whose legal identity is deemed fused with
its members, should be considered as a real party-in-interest which stands to be benefited or injured
by any judgment in the present action.

On the constitutionality of the provisions of the RIRR

First, the Court will determine if pertinent international instruments adverted to by respondents are
part of the law of the land.

Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby
amending and expanding the coverage of said law. The defense of the DOH is that the RIRR
implements not only the Milk Code but also various international instruments 10 regarding infant and
young child nutrition. It is respondents' position that said international instruments are deemed part
of the law of the land and therefore the DOH may implement them through the RIRR.

The Court notes that the following international instruments invoked by respondents, namely: (1) The
United Nations Convention on the Rights of the Child; (2) The International Covenant on Economic,
Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms of Discrimination
Against Women, only provide in general terms that steps must be taken by State Parties to diminish
infant and child mortality and inform society of the advantages of breastfeeding, ensure the health
and well-being of families, and ensure that women are provided with services and nutrition in
connection with pregnancy and lactation. Said instruments do not contain specific provisions
regarding the use or marketing of breastmilk substitutes.

The international instruments that do have specific provisions regarding breastmilk substitutes are
the ICMBS and various WHA Resolutions.

Under the 1987 Constitution, international law can become part of the sphere of domestic law either
by transformation or incorporation.11 The transformation method requires that an international law
be transformed into a domestic law through a constitutional mechanism such as local legislation.
The incorporation method applies when, by mere constitutional declaration, international law is
deemed to have the force of domestic law.12
Treaties become part of the law of the land through transformation pursuant to Article VII, Section
21 of the Constitution which provides that "[n]o treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the members of the Senate." Thus, treaties
or conventional international law must go through a process prescribed by the Constitution for it to
be transformed into municipal law that can be applied to domestic conflicts. 13

The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least
two-thirds of all members of the Senate as required under Section 21, Article VII of the 1987
Constitution.

However, the ICMBS which was adopted by the WHA in 1981 had been transformed into domestic
law through local legislation, the Milk Code. Consequently, it is the Milk Code that has the force and
effect of law in this jurisdiction and not the ICMBS per se.

The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this
point that the Code did not adopt the provision in the ICMBS absolutely prohibiting advertising or
other forms of promotion to the general public of products within the scope of the ICMBS.
Instead, the Milk Code expressly provides that advertising, promotion, or other marketing
materials may be allowed if such materials are duly authorized and approved by the Inter-
Agency Committee (IAC).

On the other hand, Section 2, Article II of the 1987 Constitution, to wit:

SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the

generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all
nations. (Emphasis supplied)

embodies the incorporation method.14

In Mijares v. Ranada,15 the Court held thus:

[G]enerally 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. The classical formulation in international law sees those customary rules
accepted as binding result from the combination [of] 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.16 (Emphasis supplied)

"Generally accepted principles of international law" refers to norms of general or customary

international law which are binding on all states, 17 i.e., renunciation of war as an instrument of
national policy, the principle of sovereign immunity, 18 a person's right to life, liberty and due
process,19 and pacta sunt servanda,20 among others. The concept of "generally accepted principles
of law" has also been depicted in this wise:

Some legal scholars and judges look upon certain "general principles of law" as a primary source of
international law because they have the "character of jus rationale" and are "valid through all
kinds of human societies." (Judge Tanaka in his dissenting opinion in the 1966 South West Africa
Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part of international law
because they are "basic to legal systems generally" and hence part of the jus gentium. These
principles, he believes, are established by a process of reasoning based on the common identity of
all legal systems. If there should be doubt or disagreement, one must look to state practice and
determine whether the municipal law principle provides a just and acceptable solution. x x
x 21 (Emphasis supplied)

Fr. Joaquin G. Bernas defines customary international law as follows:

Custom or customary international law means "a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris]." (Restatement) This
statement contains the two basic elements of custom: the material factor, that is, how
states behave, and the psychological or subjective factor, that is, why they behave the
way they do.

xxxx

The initial factor for determining the existence of custom is the actual behavior of states. This
includes several elements: duration, consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the consistency and
the generality of the practice. x x x

xxxx

Once the existence of state practice has been established, it becomes necessary to
determine why states behave the way they do. Do states behave the way they do
because they consider it obligatory to behave thus or do they do it only as a matter of
courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is
what makes practice an international rule. Without it, practice is not law. 22 (Underscoring
and Emphasis supplied)

Clearly, customary international law is deemed incorporated into our domestic system. 23

WHA Resolutions have not been embodied in any local legislation. Have they attained the status of
customary law and should they then be deemed incorporated as part of the law of the land?

The World Health Organization (WHO) is one of the international specialized agencies allied with the
United Nations (UN) by virtue of Article 57, 24 in relation to Article 6325 of the UN Charter. Under the
1946 WHO Constitution, it is the WHA which determines the policies of the WHO, 26 and has the
power to adopt regulations concerning "advertising and labeling of biological, pharmaceutical and
similar products moving in international commerce," 27 and to "make recommendations to members
with respect to any matter within the competence of the Organization." 28 The legal effect of its
regulations, as opposed to recommendations, is quite different.

Regulations, along with conventions and agreements, duly adopted by the WHA bind member
states thus:
 Article 19. The Health Assembly shall have authority to adopt conventions or agreements
with respect to any matter within the competence of the Organization. A two-thirds vote of
the Health Assembly shall be required for the adoption of such conventions or
agreements, which shall come into force for each Member when accepted by it in
accordance with its constitutional processes.

Article 20. Each Member undertakes that it will, within eighteen months after the adoption
by the Health Assembly of a convention or agreement, take action relative to the
acceptance of such convention or agreement. Each Member shall notify the Director-
General of the action taken, and if it does not accept such convention or agreement within
the time limit, it will furnish a statement of the reasons for non-acceptance. In case of
acceptance, each Member agrees to make an annual report to the Director-General in
accordance with Chapter XIV.

Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a)
sanitary and quarantine requirements and other procedures designed to prevent the
international spread of disease; (b) nomenclatures with respect to diseases, causes of death
and public health practices; (c) standards with respect to diagnostic procedures for
international use; (d) standards with respect to the safety, purity and potency of biological,
pharmaceutical and similar products moving in international commerce; (e) advertising and
labeling of biological, pharmaceutical and similar products moving in international commerce.

Article 22. Regulations adopted pursuant to Article 21 shall come into force for all
Members after due notice has been given of their adoption by the Health Assembly except
for such Members as may notify the Director-General of rejection or reservations within the
period stated in the notice. (Emphasis supplied)

On the other hand, under Article 23, recommendations of the WHA do not come into force for
members, in the same way that conventions or agreements under Article 19 and regulations under
Article 21 come into force. Article 23 of the WHO Constitution reads:

Article 23. The Health Assembly shall have authority to make recommendations to

Members with respect to any matter within the competence of the Organization. (Emphasis
supplied)

The absence of a provision in Article 23 of any mechanism by which the recommendation would
come into force for member states is conspicuous.

The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are
generally not binding, but they "carry moral and political weight, as they constitute the judgment on a
health issue of the collective membership of the highest international body in the field of
health."29 Even the ICMBS itself was adopted as a mere recommendation, as WHA Resolution No.
34.22 states:

"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the
Constitution, the International Code of Marketing of Breastmilk Substitutes annexed to the
present resolution." (Emphasis supplied)

The Introduction to the ICMBS also reads as follows:

 In January 1981, the Executive Board of the World Health Organization at its sixty-seventh
session, considered the fourth draft of the code, endorsed it, and unanimously
recommended to the Thirty-fourth World Health Assembly the text of a resolution by which it
would adopt the code in the form of a recommendation rather than a regulation. x x x
(Emphasis supplied)

The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO
Constitution, to wit:

Art. 62. Each member shall report annually on the action taken with respect to
recommendations made to it by the Organization, and with respect to conventions,
agreements and regulations.

Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging
member states to implement the ICMBS are merely recommendatory and legally non-binding. Thus,
unlike what has been done with the ICMBS whereby the legislature enacted most of the
provisions into law which is the Milk Code, the subsequent WHA Resolutions, 30 specifically
providing for exclusive breastfeeding from 0-6 months, continued breastfeeding up to 24
months, and absolutely prohibiting advertisements and promotions of breastmilk substitutes,
have not been adopted as a domestic law.

It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms, principles
and practices that influence state behavior. 31

"Soft law" does not fall into any of the categories of international law set forth in Article 38, Chapter
III of the 1946 Statute of the International Court of Justice. 32 It is, however, an expression of non-
binding norms, principles, and practices that influence state behavior. 33 Certain declarations and
resolutions of the UN General Assembly fall under this category. 34 The most notable is the UN
Declaration of Human Rights, which this Court has enforced in various cases,
specifically, Government of Hongkong Special Administrative Region v. Olalia,35 Mejoff v. Director of
Prisons,36 Mijares v. Rañada37 and Shangri-la International Hotel Management, Ltd. v. Developers
Group of Companies, Inc..38

The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN with
the mandate to promote and protect intellectual property worldwide, has resorted to soft law as a
rapid means of norm creation, in order "to reflect and respond to the changing needs and demands
of its constituents."39 Other international organizations which have resorted to soft law include the
International Labor Organization and the Food and Agriculture Organization (in the form of
the Codex Alimentarius).40

WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory
Syndrome (SARS) and Avian flu outbreaks.

Although the IHR Resolution does not create new international law binding on WHO
member states, it provides an excellent example of the power of "soft law" in
international relations. International lawyers typically distinguish binding rules of
international law-"hard law"-from non-binding norms, principles, and practices that
influence state behavior-"soft law." WHO has during its existence generated many
soft law norms, creating a "soft law regime" in international governance for public
health.
 The "soft law" SARS and IHR Resolutions represent significant steps in laying the political
groundwork for improved international cooperation on infectious diseases. These resolutions
clearly define WHO member states' normative duty to cooperate fully with other countries
and with WHO in connection with infectious disease surveillance and response to outbreaks.

This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic,
the duty is powerful politically for two reasons. First, the SARS outbreak has taught the
lesson that participating in, and enhancing, international cooperation on infectious disease
controls is in a country's self-interest x x x if this warning is heeded, the "soft law" in the
SARS and IHR Resolution could inform the development of general and consistent state
practice on infectious disease surveillance and outbreak response, perhaps crystallizing
eventually into customary international law on infectious disease prevention and control. 41

In the Philippines, the executive department implemented certain measures recommended by WHO
to address the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No. 201 on April
26, 2003 and E.O. No. 280 on February 2, 2004, delegating to various departments broad powers to
close down schools/establishments, conduct health surveillance and monitoring, and ban importation
of poultry and agricultural products.

It must be emphasized that even under such an international emergency, the duty of a state to
implement the IHR Resolution was still considered not binding or enforceable, although said
resolutions had great political influence.

As previously discussed, for an international rule to be considered as customary law, it must be

established that such rule is being followed by states because they consider it obligatory to comply
with such rules (opinio juris). Respondents have not presented any evidence to prove that the WHA
Resolutions, although signed by most of the member states, were in fact enforced or practiced by at
least a majority of the member states; neither have respondents proven that any compliance by
member states with said WHA Resolutions was obligatory in nature.

Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary
international law that may be deemed part of the law of the land.

Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into
domestic law. The provisions of the WHA Resolutions cannot be considered as part of the law
of the land that can be implemented by executive agencies without the need of a law enacted
by the legislature.

Second, the Court will determine whether the DOH may implement the provisions of the WHA
Resolutions by virtue of its powers and functions under the Revised Administrative Code even in the
absence of a domestic law.

Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH
shall define the national health policy and implement a national health plan within the framework
of the government's general policies and plans, and issue orders and regulations concerning the
implementation of established health policies.

It is crucial to ascertain whether the absolute prohibition on advertising and other forms of promotion
of breastmilk substitutes provided in some WHA Resolutions has been adopted as part of the
national health policy.
Respondents submit that the national policy on infant and young child feeding is embodied in A.O.
No. 2005-0014, dated May 23, 2005. Basically, the Administrative Order declared the following
policy guidelines: (1) ideal breastfeeding practices, such as early initiation of breastfeeding,
exclusive breastfeeding for the first six months, extended breastfeeding up to two years and beyond;
(2) appropriate complementary feeding, which is to start at age six months; (3) micronutrient
supplementation; (4) universal salt iodization; (5) the exercise of other feeding options; and (6)
feeding in exceptionally difficult circumstances. Indeed, the primacy of breastfeeding for children is
emphasized as a national health policy. However, nowhere in A.O. No. 2005-0014 is it declared
that as part of such health policy, the advertisement or promotion of breastmilk substitutes
should be absolutely prohibited.

The national policy of protection, promotion and support of breastfeeding cannot automatically be
equated with a total ban on advertising for breastmilk substitutes.

In view of the enactment of the Milk Code which does not contain a total ban on the advertising and
promotion of breastmilk substitutes, but instead, specifically creates an IAC which will regulate said
advertising and promotion, it follows that a total ban policy could be implemented only pursuant to a
law amending the Milk Code passed by the constitutionally authorized branch of government, the
legislature.

Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can
be validly implemented by the DOH through the subject RIRR.

Third, the Court will now determine whether the provisions of the RIRR are in accordance with those
of the Milk Code.

In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the
following:

1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its
coverage to "young children" or those from ages two years old and beyond:

MILK CODE RIRR

WHEREAS, in order to ensure that safe and Section 2. Purpose – These Revised Rules
adequate nutrition for infants is provided, there and Regulations are hereby promulgated to
is a need to protect and promote breastfeeding ensure the provision of safe and adequate
and to inform the public about the proper use of nutrition for infants and young children by the
breastmilk substitutes and supplements and promotion, protection and support of
related products through adequate, consistent breastfeeding and by ensuring the proper use
and objective information and appropriate of breastmilk substitutes, breastmilk
regulation of the marketing and distribution of supplements and related products when these
the said substitutes, supplements and related are medically indicated and only when
products; necessary, on the basis of adequate
information and through appropriate marketing
SECTION 4(e). "Infant" means a person falling and distribution.
within the age bracket of 0-12 months.
Section 5(ff). "Young Child" means a person
from the age of more than twelve (12) months
up to the age of three (3) years (36 months).
2. The Milk Code recognizes that infant formula may be a proper and possible substitute for
breastmilk in certain instances; but the RIRR provides "exclusive breastfeeding for infants
from 0-6 months" and declares that "there is no substitute nor replacement for breastmilk":

MILK CODE RIRR

WHEREAS, in order to ensure that safe and Section 4. Declaration of Principles – The
adequate nutrition for infants is provided, there following are the underlying principles from
is a need to protect and promote breastfeeding which the revised rules and regulations are
and to inform the public about the proper use of premised upon:
breastmilk substitutes and supplements and
related products through adequate, consistent a. Exclusive breastfeeding is for infants from 0
and objective information and appropriate to six (6) months.
regulation of the marketing and distribution of
the said substitutes, supplements and related b. There is no substitute or replacement for
products; breastmilk.

3. The Milk Code only regulates and does not impose unreasonable requirements for
advertising and promotion; RIRR imposes an absolute ban on such activities for breastmilk
substitutes intended for infants from 0-24 months old or beyond, and forbids the use of
health and nutritional claims. Section 13 of the RIRR, which provides for a "total effect" in the
promotion of products within the scope of the Code, is vague:

MILK CODE RIRR

SECTION 6. The General Publicand Section 4. Declaration of Principles – The
Mothers. – following are the underlying principles from
which the revised rules and regulations are
(a) No advertising, promotion or other premised upon:
marketing materials, whether written, audio or
visual, for products within the scope of this x x x x
Code shall be printed, published, distributed,
exhibited and broadcast unless such materials f. Advertising, promotions, or sponsor-ships of
are duly authorized and approved by an inter- infant formula, breastmilk substitutes and other
agency committee created herein pursuant to related products are prohibited.
the applicable standards provided for in this
Code. Section 11. Prohibition – No advertising,
promotions, sponsorships, or marketing
materials and activities for breastmilk
substitutes intended for infants and young
children up to twenty-four (24) months, shall be
allowed, because they tend to convey or give
subliminal messages or impressions that
undermine breastmilk and breastfeeding or
otherwise exaggerate breastmilk substitutes
and/or replacements, as well as related
products covered within the scope of this Code.

Section 13. "Total Effect" - Promotion of

products within the scope of this Code must be
objective and should not equate or make the
product appear to be as good or equal to
breastmilk or breastfeeding in the advertising
 concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect"
should not directly or indirectly suggest that
buying their product would produce better
individuals, or resulting in greater love,
intelligence, ability, harmony or in any manner
bring better health to the baby or other such
exaggerated and unsubstantiated claim.

Section 15. Content of Materials. - The

following shall not be included in advertising,
promotional and marketing materials:

a. Texts, pictures, illustrations or information

which discourage or tend to undermine the
benefits or superiority of breastfeeding or which
idealize the use of breastmilk substitutes and
milk supplements. In this connection, no
pictures of babies and children together with
their mothers, fathers, siblings, grandparents,
other relatives or caregivers (or yayas) shall be
used in any advertisements for infant formula
and breastmilk supplements;

b. The term "humanized," "maternalized,"

"close to mother's milk" or similar words in
describing breastmilk substitutes or milk
supplements;

c. Pictures or texts that idealize the use of

infant and milk formula.

Section 16. All health and nutrition claims for

products within the scope of the Code are
absolutely prohibited. For this purpose, any
phrase or words that connotes to increase
emotional, intellectual abilities of the infant and
young child and other like phrases shall not be
allowed.

4. The RIRR imposes additional labeling requirements not found in the Milk Code:

MILK CODE RIRR

SECTION 10. Containers/Label. – Section 26. Content – Each container/label
shall contain such message, in both Filipino
(a) Containers and/or labels shall be designed and English languages, and which message
to provide the necessary information about the cannot be readily separated therefrom, relative
appropriate use of the products, and in such a the following points:
way as not to discourage breastfeeding.
(a) The words or phrase "Important Notice" or
 (b) Each container shall have a clear, "Government Warning" or their equivalent;
conspicuous and easily readable and
understandable message in Pilipino or English (b) A statement of the superiority of
printed on it, or on a label, which message can breastfeeding;
not readily become separated from it, and
which shall include the following points: (c) A statement that there is no substitute for
breastmilk;
(i) the words "Important Notice" or their
equivalent; (d) A statement that the product shall be used
only on the advice of a health worker as to the
(ii) a statement of the superiority of need for its use and the proper methods of use;
breastfeeding;
(e) Instructions for appropriate prepara-tion,
(iii) a statement that the product shall be used and a warning against the health hazards of
only on the advice of a health worker as to the inappropriate preparation; and
need for its use and the proper methods of use;
and (f) The health hazards of unnecessary or
improper use of infant formula and other
(iv) instructions for appropriate preparation, related products including information that
and a warning against the health hazards of powdered infant formula may contain
inappropriate preparation. pathogenic microorganisms and must be
prepared and used appropriately.

5. The Milk Code allows dissemination of information on infant formula to health

professionals; the RIRR totally prohibits such activity:
6. The Milk Code permits milk manufacturers and distributors to extend assistance in
research and continuing education of health professionals; RIRR absolutely forbids the
same.

MILK CODE RIRR

SECTION 8. Health Workers – Section 4. Declaration of Principles –

(e) Manufacturers and distributors of products The following are the underlying principles from
within the scope of this Code may assist in the which the revised rules and regulations are
research, scholarships and continuing premised upon:
education, of health professionals, in
accordance with the rules and regulations i. Milk companies, and their
promulgated by the Ministry of Health. representatives, should not form part of any
policymaking body or entity in relation to the
advancement of breasfeeding.

SECTION 22. No manufacturer, distributor, or

representatives of products covered by the
Code shall be allowed to conduct or be
involved in any activity on breastfeeding
promotion, education and production of
Information, Education and Communication
(IEC) materials on breastfeeding, holding of or
participating as speakers in classes or
seminars for women and children activities and
to avoid the use of these venues to market
their brands or company names.

SECTION 32. Primary Responsibility of

Health Workers - It is the primary
responsibility of the health workers to promote,
protect and support breastfeeding and
appropriate infant and young child feeding.
Part of this responsibility is to continuously
update their knowledge and skills on
breastfeeding. No assistance, support, logistics
or training from milk companies shall be
permitted.

7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.

MILK CODE RIRR

SECTION 6. The General Public and Section 51. Donations Within the Scope of
Mothers. – This Code - Donations of products, materials,
defined and covered under the Milk Code and
(f) Nothing herein contained shall prevent these implementing rules and regulations, shall
donations from manufacturers and distributors be strictly prohibited.
of products within the scope of this Code upon
request by or with the approval of the Ministry Section 52. Other Donations By Milk
of Health. Companies Not Covered by this Code. -
Donations of products, equipments, and the
 like, not otherwise falling within the scope of
this Code or these Rules, given by milk
companies and their agents, representatives,
whether in kind or in cash, may only be
coursed through the Inter Agency Committee
(IAC), which shall determine whether such
donation be accepted or otherwise.

8. The RIRR provides for administrative sanctions not imposed by the Milk Code.

MILK CODE RIRR

  Section 46. Administrative Sanctions. – The
following administrative sanctions shall be
imposed upon any person, juridical or natural,
found to have violated the provisions of the
Code and its implementing Rules and
Regulations:

a) 1st violation – Warning;

b) 2nd violation – Administrative fine of a

minimum of Ten Thousand (P10,000.00) to
Fifty Thousand (P50,000.00) Pesos, depending
on the gravity and extent of the violation,
including the recall of the offending product;

c) 3rd violation – Administrative Fine of a

minimum of Sixty Thousand (P60,000.00) to
One Hundred Fifty Thousand (P150,000.00)
Pesos, depending on the gravity and extent of
the violation, and in addition thereto, the recall
of the offending product, and suspension of the
Certificate of Product Registration (CPR);

d) 4th violation –Administrative Fine of a

minimum of Two Hundred Thousand
(P200,000.00) to Five Hundred (P500,000.00)
Thousand Pesos, depending on the gravity and
extent of the violation; and in addition thereto,
the recall of the product, revocation of the
CPR, suspension of the License to Operate
(LTO) for one year;

e) 5th and succeeding repeated violations –

Administrative Fine of One Million
(P1,000,000.00) Pesos, the recall of the
offending product, cancellation of the CPR,
revocation of the License to Operate (LTO) of
the company concerned, including the
blacklisting of the company to be furnished the
 Department of Budget and Management
(DBM) and the Department of Trade and
Industry (DTI);

f) An additional penalty of Two Thou-sand Five

Hundred (P2,500.00) Pesos per day shall be
made for every day the violation continues
after having received the order from the IAC or
other such appropriate body, notifying and
penalizing the company for the infraction.

For purposes of determining whether or not

there is "repeated" violation, each product
violation belonging or owned by a company,
including those of their subsidiaries, are
deemed to be violations of the concerned milk
company and shall not be based on the
specific violating product alone.

9. The RIRR provides for repeal of existing laws to the contrary.

The Court shall resolve the merits of the allegations of petitioner seriatim.

1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12
months old. Section 3 of the Milk Code states:

SECTION 3. Scope of the Code – The Code applies to the marketing, and practices related
thereto, of the following products: breastmilk substitutes, including infant formula; other milk
products, foods and beverages, including bottle-fed complementary foods, when marketed or
otherwise represented to be suitable, with or without modification, for use as a partial or total
replacement of breastmilk; feeding bottles and teats. It also applies to their quality and
availability, and to information concerning their use.

Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of
product being marketed to the public. The law treats infant formula, bottle-fed complementary food,
and breastmilk substitute as separate and distinct product categories.

Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy the
normal nutritional requirements of infants up to between four to six months of age, and adapted to
their physiological characteristics"; while under Section 4(b), bottle-fed complementary food refers to
"any food, whether manufactured or locally prepared, suitable as a complement to breastmilk or
infant formula, when either becomes insufficient to satisfy the nutritional requirements of the infant."
An infant under Section 4(e) is a person falling within the age bracket 0-12 months. It is the
nourishment of this group of infants or children aged 0-12 months that is sought to be promoted and
protected by the Milk Code.

But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any food
being marketed or otherwise presented as a partial or total replacement for breastmilk, whether or
not suitable for that purpose." This section conspicuously lacks reference to any particular age-
group of children. Hence, the provision of the Milk Code cannot be considered exclusive for
children aged 0-12 months. In other words, breastmilk substitutes may also be intended for young
children more than 12 months of age. Therefore, by regulating breastmilk substitutes, the Milk Code
also intends to protect and promote the nourishment of children more than 12 months old.

Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided in
Section 3, then it can be subject to regulation pursuant to said law, even if the product is to be used
by children aged over 12 months.

There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.

2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize that
breastmilk substitutes may be a proper and possible substitute for breastmilk.

The entirety of the RIRR, not merely truncated portions thereof, must be considered and construed
together. As held in De Luna v. Pascual,44 "[t]he particular words, clauses and phrases in the Rule
should not be studied as detached and isolated expressions, but the whole and every part thereof
must be considered in fixing the meaning of any of its parts and in order to produce a harmonious
whole."

Section 7 of the RIRR provides that "when medically indicated and only when necessary, the use of
breastmilk substitutes is proper if based on complete and updated information." Section 8 of the
RIRR also states that information and educational materials should include information on the proper
use of infant formula when the use thereof is needed.

Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of
breastmilk substitutes may be proper.

3. The Court shall ascertain the merits of allegations 345 and 446 together as they are interlinked with
each other.

To resolve the question of whether the labeling requirements and advertising regulations under the
RIRR are valid, it is important to deal first with the nature, purpose, and depth of the regulatory
powers of the DOH, as defined in general under the 1987 Administrative Code, 47 and as delegated in
particular under the Milk Code.

Health is a legitimate subject matter for regulation by the DOH (and certain other administrative
agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that
matter precludes the need to further discuss it..48 However, health information, particularly advertising
materials on apparently non-toxic products like breastmilk substitutes and supplements, is a
relatively new area for regulation by the DOH.49

As early as the 1917 Revised Administrative Code of the Philippine Islands, 50 health information was
already within the ambit of the regulatory powers of the predecessor of DOH. 51 Section 938 thereof
charged it with the duty to protect the health of the people, and vested it with such powers as "(g) the
dissemination of hygienic information among the people and especially the inculcation of
knowledge as to the proper care of infants and the methods of preventing and combating
dangerous communicable diseases."

Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state
policy pronounced under Section 15, Article II of the 1987 Constitution, which is "to protect and
promote the right to health of the people and instill health consciousness among them."52 To that
end, it was granted under Section 3 of the Administrative Code the power to "(6) propagate health
information and educate the population on important health, medical and environmental matters
which have health implications."53

When it comes to information regarding nutrition of infants and young children, however, the Milk
Code specifically delegated to the Ministry of Health (hereinafter referred to as DOH) the power to
ensure that there is adequate, consistent and objective information on breastfeeding and use of
breastmilk substitutes, supplements and related products; and the power to control such
information. These are expressly provided for in Sections 12 and 5(a), to wit:

SECTION 12. Implementation and Monitoring –

xxxx

(b) The Ministry of Health shall be principally responsible for the implementation and
enforcement of the provisions of this Code. For this purpose, the Ministry of Health shall
have the following powers and functions:

(1) To promulgate such rules and regulations as are necessary or proper for the
implementation of this Code and the accomplishment of its purposes and objectives.

xxxx

(4) To exercise such other powers and functions as may be necessary for or
incidental to the attainment of the purposes and objectives of this Code.

SECTION 5. Information and Education –

(a) The government shall ensure that objective and consistent information is provided on

infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of information,
and the control thereof, on infant nutrition. (Emphasis supplied)

Further, DOH is authorized by the Milk Code to control the content of any information on
breastmilk vis-à-vis breastmilk substitutes, supplement and related products, in the following
manner:

SECTION 5. x x x

(b) Informational and educational materials, whether written, audio, or visual, dealing with the
feeding of infants and intended to reach pregnant women and mothers of infants, shall
include clear information on all the following points: (1) the benefits and superiority of
breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding; (4)
the difficulty of reversing the decision not to breastfeed; and (5) where needed, the proper
use of infant formula, whether manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of inappropriate foods
or feeding methods; and, in particular, the health hazards of unnecessary or improper
use of infant formula and other breastmilk substitutes. Such materials shall not use
any picture or text which may idealize the use of breastmilk substitutes.
 SECTION 8. Health Workers –

xxxx

(b) Information provided by manufacturers and distributors to health professionals regarding

products within the scope of this Code shall be restricted to scientific and factual
matters, and such information shall not imply or create a belief that bottlefeeding is
equivalent or superior to breastfeeding. It shall also include the information specified
in Section 5(b).

SECTION 10. Containers/Label –

(a) Containers and/or labels shall be designed to provide the necessary information about
the appropriate use of the products, and in such a way as not to discourage
breastfeeding.

xxxx

(d) The term "humanized," "maternalized" or similar terms shall not be used. (Emphasis
supplied)

The DOH is also authorized to control the purpose of the information and to whom such information
may be disseminated under Sections 6 through 9 of the Milk Code 54 to ensure that the information
that would reach pregnant women, mothers of infants, and health professionals and workers in the
health care system is restricted to scientific and factual matters and shall not imply or create a belief
that bottlefeeding is equivalent or superior to breastfeeding.

It bears emphasis, however, that the DOH's power under the Milk Code to control information
regarding breastmilk vis-a-vis breastmilk substitutes is not absolute as the power to control does
not encompass the power to absolutely prohibit the advertising, marketing, and promotion of
breastmilk substitutes.

The following are the provisions of the Milk Code that unequivocally indicate that the control over
information given to the DOH is not absolute and that absolute prohibition is not contemplated by the
Code:

a) Section 2 which requires adequate information and appropriate marketing and distribution
of breastmilk substitutes, to wit:

SECTION 2. Aim of the Code – The aim of the Code is to contribute to the provision
of safe and adequate nutrition for infants by the protection and promotion of
breastfeeding and by ensuring the proper use of breastmilk substitutes and
breastmilk supplements when these are necessary, on the basis of adequate
information and through appropriate marketing and distribution.

b) Section 3 which specifically states that the Code applies to the marketing of and practices
related to breastmilk substitutes, including infant formula, and to information concerning their
use;

c) Section 5(a) which provides that the government shall ensure that objective and consistent
information is provided on infant feeding;
 d) Section 5(b) which provides that written, audio or visual informational and educational
materials shall not use any picture or text which may idealize the use of breastmilk
substitutes and should include information on the health hazards of unnecessary or improper
use of said product;

e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review
and examine advertising, promotion, and other marketing materials;

f) Section 8(b) which states that milk companies may provide information to health
professionals but such information should be restricted to factual and scientific matters and
shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding;
and

g) Section 10 which provides that containers or labels should not contain information that
would discourage breastfeeding and idealize the use of infant formula.

It is in this context that the Court now examines the assailed provisions of the RIRR regarding
labeling and advertising.

Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling requirements,
specifically: a) that there be a statement that there is no substitute to breastmilk; and b) that there be
a statement that powdered infant formula may contain pathogenic microorganisms and must be
prepared and used appropriately. Section 16 57 of the RIRR prohibits all health and nutrition claims for
products within the scope of the Milk Code, such as claims of increased emotional and intellectual
abilities of the infant and young child.

These requirements and limitations are consistent with the provisions of Section 8 of the Milk Code,
to wit:

SECTION 8. Health workers -

xxxx

(b) Information provided by manufacturers and distributors to health professionals regarding

products within the scope of this Code shall be restricted to scientific and factual matters,
and such information shall not imply or create a belief that bottlefeeding
is equivalent or superior to breastfeeding. It shall also include the information specified in
Section 5.58 (Emphasis supplied)

and Section 10(d)59 which bars the use on containers and labels of the terms "humanized,"
"maternalized," or similar terms.

These provisions of the Milk Code expressly forbid information that would imply or create a belief
that there is any milk product equivalent to breastmilk or which is humanized or maternalized, as
such information would be inconsistent with the superiority of breastfeeding.

It may be argued that Section 8 of the Milk Code refers only to information given to health workers
regarding breastmilk substitutes, not to containers and labels thereof. However, such restrictive
application of Section 8(b) will result in the absurd situation in which milk companies and distributors
are forbidden to claim to health workers that their products are substitutes or equivalents of
breastmilk, and yet be allowed to display on the containers and labels of their products the exact
opposite message. That askewed interpretation of the Milk Code is precisely what Section 5(a)
thereof seeks to avoid by mandating that all information regarding breastmilk vis-a-vis breastmilk
substitutes be consistent, at the same time giving the government control over planning, provision,
design, and dissemination of information on infant feeding.

Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product
offered is not a substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the Milk
Code and deterring circumvention of the protection and promotion of breastfeeding as embodied in
Section 260 of the Milk Code.

Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b)
of the Milk Code which reads:

SECTION 5. x x x

xxxx

(b) Informational and educational materials, whether written, audio, or visual, dealing with the
feeding of infants and intended to reach pregnant women and mothers of infants, shall
include clear information on all the following points: x x x (5) where needed, the proper use
of infant formula, whether manufactured industrially or home-prepared. When such materials
contain information about the use of infant formula, they shall include the social and financial
implications of its use; the health hazards of inappropriate foods or feeding methods;
and, in particular, the health hazards of unnecessary or improper use of infant
formula and other breastmilk substitutes. Such materials shall not use any picture or text
which may idealize the use of breastmilk substitutes. (Emphasis supplied)

The label of a product contains information about said product intended for the buyers thereof. The
buyers of breastmilk substitutes are mothers of infants, and Section 26 of the RIRR merely adds a
fair warning about the likelihood of pathogenic microorganisms being present in infant formula and
other related products when these are prepared and used inappropriately.

Petitioner’s counsel has admitted during the hearing on June 19, 2007 that formula milk is prone to
contaminations and there is as yet no technology that allows production of powdered infant formula
that eliminates all forms of contamination.62

Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message
regarding health hazards including the possibility of contamination with pathogenic microorganisms
is in accordance with Section 5(b) of the Milk Code.

The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes and

supplements and related products cannot be questioned. It is its intervention into the area of
advertising, promotion, and marketing that is being assailed by petitioner.

In furtherance of Section 6(a) of the Milk Code, to wit:

SECTION 6. The General Public and Mothers. –

(a) No advertising, promotion or other marketing materials, whether written, audio or visual,
for products within the scope of this Code shall be printed, published, distributed, exhibited
 and broadcast unless such materials are duly authorized and approved by an inter-agency
committee created herein pursuant to the applicable standards provided for in this Code.

the Milk Code invested regulatory authority over advertising, promotional and marketing materials to
an IAC, thus:

SECTION 12. Implementation and Monitoring -

(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the
following members is hereby created:

Minister of Health ------------------- Chairman

Minister of Trade and Industry ------------------- Member

Minister of Justice ------------------- Member

Minister of Social Services and Development ------------------- Member

The members may designate their duly authorized representative to every meeting of the
Committee.

The Committee shall have the following powers and functions:

(1) To review and examine all advertising. promotion or other marketing materials,
whether written, audio or visual, on products within the scope of this Code;

(2) To approve or disapprove, delete objectionable portions from and prohibit the
printing, publication, distribution, exhibition and broadcast of, all advertising
promotion or other marketing materials, whether written, audio or visual, on products
within the scope of this Code;

(3) To prescribe the internal and operational procedure for the exercise of its powers
and functions as well as the performance of its duties and responsibilities; and

(4) To promulgate such rules and regulations as are necessary or proper for
the implementation of Section 6(a) of this Code. x x x (Emphasis supplied)

However, Section 11 of the RIRR, to wit:

SECTION 11. Prohibition – No advertising, promotions, sponsorships, or marketing materials

and activities for breastmilk substitutes intended for infants and young children up to twenty-
four (24) months, shall be allowed, because they tend to convey or give subliminal messages
or impressions that undermine breastmilk and breastfeeding or otherwise exaggerate
breastmilk substitutes and/or replacements, as well as related products covered within the
scope of this Code.

prohibits advertising, promotions, sponsorships or marketing materials and activities for breastmilk
substitutes in line with the RIRR’s declaration of principle under Section 4(f), to wit:
 SECTION 4. Declaration of Principles –

xxxx

(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and

other related products are prohibited.

The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory authority
given to the IAC but also imposed absolute prohibition on advertising, promotion, and marketing.

Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section 6
thereof for prior approval by IAC of all advertising, marketing and promotional materials prior to
dissemination.

Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly insisted,
during the oral arguments on June 19, 2007, that the prohibition under Section 11 is not actually
operational, viz:

SOLICITOR GENERAL DEVANADERA:

xxxx

x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not
there is an absolute prohibition on advertising making AO 2006-12 unconstitutional. We
maintained that what AO 2006-12 provides is not an absolute prohibition because Section 11
while it states and it is entitled prohibition it states that no advertising, promotion,
sponsorship or marketing materials and activities for breast milk substitutes intended for
infants and young children up to 24 months shall be allowed because this is the standard
they tend to convey or give subliminal messages or impression undermine that breastmilk or
breastfeeding x x x.

We have to read Section 11 together with the other Sections because the other Section,
Section 12, provides for the inter agency committee that is empowered to process and
evaluate all the advertising and promotion materials.

xxxx

What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply
regulates the advertisement and the promotions of breastfeeding milk substitutes.

xxxx

Now, the prohibition on advertising, Your Honor, must be taken together with the provision
on the Inter-Agency Committee that processes and evaluates because there may be some
information dissemination that are straight forward information dissemination. What the AO
2006 is trying to prevent is any material that will undermine the practice of breastfeeding,
Your Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

Madam Solicitor General, under the Milk Code, which body has authority or power to
promulgate Rules and Regulations regarding the Advertising, Promotion and Marketing of
Breastmilk Substitutes?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

x x x Don't you think that the Department of Health overstepped its rule making authority
when it totally banned advertising and promotion under Section 11 prescribed the total effect
rule as well as the content of materials under Section 13 and 15 of the rules and regulations?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, first we would like to stress that there is no total absolute ban. Second,
the Inter-Agency Committee is under the Department of Health, Your Honor.

xxxx

ASSOCIATE JUSTICE NAZARIO:

x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising of
breastmilk substitutes in the Revised Rules?

SOLICITOR GENERAL DEVANADERA:

Yes, your Honor.

ASSOCIATE JUSTICE NAZARIO:

But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk
substitutes intended for children two (2) years old and younger?

SOLICITOR GENERAL DEVANADERA:

It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can
evaluate some advertising and promotional materials, subject to the standards that we have
stated earlier, which are- they should not undermine breastfeeding, Your Honor.

xxxx

x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other
Sections, particularly 12 and 13 and 15, Your Honor, because it is recognized that the Inter-
Agency Committee has that power to evaluate promotional materials, Your Honor.

ASSOCIATE JUSTICE NAZARIO:

 So in short, will you please clarify there's no absolute ban on advertisement regarding milk
substitute regarding infants two (2) years below?

SOLICITOR GENERAL DEVANADERA:

We can proudly say that the general rule is that there is a prohibition, however, we take
exceptions and standards have been set. One of which is that, the Inter-Agency Committee
can allow if the advertising and promotions will not undermine breastmilk and breastfeeding,
Your Honor.63

Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.

However, although it is the IAC which is authorized to promulgate rules and regulations for the
approval or rejection of advertising, promotional, or other marketing materials under Section 12(a) of
the Milk Code, said provision must be related to Section 6 thereof which in turn provides that the
rules and regulations must be "pursuant to the applicable standards provided for in this Code." Said
standards are set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the risk of being
repetitious, and for easy reference, are quoted hereunder:

SECTION 5. Information and Education –

xxxx

(b) Informational and educational materials, whether written, audio, or visual, dealing with the
feeding of infants and intended to reach pregnant women and mothers of infants, shall
include clear information on all the following points: (1) the benefits and superiority of
breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding; (4)
the difficulty of reversing the decision not to breastfeed; and (5) where needed, the proper
use of infant formula, whether manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, they shall include the social
and financial implications of its use; the health hazards of inappropriate foods of feeding
methods; and, in particular, the health hazards of unnecessary or improper use of infant
formula and other breastmilk substitutes. Such materials shall not use any picture or text
which may idealize the use of breastmilk substitutes.

xxxx

SECTION 8. Health Workers. –

xxxx

(b) Information provided by manufacturers and distributors to health professionals regarding

products within the scope of this Code shall be restricted to scientific and factual matters and
such information shall not imply or create a belief that bottle feeding is equivalent or superior
to breastfeeding. It shall also include the information specified in Section 5(b).

xxxx

SECTION 10. Containers/Label –
 (a) Containers and/or labels shall be designed to provide the necessary information about
the appropriate use of the products, and in such a way as not to discourage breastfeeding.

(b) Each container shall have a clear, conspicuous and easily readable and understandable
message in Pilipino or English printed on it, or on a label, which message can not readily
become separated from it, and which shall include the following points:

(i) the words "Important Notice" or their equivalent;

(ii) a statement of the superiority of breastfeeding;

(iii) a statement that the product shall be used only on the advice of a health worker
as to the need for its use and the proper methods of use; and

(iv) instructions for appropriate preparation, and a warning against the health hazards
of inappropriate preparation.

Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the
enforcement of the provisions of the Code. In relation to such responsibility of the DOH, Section 5(a)
of the Milk Code states that:

SECTION 5. Information and Education –

(a) The government shall ensure that objective and consistent information is provided on

infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of information,
and the control thereof, on infant nutrition. (Emphasis supplied)

Thus, the DOH has the significant responsibility to translate into operational terms the
standards set forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall screen
advertising, promotional, or other marketing materials.

It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR which
reads as follows:

SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must be
objective and should not equate or make the product appear to be as good or equal to
breastmilk or breastfeeding in the advertising concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that
buying their product would produce better individuals, or resulting in greater love,
intelligence, ability, harmony or in any manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.

Such standards bind the IAC in formulating its rules and regulations on advertising, promotion, and
marketing. Through that single provision, the DOH exercises control over the information content of
advertising, promotional and marketing materials on breastmilk vis-a-vis breastmilk substitutes,
supplements and other related products. It also sets a viable standard against which the IAC may
screen such materials before they are made public.

In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:

 x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public
interest," "justice and equity," "public convenience and welfare," and "simplicity, economy
and welfare."65

In this case, correct information as to infant feeding and nutrition is infused with public interest and
welfare.

4. With regard to activities for dissemination of information to health professionals, the Court also
finds that there is no inconsistency between the provisions of the Milk Code and the RIRR. Section
7(b)66 of the Milk Code, in relation to Section 8(b) 67 of the same Code, allows dissemination of
information to health professionals but such information is restricted to scientific and factual
matters.

Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of information to
health professionals on scientific and factual matters. What it prohibits is the involvement of the
manufacturer and distributor of the products covered by the Code in activities for the promotion,
education and production of Information, Education and Communication (IEC) materials regarding
breastfeeding that are intended for women and children. Said provision cannot be construed to
encompass even the dissemination of information to health professionals, as restricted by the
Milk Code.

5. Next, petitioner alleges that Section 8(e) 68 of the Milk Code permits milk manufacturers and
distributors to extend assistance in research and in the continuing education of health professionals,
while Sections 22 and 32 of the RIRR absolutely forbid the same. Petitioner also assails Section
4(i)69 of the RIRR prohibiting milk manufacturers' and distributors' participation in any policymaking
body in relation to the advancement of breastfeeding.

Section 4(i) of the RIRR provides that milk companies and their representatives should not form part
of any policymaking body or entity in relation to the advancement of breastfeeding. The Court finds
nothing in said provisions which contravenes the Milk Code. Note that under Section 12(b) of the
Milk Code, it is the DOH which shall be principally responsible for the implementation and
enforcement of the provisions of said Code. It is entirely up to the DOH to decide which entities to
call upon or allow to be part of policymaking bodies on breastfeeding. Therefore, the RIRR's
prohibition on milk companies’ participation in any policymaking body in relation to the advancement
of breastfeeding is in accord with the Milk Code.

Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from
giving reasearch assistance and continuing education to health professionals. Section 2270 of the
RIRR does not pertain to research assistance to or the continuing education of health
professionals; rather, it deals with breastfeeding promotion and education for women and
children. Nothing in Section 22 of the RIRR prohibits milk companies from giving assistance for
research or continuing education to health professionals; hence, petitioner's argument against this
particular provision must be struck down.

It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the RIRR
provide that research assistance for health workers and researchers may be allowed upon
approval of an ethics committee, and with certain disclosure requirements imposed on the
milk company and on the recipient of the research award.

The Milk Code endows the DOH with the power to determine how such research or educational
assistance may be given by milk companies or under what conditions health workers may accept the
assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations on the kind of research done
or extent of assistance given by milk companies are completely in accord with the Milk Code.

Petitioner complains that Section 32 73 of the RIRR prohibits milk companies from giving assistance,
support, logistics or training to health workers. This provision is within the prerogative given to the
DOH under Section 8(e) 74 of the Milk Code, which provides that manufacturers and distributors of
breastmilk substitutes may assist in researches, scholarships and the continuing education, of health
professionals in accordance with the rules and regulations promulgated by the Ministry of Health ,
now DOH.

6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk Code.
Section 6(f) of the Milk Code provides that donations may be made by manufacturers and
distributors of breastmilk substitutes upon the request or with the approval of the DOH. The law
does not proscribe the refusal of donations. The Milk Code leaves it purely to the discretion of the
DOH whether to request or accept such donations. The DOH then appropriately exercised its
discretion through Section 51 75 of the RIRR which sets forth its policy not to request or approve
donations from manufacturers and distributors of breastmilk substitutes.

It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation
from milk companies not covered by the Code should be coursed through the IAC which shall
determine whether such donation should be accepted or refused. As reasoned out by respondents,
the DOH is not mandated by the Milk Code to accept donations. For that matter, no person or entity
can be forced to accept a donation. There is, therefore, no real inconsistency between the RIRR and
the law because the Milk Code does not prohibit the DOH from refusing donations.

7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in
the Milk Code, the Court upholds petitioner's objection thereto.

Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is misplaced. The
glaring difference in said case and the present case before the Court is that, in the  Civil Aeronautics
Board, the Civil Aeronautics Administration (CAA) was expressly granted by the law (R.A. No.
776) the power to impose fines and civil penalties, while the Civil Aeronautics Board (CAB) was
granted by the same law the power to review on appeal the order or decision of the CAA and to
determine whether to impose, remit, mitigate, increase or compromise such fine and civil penalties.
Thus, the Court upheld the CAB's Resolution imposing administrative fines.

In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the Court upheld
the Department of Energy (DOE) Circular No. 2000-06-10
implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the commission of
prohibited acts. The Court found that nothing in the circular contravened the law because the DOE
was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties.

In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH the
authority to fix or impose administrative fines. Thus, without any express grant of power to fix or
impose such fines, the DOH cannot provide for those fines in the RIRR. In this regard, the DOH
again exceeded its authority by providing for such fines or sanctions in Section 46 of the RIRR. Said
provision is, therefore, null and void.

The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of the
Milk Code authorizes the DOH to "cause the prosecution of the violators of this Code and other
pertinent laws on products covered by this Code." Section 13 of the Milk Code provides for the
penalties to be imposed on violators of the provision of the Milk Code or the rules and regulations
issued pursuant to it, to wit:

SECTION 13. Sanctions –

(a) Any person who violates the provisions of this Code or the rules and regulations
issued pursuant to this Code shall, upon conviction, be punished by a penalty of two (2)
months to one (1) year imprisonment or a fine of not less than One Thousand Pesos
(P1,000.00) nor more than Thirty Thousand Pesos (P30,000.00) or both. Should the offense
be committed by a juridical person, the chairman of the Board of Directors, the president,
general manager, or the partners and/or the persons directly responsible therefor, shall be
penalized.

(b) Any license, permit or authority issued by any government agency to any health worker,
distributor, manufacturer, or marketing firm or personnel for the practice of their profession or
occupation, or for the pursuit of their business, may, upon recommendation of the Ministry of
Health, be suspended or revoked in the event of repeated violations of this Code, or of the
rules and regulations issued pursuant to this Code. (Emphasis supplied)

8. Petitioner’s claim that Section 57 of the RIRR repeals existing laws that are contrary to the RIRR
is frivolous.

Section 57 reads:

SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts
thereof inconsistent with these revised rules and implementing regulations are hereby
repealed or modified accordingly.

Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and rules
and regulations. Thus, said provision is valid as it is within the DOH's rule-making power.

An administrative agency like respondent possesses quasi-legislative or rule-making power or the

power to make rules and regulations which results in delegated legislation that is within the confines
of the granting statute and the Constitution, and subject to the doctrine of non-delegability and
separability of powers. 78 Such express grant of rule-making power necessarily includes the power to
amend, revise, alter, or repeal the same. 79 This is to allow administrative agencies flexibility in
formulating and adjusting the details and manner by which they are to implement the provisions of a
law,80 in order to make it more responsive to the times. Hence, it is a standard provision in
administrative rules that prior issuances of administrative agencies that are inconsistent therewith
are declared repealed or modified.

In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate
and in contravention of the Milk Code and, therefore, null and void. The rest of the provisions of the
RIRR are in consonance with the Milk Code.

Lastly, petitioner makes a "catch-all" allegation that:

x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary

and oppressive, and is offensive to the due process clause of the Constitution, insofar
as the same is in restraint of trade and because a provision therein is inadequate to
 provide the public with a comprehensible basis to determine whether or not they have
committed a violation.81 (Emphasis supplied)

Petitioner refers to Sections 4(f), 82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the provisions that

suppress the trade of milk and, thus, violate the due process clause of the Constitution.

The framers of the constitution were well aware that trade must be subjected to some form of
regulation for the public good. Public interest must be upheld over business interests. 90 In Pest
Management Association of the Philippines v. Fertilizer and Pesticide Authority,91 it was held thus:

x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine

Coconut Authority, despite the fact that "our present Constitution enshrines free
enterprise as a policy, it nonetheless reserves to the government the power to
intervene whenever necessary to promote the general welfare." There can be no
question that the unregulated use or proliferation of pesticides would be hazardous to our
environment. Thus, in the aforecited case, the Court declared that "free enterprise does not
call for removal of ‘protective regulations’." x x x It must be clearly explained and
proven by competent evidence just exactly how such protective regulation would
result in the restraint of trade. [Emphasis and underscoring supplied]

In this case, petitioner failed to show that the proscription of milk manufacturers’ participation in any
policymaking body (Section 4(i)), classes and seminars for women and children (Section 22); the
giving of assistance, support and logistics or training (Section 32); and the giving of donations
(Section 52) would unreasonably hamper the trade of breastmilk substitutes. Petitioner has not
established that the proscribed activities are indispensable to the trade of breastmilk substitutes.
Petitioner failed to demonstrate that the aforementioned provisions of the RIRR are unreasonable
and oppressive for being in restraint of trade.

Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and
oppressive. Said section provides for the definition of the term "milk company," to wit:

SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer, distributor of
infant formula, follow-up milk, milk formula, milk supplement, breastmilk substitute or
replacement, or by any other description of such nature, including their representatives who
promote or otherwise advance their commercial interests in marketing those products;

On the other hand, Section 4 of the Milk Code provides:

(d) "Distributor" means a person, corporation or any other entity in the public or private sector
engaged in the business (whether directly or indirectly) of marketing at the wholesale or retail
level a product within the scope of this Code. A "primary distributor" is a manufacturer's sales
agent, representative, national distributor or broker.

xxxx

(j) "Manufacturer" means a corporation or other entity in the public or private sector engaged
in the business or function (whether directly or indirectly or through an agent or and entity
controlled by or under contract with it) of manufacturing a products within the scope of this
Code.
Notably, the definition in the RIRR merely merged together under the term "milk company" the
entities defined separately under the Milk Code as "distributor" and "manufacturer." The RIRR also
enumerated in Section 5(w) the products manufactured or distributed by an entity that would qualify
it as a "milk company," whereas in the Milk Code, what is used is the phrase "products within the
scope of this Code." Those are the only differences between the definitions given in the Milk Code
and the definition as re-stated in the RIRR.

Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and
distributors, the Court sees no harm in the RIRR providing for just one term to encompass both
entities. The definition of "milk company" in the RIRR and the definitions of "distributor" and
"manufacturer" provided for under the Milk Code are practically the same.

The Court is not convinced that the definition of "milk company" provided in the RIRR would bring
about any change in the treatment or regulation of "distributors" and "manufacturers" of breastmilk
substitutes, as defined under the Milk Code.

Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the
objective, purpose and intent of the Milk Code, constituting reasonable regulation of an industry
which affects public health and welfare and, as such, the rest of the RIRR do not constitute illegal
restraint of trade nor are they violative of the due process clause of the Constitution.

WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative

Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires. The
Department of Health and respondents are PROHIBITED from implementing said provisions.

The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the
provisions of Administrative Order No. 2006-0012 is concerned.

SO ORDERED.

Puno, (Chief Justice), Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Corona, Carpio-

Morales, Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr., Nachura, Reyes, JJ., concur.

G.R. No. 159618               February 1, 2011

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

DECISION

VELASCO, JR., J.:

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

The Facts

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

Rome Statute of the International Criminal Court

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

On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome
Statute which, by its terms, is "subject to ratification, acceptance or approval" by the signatory
states.6 As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to
have completed the ratification, approval and concurrence process. The Philippines is not among the
92.

RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the RP.

Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the
RP, represented by then DFA Secretary Ople, agreed with and accepted the US proposals
embodied under the US Embassy Note adverted to and put in effect the Agreement with the US
government. In esse, the Agreement aims to protect what it refers to and defines as "persons" of the
RP and US from frivolous and harassment suits that might be brought against them in international
tribunals.8 It is reflective of the increasing pace of the strategic security and defense partnership
between the two countries. As of May 2, 2003, similar bilateral agreements have been effected by
and between the US and 33 other countries.9

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, "persons" are current or former Government officials,
employees (including contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not,  absent the express
consent of the first Party,

(a) be surrendered or transferred by any means to any international tribunal for any
purpose, unless such tribunal has been established by the UN Security Council, or
 (b) be surrendered or transferred by any means to any other entity or third country, or
expelled to a third country, for the purpose of surrender to or transfer to any
international tribunal, unless such tribunal has been established by the UN Security
Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to
a third country, the [US] will not agree to the surrender or transfer of that person by the third
country to any international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the Republic of the
Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a
third country, the [GRP] will not agree to the surrender or transfer of that person by the third
country to any international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one party
notifies the other of its intent to terminate the Agreement. The provisions of this Agreement
shall continue to apply with respect to any act occurring, or any allegation arising, before the
effective date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-
surrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the
exchange of diplomatic notes constituted a legally binding agreement under international law; and
that, under US law, the said agreement did not require the advice and consent of the US Senate. 10

In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and
ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared as
without force and effect.

For their part, respondents question petitioner’s standing to maintain a suit and counter that
the Agreement, being in the nature of an executive agreement, does not require Senate concurrence
for its efficacy. And for reasons detailed in their comment, respondents assert the constitutionality of
the Agreement.

The Issues

I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY

ABUSED THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
FOR CONCLUDING THE RP-US NON SURRENDER AGREEMENT BY MEANS OF
[E/N] BFO-028-03 DATED 13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS
ALREADY SIGNED THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING
RATIFICATION BY THE PHILIPPINE SENATE.

A. Whether by entering into the x x x Agreement Respondents gravely abused their

discretion when they capriciously abandoned, waived and relinquished our only
legitimate recourse through the Rome Statute of the [ICC] to prosecute and try
"persons" as defined in the x x x Agreement, x x x or literally any conduit of
American interests, who have committed crimes of genocide, crimes against
humanity, war crimes and the crime of aggression, thereby abdicating Philippine
Sovereignty.
 B. Whether after the signing and pending ratification of the Rome Statute of the
[ICC] the [RP] President and the [DFA] Secretary x x x are obliged by the principle of
good faith to refrain from doing all acts which would substantially impair the value of
the undertaking as signed.

C. Whether the x x x Agreement constitutes an act which defeats the object and

purpose of the Rome Statute of the International Criminal Court and contravenes the
obligation of good faith inherent in the signature of the President affixed on the Rome
Statute of the International Criminal Court, and if so whether the x x x Agreement is
void and unenforceable on this ground.

D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for

grave abuse of discretion amounting to lack or excess of jurisdiction in connection
with its execution.

II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR

CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT
VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.

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

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

The foregoing issues may be summarized into two: first, whether or not the Agreement was
contracted validly, which resolves itself into the question of whether or not respondents gravely
abused their discretion in concluding it; and second, whether or not the Agreement, which has not
been submitted to the Senate for concurrence, contravenes and undermines the Rome Statute and
other treaties. But because respondents expectedly raised it, we shall first tackle the issue of
petitioner’s legal standing.

The Court’s Ruling

This petition is bereft of merit.

Procedural Issue: Locus Standi of Petitioner

Petitioner, through its three party-list representatives, contends that the issue of the validity or
invalidity of the Agreement carries with it constitutional significance and is of paramount importance
that justifies its standing. Cited in this regard is what is usually referred to as the emergency powers
cases,12 in which ordinary citizens and taxpayers were accorded the personality to question the
constitutionality of executive issuances.

Locus standi is "a right of appearance in a court of justice on a given question." 13 Specifically, it is "a
party’s personal and substantial interest in a case where he has sustained or will sustain direct injury
as a result"14 of the act being challenged, and "calls for more than just a generalized
grievance."15 The term "interest" refers to material interest, as distinguished from one that is merely
incidental.16 The rationale for requiring a party who challenges the validity of a law or international
agreement to allege such a personal stake in the outcome of the controversy is "to assure the
concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions." 17
Locus standi, however, is merely a matter of procedure and it has been recognized that, in some
cases, suits are not brought by parties who have been personally injured by the operation of a law or
any other government act, but by concerned citizens, taxpayers, or voters who actually sue in the
public interest.18 Consequently, in a catena of cases, 19 this Court has invariably adopted a liberal
stance on locus standi.

Going by the petition, petitioner’s representatives pursue the instant suit primarily as concerned
citizens raising issues of transcendental importance, both for the Republic and the citizenry as a
whole.

When suing as a citizen to question the validity of a law or other government action, a petitioner
needs to meet certain specific requirements before he can be clothed with standing. Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.20 expounded on this
requirement, thus:

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must
be direct and personal. He must be able to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about to be denied some right or privilege to
which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of. In fine, when the proceeding involves the assertion of a
public right, the mere fact that he is a citizen satisfies the requirement of personal interest. 21

In the case at bar, petitioner’s representatives have complied with the qualifying conditions or
specific requirements exacted under the locus standi rule. As citizens, their interest in the subject
matter of the petition is direct and personal. At the very least, their assertions questioning the
Agreement are made of a public right, i.e., to ascertain that the Agreement did not go against
established national policies, practices, and obligations bearing on the State’s obligation to the
community of nations.

At any event, the primordial importance to Filipino citizens in general of the issue at hand impels the
Court to brush aside the procedural barrier posed by the traditional requirement of locus standi, as
we have done in a long line of earlier cases, notably in the old but oft-cited emergency powers
cases22 and Kilosbayan v. Guingona, Jr.23 In cases of transcendental importance, we wrote again
in Bayan v. Zamora,24 "The Court may relax the standing requirements and allow a suit to prosper
even where there is no direct injury to the party claiming the right of judicial review."

Moreover, bearing in mind what the Court said in Tañada v. Angara, "that it will not shirk, digress
from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave
abuse of discretion brought before it in appropriate cases, committed by any officer, agency,
instrumentality or department of the government," 25 we cannot but resolve head on the issues raised
before us. Indeed, where an action of any branch of government is seriously alleged to have
infringed the Constitution or is done with grave abuse of discretion, it becomes not only the right but
in fact the duty of the judiciary to settle it. As in this petition, issues are precisely raised putting to the
fore the propriety of the Agreement pending the ratification of the Rome Statute.

Validity of the RP-US Non-Surrender Agreement

Petitioner’s initial challenge against the Agreement relates to form, its threshold posture being that
E/N BFO-028-03 cannot be a valid medium for concluding the Agreement.

Petitioners’ contention––perhaps taken unaware of certain well-recognized international doctrines,

practices, and jargons––is untenable. One of these is the doctrine of incorporation, as expressed in
Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted
principles of international law and international jurisprudence as part of the law of the land and
adheres to the policy of peace, cooperation, and amity with all nations. 26 An exchange of notes falls
"into the category of inter-governmental agreements," 27 which is an internationally accepted form of
international agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines
the term as follows:

An "exchange of notes" is a record of a routine agreement, that has many similarities with the private
law contract. The agreement consists of the exchange of two documents, each of the parties being
in the possession of the one signed by the representative of the other. Under the usual procedure,
the accepting State repeats the text of the offering State to record its assent. The signatories of the
letters may be government Ministers, diplomats or departmental heads. The technique of exchange
of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid
the process of legislative approval. 28

In another perspective, the terms "exchange of notes" and "executive agreements" have been used
interchangeably, exchange of notes being considered a form of executive agreement that becomes
binding through executive action. 29 On the other hand, executive agreements concluded by the
President "sometimes take the form of exchange of notes and at other times that of more formal
documents denominated ‘agreements’ or ‘protocols.’" 30 As former US High Commissioner to the
Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts:

The point where ordinary correspondence between this and other governments ends and
agreements – whether denominated executive agreements or exchange of notes or otherwise –
begin, may sometimes be difficult of ready ascertainment. 31 x x x

It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-
Surrender Agreement itself, or as an integral instrument of acceptance thereof or as consent to be
bound––is a recognized mode of concluding a legally binding international written contract among
nations.

Senate Concurrence Not Required

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an international
agreement concluded between states in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and whatever its particular
designation."32 International agreements may be in the form of (1) treaties that require legislative
concurrence after executive ratification; or (2) executive agreements that are similar to treaties,
except that they do not require legislative concurrence and are usually less formal and deal with a
narrower range of subject matters than treaties.33

Under international law, there is no difference between treaties and executive agreements in terms
of their binding effects on the contracting states concerned, 34 as long as the negotiating functionaries
have remained within their powers. 35 Neither, on the domestic sphere, can one be held valid if it
violates the Constitution. 36 Authorities are, however, agreed that one is distinct from another for
accepted reasons apart from the concurrence-requirement aspect. 37 As has been observed by US
constitutional scholars, a treaty has greater "dignity" than an executive agreement, because its
constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President, the
Senate, and the people; 38 a ratified treaty, unlike an executive agreement, takes precedence over
any prior statutory enactment. 39

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the
nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner takes a cue
from Commissioner of Customs v. Eastern Sea Trading, in which the Court reproduced the following
observations made by US legal scholars: "[I]nternational agreements involving political issues or
changes of national policy and those involving international arrangements of a permanent character
usually take the form of treaties [while] those embodying adjustments of detail carrying out well
established national policies and traditions and those involving arrangements of a more or less
temporary nature take the form of executive agreements." 40

Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the
subject-categories that are enumerated in the Eastern Sea Trading case, and that may be covered
by an executive agreement, such as commercial/consular relations, most-favored nation rights,
patent rights, trademark and copyright protection, postal and navigation arrangements and
settlement of claims.

In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and
Merchant,41 holding that an executive agreement through an exchange of notes cannot be used to
amend a treaty.

We are not persuaded.

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

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

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

But over and above the foregoing considerations is the fact that––save for the situation and matters
contemplated in Sec. 25, Art. XVIII of the Constitution 46––when a treaty is required, the Constitution
does not classify any subject, like that involving political issues, to be in the form of, and ratified as, a
treaty. What the Constitution merely prescribes is that treaties need the concurrence of the Senate
by a vote defined therein to complete the ratification process.

Petitioner’s reliance on Adolfo47 is misplaced, said case being inapplicable owing to different factual
milieus. There, the Court held that an executive agreement cannot be used to amend a duly ratified
and existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does not require the
concurrence of the Senate for its ratification may not be used to amend a treaty that, under the
Constitution, is the product of the ratifying acts of the Executive and the Senate. The presence of a
treaty, purportedly being subject to amendment by an executive agreement, does not obtain under
the premises.

Considering the above discussion, the Court need not belabor at length the third main issue raised,
referring to the validity and effectivity of the Agreement without the concurrence by at least two-thirds
of all the members of the Senate. The Court has, in Eastern Sea Trading,48 as reiterated
in Bayan,49 given recognition to the obligatory effect of executive agreements without the
concurrence of the Senate:

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

The Agreement Not in Contravention of the Rome Statute

It is the petitioner’s next contention that the Agreement undermines the establishment of the ICC and
is null and void insofar as it unduly restricts the ICC’s jurisdiction and infringes upon the effectivity of
the Rome Statute. Petitioner posits that the Agreement was constituted solely for the purpose of
providing individuals or groups of individuals with immunity from the jurisdiction of the ICC; and such
grant of immunity through non-surrender agreements allegedly does not legitimately fall within the
scope of Art. 98 of the Rome Statute. It concludes that state parties with non-surrender agreements
are prevented from meeting their obligations under the Rome Statute, thereby constituting a breach
of Arts. 27,50 86,51 8952 and 9053 thereof.

Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that those
responsible for the worst possible crimes are brought to justice in all cases, primarily by states, but
as a last resort, by the ICC; thus, any agreement—like the non-surrender agreement—that
precludes the ICC from exercising its complementary function of acting when a state is unable to or
unwilling to do so, defeats the object and purpose of the Rome Statute.

Petitioner would add that the President and the DFA Secretary, as representatives of a signatory of
the Rome Statute, are obliged by the imperatives of good faith to refrain from performing acts that
substantially devalue the purpose and object of the Statute, as signed. Adding a nullifying ingredient
to the Agreement, according to petitioner, is the fact that it has an immoral purpose or is otherwise at
variance with a priorly executed treaty.

Contrary to petitioner’s pretense, the Agreement does not contravene or undermine, nor does it

differ from, the Rome Statute. Far from going against each other, one complements the other. As a
matter of fact, the principle of complementarity underpins the creation of the ICC. As aptly pointed
out by respondents and admitted by petitioners, the jurisdiction of the ICC is to "be complementary
to national criminal jurisdictions [of the signatory states]." 54 Art. 1 of the Rome Statute pertinently
provides:

Article 1
The Court

An International Crimininal Court ("the Court") is hereby established. It x x x shall have the power
to exercise its jurisdiction over persons for the most serious crimes of international concern, as
referred to in this Statute, and shall be complementary to national criminal jurisdictions. The
jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.
(Emphasis ours.)

Significantly, the sixth preambular paragraph of the Rome Statute declares that "it is the duty of
every State to exercise its criminal jurisdiction over those responsible for international crimes." This
provision indicates that primary jurisdiction over the so-called international crimes rests, at the first
instance, with the state where the crime was committed; secondarily, with the ICC in appropriate
situations contemplated under Art. 17, par. 155 of the Rome Statute.

Of particular note is the application of the principle of ne bis in idem56 under par. 3 of Art. 20, Rome
Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC.
As far as relevant, the provision states that "no person who has been tried by another court for
conduct x x x [constituting crimes within its jurisdiction] shall be tried by the [International Criminal]
Court with respect to the same conduct x x x."

The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of
jurisdictional conflict between the Philippines, as party to the non-surrender agreement, and the ICC;
or the idea of the Agreement substantially impairing the value of the RP’s undertaking under the
Rome Statute. Ignoring for a while the fact that the RP signed the Rome Statute ahead of
the Agreement, it is abundantly clear to us that the Rome Statute expressly recognizes the primary
jurisdiction of states, like the RP, over serious crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into play only when the signatory states are unwilling
or unable to prosecute.

Given the above consideration, petitioner’s suggestion––that the RP, by entering into
the Agreement, violated its duty required by the imperatives of good faith and breached its
commitment under the Vienna Convention 57 to refrain from performing any act tending to impair the
value of a treaty, e.g., the Rome Statute––has to be rejected outright. For nothing in the provisions
of the Agreement, in relation to the Rome Statute, tends to diminish the efficacy of the Statute, let
alone defeats the purpose of the ICC. Lest it be overlooked, the Rome Statute contains a proviso
that enjoins the ICC from seeking the surrender of an erring person, should the process require the
requested state to perform an act that would violate some international agreement it has entered
into. We refer to Art. 98(2) of the Rome Statute, which reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender

xxxx

2. The Court may not proceed with a request for surrender which would require the requested State
to act inconsistently with its obligations under international agreements pursuant to which the
consent of a sending State is required to surrender a person of that State to the Court, unless the
Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

Moreover, under international law, there is a considerable difference between a State-Party and a
signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only
obliged to refrain from acts which would defeat the object and purpose of a treaty; 58 whereas a State-
Party, on the other hand, is legally obliged to follow all the provisions of a treaty in good faith.

In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and
not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts
which would defeat the object and purpose of the Rome Statute. Any argument obliging the
Philippines to follow any provision in the treaty would be premature.

As a result, petitioner’s argument that State-Parties with non-surrender agreements are prevented
from meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail.
These articles are only legally binding upon State-Parties, not signatories.

Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible
with the Rome Statute. Specifically, Art. 90(4) provides that "[i]f the requesting State is a State not
Party to this Statute the requested State, if it is not under an international obligation to extradite the
person to the requesting State, shall give priority to the request for surrender from the Court. x x x" In
applying the provision, certain undisputed facts should be pointed out: first, the US is neither a State-
Party nor a signatory to the Rome Statute; and second, there is an international agreement between
the US and the Philippines regarding extradition or surrender of persons, i.e., the Agreement.
Clearly, even assuming that the Philippines is a State-Party, the Rome Statute still recognizes the
primacy of international agreements entered into between States, even when one of the States is not
a State-Party to the Rome Statute.

Sovereignty Limited by International Agreements

Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by
bargaining away the jurisdiction of the ICC to prosecute US nationals, government
officials/employees or military personnel who commit serious crimes of international concerns in the
Philippines. Formulating petitioner’s argument a bit differently, the RP, by entering into
the Agreement, does thereby abdicate its sovereignty, abdication being done by its waiving or
abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans
committing international crimes in the country.

We are not persuaded. As it were, the Agreement is but a form of affirmance and confirmance of the
Philippines’ national criminal jurisdiction. National criminal jurisdiction being primary, as explained
above, it is always the responsibility and within the prerogative of the RP either to prosecute criminal
offenses equally covered by the Rome Statute or to accede to the jurisdiction of the ICC. Thus, the
Philippines may decide to try "persons" of the US, as the term is understood in the  Agreement,
under our national criminal justice system. Or it may opt not to exercise its criminal jurisdiction over
its erring citizens or over US "persons" committing high crimes in the country and defer to the
secondary criminal jurisdiction of the ICC over them. As to "persons" of the US whom the Philippines
refuses to prosecute, the country would, in effect, accord discretion to the US to exercise either its
national criminal jurisdiction over the "person" concerned or to give its consent to the referral of the
matter to the ICC for trial. In the same breath, the US must extend the same privilege to the
Philippines with respect to "persons" of the RP committing high crimes within US territorial
jurisdiction.

In the context of the Constitution, there can be no serious objection to the Philippines agreeing to
undertake the things set forth in the Agreement. Surely, one State can agree to waive jurisdiction—
to the extent agreed upon—to subjects of another State due to the recognition of the principle of
extraterritorial immunity. What the Court wrote in Nicolas v. Romulo59—a case involving the
implementation of the criminal jurisdiction provisions of the RP-US Visiting Forces Agreement—is
apropos:

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or
some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and members of the armed forces contingents of a foreign
State allowed to enter another State’s territory. x x x

To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate
that some of its provisions constitute a virtual abdication of its sovereignty. Almost every time a state
enters into an international agreement, it voluntarily sheds off part of its sovereignty. The
Constitution, as drafted, did not envision a reclusive Philippines isolated from the rest of the world. It
even adheres, as earlier stated, to the policy of cooperation and amity with all nations. 60

By their nature, treaties and international agreements actually have a limiting effect on the otherwise
encompassing and absolute nature of sovereignty. By their voluntary act, nations may decide to
surrender or waive some aspects of their state power or agree to limit the exercise of their otherwise
exclusive and absolute jurisdiction. The usual underlying consideration in this partial surrender may
be the greater benefits derived from a pact or a reciprocal undertaking of one contracting party to
grant the same privileges or immunities to the other. On the rationale that the Philippines has
adopted the generally accepted principles of international law as part of the law of the land, a portion
of sovereignty may be waived without violating the Constitution. 61 Such waiver does not amount to
an unconstitutional diminution or deprivation of jurisdiction of Philippine courts. 62

Agreement Not Immoral/Not at Variance

with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral
obligations and/or being at variance with allegedly universally recognized principles of international
law. The immoral aspect proceeds from the fact that the Agreement, as petitioner would put it,
"leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the
conscience of humanity; x x x it precludes our country from delivering an American criminal to the
[ICC] x x x."63

The above argument is a kind of recycling of petitioner’s earlier position, which, as already
discussed, contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty
and in the process undermined its treaty obligations under the Rome Statute, contrary to
international law principles.64
The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as
aptly described by the Solicitor General, "is an assertion by the Philippines of its desire to try and
punish crimes under its national law. x x x The agreement is a recognition of the primacy and
competence of the country’s judiciary to try offenses under its national criminal laws and dispense
justice fairly and judiciously."

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow
Filipinos and Americans committing high crimes of international concern to escape criminal trial and
punishment. This is manifestly incorrect. Persons who may have committed acts penalized under the
Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the consent of
the RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind
both countries to the Rome Statute have been met. For perspective, what
the Agreement contextually prohibits is the surrender by either party of individuals to international
tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the
crime under its existing laws. With the view we take of things, there is nothing immoral or violative of
international law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to
the non-surrender agreement over an offense considered criminal by both Philippine laws and the
Rome Statute.

No Grave Abuse of Discretion

Petitioner’s final point revolves around the necessity of the Senate’s concurrence in the Agreement.
And without specifically saying so, petitioner would argue that the non-surrender agreement was
executed by the President, thru the DFA Secretary, in grave abuse of discretion.

The Court need not delve on and belabor the first portion of the above posture of petitioner, the
same having been discussed at length earlier on. As to the second portion, We wish to state that
petitioner virtually faults the President for performing, through respondents, a task conferred the
President by the Constitution—the power to enter into international agreements.

By constitutional fiat and by the nature of his or her office, the President, as head of state and
government, is the sole organ and authority in the external affairs of the country. 65 The Constitution
vests in the President the power to enter into international agreements, subject, in appropriate
cases, to the required concurrence votes of the Senate. But as earlier indicated, executive
agreements may be validly entered into without such concurrence. As the President wields vast
powers and influence, her conduct in the external affairs of the nation is, as Bayan would put it,
"executive altogether." The right of the President to enter into or ratify binding executive agreements
has been confirmed by long practice.66

In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria

Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the
authority and discretion vested in her by the Constitution. At the end of the day, the President––by
ratifying, thru her deputies, the non-surrender agreement––did nothing more than discharge a
constitutional duty and exercise a prerogative that pertains to her office.

While the issue of ratification of the Rome Statute is not determinative of the other issues raised
herein, it may perhaps be pertinent to remind all and sundry that about the time this petition was
interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Office of the Executive
Secretary.67 As the Court emphasized in said case, the power to ratify a treaty, the Statute in that
instance, rests with the President, subject to the concurrence of the Senate, whose role relative to
the ratification of a treaty is limited merely to concurring in or withholding the ratification. And
concomitant with this treaty-making power of the President is his or her prerogative to refuse to
submit a treaty to the Senate; or having secured the latter’s consent to the ratification of the treaty,
refuse to ratify it.68 This prerogative, the Court hastened to add, is the President’s alone and cannot
be encroached upon via a writ of mandamus. Barring intervening events, then, the Philippines
remains to be just a signatory to the Rome Statute. Under Art. 125 69 thereof, the final acts required to
complete the treaty process and, thus, bring it into force, insofar as the Philippines is concerned,
have yet to be done.

Agreement Need Not Be in the Form of a Treaty

On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851,
otherwise known as the "Philippine Act on Crimes Against International Humanitarian Law,
Genocide, and Other Crimes Against Humanity." Sec. 17 of RA 9851, particularly the second
paragraph thereof, provides:

Section 17. Jurisdiction. – x x x x

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or
prosecution of a crime punishable under this Act if another court or international tribunal is already
conducting the investigation or undertaking the prosecution of such crime. Instead, the
authorities may surrender or extradite suspected or accused persons in the Philippines to the
appropriate international court, if any, or to another State pursuant to the applicable extradition laws
and treaties. (Emphasis supplied.)

A view is advanced that the Agreement amends existing municipal laws on the State’s obligation in
relation to grave crimes against the law of nations, i.e., genocide, crimes against humanity and war
crimes. Relying on the above-quoted statutory proviso, the view posits that the Philippine is required
to surrender to the proper international tribunal those persons accused of the grave crimes defined
under RA 9851, if it does not exercise its primary jurisdiction to prosecute them.

The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national
for violations of RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to
the proper international tribunal; or (2) surrender the accused to another State if such surrender is
"pursuant to the applicable extradition laws and treaties." But the Philippines may exercise these
options only in cases where "another court or international tribunal is already conducting the
investigation or undertaking the prosecution of such crime;" otherwise, the Philippines must
prosecute the crime before its own courts pursuant to RA 9851.

Posing the situation of a US national under prosecution by an international tribunal for any crime
under RA 9851, the Philippines has the option to surrender such US national to the international
tribunal if it decides not to prosecute such US national here. The view asserts that this option of the
Philippines under Sec. 17 of RA 9851 is not subject to the consent of the US, and any derogation of
Sec. 17 of RA 9851, such as requiring the consent of the US before the Philippines can exercise
such option, requires an amendatory law. In line with this scenario, the view strongly argues that
the Agreement prevents the Philippines—without the consent of the US—from surrendering to any
international tribunal US nationals accused of crimes covered by RA 9851, and, thus, in effect
amends Sec. 17 of RA 9851. Consequently, the view is strongly impressed that
the Agreement cannot be embodied in a simple executive agreement in the form of an exchange of
notes but must be implemented through an extradition law or a treaty with the corresponding
formalities.

Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where the
Philippines adopts, as a national policy, the "generally accepted principles of international law as
part of the law of the land," the Court is further impressed to perceive the Rome Statute as
declaratory of customary international law. In other words, the Statute embodies principles of law
which constitute customary international law or custom and for which reason it assumes the status of
an enforceable domestic law in the context of the aforecited constitutional provision. As a corollary, it
is argued that any derogation from the Rome Statute principles cannot be undertaken via a mere
executive agreement, which, as an exclusive act of the executive branch, can only implement, but
cannot amend or repeal, an existing law. The Agreement, so the argument goes, seeks to frustrate
the objects of the principles of law or alters customary rules embodied in the Rome Statute.

Prescinding from the foregoing premises, the view thus advanced considers
the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the concurrence of
the Senate, the theory being that a Senate- ratified treaty partakes of the nature of a municipal law
that can amend or supersede another law, in this instance Sec. 17 of RA 9851 and the status of the
Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of the Constitution.

We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not
amend or is repugnant to RA 9851. For another, the view does not clearly state what precise
principles of law, if any, the Agreement alters. And for a third, it does not demonstrate in the
concrete how the Agreement seeks to frustrate the objectives of the principles of law subsumed in
the Rome Statute.

Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the former
merely reinforces the primacy of the national jurisdiction of the US and the Philippines in prosecuting
criminal offenses committed by their respective citizens and military personnel, among others. The
jurisdiction of the ICC pursuant to the Rome Statute over high crimes indicated thereat is clearly and
unmistakably complementary to the national criminal jurisdiction of the signatory states.

Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian
law, genocide and other crimes against humanity; 70 (2) provides penal sanctions and criminal liability
for their commission;71 and (3) establishes special courts for the prosecution of these crimes and for
the State to exercise primary criminal jurisdiction. 72 Nowhere in RA 9851 is there a proviso that goes
against the tenor of the Agreement.

The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the
Philippine State to surrender to the proper international tribunal those persons accused of crimes
sanctioned under said law if it does not exercise its primary jurisdiction to prosecute such persons.
This view is not entirely correct, for the above quoted proviso clearly provides discretion to the
Philippine State on whether to surrender or not a person accused of the crimes under RA 9851. The
statutory proviso uses the word "may." It is settled doctrine in statutory construction that the word
"may" denotes discretion, and cannot be construed as having mandatory effect. 73 Thus, the pertinent
second pararagraph of Sec. 17, RA 9851 is simply permissive on the part of the Philippine State. 1avvphi1

Besides, even granting that the surrender of a person is mandatorily required when the Philippines
does not exercise its primary jurisdiction in cases where "another court or international tribunal is
already conducting the investigation or undertaking the prosecution of such crime," still, the tenor of
the Agreement is not repugnant to Sec. 17 of RA 9851. Said legal proviso aptly provides that the
surrender may be made "to another State pursuant to the applicable extradition laws and treaties."
The Agreement can already be considered a treaty following this Court’s decision in Nicolas v.
Romulo74 which cited Weinberger v. Rossi.75 In Nicolas, We held that "an executive agreement is a
‘treaty’ within the meaning of that word in international law and constitutes enforceable domestic law
vis-à-vis the United States."76
Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US
Extradition Treaty, which was executed on November 13, 1994. The pertinent Philippine law, on the
other hand, is Presidential Decree No. 1069, issued on January 13, 1977. Thus, the Agreement, in
conjunction with the RP-US Extradition Treaty, would neither violate nor run counter to Sec. 17 of
RA 9851.

The view’s reliance on Suplico v. Neda 77 is similarly improper. In that case, several petitions were
filed questioning the power of the President to enter into foreign loan agreements. However, before
the petitions could be resolved by the Court, the Office of the Solicitor General filed a Manifestation
and Motion averring that the Philippine Government decided not to continue with the ZTE National
Broadband Network Project, thus rendering the petition moot. In resolving the case, the Court took
judicial notice of the act of the executive department of the Philippines (the President) and found the
petition to be indeed moot. Accordingly, it dismissed the petitions.

In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of an
executive agreement. He stated that "an executive agreement has the force and effect of law x x x
[it] cannot amend or repeal prior laws." 78 Hence, this argument finds no application in this case
seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument cannot be found in
the ratio decidendi of the case, but only in the dissenting opinion.

The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the
reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, "[a]n offense shall be an
extraditable offense if it is punishable under the laws in both Contracting Parties x x x," 79 and thereby
concluding that while the Philippines has criminalized under RA 9851 the acts defined in the Rome
Statute as war crimes, genocide and other crimes against humanity, there is no similar legislation in
the US. It is further argued that, citing U.S. v. Coolidge, in the US, a person cannot be tried in the
federal courts for an international crime unless Congress adopts a law defining and punishing the
offense.

This view must fail.

On the contrary, the US has already enacted legislation punishing the high crimes mentioned earlier.
In fact, as early as October 2006, the US enacted a law criminalizing war crimes. Section 2441,
Chapter 118, Part I, Title 18 of the United States Code Annotated (USCA) provides for the criminal
offense of "war crimes" which is similar to the war crimes found in both the Rome Statute and RA
9851, thus:

(a) Offense – Whoever, whether inside or outside the United States, commits a war crime, in
any of the circumstances described in subsection (b), shall be fined under this title or
imprisoned for life or any term of years, or both, and if death results to the victim, shall also
be subject to the penalty of death.

(b) Circumstances – The circumstances referred to in subsection (a) are that the person
committing such war crime or the victim of such war crime is a member of the Armed Forces
of the United States or a national of the United States (as defined in Section 101 of the
Immigration and Nationality Act).

(c) Definition – As used in this Section the term "war crime" means any conduct –

(1) Defined as a grave breach in any of the international conventions signed at

Geneva 12 August 1949, or any protocol to such convention to which the United
States is a party;
 (2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV,
Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) Which constitutes a grave breach of common Article 3 (as defined in subsection
[d]) when committed in the context of and in association with an armed conflict not of
an international character; or

(4) Of a person who, in relation to an armed conflict and contrary to the provisions of
the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and
Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3
May 1996), when the United States is a party to such Protocol, willfully kills or causes
serious injury to civilians.80
1avvphi1

Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:

§1091. Genocide

(a) Basic Offense – Whoever, whether in the time of peace or in time of war and with specific
intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as
such–

(1) kills members of that group;

(2) causes serious bodily injury to members of that group;

(3) causes the permanent impairment of the mental faculties of members of the
group through drugs, torture, or similar techniques;

(4) subjects the group to conditions of life that are intended to cause the physical
destruction of the group in whole or in part;

(5) imposes measures intended to prevent births within the group; or

(6) transfers by force children of the group to another group;

shall be punished as provided in subsection (b). 81

Arguing further, another view has been advanced that the current US laws do not cover every crime
listed within the jurisdiction of the ICC and that there is a gap between the definitions of the different
crimes under the US laws versus the Rome Statute. The view used a report written by Victoria K.
Holt and Elisabeth W. Dallas, entitled "On Trial: The US Military and the International Criminal
Court," as its basis.

At the outset, it should be pointed out that the report used may not have any weight or value under
international law. Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources
of international law, as follows: (1) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states; (2) international custom, as
evidence of a general practice accepted as law; (3) the general principles of law recognized by
civilized nations; and (4) subject to the provisions of Article 59, judicial decisions and the teachings
of the most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law. The report does not fall under any of the foregoing enumerated
sources. It cannot even be considered as the "teachings of highly qualified publicists." A highly
qualified publicist is a scholar of public international law and the term usually refers to legal scholars
or "academic writers."82 It has not been shown that the authors 83 of this report are highly qualified
publicists.

Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the
crimes are nonexistent. To highlight, the table below shows the definitions of genocide and war
crimes under the Rome Statute vis-à-vis the definitions under US laws:

Rome Statute US Law

Article 6 §1091. Genocide
Genocide
(a) Basic Offense – Whoever,
For the purpose of this Statute, "genocide" whether in the time of peace or in
means any of the following acts committed time of war and with specific intent to
with intent to destroy, in whole or in part, a destroy, in whole or in substantial
national, ethnical, racial or religious group, as part, a national, ethnic, racial or
such: religious group as such–

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

group;
(b) Causing serious bodily or mental
harm to members of the group; (2) causes serious bodily
injury to members of that
(c) Deliberately inflicting on the group group;
conditions of life calculated to bring
about its physical destruction in whole (3) causes the permanent
or in part; impairment of the mental
faculties of members of the
(d) Imposing measures intended to group through drugs, torture,
prevent births within the group; or similar techniques;

(e) Forcibly transferring children of the (4) subjects the group to

group to another group. conditions of life that are
intended to cause the physical
destruction of the group in
whole or in part;

(5) imposes measures

intended to prevent births
within the group; or

(6) transfers by force children

of the group to another group;

shall be punished as provided in

subsection (b).
Article 8 (d) Definition – As used in this Section
War Crimes the term "war crime" means any

2. For the purpose of this Statute,
"war crimes" means:
(a) Grave breaches of the
Geneva Conventions of 12
August 1949, namely, any of
the following acts against
persons or property protected
under the provisions of the
relevant Geneva Convention:
x x x84
(b) Other serious violations of
the laws and customs
applicable in international
armed conflict, within the
established framework of
international law, namely, any
of the following acts:
conduct –
(1) Defined as a grave breach in any
of the international conventions
signed at Geneva 12 August 1949, or
any protocol to such convention to
which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or
28 of the Annex to the Hague
Convention IV, Respecting the Laws
and Customs of War on Land, signed
18 October 1907;
(3) Which constitutes a grave breach
of common Article 3 (as defined in
subsection [d]85) when committed in
the context of and in association with
an armed conflict not of an
international character; or

xxxx (4) Of a person who, in relation to an

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

xxxx

(d) Paragraph 2 (c) applies to

armed conflicts not of an
international character and
thus does not apply to
situations of internal
disturbances and tensions,
such as riots, isolated and
sporadic acts of violence or
other acts of a similar nature.
 (e) Other serious violations of
the laws and customs
applicable in armed conflicts
not of an international
character, within the
established framework of
international law, namely, any
of the following acts: x x x.

Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the report
itself stated as much, to wit:

Few believed there were wide differences between the crimes under the jurisdiction of the Court and
crimes within the Uniform Code of Military Justice that would expose US personnel to the Court.
Since US military lawyers were instrumental in drafting the elements of crimes outlined in the Rome
Statute, they ensured that most of the crimes were consistent with those outlined in the UCMJ and
gave strength to complementarity for the US. Small areas of potential gaps between the UCMJ and
the Rome Statute, military experts argued, could be addressed through existing military laws. 87 x x x

The report went on further to say that "[a]ccording to those involved, the elements of crimes laid out
in the Rome Statute have been part of US military doctrine for decades." 88 Thus, the argument
proffered cannot stand.

Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine of
incorporation. As early as 1900, the esteemed Justice Gray in The Paquete Habana 89 case already
held international law as part of the law of the US, to wit:

International law is part of our law, and must be ascertained and administered by the courts of
justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented
for their determination. For this purpose, where there is no treaty and no controlling executive or
legislative act or judicial decision, resort must be had to the customs and usages of civilized nations,
and, as evidence of these, to the works of jurists and commentators who by years of labor, research,
and experience have made themselves peculiarly well acquainted with the subjects of which they
treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors
concerning what the law ought to be, but for the trustworthy evidence of what the law really
is.90 (Emphasis supplied.)

Thus, a person can be tried in the US for an international crime despite the lack of domestic
legislation. The cited ruling in U.S. v. Coolidge, 91 which in turn is based on the holding in U.S. v.
Hudson,92 only applies to common law and not to the law of nations or international law. 93 Indeed, the
Court in U.S. v. Hudson only considered the question, "whether the Circuit Courts of the United
States can exercise a common law jurisdiction in criminal cases." 94 Stated otherwise, there is no
common law crime in the US but this is considerably different from international law.

The US doubtless recognizes international law as part of the law of the land, necessarily including
international crimes, even without any local statute. 95 In fact, years later, US courts would apply
international law as a source of criminal liability despite the lack of a local statute criminalizing it as
such. So it was that in Ex Parte Quirin 96 the US Supreme Court noted that "[f]rom the very beginning
of its history this Court has recognized and applied the law of war as including that part of the law of
nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as
well as of enemy individuals."97 It went on further to explain that Congress had not undertaken the
task of codifying the specific offenses covered in the law of war, thus:

It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to
codify that branch of international law or to mark its precise boundaries, or to enumerate or define by
statute all the acts which that law condemns. An Act of Congress punishing ‘the crime of piracy as
defined by the law of nations is an appropriate exercise of its constitutional authority, Art. I, s 8, cl.
10, ‘to define and punish’ the offense since it has adopted by reference the sufficiently precise
definition of international law. x x x Similarly by the reference in the 15th Article of War to ‘offenders
or offenses that x x x by the law of war may be triable by such military commissions. Congress has
incorporated by reference, as within the jurisdiction of military commissions, all offenses which are
defined as such by the law of war x x x, and which may constitutionally be included within that
jurisdiction.98 x x x (Emphasis supplied.)

This rule finds an even stronger hold in the case of crimes against humanity. It has been held that
genocide, war crimes and crimes against humanity have attained the status of customary
international law. Some even go so far as to state that these crimes have attained the status of jus
cogens.99

Customary international law or international custom is a source of international law as stated in the
Statute of the ICJ.100 It is defined as the "general and consistent practice of states recognized and
followed by them from a sense of legal obligation." 101 In order to establish the customary status of a
particular norm, two elements must concur: State practice, the objective element; and opinio juris
sive necessitates, the subjective element.102

State practice refers to the continuous repetition of the same or similar kind of acts or norms by
States.103 It is demonstrated upon the existence of the following elements: (1) generality; (2)
uniformity and consistency; and (3) duration. 104 While, opinio juris, the psychological element,
requires that the state practice or norm "be carried out in such a way, as to be evidence of a belief
that this practice is rendered obligatory by the existence of a rule of law requiring it." 105

"The term ‘jus cogens’ means the ‘compelling law.’" 106 Corollary, "a jus cogens norm holds the
highest hierarchical position among all other customary norms and principles." 107 As a result, jus
cogens norms are deemed "peremptory and non-derogable." 108 When applied to international crimes,
"jus cogens crimes have been deemed so fundamental to the existence of a just international legal
order that states cannot derogate from them, even by agreement." 109

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state may exercise
jurisdiction over an individual who commits certain heinous and widely condemned offenses, even
when no other recognized basis for jurisdiction exists." 110 "The rationale behind this principle is that
the crime committed is so egregious that it is considered to be committed against all members of the
international community"111 and thus granting every State jurisdiction over the crime. 112

Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the
doctrine of incorporation and universal jurisdiction to try these crimes.

Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the
Rome Statute is not declaratory of customary international law.

The first element of customary international law, i.e., "established, widespread, and consistent
practice on the part of States,"113 does not, under the premises, appear to be obtaining as reflected in
this simple reality: As of October 12, 2010, only 114 114 States have ratified the Rome Statute,
subsequent to its coming into force eight (8) years earlier, or on July 1, 2002. The fact that 114
States out of a total of 194115 countries in the world, or roughly 58.76%, have ratified the Rome
Statute casts doubt on whether or not the perceived principles contained in the Statute have attained
the status of customary law and should be deemed as obligatory international law. The numbers
even tend to argue against the urgency of establishing international criminal courts envisioned in the
Rome Statute. Lest it be overlooked, the Philippines, judging by the action or inaction of its top
officials, does not even feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years
have elapsed since the Philippine representative signed the Statute, but the treaty has not been
transmitted to the Senate for the ratification process.

And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring
elements, thus:

Custom or customary international law means "a general and consistent practice of states followed
by them from a sense of legal obligation [opinio juris] x x x." This statement contains the two basic
elements of custom: the material factor, that is how the states behave, and the psychological factor
or subjective factor, that is, why they behave the way they do.

xxxx

The initial factor for determining the existence of custom is the actual behavior of states. This
includes several elements: duration, consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the consistency and the
generality of the practice. x x x

xxxx

Once the existence of state practice has been established, it becomes necessary to determine
why states behave the way they do. Do states behave the way they do because they consider it
obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that
a certain form of behavior is obligatory, is what makes practice an international rule. Without it,
practice is not law.116 (Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the
different countries in the world that the prosecution of internationally recognized crimes of genocide,
etc. should be handled by a particular international criminal court.

Absent the widespread/consistent-practice-of-states factor, the second or the psychological element

must be deemed non-existent, for an inquiry on why states behave the way they do presupposes, in
the first place, that they are actually behaving, as a matter of settled and consistent practice, in a
certain manner. This implicitly requires belief that the practice in question is rendered obligatory by
the existence of a rule of law requiring it. 117 Like the first element, the second element has likewise
not been shown to be present.

Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes
enumerated therein as evidenced by it requiring State consent. 118 Even further, the Rome Statute
specifically and unequivocally requires that: "This Statute is subject to ratification, acceptance or
approval by signatory States." 119 These clearly negate the argument that such has already attained
customary status.

More importantly, an act of the executive branch with a foreign government must be afforded great
respect. The power to enter into executive agreements has long been recognized to be lodged with
the President. As We held in Neri v. Senate Committee on Accountability of Public Officers and
Investigations, "[t]he power to enter into an executive agreement is in essence an executive power.
This authority of the President to enter into executive agreements without the concurrence of the
Legislature has traditionally been recognized in Philippine jurisprudence." 120 The rationale behind this
principle is the inviolable doctrine of separation of powers among the legislative, executive and
judicial branches of the government. Thus, absent any clear contravention of the law, courts should
exercise utmost caution in declaring any executive agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US Non-Surrender
Agreement ought to be in the form of a treaty, to be effective, has to be rejected.

WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack
of merit. No costs.

SO ORDERED.

G.R. No. 159618               February 1, 2011

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

DECISION

VELASCO, JR., J.:

The Case

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

The Facts

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

Rome Statute of the International Criminal Court

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

On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome
Statute which, by its terms, is "subject to ratification, acceptance or approval" by the signatory
states.6 As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to
have completed the ratification, approval and concurrence process. The Philippines is not among the
92.

RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the RP.

Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the
RP, represented by then DFA Secretary Ople, agreed with and accepted the US proposals
embodied under the US Embassy Note adverted to and put in effect the Agreement with the US
government. In esse, the Agreement aims to protect what it refers to and defines as "persons" of the
RP and US from frivolous and harassment suits that might be brought against them in international
tribunals.8 It is reflective of the increasing pace of the strategic security and defense partnership
between the two countries. As of May 2, 2003, similar bilateral agreements have been effected by
and between the US and 33 other countries.9

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, "persons" are current or former Government officials,
employees (including contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not,  absent the express
consent of the first Party,

(a) be surrendered or transferred by any means to any international tribunal for any
purpose, unless such tribunal has been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other entity or third country, or
expelled to a third country, for the purpose of surrender to or transfer to any
international tribunal, unless such tribunal has been established by the UN Security
Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to
a third country, the [US] will not agree to the surrender or transfer of that person by the third
country to any international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the Republic of the
Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a
third country, the [GRP] will not agree to the surrender or transfer of that person by the third
 country to any international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one party
notifies the other of its intent to terminate the Agreement. The provisions of this Agreement
shall continue to apply with respect to any act occurring, or any allegation arising, before the
effective date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-
surrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the
exchange of diplomatic notes constituted a legally binding agreement under international law; and
that, under US law, the said agreement did not require the advice and consent of the US Senate. 10

In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and
ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared as
without force and effect.

For their part, respondents question petitioner’s standing to maintain a suit and counter that
the Agreement, being in the nature of an executive agreement, does not require Senate concurrence
for its efficacy. And for reasons detailed in their comment, respondents assert the constitutionality of
the Agreement.

The Issues

I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY

ABUSED THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
FOR CONCLUDING THE RP-US NON SURRENDER AGREEMENT BY MEANS OF
[E/N] BFO-028-03 DATED 13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS
ALREADY SIGNED THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING
RATIFICATION BY THE PHILIPPINE SENATE.

A. Whether by entering into the x x x Agreement Respondents gravely abused their

discretion when they capriciously abandoned, waived and relinquished our only
legitimate recourse through the Rome Statute of the [ICC] to prosecute and try
"persons" as defined in the x x x Agreement, x x x or literally any conduit of
American interests, who have committed crimes of genocide, crimes against
humanity, war crimes and the crime of aggression, thereby abdicating Philippine
Sovereignty.

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

C. Whether the x x x Agreement constitutes an act which defeats the object and

purpose of the Rome Statute of the International Criminal Court and contravenes the
obligation of good faith inherent in the signature of the President affixed on the Rome
Statute of the International Criminal Court, and if so whether the x x x Agreement is
void and unenforceable on this ground.
 D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for
grave abuse of discretion amounting to lack or excess of jurisdiction in connection
with its execution.

II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR

CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT
VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.

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

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

The foregoing issues may be summarized into two: first, whether or not the Agreement was
contracted validly, which resolves itself into the question of whether or not respondents gravely
abused their discretion in concluding it; and second, whether or not the Agreement, which has not
been submitted to the Senate for concurrence, contravenes and undermines the Rome Statute and
other treaties. But because respondents expectedly raised it, we shall first tackle the issue of
petitioner’s legal standing.

The Court’s Ruling

This petition is bereft of merit.

Procedural Issue: Locus Standi of Petitioner

Petitioner, through its three party-list representatives, contends that the issue of the validity or
invalidity of the Agreement carries with it constitutional significance and is of paramount importance
that justifies its standing. Cited in this regard is what is usually referred to as the emergency powers
cases,12 in which ordinary citizens and taxpayers were accorded the personality to question the
constitutionality of executive issuances.

Locus standi is "a right of appearance in a court of justice on a given question." 13 Specifically, it is "a
party’s personal and substantial interest in a case where he has sustained or will sustain direct injury
as a result"14 of the act being challenged, and "calls for more than just a generalized
grievance."15 The term "interest" refers to material interest, as distinguished from one that is merely
incidental.16 The rationale for requiring a party who challenges the validity of a law or international
agreement to allege such a personal stake in the outcome of the controversy is "to assure the
concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions." 17

Locus standi, however, is merely a matter of procedure and it has been recognized that, in some
cases, suits are not brought by parties who have been personally injured by the operation of a law or
any other government act, but by concerned citizens, taxpayers, or voters who actually sue in the
public interest.18 Consequently, in a catena of cases, 19 this Court has invariably adopted a liberal
stance on locus standi.

Going by the petition, petitioner’s representatives pursue the instant suit primarily as concerned
citizens raising issues of transcendental importance, both for the Republic and the citizenry as a
whole.
When suing as a citizen to question the validity of a law or other government action, a petitioner
needs to meet certain specific requirements before he can be clothed with standing. Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.20 expounded on this
requirement, thus:

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must
be direct and personal. He must be able to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about to be denied some right or privilege to
which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of. In fine, when the proceeding involves the assertion of a
public right, the mere fact that he is a citizen satisfies the requirement of personal interest. 21

In the case at bar, petitioner’s representatives have complied with the qualifying conditions or
specific requirements exacted under the locus standi rule. As citizens, their interest in the subject
matter of the petition is direct and personal. At the very least, their assertions questioning the
Agreement are made of a public right, i.e., to ascertain that the Agreement did not go against
established national policies, practices, and obligations bearing on the State’s obligation to the
community of nations.

At any event, the primordial importance to Filipino citizens in general of the issue at hand impels the
Court to brush aside the procedural barrier posed by the traditional requirement of locus standi, as
we have done in a long line of earlier cases, notably in the old but oft-cited emergency powers
cases22 and Kilosbayan v. Guingona, Jr.23 In cases of transcendental importance, we wrote again
in Bayan v. Zamora,24 "The Court may relax the standing requirements and allow a suit to prosper
even where there is no direct injury to the party claiming the right of judicial review."

Moreover, bearing in mind what the Court said in Tañada v. Angara, "that it will not shirk, digress
from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave
abuse of discretion brought before it in appropriate cases, committed by any officer, agency,
instrumentality or department of the government," 25 we cannot but resolve head on the issues raised
before us. Indeed, where an action of any branch of government is seriously alleged to have
infringed the Constitution or is done with grave abuse of discretion, it becomes not only the right but
in fact the duty of the judiciary to settle it. As in this petition, issues are precisely raised putting to the
fore the propriety of the Agreement pending the ratification of the Rome Statute.

Validity of the RP-US Non-Surrender Agreement

Petitioner’s initial challenge against the Agreement relates to form, its threshold posture being that
E/N BFO-028-03 cannot be a valid medium for concluding the Agreement.

Petitioners’ contention––perhaps taken unaware of certain well-recognized international doctrines,

practices, and jargons––is untenable. One of these is the doctrine of incorporation, as expressed in
Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted
principles of international law and international jurisprudence as part of the law of the land and
adheres to the policy of peace, cooperation, and amity with all nations. 26 An exchange of notes falls
"into the category of inter-governmental agreements," 27 which is an internationally accepted form of
international agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines
the term as follows:

An "exchange of notes" is a record of a routine agreement, that has many similarities with the private
law contract. The agreement consists of the exchange of two documents, each of the parties being
in the possession of the one signed by the representative of the other. Under the usual procedure,
the accepting State repeats the text of the offering State to record its assent. The signatories of the
letters may be government Ministers, diplomats or departmental heads. The technique of exchange
of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid
the process of legislative approval. 28

In another perspective, the terms "exchange of notes" and "executive agreements" have been used
interchangeably, exchange of notes being considered a form of executive agreement that becomes
binding through executive action. 29 On the other hand, executive agreements concluded by the
President "sometimes take the form of exchange of notes and at other times that of more formal
documents denominated ‘agreements’ or ‘protocols.’" 30 As former US High Commissioner to the
Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts:

The point where ordinary correspondence between this and other governments ends and
agreements – whether denominated executive agreements or exchange of notes or otherwise –
begin, may sometimes be difficult of ready ascertainment. 31 x x x

It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-
Surrender Agreement itself, or as an integral instrument of acceptance thereof or as consent to be
bound––is a recognized mode of concluding a legally binding international written contract among
nations.

Senate Concurrence Not Required

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an international
agreement concluded between states in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and whatever its particular
designation."32 International agreements may be in the form of (1) treaties that require legislative
concurrence after executive ratification; or (2) executive agreements that are similar to treaties,
except that they do not require legislative concurrence and are usually less formal and deal with a
narrower range of subject matters than treaties.33

Under international law, there is no difference between treaties and executive agreements in terms
of their binding effects on the contracting states concerned, 34 as long as the negotiating functionaries
have remained within their powers. 35 Neither, on the domestic sphere, can one be held valid if it
violates the Constitution. 36 Authorities are, however, agreed that one is distinct from another for
accepted reasons apart from the concurrence-requirement aspect. 37 As has been observed by US
constitutional scholars, a treaty has greater "dignity" than an executive agreement, because its
constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President, the
Senate, and the people; 38 a ratified treaty, unlike an executive agreement, takes precedence over
any prior statutory enactment. 39

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the
nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner takes a cue
from Commissioner of Customs v. Eastern Sea Trading, in which the Court reproduced the following
observations made by US legal scholars: "[I]nternational agreements involving political issues or
changes of national policy and those involving international arrangements of a permanent character
usually take the form of treaties [while] those embodying adjustments of detail carrying out well
established national policies and traditions and those involving arrangements of a more or less
temporary nature take the form of executive agreements." 40

Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the
subject-categories that are enumerated in the Eastern Sea Trading case, and that may be covered
by an executive agreement, such as commercial/consular relations, most-favored nation rights,
patent rights, trademark and copyright protection, postal and navigation arrangements and
settlement of claims.

In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and
Merchant,41 holding that an executive agreement through an exchange of notes cannot be used to
amend a treaty.

We are not persuaded.

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

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

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

And lest it be overlooked, one type of executive agreement is a treaty-authorized 44 or a treaty-
implementing executive agreement,45 which necessarily would cover the same matters subject of the
underlying treaty.

But over and above the foregoing considerations is the fact that––save for the situation and matters
contemplated in Sec. 25, Art. XVIII of the Constitution 46––when a treaty is required, the Constitution
does not classify any subject, like that involving political issues, to be in the form of, and ratified as, a
treaty. What the Constitution merely prescribes is that treaties need the concurrence of the Senate
by a vote defined therein to complete the ratification process.
Petitioner’s reliance on Adolfo47 is misplaced, said case being inapplicable owing to different factual
milieus. There, the Court held that an executive agreement cannot be used to amend a duly ratified
and existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does not require the
concurrence of the Senate for its ratification may not be used to amend a treaty that, under the
Constitution, is the product of the ratifying acts of the Executive and the Senate. The presence of a
treaty, purportedly being subject to amendment by an executive agreement, does not obtain under
the premises.

Considering the above discussion, the Court need not belabor at length the third main issue raised,
referring to the validity and effectivity of the Agreement without the concurrence by at least two-thirds
of all the members of the Senate. The Court has, in Eastern Sea Trading,48 as reiterated
in Bayan,49 given recognition to the obligatory effect of executive agreements without the
concurrence of the Senate:

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

The Agreement Not in Contravention of the Rome Statute

It is the petitioner’s next contention that the Agreement undermines the establishment of the ICC and
is null and void insofar as it unduly restricts the ICC’s jurisdiction and infringes upon the effectivity of
the Rome Statute. Petitioner posits that the Agreement was constituted solely for the purpose of
providing individuals or groups of individuals with immunity from the jurisdiction of the ICC; and such
grant of immunity through non-surrender agreements allegedly does not legitimately fall within the
scope of Art. 98 of the Rome Statute. It concludes that state parties with non-surrender agreements
are prevented from meeting their obligations under the Rome Statute, thereby constituting a breach
of Arts. 27,50 86,51 8952 and 9053 thereof.

Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that those
responsible for the worst possible crimes are brought to justice in all cases, primarily by states, but
as a last resort, by the ICC; thus, any agreement—like the non-surrender agreement—that
precludes the ICC from exercising its complementary function of acting when a state is unable to or
unwilling to do so, defeats the object and purpose of the Rome Statute.

Petitioner would add that the President and the DFA Secretary, as representatives of a signatory of
the Rome Statute, are obliged by the imperatives of good faith to refrain from performing acts that
substantially devalue the purpose and object of the Statute, as signed. Adding a nullifying ingredient
to the Agreement, according to petitioner, is the fact that it has an immoral purpose or is otherwise at
variance with a priorly executed treaty.

Contrary to petitioner’s pretense, the Agreement does not contravene or undermine, nor does it

differ from, the Rome Statute. Far from going against each other, one complements the other. As a
matter of fact, the principle of complementarity underpins the creation of the ICC. As aptly pointed
out by respondents and admitted by petitioners, the jurisdiction of the ICC is to "be complementary
to national criminal jurisdictions [of the signatory states]." 54 Art. 1 of the Rome Statute pertinently
provides:
Article 1
The Court

An International Crimininal Court ("the Court") is hereby established. It x x x shall have the power
to exercise its jurisdiction over persons for the most serious crimes of international concern, as
referred to in this Statute, and shall be complementary to national criminal jurisdictions. The
jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.
(Emphasis ours.)

Significantly, the sixth preambular paragraph of the Rome Statute declares that "it is the duty of
every State to exercise its criminal jurisdiction over those responsible for international crimes." This
provision indicates that primary jurisdiction over the so-called international crimes rests, at the first
instance, with the state where the crime was committed; secondarily, with the ICC in appropriate
situations contemplated under Art. 17, par. 155 of the Rome Statute.

Of particular note is the application of the principle of ne bis in idem56 under par. 3 of Art. 20, Rome
Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC.
As far as relevant, the provision states that "no person who has been tried by another court for
conduct x x x [constituting crimes within its jurisdiction] shall be tried by the [International Criminal]
Court with respect to the same conduct x x x."

The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of
jurisdictional conflict between the Philippines, as party to the non-surrender agreement, and the ICC;
or the idea of the Agreement substantially impairing the value of the RP’s undertaking under the
Rome Statute. Ignoring for a while the fact that the RP signed the Rome Statute ahead of
the Agreement, it is abundantly clear to us that the Rome Statute expressly recognizes the primary
jurisdiction of states, like the RP, over serious crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into play only when the signatory states are unwilling
or unable to prosecute.

Given the above consideration, petitioner’s suggestion––that the RP, by entering into
the Agreement, violated its duty required by the imperatives of good faith and breached its
commitment under the Vienna Convention 57 to refrain from performing any act tending to impair the
value of a treaty, e.g., the Rome Statute––has to be rejected outright. For nothing in the provisions
of the Agreement, in relation to the Rome Statute, tends to diminish the efficacy of the Statute, let
alone defeats the purpose of the ICC. Lest it be overlooked, the Rome Statute contains a proviso
that enjoins the ICC from seeking the surrender of an erring person, should the process require the
requested state to perform an act that would violate some international agreement it has entered
into. We refer to Art. 98(2) of the Rome Statute, which reads:

Article 98
Cooperation with respect to waiver of immunity
and consent to surrender

xxxx

2. The Court may not proceed with a request for surrender which would require the requested State
to act inconsistently with its obligations under international agreements pursuant to which the
consent of a sending State is required to surrender a person of that State to the Court, unless the
Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.
Moreover, under international law, there is a considerable difference between a State-Party and a
signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only
obliged to refrain from acts which would defeat the object and purpose of a treaty; 58 whereas a State-
Party, on the other hand, is legally obliged to follow all the provisions of a treaty in good faith.

In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and
not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts
which would defeat the object and purpose of the Rome Statute. Any argument obliging the
Philippines to follow any provision in the treaty would be premature.

As a result, petitioner’s argument that State-Parties with non-surrender agreements are prevented
from meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail.
These articles are only legally binding upon State-Parties, not signatories.

Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible
with the Rome Statute. Specifically, Art. 90(4) provides that "[i]f the requesting State is a State not
Party to this Statute the requested State, if it is not under an international obligation to extradite the
person to the requesting State, shall give priority to the request for surrender from the Court. x x x" In
applying the provision, certain undisputed facts should be pointed out: first, the US is neither a State-
Party nor a signatory to the Rome Statute; and second, there is an international agreement between
the US and the Philippines regarding extradition or surrender of persons, i.e., the Agreement.
Clearly, even assuming that the Philippines is a State-Party, the Rome Statute still recognizes the
primacy of international agreements entered into between States, even when one of the States is not
a State-Party to the Rome Statute.

Sovereignty Limited by International Agreements

Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by
bargaining away the jurisdiction of the ICC to prosecute US nationals, government
officials/employees or military personnel who commit serious crimes of international concerns in the
Philippines. Formulating petitioner’s argument a bit differently, the RP, by entering into
the Agreement, does thereby abdicate its sovereignty, abdication being done by its waiving or
abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans
committing international crimes in the country.

We are not persuaded. As it were, the Agreement is but a form of affirmance and confirmance of the
Philippines’ national criminal jurisdiction. National criminal jurisdiction being primary, as explained
above, it is always the responsibility and within the prerogative of the RP either to prosecute criminal
offenses equally covered by the Rome Statute or to accede to the jurisdiction of the ICC. Thus, the
Philippines may decide to try "persons" of the US, as the term is understood in the  Agreement,
under our national criminal justice system. Or it may opt not to exercise its criminal jurisdiction over
its erring citizens or over US "persons" committing high crimes in the country and defer to the
secondary criminal jurisdiction of the ICC over them. As to "persons" of the US whom the Philippines
refuses to prosecute, the country would, in effect, accord discretion to the US to exercise either its
national criminal jurisdiction over the "person" concerned or to give its consent to the referral of the
matter to the ICC for trial. In the same breath, the US must extend the same privilege to the
Philippines with respect to "persons" of the RP committing high crimes within US territorial
jurisdiction.

In the context of the Constitution, there can be no serious objection to the Philippines agreeing to
undertake the things set forth in the Agreement. Surely, one State can agree to waive jurisdiction—
to the extent agreed upon—to subjects of another State due to the recognition of the principle of
extraterritorial immunity. What the Court wrote in Nicolas v. Romulo59—a case involving the
implementation of the criminal jurisdiction provisions of the RP-US Visiting Forces Agreement—is
apropos:

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or
some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and members of the armed forces contingents of a foreign
State allowed to enter another State’s territory. x x x

To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate
that some of its provisions constitute a virtual abdication of its sovereignty. Almost every time a state
enters into an international agreement, it voluntarily sheds off part of its sovereignty. The
Constitution, as drafted, did not envision a reclusive Philippines isolated from the rest of the world. It
even adheres, as earlier stated, to the policy of cooperation and amity with all nations. 60

By their nature, treaties and international agreements actually have a limiting effect on the otherwise
encompassing and absolute nature of sovereignty. By their voluntary act, nations may decide to
surrender or waive some aspects of their state power or agree to limit the exercise of their otherwise
exclusive and absolute jurisdiction. The usual underlying consideration in this partial surrender may
be the greater benefits derived from a pact or a reciprocal undertaking of one contracting party to
grant the same privileges or immunities to the other. On the rationale that the Philippines has
adopted the generally accepted principles of international law as part of the law of the land, a portion
of sovereignty may be waived without violating the Constitution. 61 Such waiver does not amount to
an unconstitutional diminution or deprivation of jurisdiction of Philippine courts. 62

Agreement Not Immoral/Not at Variance

with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral
obligations and/or being at variance with allegedly universally recognized principles of international
law. The immoral aspect proceeds from the fact that the Agreement, as petitioner would put it,
"leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the
conscience of humanity; x x x it precludes our country from delivering an American criminal to the
[ICC] x x x."63

The above argument is a kind of recycling of petitioner’s earlier position, which, as already
discussed, contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty
and in the process undermined its treaty obligations under the Rome Statute, contrary to
international law principles.64

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as
aptly described by the Solicitor General, "is an assertion by the Philippines of its desire to try and
punish crimes under its national law. x x x The agreement is a recognition of the primacy and
competence of the country’s judiciary to try offenses under its national criminal laws and dispense
justice fairly and judiciously."

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow
Filipinos and Americans committing high crimes of international concern to escape criminal trial and
punishment. This is manifestly incorrect. Persons who may have committed acts penalized under the
Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the consent of
the RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind
both countries to the Rome Statute have been met. For perspective, what
the Agreement contextually prohibits is the surrender by either party of individuals to international
tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the
crime under its existing laws. With the view we take of things, there is nothing immoral or violative of
international law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to
the non-surrender agreement over an offense considered criminal by both Philippine laws and the
Rome Statute.

No Grave Abuse of Discretion

Petitioner’s final point revolves around the necessity of the Senate’s concurrence in the Agreement.
And without specifically saying so, petitioner would argue that the non-surrender agreement was
executed by the President, thru the DFA Secretary, in grave abuse of discretion.

The Court need not delve on and belabor the first portion of the above posture of petitioner, the
same having been discussed at length earlier on. As to the second portion, We wish to state that
petitioner virtually faults the President for performing, through respondents, a task conferred the
President by the Constitution—the power to enter into international agreements.

By constitutional fiat and by the nature of his or her office, the President, as head of state and
government, is the sole organ and authority in the external affairs of the country. 65 The Constitution
vests in the President the power to enter into international agreements, subject, in appropriate
cases, to the required concurrence votes of the Senate. But as earlier indicated, executive
agreements may be validly entered into without such concurrence. As the President wields vast
powers and influence, her conduct in the external affairs of the nation is, as Bayan would put it,
"executive altogether." The right of the President to enter into or ratify binding executive agreements
has been confirmed by long practice.66

In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria

Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the
authority and discretion vested in her by the Constitution. At the end of the day, the President––by
ratifying, thru her deputies, the non-surrender agreement––did nothing more than discharge a
constitutional duty and exercise a prerogative that pertains to her office.

While the issue of ratification of the Rome Statute is not determinative of the other issues raised
herein, it may perhaps be pertinent to remind all and sundry that about the time this petition was
interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Office of the Executive
Secretary.67 As the Court emphasized in said case, the power to ratify a treaty, the Statute in that
instance, rests with the President, subject to the concurrence of the Senate, whose role relative to
the ratification of a treaty is limited merely to concurring in or withholding the ratification. And
concomitant with this treaty-making power of the President is his or her prerogative to refuse to
submit a treaty to the Senate; or having secured the latter’s consent to the ratification of the treaty,
refuse to ratify it.68 This prerogative, the Court hastened to add, is the President’s alone and cannot
be encroached upon via a writ of mandamus. Barring intervening events, then, the Philippines
remains to be just a signatory to the Rome Statute. Under Art. 125 69 thereof, the final acts required to
complete the treaty process and, thus, bring it into force, insofar as the Philippines is concerned,
have yet to be done.

Agreement Need Not Be in the Form of a Treaty

On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851,
otherwise known as the "Philippine Act on Crimes Against International Humanitarian Law,
Genocide, and Other Crimes Against Humanity." Sec. 17 of RA 9851, particularly the second
paragraph thereof, provides:

Section 17. Jurisdiction. – x x x x

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or
prosecution of a crime punishable under this Act if another court or international tribunal is already
conducting the investigation or undertaking the prosecution of such crime. Instead, the
authorities may surrender or extradite suspected or accused persons in the Philippines to the
appropriate international court, if any, or to another State pursuant to the applicable extradition laws
and treaties. (Emphasis supplied.)

A view is advanced that the Agreement amends existing municipal laws on the State’s obligation in
relation to grave crimes against the law of nations, i.e., genocide, crimes against humanity and war
crimes. Relying on the above-quoted statutory proviso, the view posits that the Philippine is required
to surrender to the proper international tribunal those persons accused of the grave crimes defined
under RA 9851, if it does not exercise its primary jurisdiction to prosecute them.

The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national
for violations of RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to
the proper international tribunal; or (2) surrender the accused to another State if such surrender is
"pursuant to the applicable extradition laws and treaties." But the Philippines may exercise these
options only in cases where "another court or international tribunal is already conducting the
investigation or undertaking the prosecution of such crime;" otherwise, the Philippines must
prosecute the crime before its own courts pursuant to RA 9851.

Posing the situation of a US national under prosecution by an international tribunal for any crime
under RA 9851, the Philippines has the option to surrender such US national to the international
tribunal if it decides not to prosecute such US national here. The view asserts that this option of the
Philippines under Sec. 17 of RA 9851 is not subject to the consent of the US, and any derogation of
Sec. 17 of RA 9851, such as requiring the consent of the US before the Philippines can exercise
such option, requires an amendatory law. In line with this scenario, the view strongly argues that
the Agreement prevents the Philippines—without the consent of the US—from surrendering to any
international tribunal US nationals accused of crimes covered by RA 9851, and, thus, in effect
amends Sec. 17 of RA 9851. Consequently, the view is strongly impressed that
the Agreement cannot be embodied in a simple executive agreement in the form of an exchange of
notes but must be implemented through an extradition law or a treaty with the corresponding
formalities.

Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where the
Philippines adopts, as a national policy, the "generally accepted principles of international law as
part of the law of the land," the Court is further impressed to perceive the Rome Statute as
declaratory of customary international law. In other words, the Statute embodies principles of law
which constitute customary international law or custom and for which reason it assumes the status of
an enforceable domestic law in the context of the aforecited constitutional provision. As a corollary, it
is argued that any derogation from the Rome Statute principles cannot be undertaken via a mere
executive agreement, which, as an exclusive act of the executive branch, can only implement, but
cannot amend or repeal, an existing law. The Agreement, so the argument goes, seeks to frustrate
the objects of the principles of law or alters customary rules embodied in the Rome Statute.

Prescinding from the foregoing premises, the view thus advanced considers
the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the concurrence of
the Senate, the theory being that a Senate- ratified treaty partakes of the nature of a municipal law
that can amend or supersede another law, in this instance Sec. 17 of RA 9851 and the status of the
Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of the Constitution.

We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not
amend or is repugnant to RA 9851. For another, the view does not clearly state what precise
principles of law, if any, the Agreement alters. And for a third, it does not demonstrate in the
concrete how the Agreement seeks to frustrate the objectives of the principles of law subsumed in
the Rome Statute.

Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the former
merely reinforces the primacy of the national jurisdiction of the US and the Philippines in prosecuting
criminal offenses committed by their respective citizens and military personnel, among others. The
jurisdiction of the ICC pursuant to the Rome Statute over high crimes indicated thereat is clearly and
unmistakably complementary to the national criminal jurisdiction of the signatory states.

Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian
law, genocide and other crimes against humanity; 70 (2) provides penal sanctions and criminal liability
for their commission;71 and (3) establishes special courts for the prosecution of these crimes and for
the State to exercise primary criminal jurisdiction. 72 Nowhere in RA 9851 is there a proviso that goes
against the tenor of the Agreement.

The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the
Philippine State to surrender to the proper international tribunal those persons accused of crimes
sanctioned under said law if it does not exercise its primary jurisdiction to prosecute such persons.
This view is not entirely correct, for the above quoted proviso clearly provides discretion to the
Philippine State on whether to surrender or not a person accused of the crimes under RA 9851. The
statutory proviso uses the word "may." It is settled doctrine in statutory construction that the word
"may" denotes discretion, and cannot be construed as having mandatory effect. 73 Thus, the pertinent
second pararagraph of Sec. 17, RA 9851 is simply permissive on the part of the Philippine State. 1avvphi1

Besides, even granting that the surrender of a person is mandatorily required when the Philippines
does not exercise its primary jurisdiction in cases where "another court or international tribunal is
already conducting the investigation or undertaking the prosecution of such crime," still, the tenor of
the Agreement is not repugnant to Sec. 17 of RA 9851. Said legal proviso aptly provides that the
surrender may be made "to another State pursuant to the applicable extradition laws and treaties."
The Agreement can already be considered a treaty following this Court’s decision in Nicolas v.
Romulo74 which cited Weinberger v. Rossi.75 In Nicolas, We held that "an executive agreement is a
‘treaty’ within the meaning of that word in international law and constitutes enforceable domestic law
vis-à-vis the United States."76

Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US
Extradition Treaty, which was executed on November 13, 1994. The pertinent Philippine law, on the
other hand, is Presidential Decree No. 1069, issued on January 13, 1977. Thus, the Agreement, in
conjunction with the RP-US Extradition Treaty, would neither violate nor run counter to Sec. 17 of
RA 9851.

The view’s reliance on Suplico v. Neda 77 is similarly improper. In that case, several petitions were
filed questioning the power of the President to enter into foreign loan agreements. However, before
the petitions could be resolved by the Court, the Office of the Solicitor General filed a Manifestation
and Motion averring that the Philippine Government decided not to continue with the ZTE National
Broadband Network Project, thus rendering the petition moot. In resolving the case, the Court took
judicial notice of the act of the executive department of the Philippines (the President) and found the
petition to be indeed moot. Accordingly, it dismissed the petitions.

In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of an
executive agreement. He stated that "an executive agreement has the force and effect of law x x x
[it] cannot amend or repeal prior laws." 78 Hence, this argument finds no application in this case
seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument cannot be found in
the ratio decidendi of the case, but only in the dissenting opinion.

The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the
reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, "[a]n offense shall be an
extraditable offense if it is punishable under the laws in both Contracting Parties x x x," 79 and thereby
concluding that while the Philippines has criminalized under RA 9851 the acts defined in the Rome
Statute as war crimes, genocide and other crimes against humanity, there is no similar legislation in
the US. It is further argued that, citing U.S. v. Coolidge, in the US, a person cannot be tried in the
federal courts for an international crime unless Congress adopts a law defining and punishing the
offense.

This view must fail.

On the contrary, the US has already enacted legislation punishing the high crimes mentioned earlier.
In fact, as early as October 2006, the US enacted a law criminalizing war crimes. Section 2441,
Chapter 118, Part I, Title 18 of the United States Code Annotated (USCA) provides for the criminal
offense of "war crimes" which is similar to the war crimes found in both the Rome Statute and RA
9851, thus:

(a) Offense – Whoever, whether inside or outside the United States, commits a war crime, in
any of the circumstances described in subsection (b), shall be fined under this title or
imprisoned for life or any term of years, or both, and if death results to the victim, shall also
be subject to the penalty of death.

(b) Circumstances – The circumstances referred to in subsection (a) are that the person
committing such war crime or the victim of such war crime is a member of the Armed Forces
of the United States or a national of the United States (as defined in Section 101 of the
Immigration and Nationality Act).

(c) Definition – As used in this Section the term "war crime" means any conduct –

(1) Defined as a grave breach in any of the international conventions signed at

Geneva 12 August 1949, or any protocol to such convention to which the United
States is a party;

(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV,
Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) Which constitutes a grave breach of common Article 3 (as defined in subsection
[d]) when committed in the context of and in association with an armed conflict not of
an international character; or

(4) Of a person who, in relation to an armed conflict and contrary to the provisions of
the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and
 Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3
May 1996), when the United States is a party to such Protocol, willfully kills or causes
serious injury to civilians.80
1avvphi1

Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:

§1091. Genocide

(a) Basic Offense – Whoever, whether in the time of peace or in time of war and with specific
intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as
such–

(1) kills members of that group;

(2) causes serious bodily injury to members of that group;

(3) causes the permanent impairment of the mental faculties of members of the
group through drugs, torture, or similar techniques;

(4) subjects the group to conditions of life that are intended to cause the physical
destruction of the group in whole or in part;

(5) imposes measures intended to prevent births within the group; or

(6) transfers by force children of the group to another group;

shall be punished as provided in subsection (b). 81

Arguing further, another view has been advanced that the current US laws do not cover every crime
listed within the jurisdiction of the ICC and that there is a gap between the definitions of the different
crimes under the US laws versus the Rome Statute. The view used a report written by Victoria K.
Holt and Elisabeth W. Dallas, entitled "On Trial: The US Military and the International Criminal
Court," as its basis.

At the outset, it should be pointed out that the report used may not have any weight or value under
international law. Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources
of international law, as follows: (1) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states; (2) international custom, as
evidence of a general practice accepted as law; (3) the general principles of law recognized by
civilized nations; and (4) subject to the provisions of Article 59, judicial decisions and the teachings
of the most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law. The report does not fall under any of the foregoing enumerated
sources. It cannot even be considered as the "teachings of highly qualified publicists." A highly
qualified publicist is a scholar of public international law and the term usually refers to legal scholars
or "academic writers."82 It has not been shown that the authors 83 of this report are highly qualified
publicists.

Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the
crimes are nonexistent. To highlight, the table below shows the definitions of genocide and war
crimes under the Rome Statute vis-à-vis the definitions under US laws:
Rome Statute
Article 6 §1091. Genocide
Genocide
For the purpose of this Statute, "genocide"
means any of the following acts committed
with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as
such:
(a) Killing members of the group;
(b) Causing serious bodily or mental
harm to members of the group;
(c) Deliberately inflicting on the group
conditions of life calculated to bring
about its physical destruction in whole
or in part;
(d) Imposing measures intended to
prevent births within the group;
(e) Forcibly transferring children of the
group to another group.
Article 8 (d) Definition – As used in this Section
War Crimes
2. For the purpose of this Statute,
"war crimes" means:
(a) Grave breaches of the
Geneva Conventions of 12
August 1949, namely, any of
the following acts against
persons or property protected
under the provisions of the
US Law
(a) Basic Offense – Whoever,
whether in the time of peace or in
time of war and with specific intent to
destroy, in whole or in substantial
part, a national, ethnic, racial or
religious group as such–
(1) kills members of that
group;
(2) causes serious bodily
injury to members of that
group;
(3) causes the permanent
impairment of the mental
faculties of members of the
group through drugs, torture,
or similar techniques;
(4) subjects the group to
conditions of life that are
intended to cause the physical
destruction of the group in
whole or in part;
(5) imposes measures
intended to prevent births
within the group; or
(6) transfers by force children
of the group to another group;
shall be punished as provided in
subsection (b).
the term "war crime" means any
conduct –
(1) Defined as a grave breach in any
of the international conventions
signed at Geneva 12 August 1949, or
any protocol to such convention to
which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or
28 of the Annex to the Hague
relevant Geneva Convention:
x x x84
(b) Other serious violations of
the laws and customs
applicable in international
armed conflict, within the
established framework of
international law, namely, any
of the following acts:
Convention IV, Respecting the Laws
and Customs of War on Land, signed
18 October 1907;
(3) Which constitutes a grave breach
of common Article 3 (as defined in
subsection [d]85) when committed in
the context of and in association with
an armed conflict not of an
international character; or

xxxx (4) Of a person who, in relation to an

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

xxxx

(d) Paragraph 2 (c) applies to

armed conflicts not of an
international character and
thus does not apply to
situations of internal
disturbances and tensions,
such as riots, isolated and
sporadic acts of violence or
other acts of a similar nature.

(e) Other serious violations of

the laws and customs
applicable in armed conflicts
not of an international
character, within the
established framework of
international law, namely, any
of the following acts: x x x.
Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the report
itself stated as much, to wit:

Few believed there were wide differences between the crimes under the jurisdiction of the Court and
crimes within the Uniform Code of Military Justice that would expose US personnel to the Court.
Since US military lawyers were instrumental in drafting the elements of crimes outlined in the Rome
Statute, they ensured that most of the crimes were consistent with those outlined in the UCMJ and
gave strength to complementarity for the US. Small areas of potential gaps between the UCMJ and
the Rome Statute, military experts argued, could be addressed through existing military laws. 87 x x x

The report went on further to say that "[a]ccording to those involved, the elements of crimes laid out
in the Rome Statute have been part of US military doctrine for decades." 88 Thus, the argument
proffered cannot stand.

Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine of
incorporation. As early as 1900, the esteemed Justice Gray in The Paquete Habana 89 case already
held international law as part of the law of the US, to wit:

International law is part of our law, and must be ascertained and administered by the courts of
justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented
for their determination. For this purpose, where there is no treaty and no controlling executive or
legislative act or judicial decision, resort must be had to the customs and usages of civilized nations,
and, as evidence of these, to the works of jurists and commentators who by years of labor, research,
and experience have made themselves peculiarly well acquainted with the subjects of which they
treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors
concerning what the law ought to be, but for the trustworthy evidence of what the law really
is.90 (Emphasis supplied.)

Thus, a person can be tried in the US for an international crime despite the lack of domestic
legislation. The cited ruling in U.S. v. Coolidge, 91 which in turn is based on the holding in U.S. v.
Hudson,92 only applies to common law and not to the law of nations or international law. 93 Indeed, the
Court in U.S. v. Hudson only considered the question, "whether the Circuit Courts of the United
States can exercise a common law jurisdiction in criminal cases." 94 Stated otherwise, there is no
common law crime in the US but this is considerably different from international law.

The US doubtless recognizes international law as part of the law of the land, necessarily including
international crimes, even without any local statute. 95 In fact, years later, US courts would apply
international law as a source of criminal liability despite the lack of a local statute criminalizing it as
such. So it was that in Ex Parte Quirin 96 the US Supreme Court noted that "[f]rom the very beginning
of its history this Court has recognized and applied the law of war as including that part of the law of
nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as
well as of enemy individuals."97 It went on further to explain that Congress had not undertaken the
task of codifying the specific offenses covered in the law of war, thus:

It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to
codify that branch of international law or to mark its precise boundaries, or to enumerate or define by
statute all the acts which that law condemns. An Act of Congress punishing ‘the crime of piracy as
defined by the law of nations is an appropriate exercise of its constitutional authority, Art. I, s 8, cl.
10, ‘to define and punish’ the offense since it has adopted by reference the sufficiently precise
definition of international law. x x x Similarly by the reference in the 15th Article of War to ‘offenders
or offenses that x x x by the law of war may be triable by such military commissions. Congress has
incorporated by reference, as within the jurisdiction of military commissions, all offenses which are
defined as such by the law of war x x x, and which may constitutionally be included within that
jurisdiction.98 x x x (Emphasis supplied.)

This rule finds an even stronger hold in the case of crimes against humanity. It has been held that
genocide, war crimes and crimes against humanity have attained the status of customary
international law. Some even go so far as to state that these crimes have attained the status of jus
cogens.99

Customary international law or international custom is a source of international law as stated in the
Statute of the ICJ.100 It is defined as the "general and consistent practice of states recognized and
followed by them from a sense of legal obligation." 101 In order to establish the customary status of a
particular norm, two elements must concur: State practice, the objective element; and opinio juris
sive necessitates, the subjective element.102

State practice refers to the continuous repetition of the same or similar kind of acts or norms by
States.103 It is demonstrated upon the existence of the following elements: (1) generality; (2)
uniformity and consistency; and (3) duration. 104 While, opinio juris, the psychological element,
requires that the state practice or norm "be carried out in such a way, as to be evidence of a belief
that this practice is rendered obligatory by the existence of a rule of law requiring it." 105

"The term ‘jus cogens’ means the ‘compelling law.’" 106 Corollary, "a jus cogens norm holds the
highest hierarchical position among all other customary norms and principles." 107 As a result, jus
cogens norms are deemed "peremptory and non-derogable." 108 When applied to international crimes,
"jus cogens crimes have been deemed so fundamental to the existence of a just international legal
order that states cannot derogate from them, even by agreement." 109

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state may exercise
jurisdiction over an individual who commits certain heinous and widely condemned offenses, even
when no other recognized basis for jurisdiction exists." 110 "The rationale behind this principle is that
the crime committed is so egregious that it is considered to be committed against all members of the
international community"111 and thus granting every State jurisdiction over the crime. 112

Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the
doctrine of incorporation and universal jurisdiction to try these crimes.

Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the
Rome Statute is not declaratory of customary international law.

The first element of customary international law, i.e., "established, widespread, and consistent
practice on the part of States,"113 does not, under the premises, appear to be obtaining as reflected in
this simple reality: As of October 12, 2010, only 114 114 States have ratified the Rome Statute,
subsequent to its coming into force eight (8) years earlier, or on July 1, 2002. The fact that 114
States out of a total of 194115 countries in the world, or roughly 58.76%, have ratified the Rome
Statute casts doubt on whether or not the perceived principles contained in the Statute have attained
the status of customary law and should be deemed as obligatory international law. The numbers
even tend to argue against the urgency of establishing international criminal courts envisioned in the
Rome Statute. Lest it be overlooked, the Philippines, judging by the action or inaction of its top
officials, does not even feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years
have elapsed since the Philippine representative signed the Statute, but the treaty has not been
transmitted to the Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring
elements, thus:

Custom or customary international law means "a general and consistent practice of states followed
by them from a sense of legal obligation [opinio juris] x x x." This statement contains the two basic
elements of custom: the material factor, that is how the states behave, and the psychological factor
or subjective factor, that is, why they behave the way they do.

xxxx

The initial factor for determining the existence of custom is the actual behavior of states. This
includes several elements: duration, consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the consistency and the
generality of the practice. x x x

xxxx

Once the existence of state practice has been established, it becomes necessary to determine
why states behave the way they do. Do states behave the way they do because they consider it
obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that
a certain form of behavior is obligatory, is what makes practice an international rule. Without it,
practice is not law.116 (Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the
different countries in the world that the prosecution of internationally recognized crimes of genocide,
etc. should be handled by a particular international criminal court.

Absent the widespread/consistent-practice-of-states factor, the second or the psychological element

must be deemed non-existent, for an inquiry on why states behave the way they do presupposes, in
the first place, that they are actually behaving, as a matter of settled and consistent practice, in a
certain manner. This implicitly requires belief that the practice in question is rendered obligatory by
the existence of a rule of law requiring it. 117 Like the first element, the second element has likewise
not been shown to be present.

Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes
enumerated therein as evidenced by it requiring State consent. 118 Even further, the Rome Statute
specifically and unequivocally requires that: "This Statute is subject to ratification, acceptance or
approval by signatory States." 119 These clearly negate the argument that such has already attained
customary status.

More importantly, an act of the executive branch with a foreign government must be afforded great
respect. The power to enter into executive agreements has long been recognized to be lodged with
the President. As We held in Neri v. Senate Committee on Accountability of Public Officers and
Investigations, "[t]he power to enter into an executive agreement is in essence an executive power.
This authority of the President to enter into executive agreements without the concurrence of the
Legislature has traditionally been recognized in Philippine jurisprudence." 120 The rationale behind this
principle is the inviolable doctrine of separation of powers among the legislative, executive and
judicial branches of the government. Thus, absent any clear contravention of the law, courts should
exercise utmost caution in declaring any executive agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US Non-Surrender
Agreement ought to be in the form of a treaty, to be effective, has to be rejected.

WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack
of merit. No costs.

SO ORDERED.

EN BANC

G.R. No. 217456, November 24, 2015

MARILOU S. LAUDE AND MESEHILDA S. LAUDE, Petitioners, v. HON. ROLINE M.

GINEZ-JABALDE, PRESIDING JUDGE, BRANCH 74, REGIONAL TRIAL COURT OF
THE CITY OF OLONGAPO; HON. PAQUITO N. OCHOA, JR., EXECUTIVE
SECRETARY; HON. ALBERT F. DEL ROSARIO, SECRETARY OF THE DEPARTMENT
OF FOREIGN AFFAIRS; HON. GEN. GREGORIO PIO P. CATAPANG, CHIEF OF
STAFF OF THE ARMED FORCES OF THE PHILIPPINES; HON. EMILIE FE DELOS
SANTOS, CHIEF CITY PROSECUTOR OF OLONGAPO CITY; AND L/CPL JOSEPH
SCOTT PEMBERTON, Respondent.

DECISION

LEONEN, J.:

Failure to meet the three-day notice rule for filing motions and to obtain the
concurrence of the Public Prosecutor to move for an interlocutory relief in a criminal
prosecution cannot be excused by general exhortations of human rights. This Petition
fails to show any grave abuse of discretion on the part of the trial court judge.
Furthermore, the accused, while undergoing trial and before conviction, is already
detained in the Philippines in compliance with the obligations contained in the
Agreement Between the Government of the United States of America and the
Government of the Republic of the Philippines Regarding the Treatment of United States
Armed Forces Visiting the Philippines (Visiting Forces Agreement).

This is a Petition for Certiorari1 under Rule 65, with prayer for the issuance of a writ of
mandatory injunction filed by Marilou S. Laude and Mesehilda S. Laude (petitioners).

On October 11, 2014, Jeffrey "Jennifer" Laude (Jennifer) was killed at the Celzone
Lodge on Ramon Magsaysay Drive in Olongapo City allegedly by 19-year-old US Marine
L/CPL Joseph Scott Pemberton (Pemberton).2 On October 15, 2014, a Complaint for
murder was filed by Jennifer's sibling, Marilou S. Laude, against Pemberton before the
Olongapo City Office of the City Prosecutor.3 On October 22, 2014, Pemberton was
detained in Camp Aguinaldo, the general headquarters of the Armed Forces of the
Philippines.4

On December 15, 2014, the Public Prosecutor filed an Information for murder against
Pemberton before the Regional Trial Court in Olongapo City.5 The case was docketed as
Case No. 865-14, and was raffled to Branch 74.6 A warrant of arrest against Pemberton
was issued on December 16, 2014.7 Pemberton surrendered personally to Judge Roline
M. Ginez-Jabalde8 (Judge Ginez-Jabalde) on December 19, 2014, and he was then
arraigned.9

On the same day, Marilou S. Laude filed an Urgent Motion to Compel the Armed Forces
of the Philippines to Surrender Custody of Accused to the Olongapo City Jail and a
Motion to Allow Media Coverage.10 "The [M]otion was [scheduled] for hearing on
December 22, 2014, at 2 p.m."11 According to petitioners, they were only able to serve
the Motion on Pemberton's counsel through registered mail.12 In any case, they claim to
have also "furnished a copy of the [M]otion personally ... at the hearing of the
[M]otion."13

On December 23, 2014, Judge Ginez-Jabalde denied petitioners' Urgent Motion for lack
of merit, the dispositive portion of which reads:14
chanroblesvirtuallawlibrary

Wherefore, the . . . UrgentMotion [sic] to Compel the Armed Forces of the Philippines to
Surrender Custody of Accused to the Olongapo City Jail [is] denied for utter lack of
merit.15 (Emphasis
cralawlawlibrary
in the original)

Petitioners received a copy of the Order on January 5, 2015. 16 On January 9, 2015,
petitioners filed a Motion for Reconsideration. 17 On February 18, 2015, Judge Ginez-
Jabalde issued an Order denying petitioners' Motion for Reconsideration for lack of
merit.

In a Resolution19 dated April 21, 2015, respondents were required to file their Comment
on the Petition. On June 5, 2015, public respondents, as represented by the Office of
the Solicitor General, filed their (First) Motion for Extension of Time to File
Comment20 for 60 days. On the same day, Pemberton posted his Motion for Additional
Time to File Comment21 for 10 days. Pemberton filed his Comment by counsel on June
16, 2015,22 while public respondents, through the Office of the Solicitor General, filed
their Comment on September 23, 2015.23

Petitioners argue that "[Respondent Judge committed grave abuse of discretion

tantamount to an excess or absence of jurisdiction when she dismissed the Urgent
Motion to Compel the Armed Forces of the Philippines to Surrender Custody o[f]
Accused to the Olongapo City Jail [based] on mere technicalities[.]"24 In particular, they
argue that the three-day rule on motions under Rule 15, Section 425 of the 1997 Rules
of Court is not absolute, and should be liberally interpreted when a case is attended by
exigent circumstances.26

Petitioners advance that the rationale behind the three-day notice rule is satisfied when
there is an opportunity to be heard, which was present in this case since Pemberton's
counsel and the Public Prosecutor were present in the hearing of the two Motions filed
by petitioners.27 Petitioners allege that the court noted their attendance, and were able
to make comments during the December 22, 2014 Motion hearing. 28 They assert that
the rights of Pemberton were not compromised in any way.29

Petitioners also aver that the three-day notice rule should be liberally applied due to the
timing of the arrest and arraignment.30 "The Urgent Motion was set for hearing on
December 22, 2014[.]"31 This date preceded a series of legal holidays beginning on
December 24, 2014, where all the courts and government offices suspended their
work.32 Petitioners point out that a "murder trial is under a distinctly special
circumstance in that Paragraph 6, Article V of the Visiting Forces Agreement. . .
provides for [a] one-year trial period[,] after which the United States shall be relieved
of any obligations under said paragraph[.]"33 Petitioners had to file and set the Motion
hearing at the earliest possible date.34

Petitioners further argue that Judge Ginez-Jabalde should not have dismissed the
Urgent Motion to Compel the Armed Forces of the Philippines to Surrender Custody of
Accused to the Olongapo City Jail "considering that the Urgent Motion raised issues that
are of transcendental importance and of primordial public interest."35 Petitioners aver
that under international human rights law, in particular the International Covenant on
Civil and Political Rights and the United Nations Declaration of Basic Principles of Justice
for Victims of Crime and Abuse of Power, they have the right to access to
justice,36 which is "distinct from the power of the Public Prosecutors to prosecute [the]
criminal case."37

Furthermore, petitioners advance that Philippine authorities ought to "have primary

jurisdiction over [Respondent Pemberton's person while [he] is being tried [in] a
Philippine Court[,]"38 in accordance with Article V, paragraph (3)(b) of the Visiting
Forces Agreement,39 which states: chanRoblesvirtualLawlibrary

3. In cases where the right to exercise jurisdiction is concurrent, the following rules
shall apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction
over all offenses committed by United States personnel . . .
(Emphasis and underscoring in the original)40
cralawlawlibrary

Petitioners argue that the custody of Pemberton must be ordered transferred to the
Olongapo City Jail, considering that the crime involved is murder, which is non-
bailable.41 They aver that it is unconstitutional to refuse to put him "in the custody of
Philippine jail authorities[,]" as such refusal "undermines the Constitutional Powers of
[the Court] to hear a jurisdictional matter brought before it"42 and to promulgate rules
for the practice of law.43 Petitioners argue that even though the Visiting Forces
Agreement gives the United States the "sole discretion" to decide whether to surrender
custody of an accused American military personnel to the Philippine authorities, "the
rule is that . . . the Court [still] has control over any proceeding involving a
jurisdictional matter brought before it, even if it may well involve the country's relations
with another foreign power."44

As for the nonconformity of the Public Prosecutor, petitioners argue that the Public
Prosecutor's refusal to sign the Urgent Motion to Compel the Armed Forces of the
Philippines to Surrender Custody of Accused to the Olongapo City Jail rendered the
requirement for conformity superfluous.45 Petitioners allege that the Public Prosecutor's
act is contrary to Department of Justice Secretary Leila M. De Lima's (Secretary De
Lima) position on the matter.46 They quote Secretary De Lima as having said the
following statement in a news article dated December 17, 2014: chanRoblesvirtualLawlibrary

The Philippines will now insist on the custody (of Pemberton) now that the (case) is
filed in court and especially since the warrant of arrest has been issued," De Lima told
reporters in an ambush interview.47cralawlawlibrary

Petitioners also quoted Secretary De Lima as having stated in another news article
dated December 18, 2014 the following: chanRoblesvirtualLawlibrary

Justice Secretary Leila De Lima stressed that Pemberton should be under the custody of
Philippine authorities, following the filing of charges.

"There is also a provision in the Visiting Forces Agreement that, in cases of

extraordinary circumstances, the Philippine government can insist on the custody and
for me, there are enough such circumstances, such as cruelty and treachery, that
justified the filing of the murder and not homicide," De Lima said.48 cralawlawlibrary

The contrary manifestations made by Secretary De Lima, according to petitioners,

meant that "[t]he conformity of the Public Prosecutor . . . is a mere superfluity" 49 and
was meant "to deny [petitioners' 'quest for justice[.]'"50

Due to the nature of the case, petitioners pray in this Petition that procedural
requirements be set aside.51

In his Comment dated June 16, 2015, Pemberton argues that Judge Ginez-Jabalde did
not commit grave abuse of discretion in denying the Urgent Motion to Compel the
Armed Forces of the Philippines to Surrender Custody of Accused to the Olongapo City
Jail since petitioners violated the three-day notice rule and failed to secure the
conformity of the Public Prosecutor assigned to the case.52 He claims that he "was not
given an opportunity to be heard"53 on petitioners' Motion.

In his counterstatement of facts, Pemberton avers that he voluntarily surrendered to

the Regional Trial Court, Branch 74, on December 19, 2014.54 On the same day, Marilou
S. Laude filed an Urgent Motion to Compel the Armed Forces of the Philippines to
Surrender Custody of the Accused to the Olongapo City Jail, and setting the Motion
hearing for December 22, 2015, but did not obtain the Public Prosecutor's
conformity.55 Marilou S. Laude also failed to personally serve a copy of the Urgent
Motion on Pemberton at least three days prior to the hearing thereof.56

Pemberton further avers that on December 22, 2014, Judge Ginez-Jabalde heard the
Urgent Motion to Compel the Armed Forces of the Philippines to Surrender Custody of
the Accused to the Olongapo City Jail and a Motion to Suspend the
Proceedings.57 Counsel for Pemberton was in court to attend the hearing for the Motion
to Suspend the Proceedings, but did not have knowledge of the Urgent Motion to
Compel the Armed Forces of the Philippines to Surrender Custody of the Accused to the
Olongapo City Jail filed by Marilou S. Laude.58 Counsel for Pemberton received a copy of
the Urgent Motion only "a few minutes"59 before it was to be heard.60

On December 23, 2014, Judge Ginez-Jabalde denied Marilou S. Laude's Urgent Motion
to Compel the Armed Forces of the Philippines to Surrender Custody of the Accused to
the Olongapo City Jail for being devoid of merit.61 Marilou S. Laude filed a Motion for
Reconsideration on January 9, 2015,62 without conformity of the Public Prosecutor.63 On
January 20, 2015, Pemberton filed his Ad Cautelam Opposition [To Private
Complainant's Motion for Reconsideration], arguing that Judge Ginez-Jabalde correctly
denied Marilou S. Laude's Urgent Motion due to the latter's "failure to comply with
settled procedure regarding hearing of motions[.]"64 Pemberton further argues that the
custody over him "rightfully remain[ed] with the [United States] authorities. . . ." He
cites Section 6 of the Visiting Forces Agreement, which provides that the "custody of
any United States personnel over whom the Philippines is to exercise jurisdiction shall
immediately reside with United States military authorities, if they so request, from the
commission of the offense, until completion of all judicial proceedings."65

Pemberton further argues in his Comment that the presence of his counsel during the
Urgent Motion to Compel the Armed Forces of the Philippines to Surrender Custody of
the Accused to the Olongapo City Jail hearing did "not equate to an opportunity to be
heard as to satisfy the purpose of the three-day notice rule."66 Citing Preysler, Jr. v.
Manila Southcoast Development Corporation,67 Cabrera v. Ng,68  and Jehan Shipping
Corporation v. National Food Authority,69 Pemberton avers that an opposing party is
given opportunity to be heard when he is "afforded sufficient time to study the motion
and to meaningfully oppose and controvert the same."70 Even though his counsel was
able to orally comment on the Urgent Motion,71 Pemberton was deprived of any
meaningful opportunity to study and oppose it,72 having been furnished a copy a few
minutes before the hearing.73 Marilou S. Laude also failed to provide "justifiable reason
for . . . failure to comply with the three-day notice that would warrant a liberal
construction of the rules."74

Pemberton likewise argues that Marilou S. Laude, being only the private complainant,
lacks the legal personality to file the Urgent Motion to Compel the Armed Forces of the
Philippines to Surrender Custody of Accused to the Olongapo City Jail and the
subsequent Motion for Reconsideration "without the conformity of the Public
Prosecutor."75 Quoting Rule 110, Section 576 of the Revised Rules of Criminal Procedure,
Pemberton states that the Public Prosecutor's lack of consent "rendered the Urgent
Motion a mere scrap of paper."77 He adds that the defect is "not a mere
technicality[.]"78

Pemberton also argues that Marilou S. Laude cannot rely on the alleged statements of
Secretary De Lima for the following reasons:79 First, Secretary De Lima did not direct
the Olongapo City Office of the City Prosecutor to give its approval to the Urgent Motion
and Motion for Reconsideration;80 second, Secretary De Lima did not state that the
Public Prosecutor should insist on turning over the custody of Pemberton to the
Philippine authorities.81 Neither was there any such order from Secretary De
Lima.82 Petitioners' claims are, therefore, without legal basis.83

According to Pemberton, petitioners' use of the '"right to access to justice' under

international law did not excuse [petitioner Marilou [S. Laude] from securing the
authority and conformity of the Public Prosecutor[.]"84 He argues that both the
International Covenant on Civil and Political Rights and the United Nations Declaration
of Basic Principles of Justice for Victims of Crime and Abuse of Power "refer to national
or domestic legislation in affording [victims] access to justice." 85 The Rules of Court and
jurisprudence have established procedures for criminal proceedings, and these require
Marilou S. Laude "to obtain authority and consent from the Public Prosecutor"86 before
filing a Motion in the ongoing criminal proceeding.87

As for the issue of custody under the Visiting Forces Agreement, Pemberton argues that
there is a difference between "jurisdiction" and "custody." 88 He avers that jurisdiction is
"the power and authority of a court to try, hear[,] and decide a case."89 Pemberton does
not dispute that "Philippine authorities have the primary right to exercise jurisdiction
over offenses committed by [a] United States personnel[,] [which is] why the case is
being tried [in] a Philippine court."90 However, custody "pertains to [the] actual physical
control over the person of the accused[,]"91 and under the Visiting Forces Agreement,
Pemberton argues that custody shall reside with the United States Military authorities,
since the Visiting Forces Agreement expressly provides that "[t]he custody of any
United States personnel . . . shall immediately reside with [the] United States military
authorities . . . from the commission of the offense until completion of all judicial
proceedings."92

Public respondents advance that Judge Ginez-Jabalde did not commit grave abuse of
discretion when she denied the Urgent Motion to Compel the Armed Forces of the
Philippines to Surrender Custody of Accused to the Olongapo City Jail.93 Public
respondents, through their Comment filed by the Office of the Solicitor General, argue
that "[petitioners are not real parties in interest[.]"94 They claim that "the real party in
interest is the People [of the Philippines], represented by the public prosecutor in the
lower court and by the Office of the Solicitor General ... in the Court of Appeals and in
the Supreme Court."95 While public respondents recognize that petitioners may
intervene as private offended parties, "the active conduct of. . . trial [in a criminal case]
is properly the duty of the public prosecutor."96 The nonconformity of the Public
Prosecutor in petitioners' Urgent Motion to Compel the Armed Forces of the Philippines
to Surrender Custody of Accused to the Olongapo City Jail is fatal in light of its nature
pertaining to the place of Pemberton's confinement.97 The issue of confinement of an
accused pertains to the criminal aspect of the case and "involves the right to
prosecute[,] which [is lodged] exclusively to the People[.]"98

Referring to Rule 110, Section 5 of the Rules of Court, public respondents aver that the
requirement for motions to be "filed in the name of and under the authority of the
public prosecutor"99 is not a mere technical requirement, but is part of "the essential,
inherent, and exclusive power of the State to prosecute criminals[.]" 100 Public
respondents counter petitioners' claim that the Public Prosecutor's approval is
superfluous given the alleged position of Secretary De Lima in the newspaper articles.
Citing Feria v. Court of Appeals, public respondents argue that newspaper articles are
"hearsay evidence, twice removed"101 and are "inadmissible" for having no probative
value, "whether objected to or not."102

As for the three-day notice rule under the Rules of Court, public respondents argue that
petitioners' failure to comply cannot be excused in light of the rule's purpose, that is,
for the Motion's adverse party not to be surprised, granting one sufficient time to study
the Motion and be able to meet the arguments contained in it.103

Public respondents argue that while the Visiting Forces Agreement "grants primary
jurisdiction to Philippine authorities"104 in this case, Pemberton's handover specifically to
the Olongapo City Jail is unnecessary.105 The Visiting Forces Agreement does not specify
the place of an accused American personnel's confinement. The issue of custody is thus
"best left to the discretion of the trial court."106 According to public respondents, for so
long as the present arrangement neither renders it difficult for Pemberton to appear in
court when he is required nor impairs Judge Ginez-Jabalde's authority to try the case,
the trial court may validly decide for Pemberton to remain where he currently is.107

Lastly, public respondents maintain that petitioners are not entitled to a mandatory
injunction since they have no "clear and unmistakable right to the transfer of
[respondent Pemberton] from Camp Aguinaldo to the Olongapo City Jail." 108 They
underscore that "petitioners are private offended parties[,] not the real party in interest
in [this] criminal case[.]"109

We dismiss the Petition.

The failure of petitioners to comply with the three-day notice rule is unjustified.

Rule 15, Section 4 of the Rules of Court clearly makes it a mandatory rule that the
adverse party be given notice of hearing on the motion at least three days prior.

Failure to comply with this notice requirement renders the motion defective consistent
with protecting the adverse party's right to procedural due process.110 In Jehan
Shipping Corporation:111 chanroblesvirtuallawlibrary

As an integral component of procedural due process, the three-day notice required by

the Rules is not intended for the benefit of the movant. Rather, the requirement is for
the purpose of avoiding surprises that may be sprung upon the adverse party, who
must be given time to study and meet the arguments in the motion before a resolution
by the court. Principles of natural justice demand that the right of a party should not be
affected without giving it an opportunity to be heard.112 (Emphasis supplied, citations
omitted)cralawlawlibrary

While the general rule is that a motion that fails to comply with the requirements of
Rule 15 is a mere scrap of paper, an exception may be made and the motion may still
be acted upon by the court, provided doing so will neither cause prejudice to the other
party nor violate his or her due process rights.113 The adverse party must be given time
to study the motion in order to enable him or her to prepare properly and engage the
arguments of the movant.114 In this case, the general rule must apply because
Pemberton was not given sufficient time to study petitioners' Motion, thereby depriving
him of his right to procedural due process.

Petitioners admit that they personally furnished Pemberton a copy of the Urgent Motion
to Compel the Armed Forces of the Philippines to Surrender Custody of Accused to the
Olongapo City Jail only during the hearing.115 They attempt to elude the consequences
of this belated notice by arguing that they also served a copy of the Motion
by registered mail on Pemberton's counsel.116 They also attempt to underscore the
urgency of the Motion by making a reference to the Christmas season and the "series of
legal holidays"117 where courts would be closed.118 To compound their obfuscation,
petitioners claim that the hearing held on December 22, 2014, attended by Pemberton's
counsel sufficiently satisfied the rationale of the three-day notice rule.

These circumstances taken together do not cure the Motion's deficiencies. Even
granting that Pemberton's counsel was able to comment on the motion orally during the
hearing, which incidentally was set for another incident,119 it cannot be said that
Pemberton was able to study and prepare for his counterarguments to the issues raised
in the Motion. Judge Ginez-Jabalde was correct to deny the Urgent Motion to Compel
the Armed Forces of the Philippines to Surrender Custody of Accused to the Olongapo
City Jail based on noncompliance of procedural rules. To rule otherwise would be to
prejudice Pemberton's rights as an accused.

II

Petitioners also argue that the Urgent Motion to Compel the Armed Forces of the
Philippines to Surrender Custody of Accused to the Olongapo City Jail is an assertion of
their right to access to justice as recognized by international law and the 1987
Constitution. They justify the separate filing of the Motion as a right granted by Article
2, paragraph (3) of the International Covenant on Civil and Political
Rights,120 independent of "the power of the Public Prosecutors to prosecute [a] criminal
case."121

Article 2, paragraph (3) of the International Covenant on Civil and Political Rights
states:  

3. Each State Party to the present Covenant undertakes: chanRoblesvirtualLawlibrary

(a)  To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by any
other competent authority provided for by the legal system of the State, and to develop
the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when
granted.122
cralawlawlibrary
ChanRoblesVirtualawlibrary

There is no need to discuss whether this provision has attained customary status, since
under treaty law, the Philippines, as a State Party, 123 is obligated to comply with its
obligations under the International Covenant on Civil and Political Rights.124 However,
petitioners went too far in their interpretation, ignoring completely the nature of the
obligation contemplated by the provision in an attempt to justify their failure to comply
with a domestic procedural rule aimed to protect a human right in a proceeding, albeit
that of the adverse party.

On March 29, 2004, the United Nations Human Rights Committee issued General
Comment No. 31,125 which pertained to the nature of the general legal obligations
imposed by the International Covenant on Civil and Political Rights on State Parties. On
Article 2, paragraph (3), the General Comment states: chanRoblesvirtualLawlibrary

15. Article 2, paragraph 3, requires that in addition to effective protection of

Covenant rights[,] States Parties must ensure that individuals also have
accessible and effective remedies to vindicate those rights. Such remedies
should be appropriately adapted so as to take account of the special vulnerability of
certain categories of person, including in particular children. The Committee attaches
importance to States Parties' establishing appropriate judicial and administrative
mechanisms for addressing claims of rights violations under domestic law. The
Committee notes that the enjoyment of the rights recognized under the Covenant can
be effectively assured by the judiciary in many different ways, including direct
applicability of the Covenant, application of comparable constitutional or other
provisions of law, or the interpretive effect of the Covenant in the application of
national law. Administrative mechanisms are particularly required to give effect to the
general obligation to investigate allegations of violations promptly, thoroughly and
effectively through independent and impartial bodies. National human rights
institutions, endowed with appropriate powers, can contribute to this end. A failure by a
State Party to investigate allegations of violations could in and of itself give rise to a
separate breach of the Covenant. Cessation of an ongoing violation is an essential
element of the right to an effective remedy.

16. Article 2, paragraph 3, requires that States Parties make reparation to

individuals whose Covenant rights have been violated. Without reparation to
individuals whose Covenant rights have been violated, the obligation to provide an
effective remedy, which is central to the efficacy of article 2, paragraph 3, is not
discharged. In addition to the explicit reparation required by articles 9, paragraph 5,
and 14, paragraph 6, the Committee considers that the Covenant generally entails
appropriate compensation. The Committee notes that, where appropriate, reparation
can involve restitution, rehabilitation and measures of satisfaction, such as public
apologies, public memorials, guarantees of non-repetition and changes in relevant laws
and practices, as well as bringing to justice the perpetrators of human rights
violations.126 (Emphasis
cralawlawlibrary
supplied)

The obligation contemplated by Article 2, paragraph (3) is for the State Party to
establish a system of accessible and effective remedies through judicial and
administrative mechanisms. The present trial of Pemberton, to which petitioner, Marilou
S. Laude, is included as a private complainant, indicates that there is a legal system of
redress for violated rights. That petitioners chose to act on their own, in total disregard
of the mechanism for criminal proceedings established by this court, should not be
tolerated under the guise of a claim to justice. This is especially in light of petitioners'
decision to furnish the accused in the case a copy of her Motion only during the hearing.
Upholding human rights pertaining to access to justice cannot be eschewed to rectify an
important procedural deficiency that was not difficult to comply with. Human rights are
not a monopoly of petitioners. The accused also enjoys the protection of these rights.

III

The conformity of the Public Prosecutor to the Urgent Motion to Compel the Armed
Forces of the Philippines to Surrender Custody of Accused to the Olongapo City Jail is
not a mere "superfluity."127 In Jimenez v. Sorongon,128 this court held that in criminal
cases, the People is the real party in interest, which means allowing a private
complainant to pursue a criminal action on his own is a rare exception:129 chanroblesvirtuallawlibrary

Procedural law basically mandates that "[ajll criminal actions commenced by

complaint or by information shall be prosecuted under the direction and
control of a public prosecutor." In appeals of criminal cases before the CA and
before this Court, the OSG is the appellate counsel of the People. . . .
. . . .

The People is the real party in interest in a criminal case and only the OSG can
represent the People in criminal proceedings pending in the CA or in this
Court. This ruling has been repeatedly stressed in several cases and continues
to be the controlling doctrine.

While there may be rare occasions when the offended party may be allowed to
pursue the criminal action on his own behalf (as when there is a denial of due
process), this exceptional circumstance does not apply in the present case.

In this case, the petitioner has no legal personality to assail the dismissal of the
criminal case since the main issue raised by the petitioner involved the criminal aspect
of the case, i.e., the existence of probable cause. The petitioner did not appeal to
protect his alleged pecuniary interest as an offended party of the crime, but to cause
the reinstatement of the criminal action against the respondents. This involves the right
to prosecute which pertains exclusively to the People, as represented by the
OSG.130 (Emphasis supplied, citations omitted) cralawlawlibrary

In this case, petitioners have not shown why the Motion may be allowed to fall under
the exception. The alleged grave abuse of discretion of the Public Prosecutor was
neither clearly pleaded nor argued. The duty and authority to prosecute the criminal
aspects of this case, including the custody issue, are duly lodged in the Public
Prosecutor. Her refusal to give her conforme to the Motion is an act well within the
bounds of her position. That petitioners used as bases newspaper articles for claiming
that the Public Prosecutor acted contrary to the position of Secretary De Lima cannot be
given weight. Public respondents are correct in asserting that the proper remedy would
have been for petitioners to have the act reversed by Secretary De Lima through proper
legal venues.

IV

Finally, petitioners argue that the Visiting Forces Agreement should be declared
"unconstitutional insofar as it impairs the . . . power of the Supreme Court[.]" 131 They
advance this argument in the context of their Motion to place Pemberton under the
custody of Philippine authorities while the case is being tried, 132 with their prayer in this
Petition phrased thus: chanRoblesvirtualLawlibrary

(b) Declare the VFA unconstitutional insofar as it impairs the constitutional power of the
Supreme Court to promulgate rules for practice before it, including the Rules of
Criminal Procedure[.]133 cralawlawlibrary
The constitutionality of an official act may be the subject of judicial review, provided the
matter is not raised collaterally. In Planters Products, Inc. v. Fertiphil Corporation:134
chanroblesvirtuallawlibrary

Judicial review of official acts on the ground of unconstitutionality may be sought or

availed of through any of the actions cognizable by courts of justice, not necessarily in
a suit for declaratory relief. . . The constitutional issue, however, (a) must be
properly raised and presented in the case, and (b) its resolution is necessary
to a determination of the case, i.e., the issue of constitutionality must be the
very lis mota presented.135 (Emphasis supplied, citation omitted) cralawlawlibrary

The constitutionality of the Visiting Forces Agreement is not the lis mota of this Petition.
Petitioners started their Petition with a claim that their right to access to justice was
violated, but ended it with a prayer for a declaration of the Visiting Forces Agreement's
unconstitutionality. They attempt to create the connection between the two by
asserting that the Visiting Forces Agreement prevents the transfer of Pemberton to
Olongapo City Jail, which allegedly is tantamount to the impairment of this court's
authority.

First, this Petition is not the proper venue to rule on the issue of whether the Visiting
Forces Agreement transgresses the judicial authority of this court to promulgate rules
pertaining to criminal cases. Second, the issues of criminal jurisdiction and custody
during trial as contained in the Visiting Forces Agreement were discussed in Nicolas v.
Secretary Romulo, et al:136chanroblesvirtuallawlibrary

The VFA being a valid and binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions.

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

6. The custody of any United States personnel over whom the Philippines is to exercise
jurisdiction shall immediately reside with United States military authorities, if they so
request, from the commission of the offense until completion of all judicial proceedings.
United States military authorities shall, upon formal notification by the Philippine
authorities and without delay, make such personnel available to those authorities in
time for any investigative or judicial proceedings relating to the offense with which the
person has been charged. In extraordinary cases, the Philippine Government shall
present its position to the United States Government regarding custody, which the
United States Government shall take into full account. In the event Philippine judicial
proceedings are not completed within one year, the United States shall be relieved of
any obligations under this paragraph. The one year period will not include the time
necessary to appeal. Also, the one year period will not include any time during which
scheduled trial procedures are delayed because United States authorities, after timely
notification by Philippine authorities to arrange for the presence of the accused, fail to
do so.
Petitioners contend that these undertakings violate another provision of the
Constitution, namely, that providing for the exclusive power of this Court to adopt rules
of procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to
allow the transfer of custody of an accused to a foreign power is to provide for a
different rule of procedure for that accused, which also violates the equal protection
clause of the Constitution (Art. Ill, Sec. 1. [sic]).

Again, this Court finds no violation of the Constitution.

The equal protection clause is not violated, because there is a substantial

basis for a different treatment of a member of a foreign military armed forces
allowed to enter our territory and all other accused.

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

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

Nothing in the Constitution prohibits such agreements recognizing immunity

from jurisdiction or some aspects of jurisdiction (such as custody), in relation
to long-recognized subjects of such immunity like Heads of State, diplomats
and members of the armed forces contingents of a foreign State allowed to
enter another State's territory. On the contrary, the Constitution states that
the Philippines adopts the generally accepted principles of international law as
part of the law of the land. (Art. II, Sec. 2).

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

Sec. 10. The confinement or detention by Philippine authorities of United States

personnel shall be carried out in facilities agreed on by appropriate Philippines and
United States authorities. United States personnel serving sentences in the Philippines
shall have the right to visits and material assistance.
It is clear that the parties to the VFA recognized the difference between
custody during the trial and detention after conviction, because they provided
for a specific arrangement to cover detention. And this specific arrangement
clearly states not only that the detention shall be carried out in facilities
agreed on by authorities of both parties, but also that the detention shall be
"by Philippine
cralawlawlibrary
authorities."137 (Emphasis supplied, citations omitted)

In any case, Pemberton is confined, while undergoing trial, in Camp Aguinaldo, which
by petitioners' own description is the "General Head Quarters of the Armed Forces of
the Philippines[.] "138Their claim that the detention facility is under the "control,
supervisionfj and jurisdiction of American military authorities"139is not substantiated.

Petitioners' prayer for the issuance of a writ of mandatory injunction to compel public
respondents to turn over the custody of Pemberton "from American military authorities
to the OLONGAPO CITY JAIL"140 is likewise denied for lack of merit. In Semirara Coal
Corporation v. HGL Development Corporation:141 chanroblesvirtuallawlibrary

It is likewise established that a writ of mandatory injunction is granted upon a

showing that (a) the invasion of the right is material and substantial; (b) the
right of complainant is clear and unmistakable; and (c) there is an urgent and
permanent necessity for the writ to prevent serious damage.142 (Emphasis
supplied, citation omitted) cralawlawlibrary

Nowhere in their Petition did petitioners discuss the basis for their claim that they are
entitled to the sought writ, let alone mention it in their arguments. This court cannot
consider the issuance of a writ of mandatory injunction or a temporary restraining order
without any legal and factual basis.

Besides, considering the extent of the scope of this court's power to issue a temporary
restraining order, prayers for the issuance of a writ of mandatory injunction is usually
unnecessary.

WHEREFORE, premises considered, the Petition for Certiorari is DISMISSED for lack

of grave abuse of discretion resulting in lack or excess of jurisdiction. The prayer for the
issuance of a writ of mandatory injunction is likewise DENIED for lack of merit.

SO ORDERED.

G.R. No. 175888               February 11, 2009

SUZETTE NICOLAS y SOMBILON, Petitioner,

vs.
ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; RAUL GONZALEZ, in his
capacity as Secretary of Justice; EDUARDO ERMITA, in his capacity as Executive Secretary;
RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government; SERGIO
APOSTOL, in his capacity as Presidential Legal Counsel; and L/CPL. DANIEL
SMITH, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 176051               February 11, 2009

JOVITO R. SALONGA, WIGBERTO E. TAÑADA, JOSE DE LA RAMA, EMILIO C. CAPULONG,

H. HARRY L. ROQUE, JR., FLORIN HILBAY, and BENJAMIN POZON, Petitioners,
vs.
DANIEL SMITH, SECRETARY RAUL GONZALEZ, PRESIDENTIAL LEGAL COUNSEL SERGIO
APOSTOL, SECRETARY RONALDO PUNO, SECRETARY ALBERTO ROMULO, The Special
16th Division of the COURT OF APPEALS, and all persons acting in their
capacity, Respondents.

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

G.R. No. 176222               February 11, 2009

BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by Dr. Carol Araullo; GABRIELA,

represented by Emerenciana de Jesus; BAYAN MUNA, represented by Rep. Satur Ocampo;
GABRIELA WOMEN'S PARTY, represented by Rep. Liza Maza; KILUSANG MAYO UNO (KMU),
represented by Elmer Labog; KILUSANG MAGBUBUKID NG PILIPINAS (KMP), represented by
Willy Marbella; LEAGUE OF FILIPINO STUDENTS (LFS), represented by Vencer Crisostomo;
and THE PUBLIC INTEREST LAW CENTER, represented by Atty. Rachel Pastores, Petitioners,
vs.
PRESIDENT GLORIA MACAPAGAL-ARROYO, in her capacity as concurrent Defense
Secretary, EXECUTIVE SECRETARY EDUARDO ERMITA, FOREIGN AFFAIRS SECRETARY
ALBERTO ROMULO, JUSTICE SECRETARY RAUL GONZALEZ, AND INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO, Respondents.

DECISION

AZCUNA, J.:

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

The facts are not disputed.

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

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

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

CONTRARY TO LAW."1

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

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

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

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

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

Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the
Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in the
facilities that shall, thereafter, be agreed upon by appropriate Philippine and United States
authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J. SMITH is hereby
temporarily committed to the Makati City Jail.

Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S.

NICOLAS in the amount of ₱50,000.00 as compensatory damages plus ₱50,000.00 as moral
damages.

SO ORDERED.2

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

On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a contingent
of Philippine law enforcement agents, purportedly acting under orders of the Department of the
Interior and Local Government, and brought to a facility for detention under the control of the United
States government, provided for under new agreements between the Philippines and the United
States, referred to as the Romulo-Kenney Agreement of December 19, 2006 which states:
The Government of the Republic of the Philippines and the Government of the United States of
America agree that, in accordance with the Visiting Forces Agreement signed between our two
nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to U.S. military
custody at the U.S. Embassy in Manila.

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

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

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

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

The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United
States of America agree that, in accordance with the Visiting Forces Agreement signed between the
two nations, upon transfer of Lance Corporal Daniel J. Smith, United States Marine Corps, from the
Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG) Building, U.S. Embassy
Compound in a room of approximately 10 x 12 square feet. He will be guarded round the clock by
U.S. military personnel. The Philippine police and jail authorities, under the direct supervision of the
Philippine Department of Interior and Local Government (DILG) will have access to the place of
detention to ensure the United States is in compliance with the terms of the VFA.

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

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

Hence, the present actions.

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

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

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

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

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

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

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

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

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

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

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

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

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

This Court finds that it is, for two reasons.

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

The fact that the VFA was not submitted for advice and consent of the United States Senate does
not detract from its status as a binding international agreement or treaty recognized by the said
State. For this is a matter of internal United States law. Notice can be taken of the internationally
known practice by the United States of submitting to its Senate for advice and consent agreements
that are policymaking in nature, whereas those that carry out or further implement these
policymaking agreements are merely submitted to Congress, under the provisions of the so-called
Case–Zablocki Act, within sixty days from ratification. 6
The second reason has to do with the relation between the VFA and the RP-US Mutual Defense
Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with the concurrence
of both the Philippine Senate and the United States Senate.

The RP-US Mutual Defense Treaty states:7

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

The Parties of this Treaty

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

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

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

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

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

Have agreed as follows:

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

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

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

Article IV. Each Party recognizes that an armed attack in the Pacific area on either of the parties
would be dangerous to its own peace and safety and declares that it would act to meet the common
dangers in accordance with its constitutional processes.
Any such armed attack and all measures taken as a result thereof shall be immediately reported to
the Security Council of the United Nations. Such measures shall be terminated when the Security
Council has taken the measures necessary to restore and maintain international peace and security.

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

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

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

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

In withness whereof the undersigned Plenipotentiaries have signed this Treaty.

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

For the Republic of the Philippines:

(Sgd.) Carlos P. Romulo

(Sgd.) Joaquin M. Elizalde

(Sgd.) Vicente J. Francisco

(Sgd.) Diosdado Macapagal

For the United States of America:

(Sgd.) Dean Acheson

(Sgd.) John Foster Dulles

(Sgd.) Tom Connally

(Sgd.) Alexander Wiley8

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

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

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

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

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

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

Have agreed as follows:9

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

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the
presence of the US Armed Forces through the VFA is a presence "allowed under" the RP-US Mutual
Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and concurred in by
both the Philippine Senate and the US Senate, there is no violation of the Constitutional provision
resulting from such presence.

The VFA being a valid and binding agreement, the parties are required as a matter of international
law to abide by its terms and provisions.

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

Article V

Criminal Jurisdiction

xxx

6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction
shall immediately reside with United States military authorities, if they so request, from the
commission of the offense until completion of all judicial proceedings. United States military
authorities shall, upon formal notification by the Philippine authorities and without delay, make such
personnel available to those authorities in time for any investigative or judicial proceedings relating
to the offense with which the person has been charged. In extraordinary cases, the Philippine
Government shall present its position to the United States Government regarding custody, which the
United States Government shall take into full account. In the event Philippine judicial proceedings
are not completed within one year, the United States shall be relieved of any obligations under this
paragraph. The one year period will not include the time necessary to appeal. Also, the one year
period will not include any time during which scheduled trial procedures are delayed because United
States authorities, after timely notification by Philippine authorities to arrange for the presence of the
accused, fail to do so.

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

Again, this Court finds no violation of the Constitution.

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

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

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

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or
some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and members of the armed forces contingents of a foreign
State allowed to enter another State’s territory. On the contrary, the Constitution states that the
Philippines adopts the generally accepted principles of international law as part of the law of the
land. (Art. II, Sec. 2).

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

Article V

Criminal Jurisdiction

xxx

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

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

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

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

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

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

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

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

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

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

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

First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because the
parties intend its provisions to be enforceable, precisely because the Agreement is intended to carry
out obligations and undertakings under the RP-US Mutual Defense Treaty. As a matter of fact, the
VFA has been implemented and executed, with the US faithfully complying with its obligation to
produce L/CPL Smith before the court during the trial.
Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC Sec.
112(b), inasmuch as it is the very purpose and intent of the US Congress that executive agreements
registered under this Act within 60 days from their ratification be immediately implemented. The
parties to these present cases do not question the fact that the VFA has been registered under the
Case-Zablocki Act. 1avvphi1

In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the Avena
decision of the International Court of Justice (ICJ), subject matter of the Medellin decision. The
Convention and the ICJ decision are not self-executing and are not registrable under the Case-
Zablocki Act, and thus lack legislative implementing authority.

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

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

As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF INTERNATIONAL

CRIMINAL LAW IN NATIONAL COURTS, some countries require legislation whereas others do not.

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

Furthermore, as held by the US Supreme Court in Weinberger v. Rossi, 13 an executive agreement is
a "treaty" within the meaning of that word in international law and constitutes enforceable domestic
law vis-à-vis the United States. Thus, the US Supreme Court in Weinberger enforced the provisions
of the executive agreement granting preferential employment to Filipinos in the US Bases here.

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

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

2. Executive–Congressional Agreements: These are joint agreements of the President and

Congress and need not be submitted to the Senate.

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

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

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

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

No costs.

SO ORDERED.

G.R. No. 175888               February 11, 2009

SUZETTE NICOLAS y SOMBILON, Petitioner,

vs.
ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; RAUL GONZALEZ, in his
capacity as Secretary of Justice; EDUARDO ERMITA, in his capacity as Executive Secretary;
RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government; SERGIO
APOSTOL, in his capacity as Presidential Legal Counsel; and L/CPL. DANIEL
SMITH, Respondents.

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

G.R. No. 176051               February 11, 2009

JOVITO R. SALONGA, WIGBERTO E. TAÑADA, JOSE DE LA RAMA, EMILIO C. CAPULONG,

H. HARRY L. ROQUE, JR., FLORIN HILBAY, and BENJAMIN POZON, Petitioners,
vs.
DANIEL SMITH, SECRETARY RAUL GONZALEZ, PRESIDENTIAL LEGAL COUNSEL SERGIO
APOSTOL, SECRETARY RONALDO PUNO, SECRETARY ALBERTO ROMULO, The Special
16th Division of the COURT OF APPEALS, and all persons acting in their
capacity, Respondents.

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

G.R. No. 176222               February 11, 2009

BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by Dr. Carol Araullo; GABRIELA,

represented by Emerenciana de Jesus; BAYAN MUNA, represented by Rep. Satur Ocampo;
GABRIELA WOMEN'S PARTY, represented by Rep. Liza Maza; KILUSANG MAYO UNO (KMU),
represented by Elmer Labog; KILUSANG MAGBUBUKID NG PILIPINAS (KMP), represented by
Willy Marbella; LEAGUE OF FILIPINO STUDENTS (LFS), represented by Vencer Crisostomo;
and THE PUBLIC INTEREST LAW CENTER, represented by Atty. Rachel Pastores, Petitioners,
vs.
PRESIDENT GLORIA MACAPAGAL-ARROYO, in her capacity as concurrent Defense
Secretary, EXECUTIVE SECRETARY EDUARDO ERMITA, FOREIGN AFFAIRS SECRETARY
ALBERTO ROMULO, JUSTICE SECRETARY RAUL GONZALEZ, AND INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO, Respondents.

DECISION

AZCUNA, J.:

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

The facts are not disputed.

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

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

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

CONTRARY TO LAW."1

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

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

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

WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient evidence
against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL.
DOMINIC DUPLANTIS, all of the US Marine Corps assigned at the USS Essex, are hereby
ACQUITTED to the crime charged.
The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J. SMITH,
also of the US Marine Corps at the USS Essex, this Court hereby finds him GUILTY BEYOND
REASONABLE DOUBT of the crime of RAPE defined under Article 266-A, paragraph 1 (a) of the
Revised Penal Code, as amended by R.A. 8353, and, in accordance with Article 266-B, first
paragraph thereof, hereby sentences him to suffer the penalty of reclusion perpetua together with
the accessory penalties provided for under Article 41 of the same Code.

Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the
Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in the
facilities that shall, thereafter, be agreed upon by appropriate Philippine and United States
authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J. SMITH is hereby
temporarily committed to the Makati City Jail.

Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S.

NICOLAS in the amount of ₱50,000.00 as compensatory damages plus ₱50,000.00 as moral
damages.

SO ORDERED.2

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

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

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

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

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

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

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

The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United
States of America agree that, in accordance with the Visiting Forces Agreement signed between the
two nations, upon transfer of Lance Corporal Daniel J. Smith, United States Marine Corps, from the
Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG) Building, U.S. Embassy
Compound in a room of approximately 10 x 12 square feet. He will be guarded round the clock by
U.S. military personnel. The Philippine police and jail authorities, under the direct supervision of the
Philippine Department of Interior and Local Government (DILG) will have access to the place of
detention to ensure the United States is in compliance with the terms of the VFA.

The matter was brought before the Court of Appeals which decided on January 2, 2007, as follows:
WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having become
moot.3

Hence, the present actions.

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

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

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

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

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

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

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

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

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

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

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

To prevent a recurrence of this experience, the provision in question was adopted in the 1987
Constitution.
The provision is thus designed to ensure that any agreement allowing the presence of foreign
military bases, troops or facilities in Philippine territory shall be equally binding on the Philippines
and the foreign sovereign State involved. The idea is to prevent a recurrence of the situation in
which the terms and conditions governing the presence of foreign armed forces in our territory were
binding upon us but not upon the foreign State.

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

This Court finds that it is, for two reasons.

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

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

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

The RP-US Mutual Defense Treaty states:7

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

The Parties of this Treaty

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

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

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

Desiring further to strengthen their present efforts for collective defense for the preservation of peace
and security pending the development of a more comprehensive system of regional security in the
Pacific area.
Agreeing that nothing in this present instrument shall be considered or interpreted as in any way or
sense altering or diminishing any existing agreements or understandings between the Republic of
the Philippines and the United States of America.

Have agreed as follows:

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

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

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

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

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

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

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

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

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

In withness whereof the undersigned Plenipotentiaries have signed this Treaty.

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

For the Republic of the Philippines:

(Sgd.) Carlos P. Romulo

 (Sgd.) Joaquin M. Elizalde

(Sgd.) Vicente J. Francisco

(Sgd.) Diosdado Macapagal

For the United States of America:

(Sgd.) Dean Acheson

(Sgd.) John Foster Dulles

(Sgd.) Tom Connally

(Sgd.) Alexander Wiley8

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

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

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

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

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

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

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

Have agreed as follows:9

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

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the
presence of the US Armed Forces through the VFA is a presence "allowed under" the RP-US Mutual
Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and concurred in by
both the Philippine Senate and the US Senate, there is no violation of the Constitutional provision
resulting from such presence.

The VFA being a valid and binding agreement, the parties are required as a matter of international
law to abide by its terms and provisions.

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

Article V

Criminal Jurisdiction

xxx

6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction
shall immediately reside with United States military authorities, if they so request, from the
commission of the offense until completion of all judicial proceedings. United States military
authorities shall, upon formal notification by the Philippine authorities and without delay, make such
personnel available to those authorities in time for any investigative or judicial proceedings relating
to the offense with which the person has been charged. In extraordinary cases, the Philippine
Government shall present its position to the United States Government regarding custody, which the
United States Government shall take into full account. In the event Philippine judicial proceedings
are not completed within one year, the United States shall be relieved of any obligations under this
paragraph. The one year period will not include the time necessary to appeal. Also, the one year
period will not include any time during which scheduled trial procedures are delayed because United
States authorities, after timely notification by Philippine authorities to arrange for the presence of the
accused, fail to do so.

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

Again, this Court finds no violation of the Constitution.

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

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

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

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or
some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and members of the armed forces contingents of a foreign
State allowed to enter another State’s territory. On the contrary, the Constitution states that the
Philippines adopts the generally accepted principles of international law as part of the law of the
land. (Art. II, Sec. 2).

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

Article V

Criminal Jurisdiction

xxx

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

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

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

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

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

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

The parties, including the Solicitor General, are required to submit within three (3) days a
Comment/Manifestation on the following points:
 1. What is the implication on the RP-US Visiting Forces Agreement of the recent US
Supreme Court decision in Jose Ernesto Medellin v. Texas, dated March 25, 2008, to the
effect that treaty stipulations that are not self-executory can only be enforced pursuant to
legislation to carry them into effect; and that, while treaties may comprise international
commitments, they are not domestic law unless Congress has enacted implementing
statutes or the treaty itself conveys an intention that it be "self-executory" and is ratified on
these terms?

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

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

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

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

Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC Sec.
112(b), inasmuch as it is the very purpose and intent of the US Congress that executive agreements
registered under this Act within 60 days from their ratification be immediately implemented. The
parties to these present cases do not question the fact that the VFA has been registered under the
Case-Zablocki Act. 1avvphi1

In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the Avena
decision of the International Court of Justice (ICJ), subject matter of the Medellin decision. The
Convention and the ICJ decision are not self-executing and are not registrable under the Case-
Zablocki Act, and thus lack legislative implementing authority.

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

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

As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF INTERNATIONAL

CRIMINAL LAW IN NATIONAL COURTS, some countries require legislation whereas others do not.

It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25, to
require the other contracting State to convert their system to achieve alignment and parity with ours.
It was simply required that the treaty be recognized as a treaty by the other contracting State. With
that, it becomes for both parties a binding international obligation and the enforcement of that
obligation is left to the normal recourse and processes under international law.
Furthermore, as held by the US Supreme Court in Weinberger v. Rossi, 13 an executive agreement is
a "treaty" within the meaning of that word in international law and constitutes enforceable domestic
law vis-à-vis the United States. Thus, the US Supreme Court in Weinberger enforced the provisions
of the executive agreement granting preferential employment to Filipinos in the US Bases here.

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

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

2. Executive–Congressional Agreements: These are joint agreements of the President and

Congress and need not be submitted to the Senate.

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

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

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

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

No costs.

SO ORDERED.

G.R. No. 212426

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

G.R. No. 212444

BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS SECRETARY

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

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

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON, ELMER LABOG,

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

DECISION

SERENO, J.:

The petitions  before this Court question the constitutionality of the Enhanced Defense Cooperation
1

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.,  claiming that the instrument violated
2

multiple constitutional provisions.  In reply, respondents argue that petitioners lack standing to bring
3

the suit. To support the legality of their actions, respondents invoke the 1987 Constitution, treaties,
and judicial precedents.4

A proper analysis of the issues requires this Court to lay down at the outset the basic parameters of
the constitutional powers and roles of the President and the Senate in respect of the above issues. A
more detailed discussion of these powers and roles will be made in the latter portions.
I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE PRESIDENT: DEFENSE,
FOREIGN RELATIONS, AND EDCA

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

Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang buong katapatan at sigasig

ang aking mga tungkulin bilang Pangulo (o Pangalawang Pangulo o Nanunungkulang Pangulo) ng
Pilipinas, pangangalagaan at ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang mga batas
nito, magiging makatarungan sa bawat tao, at itatalaga ang aking sarili sa paglilingkod sa Bansa.
Kasihan nawa aka ng Diyos.

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

The 1987 Constitution has "vested the executive power in the President of the Republic of the
Philippines."  While the vastness of the executive power that has been consolidated in the person of
6

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.  (Emphases supplied)
7

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),  which is the protector of the people and the state. The AFP's role is to secure
9

the sovereignty of the State and the integrity of the national territory.  In addition, the Executive is
10

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  and, in the same vein,
12

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,  but not suspend the
14

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.  Since every state has the capacity to interact with and engage in relations with other
15

sovereign states,  it is but logical that every state must vest in an agent the authority to represent its
16

interests to those other sovereign states.

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

The role of the President in foreign affairs is qualified by the Constitution in that the Chief Executive
must give paramount importance to the sovereignty of the nation, the integrity of its territory, its
interest, and the right of the sovereign Filipino people to self-determination.  In specific provisions,
18

the President's power is also limited, or at least shared, as in Section 2 of Article II on the conduct of
war; Sections 20 and 21 of Article VII on foreign loans, treaties, and international agreements;
Sections 4(2) and 5(2)(a) of Article VIII on the judicial review of executive acts; Sections 4 and 25 of
Article XVIII on treaties and international agreements entered into prior to the Constitution and on
the presence of foreign military troops, bases, or facilities.

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

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

Previously, treaties under the 1973 Constitution required ratification by a majority of the Batasang
Pambansa,  except in instances wherein the President "may enter into international treaties or
19

agreements as the national welfare and interest may require."  This left a large margin of discretion
20

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.  The 1987 Constitution returned the
21

Senate's power  and, with it, the legislative's traditional role in foreign affairs.
22 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.  Spain relinquished its sovereignty
24

over the Philippine Islands in favor of the U.S. upon its formal surrender a few months later.  By 25

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.  The Filipinos were ultimately defeated in the Philippine-American War, which lasted until
27

1902 and led to the downfall of the first Philippine Republic.  The Americans henceforth began to
28

strengthen their foothold in the country.  They took over and expanded the former Spanish Naval
29

Base in Subic Bay, Zambales, and put up a cavalry post called Fort Stotsenberg in Pampanga, now
known as Clark Air Base. 30

When talks of the eventual independence of the Philippine Islands gained ground, the U.S.
manifested the desire to maintain military bases and armed forces in the country.  The U.S. 31

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.  The Philippine Legislature rejected that law, as it also gave the
32

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."  Furthermore, the law authorized the U.S. President to enter into negotiations for the
34

adjustment and settlement of all questions relating to naval reservations and fueling stations within
two years after the Philippines would have gained independence.  Under the Tydings-McDuffie Act,
35

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.  This law 36

eventually led to the promulgation of the 1935 Philippine Constitution.

The original plan to surrender the military bases changed.  At the height of the Second World War,
37

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.  Subsequently, in 1946, the countries entered into the Treaty of General
38

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.  This39

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.  The Senate
41
concurred on the premise of "mutuality of security interest,"  which provided for the presence and
42

operation of 23 U.S. military bases in the Philippines for 99 years or until the year 2046.  The treaty 43

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.  With respect to its duration, the
45

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.  Concerning the number of U.S. military bases in the
46

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.  Twelve years later, the U.S. 47

returned Sangley Point in Cavite City through an exchange of notes.  Then, through the Romulo- 48

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.  The agreement also provided for the mandatory review of the treaty every five years.  In
49 50

1983, the parties revised the 1947 MBA through the Romualdez-Armacost Agreement.  The revision 51

pertained to the operational use of the military bases by the U.S. government within the context of
Philippine sovereignty,  including the need for prior consultation with the Philippine government on
52

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,  the President also 54

entered into the 1947 Military Assistance Agreement  with the U.S. This executive agreement
55

established the conditions under which U.S. military assistance would be granted to the
Philippines,  particularly the provision of military arms, ammunitions, supplies, equipment, vessels,
56

services, and training for the latter's defense forces.  An exchange of notes in 1953 made it clear
57

that the agreement would remain in force until terminated by any of the parties. 58

To further strengthen their defense and security relationship,  the Philippines and the U.S. next
59

entered into the MDT in 1951. Concurred in by both the Philippine  and the U.S.  Senates, the treaty
60 61

has two main features: first, it allowed for mutual assistance in maintaining and developing their
individual and collective capacities to resist an armed attack;  and second, it provided for their
62

mutual self-defense in the event of an armed attack against the territory of either party.  The treaty 63

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.  Termed as the Treaty of 65

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.  One of the 66

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.  On 16 September 1991, the Senate
67

rejected the proposed treaty. 68

The consequent expiration of the 1947 MBA and the resulting paucity of any formal agreement
dealing with the treatment of U.S. personnel in the Philippines led to the suspension in 1995 of large-
scale joint military exercises.  In the meantime, the respective governments of the two countries
69

agreed  to hold joint exercises at a substantially reduced level.  The military arrangements between
70 71

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,"  the VFA has laid down the regulatory
73

mechanism for the treatment of U.S. military and civilian personnel visiting the country.  It contains
74

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.  The Philippines and the U.S. also entered into a second counterpart agreement (VFA II),
75

which in turn regulated the treatment of Philippine military and civilian personnel visiting the
U.S.  The Philippine Senate concurred in the first VFA on 27 May 1999.
76 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.  Called Balikatan, these exercises
78

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"  in 80

accordance with the MDT, the Military Assistance Agreement of 1953, and the VFA.  The new 81

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.  The phrase "logistics support and services" includes billeting, operations support,
82

construction and use of temporary structures, and storage services during an approved activity
under the existing military arrangements.  Already extended twice, the agreement will last until
83

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.  Accordingly, in June 2014, the Department of
85

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.  After eight rounds of negotiations,
87

the Secretary of National Defense and the U.S. Ambassador to the Philippines signed the
agreement on 28 April 2014.  President Benigno S. Aquino III ratified EDCA on 6 June 2014.  The
88 89

OSG clarified during the oral arguments  that the Philippine and the U.S. governments had yet to
90

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.  The 91

resolution expresses the "strong sense"  of the Senators that for EDCA to become valid and
92

effective, it must first be transmitted to the Senate for deliberation and concurrence.

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

A. Whether the essential requisites for judicial review are present

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

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

IV. DISCUSSION

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

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

Distinguished from the general notion of judicial power, the power of judicial review specially refers
to both the authority and the duty of this Court to determine whether a branch or an instrumentality of
government has acted beyond the scope of the latter's constitutional powers.  As articulated in
94

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.  In Angara v. Electoral Commission, this Court exhaustively discussed this "moderating
95

power" as part of the system of checks and balances under the Constitution. In our fundamental law,
the role of the Court is to determine whether a branch of government has adhered to the specific
restrictions and limitations of the latter's power:
96

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

xxxx

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

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

The power of judicial review has since been strengthened in the 1987 Constitution. The scope of that
power has been extended to the determination of whether in matters traditionally considered to be
within the sphere of appreciation of another branch of government, an exercise of discretion has
been attended with grave abuse.  The expansion of this power has made the political question
97

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.  Since the power of judicial review involves the delicate exercise of
99

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  and Francisco v. House of
101

Representatives  cite the "pillars" of the limitations on the power of judicial review as enunciated in
102

the concurring opinion of U.S. Supreme Court Justice Brandeis in Ashwander v. Tennessee Valley
Authority.  Francisco  redressed these "pillars" under the following categories:
103 104

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.  Guided by these pillars, it may invoke the power only when the following four stringent
105

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.  Of these four, the first two conditions will be the focus of
106

our discussion.

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

The OSG maintains  that there is no actual case or controversy that exists, since the Senators have
107

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.  Through the Resolution, the Senate has taken a position contrary to that of the OSG. As the
108

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.  The case must involve a definite and concrete issue involving
109

real parties with conflicting legal rights and legal claims admitting of specific relief through a decree
conclusive in nature.  It should not equate with a mere request for an opinion or advice on what the
110

law would be upon an abstract, hypothetical, or contingent state of facts.  As explained in Angara v.
111

Electoral Commission: 112

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

We find that the matter before us involves an actual case or controversy that is already ripe for
adjudication. The Executive Department has already sent an official confirmation to the U.S.
Embassy that "all internal requirements of the Philippines x x x have already been complied
with."  By this exchange of diplomatic notes, the Executive Department effectively performed the
113

last act required under Article XII(l) of EDCA before the agreement entered into force. Section 25,
Article XVIII of the Constitution, is clear that the presence of foreign military forces in the country
shall only be allowed by virtue of a treaty concurred in by the Senate. Hence, the performance of an
official act by the Executive Department that led to the entry into force of an executive agreement
was sufficient to satisfy the actual case or controversy requirement.

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

The question of locus standi or legal standing focuses on the determination of whether those
assailing the governmental act have the right of appearance to bring the matter to the court for
adjudication.  They must show that they have a personal and substantial interest in the case, such
114

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.  Here, "interest" in the
115

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.  Clearly, it would be insufficient to show
116

that the law or any governmental act is invalid, and that petitioners stand to suffer in some indefinite
way.  They must show that they have a particular interest in bringing the suit, and that they have
117

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.  The 118

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.  In arguing that they have legal standing, they claim  that the case they have filed is a
120 121

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  aver that the implementation of
122

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.  The OSG, on the other hand, maintains that petitioners cannot sue as
123

taxpayers.  Respondent explains that EDCA is neither meant to be a tax measure, nor is it directed
124

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.  Here, those challenging the act must
125

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.  Applying that principle to this case, they must establish that EDCA involves the exercise by
126

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.  A reading of Article X(l) of EDCA would show that there has been neither an
128

appropriation nor an authorization of disbursement of funds. The cited provision reads:

All obligations under this Agreement are subject to the availability of appropriated

funds authorized for these purposes. (Emphases supplied)

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

Petitioners Bayan et al. also claim  that their co-petitioners who are party-list representatives have
129

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  that petitioners do not have any legal standing to file the suits concerning the
130

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.  What is in question here is the alleged impairment
131

of the constitutional duties and powers granted to, or the impermissible intrusion upon the domain of,
the Legislature or an institution thereof.  In the case of suits initiated by the legislators themselves,
132

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.  As aptly
133

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.  Legislators have the
135

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."  As legislators, they must clearly show that there was a
136

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  argue that the Court may set aside procedural technicalities, as the present petition
138

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  that petitioners cannot raise the mere fact that the present
139

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,  this Court has indeed taken a liberal stance towards the requirement of legal
140

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

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

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

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.  By this division, the law implied that the divided powers cannot be exercised except by
143

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,  a position 145

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.  The oath of the President prescribed by the 1987 Constitution
146

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.)  (Emphases147

supplied)

This Court has interpreted the faithful execution clause as an obligation imposed on the President,
and not a separate grant of power.  Section 1 7, Article VII of the Constitution, expresses this duty in
148

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.  A similar language, not in the form of the President's oath, was present in the
149

1935 Constitution, particularly in the enumeration of executive functions.  By 1987, executive power
150

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;  the right to prosecute crimes;  the implementation of transportation
152 153

projects;  the duty to ensure compliance with treaties, executive agreements and executive
154

orders;  the authority to deport undesirable aliens;  the conferment of national awards under the
155 156

President's jurisdiction;  and the overall administration and control of the executive department.
157 158

These obligations are as broad as they sound, for a President cannot function with crippled hands,
but must be capable of securing the rule of law within all territories of the Philippine Islands and be
empowered to do so within constitutional limits. Congress cannot, for instance, limit or take over the
President's power to adopt implementing rules and regulations for a law it has enacted. 159

More important, this mandate is self-executory by virtue of its being inherently executive in
nature.  As Justice Antonio T. Carpio previously wrote,
160 161

[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."  Justice George Malcolm states this principle in a grand manner:
162 163

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

xxxx

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

In light of this constitutional duty, it is the President's prerogative to do whatever is legal and
necessary for Philippine defense interests. It is no coincidence that the constitutional provision on
the faithful execution clause was followed by that on the President's commander-in-chief
powers,  which are specifically granted during extraordinary events of lawless violence, invasion, or
164

rebellion. And this duty of defending the country is unceasing, even in times when there is no state
of lawlesss violence, invasion, or rebellion. At such times, the President has full powers to ensure
the faithful execution of the laws.

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

The context drawn in the analysis above has been termed by Justice Arturo D. Brion's Dissenting
Opinion as the beginning of a "patent misconception."  His dissent argues that this approach taken
165

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  was never
167

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.  The analysis itself
168

demonstrates how the foreign affairs function, while mostly the President's, is shared in several
instances, namely in Section 2 of Article II on the conduct of war; Sections 20 and 21 of Article VII on
foreign loans, treaties, and international agreements; Sections 4(2) and 5(2)(a) of Article VIII on the
judicial review of executive acts; Sections 4 and 25 of Article XVIII on treaties and international
agreements entered into prior to the Constitution and on the presence of foreign military troops,
bases, or facilities.

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

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

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

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

It is quite apparent that if, in the maintenance of our international relations,

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

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

. . . The conduct of foreign relations is full of complexities and consequences,

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

Understandably, this Court must view the instant case with the same perspective and understanding,
knowing full well the constitutional and legal repercussions of any judicial overreach.
2. The plain meaning of the Constitution prohibits the entry of foreign military bases, troops
or facilities, except by way of a treaty concurred in by the Senate - a clear limitation on the
President's dual role as defender of the State and as sole authority in foreign relations.

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

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

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

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

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

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

In view of this provision, petitioners argue  that EDCA must be in the form of a "treaty" duly
170

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  that EDCA must be submitted to the Senate in the form
171

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.  This follows a long line of similar decisions
172

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,  this Court
174

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.  It is presumed that the
175

provisions have been carefully crafted in order to express the objective it seeks to attain.  It is
176

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.  As 177

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.  (Emphases supplied)
178
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.  In Ang Bagong Bayani-OFW v. Commission
179

on Elections,  we reiterated this guiding principle:

180

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."  Black's Law Dictionary defines
181

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)."  That something is the Philippines, which is the noun that follows.
183

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.  (Emphasis supplied)
184

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

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.  It points out that
186

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.  It claims that the provision is
187

"neither plain, nor that simple."  To buttress its disagreement, the dissent states that the provision
188

refers to a historical incident, which is the expiration of the 1947 MBA.  Accordingly, this position
189

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.  (Emphases supplied)
190

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.  They felt constrained to agree to the
191

MBA in fulfilment of one of the major conditions for the country to gain independence from the
U.S.  As a result of that experience, a second layer of consent for agreements that allow military
192

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.  That power has been alluded to in our present and
193

past Constitutions,  in various statutes,  in Supreme Court decisions,  and during the deliberations
194 195 196

of the Constitutional Commission.  They cover a wide array of subjects with varying scopes and
197

purposes,  including those that involve the presence of foreign military forces in the country.
198 199

As the sole organ of our foreign relations  and the constitutionally assigned chief architect of our
200

foreign policy,  the President is vested with the exclusive power to conduct and manage the
201

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  is so well-entrenched that Section 5(2)(a), Article VIII of the
203

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."  In Bayan Muna v. Romulo, this Court further clarified that executive agreements can cover
204

a wide array of subjects that have various scopes and purposes.  They are no longer limited to the
205

traditional subjects that are usually covered by executive agreements as identified in Eastern Sea
Trading. The Court thoroughly discussed this matter in the following manner:

The categorization of subject matters that may be covered by international

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

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

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

One of the distinguishing features of executive agreements is that their validity and effectivity are not
affected by a lack of Senate concurrence.  This distinctive feature was recognized as early as
206

in Eastern Sea Trading (1961), viz:

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

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

xxxx

[T]he right of the Executive to enter into binding agreements without the necessity of

subsequent Congressional approval has been confirmed by long usage. From the earliest days
of our history we have entered into executive agreements covering such subjects as commercial and
consular relations, most-favored-nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of claims. The validity of these has never
been seriously questioned by our courts. (Emphases Supplied)

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

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

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

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

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

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

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

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

MS. AQUINO: It is my humble submission that we should provide, unless the Committee explains

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

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

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

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

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

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

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

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

MR. TINGSON: Madam President.

THE PRESIDENT: Is Commissioner Aquino satisfied?

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

xxx

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

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

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

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

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

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

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

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

xxx

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

FR. BERNAS: Yes. (Emphases Supplied)

The inapplicability to executive agreements of the requirements under Section 21 was again
recognized in Bayan v. Zamora and in Bayan Muna v. Romulo. These cases, both decided under
the aegis of the present Constitution, quoted Eastern Sea Trading in reiterating that executive
agreements are valid and binding even without the concurrence of the Senate.
Executive agreements may dispense with the requirement of Senate concurrence because of the
legal mandate with which they are concluded. As culled from the afore-quoted deliberations of the
Constitutional Commission, past Supreme Court Decisions, and works of noted scholars,  executive
208

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;  (2) pursuant to or upon
209

confirmation by an act of the Legislature;  or (3) in the exercise of the President's independent
210

powers under the Constitution.  The raison d'etre of executive agreements hinges

211

on prior constitutional or legislative authorizations.

The special nature of an executive agreement is not just a domestic variation in international
agreements. International practice has accepted the use of various forms and designations of
international agreements, ranging from the traditional notion of a treaty - which connotes a formal,
solemn instrument - to engagements concluded in modem, simplified forms that no longer
necessitate ratification.  An international agreement may take different forms: treaty, act, protocol,
212

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.  Consequently, under international law, the distinction between a treaty and an
213

international agreement or even an executive agreement is irrelevant for purposes of determining

international rights and obligations.

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

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

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  unlike executive agreements, which are
215

solely executive actions.  Because of legislative participation through the Senate, a treaty is
216

regarded as being on the same level as a statute.  If there is an irreconcilable conflict, a later law or
217

treaty takes precedence over one that is prior.  An executive agreement is treated differently.
218

Executive agreements that are inconsistent with either a law or a treaty are considered
ineffective.  Both types of international agreement are nevertheless subject to the supremacy of the
219

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

c. Executive agreements are generally intended to implement a treaty already

enforced or to determine the details of the implementation thereof that do not affect
the sovereignty of the State.
228

2. Treaties and international agreements that cannot be mere executive agreements must,
by constitutional decree, be concurred in by at least two-thirds of the Senate.
 3. However, an agreement - the subject of which is the entry of foreign military troops, bases,
or facilities - is particularly restricted. The requirements are that it be in the form of a treaty
concurred in by the Senate; that when Congress so requires, it be ratified by a majority of the
votes cast by the people in a national referendum held for that purpose; and that it be
recognized as a treaty by the other contracting State.

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

agreements.

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

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

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

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

xxxx

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

xxxx

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

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

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

v. Executive Secretary, cited earlier.

230

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

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

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

The practice of resorting to executive agreements in adjusting the details of a law or a treaty that
already deals with the presence of foreign military forces is not at all unusual in this jurisdiction. In
fact, the Court has already implicitly acknowledged this practice in Lim v. Executive Secretary.  In231

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,  the Court again impliedly affirmed the use of an executive agreement in an
232

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

Culling from the foregoing discussions, we reiterate the following pronouncements to guide us in
resolving the present controversy:
 1. Section 25, Article XVIII of the Constitution, contains stringent requirements that must be
fulfilled by the international agreement allowing the presence of foreign military bases,
troops, or facilities in the Philippines: (a) the agreement must be in the form of a treaty, and
(b) it must be duly concurred in by the Senate.

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

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

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

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

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

The starting point of our analysis is the rule that "an executive agreement xx x may not be used to
amend a treaty."  In Lim v. Executive Secretary and in Nicolas v. Romulo, the Court approached
234

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,"  i.e., the MDT and the
235

VFA. The Court proceeded to examine the extent of the term "activities" as contemplated in Articles
1  and II  of the VFA. It later on found that the term "activities" was deliberately left undefined and
236 237

ambiguous in order to permit "a wide scope of undertakings subject only to the approval of the
Philippine government"  and thereby allow the parties "a certain leeway in negotiation."  The Court
238 239

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.  It eventually240

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."  Pursuant to Article V(6) of the VFA, the custody of a U.S. military personnel resides
241

with U.S. military authorities during trial. Once there is a finding of guilt, Article V(l0) requires that the
confinement or detention be "by Philippine authorities."

Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially modifies or
amends the VFA"  and follows with an enumeration of the differences between EDCA and the VFA.
242
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.  Even the VFA allowed construction for the
243

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.  The dissent of Justice Teresita J. Leonardo-
245

De Castro also notes that VFA was intended for non-combat activides only, whereas the entry and
activities of U.S. forces into Agreed Locations were borne of military necessity or had a martial
character, and were therefore not contemplated by the VFA. 246

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

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

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

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

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

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

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

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

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

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

The OSG argues  that EDCA merely details existing policies under the MDT and the VFA. It
250

explains that EDCA articulates the principle of defensive preparation embodied in Article II of the

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

Petitioners contest  the assertion that the provisions of EDCA merely implement the MDT.
251

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

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

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

"United States personnel" means United States military and civilian personnel temporarily in

the territory of the Philippines in connection with activities approved by the Philippines, as those
terms are defined in the VFA. 252

"United States forces" means the entity comprising United States personnel and all property,

equipment, and materiel of the United States Armed Forces present in the territory of the
Philippines. 253

"United States contractors" means companies and firms, and their employees, under contract

or subcontract to or on behalf of the United States Department of Defense. United States
contractors are not included as part of the definition of United States personnel in this Agreement,
including within the context of the VFA. 254

United States forces may contract for any materiel, supplies, equipment, and

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

A thorough evaluation of how EDCA is phrased clarities that the agreement does not deal with
the entry into the country of U.S. personnel and contractors per se. While Articles I(l)(b)  and 256

II(4)  speak of "the right to access and use" the Agreed Locations, their wordings indicate the
257

presumption that these groups have already been allowed entry into Philippine territory, for which,
unlike the VFA, EDCA has no specific provision. Instead, Article II of the latter simply alludes to the
VFA in describing U.S. personnel, a term defined under Article I of the treaty as follows:

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

1. The term "military personnel" refers to military members of the United States

Army, Navy, Marine Corps, Air Force, and Coast Guard.

2. The term "civilian personnel" refers to individuals who are neither nationals of

nor ordinarily resident in the Philippines and who are employed by the United
States armed forces or who are accompanying the United States armed forces,
such as employees of the American Red Cross and the United Services
Organization. 258

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

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

personnel and their departure from the Philippines in connection with activities covered by
this agreement.
 2. United States military personnel shall be exempt from passport and visa regulations
upon entering and departing the Philippines.

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

4. United States civilian personnel shall be exempt from visa requirements but shall

present, upon demand, valid passports upon entry and departure of the Philippines.
(Emphases Supplied)

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

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

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

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

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

Consequently, it is neither mandatory nor obligatory on the part of the Philippines to admit U.S.
contractors into the country.  We emphasize that the admission of aliens into Philippine territory is
259

"a matter of pure permission and simple tolerance which creates no obligation on the part of the
government to permit them to stay."  Unlike U.S. personnel who are accorded entry
260

accommodations, U.S. contractors are subject to Philippine immigration laws.  The latter must
261

comply with our visa and passport regulations  and prove that they are not subject to exclusion
262

under any provision of Philippine immigration laws.  The President may also deny them entry
263

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  as may be necessitated by national security, public safety, public health, public morals,
265

and national interest.  They may also be deported if they are found to be illegal or undesirable
266

aliens pursuant to the Philippine Immigration Act  and the Data Privacy Act.  In contrast, Article
267 268

111(5) of the VFA requires a request for removal from the Philippine government before a member
of the U.S. personnel may be "dispos[ed] xx x outside of the Philippines."

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

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

MUTUAL DEFENSE TREATY

Article II

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

Article III

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

VISITING FORCES AGREEMENT

Preamble

xxx

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

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

Considering that cooperation between the United States and the Republic of the

Philippines promotes their common security interests;

xxx

Article I - Definitions

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

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

Article VII - Importation and Exportation

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

Article VIII - Movement of Vessels and Aircraft

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

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

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

By its very language, the MDT contemplates a situation in which both countries shall engage
in joint activities, so that they can maintain and develop their defense capabilities. The wording itself
evidently invites a reasonable construction that the joint activities shall involve joint military trainings,
maneuvers, and exercises. Both the interpretation  and the subsequent practice  of the parties
269 270

show that the MDT independently allows joint military exercises in the country. Lim v. Executive
Secretary  and Nicolas v. Romulo  recognized that Balikatan exercises, which are activities that
271 272

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."  In Lim, the Court especially
273

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.  These activities presumably
274

related to the Status of Forces Agreement, in which the parties agreed on the status to be accorded
to U.S. military and civilian personnel while conducting activities in the Philippines in relation to the
MDT. 275

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

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

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

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

The Court has already settled in Lim v. Executive Secretary that the phrase "activities approved by
the Philippine Government" under Article I of the VFA was intended to be ambiguous in order to
afford the parties flexibility to adjust the details of the purpose of the visit of U.S. personnel.  In
276

ruling that the Terms of Reference for the Balikatan Exercises in 2002 fell within the context of the
treaty, this Court explained:

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of

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

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

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

These joint exercises envisioned in the VFA are not limited to combat-related activities; they

have a wide range and variety. They include exercises that will reinforce the AFP's ability
to acquire new techniques of patrol and surveillance to protect the country's maritime
resources; sea-search and rescue operations to assist ships in distress; and disaster-relief
operations to aid the civilian victims of natural calamities, such as earthquakes, typhoons and tidal
waves.
xxxx

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

xxxx

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

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

EDCA seeks to be an instrument that enumerates the Philippine-approved activities of U.S.

personnel referred to in the VFA. EDCA allows U.S. military and civilian personnel to perform
"activities approved by the Philippines, as those terms are defined in the VFA"  and clarifies that
278

these activities include those conducted within the Agreed Locations:

1. Security cooperation exercises; joint and combined training activities; humanitarian assistance
and disaster relief activities; and such other activities as may be agreed upon by the Parties279

2. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels;
temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel;
communications; prepositioning of equipment, supplies, and materiel; deployment of forces and
materiel; and such other activities as the Parties may 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 apfropriate measures to protect U.S. forces
and contractors 282

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

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

We note that these planned activities are very similar to those under the Terms of
Reference  mentioned in Lim. Both EDCA and the Terms of Reference authorize the U.S. to
285

perform the following: (a) participate in training exercises; (b) retain command over their forces; (c)
establish temporary structures in the country; (d) share in the use of their respective resources,
equipment and other assets; and (e) exercise their right to self-defense. We quote the relevant
portion of the Terms and Conditions as follows: 286

I. POLICY LEVEL

xxxx

No permanent US basing and support facilities shall be established. Temporary structures such as

those for troop billeting, classroom instruction and messing may be set up for use by RP and
US Forces during the Exercise.

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

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

The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to

Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further advising,
assisting and training exercises shall be conducted in Malagutay and the Zamboanga area. Related
activities in Cebu will be for support of the Exercise.

xx xx.

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

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

II. EXERCISE LEVEL

1. TRAINING

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

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

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

2. ADMINISTRATION & LOGISTICS

xxxx

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

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

Petitioners assert  that the duration of the activities mentioned in EDCA is no longer consistent with
287

the temporary nature of the visits as contemplated in the VFA. They point out that Article XII(4) of
EDCA has an initial term of 10 years, a term automatically renewed unless the Philippines or the
U.S. terminates the agreement. According to petitioners, such length of time already has a badge of
permanency.

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

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

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

Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more permanent" in
nature.  However, this argument has not taken root by virtue of a simple glance at its provisions on
289

the effectivity period. EDCA does not grant permanent bases, but rather temporary rotational access
to facilities for efficiency. As Professor Aileen S.P. Baviera notes:

The new EDCA would grant American troops, ships and planes rotational access to facilities of the
Armed Forces of the Philippines – but not permanent bases which are prohibited under the
Philippine Constitution - with the result of reducing response time should an external threat from a
common adversary crystallize. 290
EDCA is far from being permanent in nature compared to the practice of states as shown in other
defense cooperation agreements. For example, Article XIV(l) of the U.S.-Romania defense
agreement provides the following:

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

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

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

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

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

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

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

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

The reasoning behind this interpretation is rooted in the constitutional role of the President who, as
Commander-in-Chief of our armed forces, is the principal strategist of the nation and, as such, duty-
bound to defend our national sovereignty and territorial integrity;  who, as chief architect of our
291

foreign relations, is the head policymaker tasked to assess, ensure, and protect our national security
and interests;  who holds the most comprehensive and most confidential information about foreign
292

countries  that may affect how we conduct our external affairs; and who has unrestricted access to
293

highly classified military intelligence data  that may threaten the life of the nation. Thus, if after a
294

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.  That purpose must be
295

analyzed on a case-by-case basis depending on the factual circumstances surrounding the

conclusion of the implementing agreement. While the validity of the President's actions will be
judged under less stringent standards, the power of this Court to determine whether there was grave
abuse of discretion remains unimpaired.

d. Authorized activities performed by US. contractors within Philippine territory - who were

legitimately permitted to enter the country independent of EDCA - are subject to relevant Philippine
statutes and regulations and must be consistent with the MDT and the VFA

Petitioners also raise  concerns about the U.S. government's purported practice of hiring private
296

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  and carrying, owning, and possessing firearms  are illegal for foreign
300 301

civilians.

The laws in place already address issues regarding the regulation of contractors. In the 2015
Foreign Investment Negative list,  the Executive Department has already identified corporations that
302

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;  and 303

No. 15, which regulates contracts for the construction of defense-related structures based on
Commonwealth Act No. 541.
Hence, any other entity brought into the Philippines by virtue of EDCA must subscribe to corporate
and civil requirements imposed by the law, depending on the entity's corporate structure and the
nature of its business.

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

For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of spilling fuel in the
waters off Manila Bay.  The Senate Committee on Foreign Relations and the Senate Committee on
304

Environment and Natural Resources chairperson claimed environmental and procedural violations
by the contractor.  The U.S. Navy investigated the contractor and promised stricter guidelines to be
305

imposed upon its contractors.  The statement attributed to Commander Ron Steiner of the public
306

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."  What is more, we cannot move one step ahead and speculate that the alleged illegal
308

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,  labor
309

laws,  and immigrations laws  apply to them and therefore limit their activities here. Until and
310 311

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. "  Alluding to the definition of this term in Article
312

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

a. Preliminary point on badges of exclusivity

As a preliminary observation, petitioners have cherry-picked provisions of EDCA by presenting so-

called "badges of exclusivity," despite the presence of contrary provisions within the text of the
agreement itself.

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

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

The context of use is "required by United States forces for activities under this Agreement."
Therefore, the return of an Agreed Location would be within the parameters of an activity that the
Mutual Defense Board (MDB) and the Security Engagement Board (SEB) would authorize. Thus,
possession by the U.S. prior to its return of the Agreed Location would be based on the authority
given to it by a joint body co-chaired by the "AFP Chief of Staff and Commander, U.S. PACOM with
representatives from the Philippines' Department of National Defense and Department of Foreign
Affairs sitting as members."  The terms shall be negotiated by both the Philippines and the U.S., or
313

through their Designated Authorities. This provision, seen as a whole, contradicts petitioners'
interpretation of the return as a "badge of exclusivity." In fact, it shows the cooperation and
partnership aspect of EDCA in full bloom.

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

At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the authority to bring
in these equipment, supplies, and materiel through the MDB and SEB security mechanism. These
items are owned by the U.S.,  are exclusively for the use of the U.S.  and, after going through the
314 315

joint consent mechanisms of the MDB and the SEB, are within the control of the U.S.  More 316

importantly, before these items are considered prepositioned, they must have gone through the
process of prior authorization by the MDB and the SEB and given proper notification to the AFP. 317

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

Petitioners also point out  that EDCA is strongly reminiscent of and in fact bears a one-to-one
319

correspondence with the provisions of the 1947 MBA. They assert that both agreements (a) allow
similar activities within the area; (b) provide for the same "species of ownership" over facilities; and
(c) grant operational control over the entire area. Finally, they argue  that EDCA is in fact an
320

implementation of the new defense policy of the U.S. According to them, this policy was not what
was originally intended either by the MDT or by the VFA.

On these points, the Court is not persuaded.

The similar activities cited by petitioners  simply show that under the MBA, the U.S. had the right to
321

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

The "species of ownership" on the other hand, is distinguished by the nature of the property. For
immovable property constructed or developed by the U.S., EDCA expresses that ownership will
automatically be vested to the Philippines.  On the other hand, for movable properties brought into
323

the Philippines by the U.S., EDCA provides that ownership is retained by the latter. In contrast, the
MBA dictates that the U.S. retains ownership over immovable and movable properties.

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

The parallelism, however, ends when the situation involves facilities that can be considered
immovable. Under the MBA, the U.S. retains ownership if it paid for the facility.  Under EDCA, an
325

immovable is owned by the Philippines, even if built completely on the back of U.S. funding.  This is
326

consistent with the constitutional prohibition on foreign land ownership. 327

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

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

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

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

1947 MBA/ 1946 Treaty of General EDCA

Relations

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

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

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

Second, in the bases agreement, the U.S. and the Philippines were visibly not on equal footing
when it came to deciding whether to expand or to increase the number of bases, as the Philippines
may be compelled to negotiate with the U.S. the moment the latter requested an expansion of the
existing bases or to acquire additional bases. In EDCA, U.S. access is purely at the invitation of the
Philippines.

1947 MBA/ 1946 Treaty of General EDCA

Relations

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

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

negotiations with the United States at the and use of facilities and areas will be at the
latter's request, to permit the United invitation of the Philippines and with full
States to expand such bases, to exchange respect for the Philippine Constitution and
such bases for other bases, to acquire Philippine laws;
additional bases, or relinquish rights to
bases, as any of such exigencies may be xxxx
required by military necessity.
EDCA. Art. II(4):
1946 Treaty of Gen. Relations, Art. I:
"Agreed Locations" means facilities and
The United States of America agrees to areas that are provided by the Government
withdraw and surrender, and does hereby of the Philippines through the AFP and that
withdraw and surrender, all rights of United States forces, United States
possession, supervision, jurisdiction, contractors, and others as mutually agreed,
control or sovereignty existing and shall have the right to access and use
exercised by the United States of America in pursuant to this Agreement. Such Agreed
and over the territory and the people of the Locations may be listed in an annex to be
Philippine Islands, except the use of such appended to this Agreement, and may be
bases, necessary appurtenances to such further described in implementing
bases, and the rights incident thereto, as the arrangements.
United States of America, by agreement
with the Republic of the Philippines may
deem necessary to retain for the mutual
protection of the Republic of the Philippines
and of the United States of America. x x x.

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

1947 MBA EDCA

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

The Philippine Designated Authority and its

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

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

1947 MBA EDCA

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

The Philippines agrees to permit the United
States, upon notice to the Philippines, to use
such of those bases listed in Annex B as the
United States determines to be required by
military necessity.
1947 MBA, Art. III(1):
It is mutually agreed that the United
States shall have the rights, power and
authority within the bases which
are necessary for the establishment, use,
operation and defense thereof or
appropriate for the control thereof and all
the rights, power and authority within the
limits of territorial waters and air space
adjacent to, or in the vicinity of, the bases
which are necessary to provide access to
them, or appropriate for their control.
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.

Fifth, the U.S. under the bases agreement was given the authority to use Philippine territory for
additional staging areas, bombing and gunnery ranges. No such right is given under EDCA, as seen
below:
 1947 MBA EDCA

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

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

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

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

1947 MBA EDCA

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

Such rights, power and authority shall

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

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

1947 MBA EDCA

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

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

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

1947 MBA EDCA

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

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

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

1947 MBA EDCA

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

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

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

1947 MBA EDCA

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

Whenever it is necessary to acquire by

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

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

1947 MBA EDCA

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

It is mutually agreed that the United States 1. "United States personnel" means United

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

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

1947 MBA EDCA

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

The Philippines consents that the United

States shall have the right to exercise

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

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

1947 MBA EDCA

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

It is mutually agreed that the United States

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

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

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

c. The meaning of military facilities and bases

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

Prior to the drafting of the 1987 Constitution, the last definition of "military base" was provided under
Presidential Decree No. (PD) 1227.  Unlawful entry into a military base is punishable under the
328

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 194 7 Military
Bases Agreement between the Philippines and the United States of America, as amended. 330

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

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

successor treaty of the 1947 MBA that would have allowed the continuation of U.S. bases in the
Philippines.

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

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

By definition, Agreed Locations are

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

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

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

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

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

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

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

SPEECH OF COMMISSIONER REGALADO 334

xxxx

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

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

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

xxxx

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

xxxx

SPEECH OF COMMISSIONER 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 selfrespect as a nation;

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

nuclear attacks;

5. That these foreign military bases create social problems and are designed to perpetuate
the strangle-hold of United States interests in our national economy and development;
 6. That the extraterritorial rights enjoyed by these foreign bases operate to deprive our
country of jurisdiction over civil and criminal offenses committed within our own national
territory and against Filipinos;

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

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

xxxx

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

xxxx

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

SPEECH OF COMMISSIONER BENNAGEN 340

xxxx

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

SPEECH OF COMMISSIONER BACANI 342

xxxx

x x x Hence, the remedy to prostitution does not seem to be primarily to remove the

bases because even if the bases are removed, the girls mired in poverty will look for their clientele
elsewhere. The remedy to the problem of prostitution lies primarily elsewhere - in an alert and
concerned citizenry, a healthy economy and a sound education in values. 343

SPEECH OF COMMISSIONER JAMIR 344

xxxx

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

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

SPEECH OF COMMISSIONER TINGSON 346

xxxx

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

xxxx

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

SPEECH OF COMMISSIONER ALONTO 349

xxxx

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

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

SPEECH OF COMMISSIONER GASCON 351

xxxx

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

xxxx

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

xxxx

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

xxxx

SPEECH OF COMMISSIONER TADEO 354

Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases? Para sa magbubukid, ang

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

SPEECH OF COMMISSIONER QUESADA 356

xxxx

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

xxxx

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

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

xxxx

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

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

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

Third, the continued exercise by the United States of extraterritoriality despite the

condemnations of such practice by the world community of nations in the light of overwhelming
international approval of eradicating all vestiges of colonialism. 358

xxxx

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

xxxx

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

xxxx

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

SPEECH OF COMMISSIONER P ADILLA 360

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

REBUTTAL OF COMMISSIONER NOLLEDO 362

xxxx

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

xxxx

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

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.  It is public if "intended for public use, such as roads,
365

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

Quite clearly, the Agreed Locations are contained within a property for public use, be it within a
government military camp or property that belongs to the Philippines. 1avvphi1

Once ownership is established, then the rights of ownership flow freely. Article 428 of the Civil Code
provides that "[t]he owner has the right to enjoy and dispose of a thing, without other limitations than
those established by law." Moreover, the owner "has also a right of action against the holder and
possessor of the thing in order to recover it."
Philippine civil law therefore accords very strong rights to the owner of property, even against those
who hold the property. Possession, after all, merely raises a disputable presumption of ownership,
which can be contested through normal judicial processes. 367

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

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.  The activities carried
371

out within these locations are subject to agreement as authorized by the Philippine
govemment.  Granting the U.S. operational control over these locations is likewise subject to EDCA'
372

s security mechanisms, which are bilateral procedures involving Philippine consent and
cooperation.  Finally, the Philippine Designated Authority or a duly designated representative is
373

given access to the Agreed Locations. 374

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

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.  (Emphases supplied)
376

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

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

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

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

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

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

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-
1âwphi1

governance and self-control.  Independence itself is "[t]he state or condition of being free from
379

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.  Petitioners contend that the word "their"
382

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.  Similarly, a municipal mayor exercises operational control over the police within the
385

municipal government,  just as city mayor possesses the same power over the police within the city
386

government. 387

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

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

For actual operations, EDCA is clear that any activity must be planned and pre-approved by the
MDB-SEB.  This provision evinces the partnership aspect of EDCA, such that both stakeholders
388

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.  They claim that if the Philippines exercises possession of and control over a given area,
389

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.  In their Memorandum, they distinguish effective command
391

and control from operational control in U.S. parlance.  Citing the Doctrine for the Armed Forces of
392

the United States, Joint Publication 1, "command and control (C2)" is defined as "the exercise of
authority and direction by a properly designated commander over assigned and attached forces in
the accomplishment of the mission x x x."  Operational control, on the other hand, refers to "[t]hose
393

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.  Treaties are in themselves contracts from which rights and obligations may be
395

claimed or waived.  In this particular case, the Philippines has already agreed to abide by the
396

security mechanisms that have long been in place between the U.S. and the Philippines based on
the implementation of their treaty relations.397

Secondly, the full document cited by petitioners contradicts the equation of "operational control" with
"effective command and control," since it defines the terms quite differently, viz:
398

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

Operational control is defined thus: 399

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

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

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

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

As petitioners assert, EDCA indeed contains a specific provision that gives to the U.S. operational
control within the Agreed Locations during construction activities.  This exercise of operational
401

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.  Following this construction, since EDCA
403

mentions the existence of U.S. operational control over the Agreed Locations for construction
activities, then it is quite logical to conclude that it is not exercised over other activities.

Limited control does not violate the Constitution. The fear of the commissioners was total control, to
the point that the foreign military forces might dictate the terms of their acts within the
Philippines.  More important, limited control does not mean an abdication or derogation of Philippine
404

sovereignty and legal jurisdiction over the Agreed Locations. It is more akin to the extension of
diplomatic courtesies and rights to diplomatic agents,  which is a waiver of control on a limited scale
405

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,  while jurisdiction is the conferment by law of
406

power and authority to apply the law.  Article I of the 1987 Constitution states:
407

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.  By withholding ownership of these areas and retaining unrestricted
408

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.  Hence, Philippine law remains in force therein, and it cannot be said that jurisdiction has
410
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.  The difference between then and now is that EDCA retains
412

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.  While
415

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.  More 416

important, they claim that the Agreed Locations invite instances of attack on the Philippines from
enemies of the U.S. 417

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

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

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.  Under this
419

legal regime, participants to an armed conflict are held to specific standards of conduct that require
them to distinguish between combatants and non-combatants,  as embodied by the Geneva 420

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."  In strategic literature, "base" is defined as an installation
422

"over which the user State has a right to exclusive control in an extraterritorial sense."  Since this
423

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.  Another example given is an advanced communications technology installation for
424

purposes of information gathering and communication.  Unsurprisingly, he deems these non-

425

combat uses as borderline situations that would be excluded from the functional understanding of
military bases and installations.426

By virtue of this ambiguity, the laws of war dictate that the status of a building or person is presumed
to be protected, unless proven otherwise.  Moreover, the principle of distinction requires combatants
427

in an armed conflict to distinguish between lawful targets  and protected targets.  In an actual
428 429

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.  That 437

access is without rental or similar costs to the U.S.  Further, U.S. forces are allowed to undertake
438

construction activities in, and make alterations and improvements to, the agreed locations, facilities,
or areas.  As in EDCA, the host states retain ownership and jurisdiction over the said bases.
439 440

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

Troop billeting, including construction of temporary structures, is nothing new. In Lim v. Executive
Secretary, the Court already upheld the Terms of Reference of Balikatan 02-1, which authorized
U.S. forces to set up "[t]emporary structures such as those for troop billeting, classroom instruction
and messing x x x during the Exercise." Similar provisions are also in the Mutual Logistics Support
Agreement of 2002 and 2007, which are essentially executive agreements that implement the VFA,
the MDT, and the 1953 Military Assistance Agreement. These executive agreements similarly tackle
the "reciprocal provision of logistic support, supplies, and services,"  which include "[b ]illeting, x x x
442

operations support (and construction and use of temporary structures incident to operations
support), training services, x x x storage services, x x x during an approved activity."  These logistic
443

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."  The first Mutual Logistics Support Agreement has lapsed, while the second one
444

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.  EDCA is clear that the Philippines
445

retains ownership of altered or improved facilities and newly constructed permanent or non-
relocatable structures.  Under EDCA, U.S. forces will also be allowed to use facilities and areas for
446

"training; x x x; support and related activities; x x x; temporary accommodation of personnel;

communications" and agreed activities. 447

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

There is nothing novel, either, in the EDCA provision on the prepositioning and storing of "defense
equipment, supplies, and materiel,"  since these are sanctioned in the VFA. In fact, the two
448

countries have already entered into various implementing agreements in the past that are
comparable to the present one. The Balikatan 02-1 Terms of Reference mentioned in Lim v.
Executive Secretary specifically recognizes that Philippine and U.S. forces "may share x x x in the
use of their resources, equipment and other assets." Both the 2002 and 2007 Mutual Logistics
Support Agreements speak of the provision of support and services, including the "construction and
use of temporary structures incident to operations support" and "storage services" during approved
activities.  These logistic supplies, support, and services include the "temporary use of x x x
449

nonlethal items of military equipment which are not designated as significant military equipment on
the U.S. Munitions List, during an approved activity."  Those activities include "combined exercises
450

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.  Under EDCA, the equipment, supplies, and materiel that will be
451

prepositioned at Agreed Locations include "humanitarian assistance and disaster relief equipment,
supplies, and materiel. "  Nuclear weapons are specifically excluded from the materiel that will be
452

prepositioned.

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

8. Others issues and concerns raised

A point was raised during the oral arguments that the language of the MDT only refers to mutual
help and defense in the Pacific area.  We believe that any discussion of the activities to be
453

undertaken under EDCA vis-a-vis the defense of areas beyond the Pacific is premature. We note
that a proper petition on that issue must be filed before we rule thereon. We also note that none of
the petitions or memoranda has attempted to discuss this issue, except only to theorize that the U.S.
will not come to our aid in the event of an attack outside of the Pacific. This is a matter of policy and
is beyond the scope of this judicial review.

In reference to the issue on telecommunications, suffice it to say that the initial impression of the
facility adverted to does appear to be one of those that require a public franchise by way of
congressional action under Section 11, Article XII of the Constitution. As respondents submit,
however, the system referred to in the agreement does not provide telecommunications services to
the public for compensation.  It is clear from Article VIl(2) of EDCA that the telecommunication
454

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.  Petitioners argue that only prepositioned nuclear weapons are
455

prohibited by EDCA; and that, therefore, the U.S. would insidiously bring nuclear weapons to
Philippine territory.  The general prohibition on nuclear weapons, whether prepositioned or not, is
456

already expressed in the 1987 Constitution.  It would be unnecessary or superfluous to include all
457

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.  This provision creates a situation in which a contracting
458

party assumes the tax liability of the other.  In National Power Corporation v. Province of
459
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.  This rule applies to EDCA,
460

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.  Hence, the provision on the assumption of tax liability does not
461

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;  initiated arbitration against that country
462

under the United Nations Convention on the Law of the Sea;  is in the process of negotiations with
463

the Moro Islamic Liberation Front for peace in Southern Philippines,  which is the subject of a
464

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.  The Philippine military is
465

conducting reforms that seek to ensure the security and safety of the nation in the years to
come.  In the future, the Philippines must navigate a world in which armed forces fight with
466

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.  This necessitated a massive rehabilitation project.  In the
467 468

aftermath, the U.S. military was among the first to extend help and support to the Philippines.

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

In order to keep the peace in its archipelago in this region of the world, and to sustain itself at the
same time against the destructive forces of nature, the Philippines will need friends. Who they are,
and what form the friendships will take, are for the President to decide. The only restriction is what
the Constitution itself expressly prohibits. It appears that this overarching concern for balancing
constitutional requirements against the dictates of necessity was what led to EDCA.
As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains consistent with
existing laws and treaties that it purports to implement.

WHEREFORE, we hereby DISMISS the petitions.

SO ORDERED.

G.R. No. 212426

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

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

G.R. No. 212444

BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS SECRETARY

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

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

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON, ELMER LABOG,

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

DECISION

SERENO, J.:

The petitions  before this Court question the constitutionality of the Enhanced Defense Cooperation
1

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.,  claiming that the instrument violated
2

multiple constitutional provisions.  In reply, respondents argue that petitioners lack standing to bring
3

the suit. To support the legality of their actions, respondents invoke the 1987 Constitution, treaties,
and judicial precedents. 4

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

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

FOREIGN RELATIONS, AND EDCA

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

Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang buong katapatan at sigasig

ang aking mga tungkulin bilang Pangulo (o Pangalawang Pangulo o Nanunungkulang Pangulo) ng
Pilipinas, pangangalagaan at ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang mga batas
nito, magiging makatarungan sa bawat tao, at itatalaga ang aking sarili sa paglilingkod sa Bansa.
Kasihan nawa aka ng Diyos.

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

The 1987 Constitution has "vested the executive power in the President of the Republic of the
Philippines."  While the vastness of the executive power that has been consolidated in the person of
6

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.  (Emphases supplied)
7

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),  which is the protector of the people and the state. The AFP's role is to secure
9

the sovereignty of the State and the integrity of the national territory.  In addition, the Executive is
10

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  and, in the same vein,
12

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,  but not suspend the
14

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.  Since every state has the capacity to interact with and engage in relations with other
15

sovereign states,  it is but logical that every state must vest in an agent the authority to represent its
16

interests to those other sovereign states.

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

The role of the President in foreign affairs is qualified by the Constitution in that the Chief Executive
must give paramount importance to the sovereignty of the nation, the integrity of its territory, its
interest, and the right of the sovereign Filipino people to self-determination.  In specific provisions,
18

the President's power is also limited, or at least shared, as in Section 2 of Article II on the conduct of
war; Sections 20 and 21 of Article VII on foreign loans, treaties, and international agreements;
Sections 4(2) and 5(2)(a) of Article VIII on the judicial review of executive acts; Sections 4 and 25 of
Article XVIII on treaties and international agreements entered into prior to the Constitution and on
the presence of foreign military troops, bases, or facilities.
D. The relationship between the two major presidential functions and the role of the Senate

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

Previously, treaties under the 1973 Constitution required ratification by a majority of the Batasang
Pambansa,  except in instances wherein the President "may enter into international treaties or
19

agreements as the national welfare and interest may require."  This left a large margin of discretion
20

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.  The 1987 Constitution returned the
21

Senate's power  and, with it, the legislative's traditional role in foreign affairs.
22 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.  Spain relinquished its sovereignty
24

over the Philippine Islands in favor of the U.S. upon its formal surrender a few months later.  By25

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.  The Filipinos were ultimately defeated in the Philippine-American War, which lasted until
27

1902 and led to the downfall of the first Philippine Republic.  The Americans henceforth began to
28

strengthen their foothold in the country.  They took over and expanded the former Spanish Naval
29

Base in Subic Bay, Zambales, and put up a cavalry post called Fort Stotsenberg in Pampanga, now
known as Clark Air Base. 30

When talks of the eventual independence of the Philippine Islands gained ground, the U.S.
manifested the desire to maintain military bases and armed forces in the country.  The U.S.31

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.  The Philippine Legislature rejected that law, as it also gave the
32

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."  Furthermore, the law authorized the U.S. President to enter into negotiations for the
34
adjustment and settlement of all questions relating to naval reservations and fueling stations within
two years after the Philippines would have gained independence.  Under the Tydings-McDuffie Act,
35

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.  This law 36

eventually led to the promulgation of the 1935 Philippine Constitution.

The original plan to surrender the military bases changed.  At the height of the Second World War,
37

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.  Subsequently, in 1946, the countries entered into the Treaty of General
38

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.  This 39

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.  The Senate 41

concurred on the premise of "mutuality of security interest,"  which provided for the presence and
42

operation of 23 U.S. military bases in the Philippines for 99 years or until the year 2046.  The treaty 43

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.  With respect to its duration, the
45

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.  Concerning the number of U.S. military bases in the
46

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.  Twelve years later, the U.S.
47

returned Sangley Point in Cavite City through an exchange of notes.  Then, through the Romulo- 48

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.  The agreement also provided for the mandatory review of the treaty every five years.  In
49 50

1983, the parties revised the 1947 MBA through the Romualdez-Armacost Agreement.  The revision 51

pertained to the operational use of the military bases by the U.S. government within the context of
Philippine sovereignty,  including the need for prior consultation with the Philippine government on
52

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,  the President also 54

entered into the 1947 Military Assistance Agreement  with the U.S. This executive agreement
55

established the conditions under which U.S. military assistance would be granted to the
Philippines,  particularly the provision of military arms, ammunitions, supplies, equipment, vessels,
56

services, and training for the latter's defense forces.  An exchange of notes in 1953 made it clear
57

that the agreement would remain in force until terminated by any of the parties. 58

To further strengthen their defense and security relationship,  the Philippines and the U.S. next
59

entered into the MDT in 1951. Concurred in by both the Philippine  and the U.S.  Senates, the treaty
60 61

has two main features: first, it allowed for mutual assistance in maintaining and developing their
individual and collective capacities to resist an armed attack;  and second, it provided for their
62
mutual self-defense in the event of an armed attack against the territory of either party.  The treaty
63

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.  Termed as the Treaty of
65

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.  One of the
66

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.  On 16 September 1991, the Senate
67

rejected the proposed treaty. 68

The consequent expiration of the 1947 MBA and the resulting paucity of any formal agreement
dealing with the treatment of U.S. personnel in the Philippines led to the suspension in 1995 of large-
scale joint military exercises.  In the meantime, the respective governments of the two countries
69

agreed  to hold joint exercises at a substantially reduced level.  The military arrangements between
70 71

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,"  the VFA has laid down the regulatory
73

mechanism for the treatment of U.S. military and civilian personnel visiting the country.  It contains
74

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.  The Philippines and the U.S. also entered into a second counterpart agreement (VFA II),
75

which in turn regulated the treatment of Philippine military and civilian personnel visiting the
U.S.  The Philippine Senate concurred in the first VFA on 27 May 1999.
76 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.  Called Balikatan, these exercises
78

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"  in 80

accordance with the MDT, the Military Assistance Agreement of 1953, and the VFA.  The new 81

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.  The phrase "logistics support and services" includes billeting, operations support,
82

construction and use of temporary structures, and storage services during an approved activity
under the existing military arrangements.  Already extended twice, the agreement will last until
83

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.  Accordingly, in June 2014, the Department of
85

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.  After eight rounds of negotiations,
87

the Secretary of National Defense and the U.S. Ambassador to the Philippines signed the
agreement on 28 April 2014.  President Benigno S. Aquino III ratified EDCA on 6 June 2014.  The
88 89

OSG clarified during the oral arguments  that the Philippine and the U.S. governments had yet to
90

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.  The 91

resolution expresses the "strong sense"  of the Senators that for EDCA to become valid and
92

effective, it must first be transmitted to the Senate for deliberation and concurrence.

III. ISSUES

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

A. Whether the essential requisites for judicial review are present

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

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

IV. DISCUSSION

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

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

Distinguished from the general notion of judicial power, the power of judicial review specially refers
to both the authority and the duty of this Court to determine whether a branch or an instrumentality of
government has acted beyond the scope of the latter's constitutional powers.  As articulated in
94

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.  In Angara v. Electoral Commission, this Court exhaustively discussed this "moderating
95

power" as part of the system of checks and balances under the Constitution. In our fundamental law,
the role of the Court is to determine whether a branch of government has adhered to the specific
restrictions and limitations of the latter's power: 96
The separation of powers is a fundamental principle in our system of government. It obtains not
through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme
within its own sphere. But it does not follow from the fact that the three powers are to be kept
separate and distinct that the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an elaborate system of checks
and balances to secure coordination in the workings of the various departments of the government.
x x x. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the
other departments in the exercise of its power to determine the law, and hence to declare
executive and legislative acts void if violative of the Constitution.

xxxx

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

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

The power of judicial review has since been strengthened in the 1987 Constitution. The scope of that
power has been extended to the determination of whether in matters traditionally considered to be
within the sphere of appreciation of another branch of government, an exercise of discretion has
been attended with grave abuse.  The expansion of this power has made the political question
97

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.  Since the power of judicial review involves the delicate exercise of
99

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  and Francisco v. House of
101

Representatives  cite the "pillars" of the limitations on the power of judicial review as enunciated in
102

the concurring opinion of U.S. Supreme Court Justice Brandeis in Ashwander v. Tennessee Valley
Authority.  Francisco  redressed these "pillars" under the following categories:
103 104

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.  Guided by these pillars, it may invoke the power only when the following four stringent
105

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.  Of these four, the first two conditions will be the focus of
106

our discussion.

1. Petitioners have shown the presence of an actual case or controversy.

The OSG maintains  that there is no actual case or controversy that exists, since the Senators have
107

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.  Through the Resolution, the Senate has taken a position contrary to that of the OSG. As the
108

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.  The case must involve a definite and concrete issue involving
109

real parties with conflicting legal rights and legal claims admitting of specific relief through a decree
conclusive in nature.  It should not equate with a mere request for an opinion or advice on what the
110

law would be upon an abstract, hypothetical, or contingent state of facts.  As explained in Angara v.
111

Electoral Commission: 112

[The] power of judicial review is limited to actual cases and controversies to be exercised after
full opportunity of argument by the parties, and limited further to the constitutional question
raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics
and barren legal questions and to sterile conclusions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and controversies must reflect the
wisdom and justice of the people as expressed through their representatives in the executive
and legislative departments of the government. (Emphases supplied)

We find that the matter before us involves an actual case or controversy that is already ripe for
adjudication. The Executive Department has already sent an official confirmation to the U.S.
Embassy that "all internal requirements of the Philippines x x x have already been complied
with."  By this exchange of diplomatic notes, the Executive Department effectively performed the
113

last act required under Article XII(l) of EDCA before the agreement entered into force. Section 25,
Article XVIII of the Constitution, is clear that the presence of foreign military forces in the country
shall only be allowed by virtue of a treaty concurred in by the Senate. Hence, the performance of an
official act by the Executive Department that led to the entry into force of an executive agreement
was sufficient to satisfy the actual case or controversy requirement.

2. While petitioners Saguisag et. al., do not have legal standing, they nonetheless raise
issues involving matters of transcendental importance.

The question of locus standi or legal standing focuses on the determination of whether those
assailing the governmental act have the right of appearance to bring the matter to the court for
adjudication.  They must show that they have a personal and substantial interest in the case, such
114

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.  Here, "interest" in the
115

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.  Clearly, it would be insufficient to show
116

that the law or any governmental act is invalid, and that petitioners stand to suffer in some indefinite
way.  They must show that they have a particular interest in bringing the suit, and that they have
117

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.  The 118

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.  In arguing that they have legal standing, they claim  that the case they have filed is a
120 121

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  aver that the implementation of
122

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.  The OSG, on the other hand, maintains that petitioners cannot sue as
123

taxpayers.  Respondent explains that EDCA is neither meant to be a tax measure, nor is it directed
124

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.  Here, those challenging the act must
125

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.  Applying that principle to this case, they must establish that EDCA involves the exercise by
126

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.  A reading of Article X(l) of EDCA would show that there has been neither an
128

appropriation nor an authorization of disbursement of funds. The cited provision reads:

All obligations under this Agreement are subject to the availability of appropriated

funds authorized for these purposes. (Emphases supplied)

This provision means that if the implementation of EDCA would require the disbursement of public
funds, the money must come from appropriated funds that are specifically authorized for this
purpose. Under the agreement, before there can even be a disbursement of public funds, there must
first be a legislative action. Until and unless the Legislature appropriates funds for EDCA, or
unless petitioners can pinpoint a specific item in the current budget that allows expenditure
under the agreement, we cannot at this time rule that there is in fact an appropriation or a
disbursement of funds that would justify the filing of a taxpayers' suit.

Petitioners Bayan et al. also claim  that their co-petitioners who are party-list representatives have
129

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  that petitioners do not have any legal standing to file the suits concerning the
130

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.  What is in question here is the alleged impairment
131

of the constitutional duties and powers granted to, or the impermissible intrusion upon the domain of,
the Legislature or an institution thereof.  In the case of suits initiated by the legislators themselves,
132

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.  As aptly
133

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.  Legislators have the
135

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."  As legislators, they must clearly show that there was a
136

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  argue that the Court may set aside procedural technicalities, as the present petition
138

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  that petitioners cannot raise the mere fact that the present
139

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,  this Court has indeed taken a liberal stance towards the requirement of legal
140

standing, especially when paramount interest is involved. Indeed, when those who challenge the
official act are able to craft an issue of transcendental significance to the people, the Court may
exercise its sound discretion and take cognizance of the suit. It may do so in spite of the inability of
the petitioners to show that they have been personally injured by the operation of a law or any other
government act.

While this Court has yet to thoroughly delineate the outer limits of this doctrine, we emphasize that
not every other case, however strong public interest may be, can qualify as an issue of
transcendental importance. Before it can be impelled to brush aside the essential requisites for
exercising its power of judicial review, it must at the very least consider a number of factors: (1) the
character of the funds or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party that has a more direct and
specific interest in raising the present questions.
141

An exhaustive evaluation of the memoranda of the parties, together with the oral arguments, shows
that petitioners have presented serious constitutional issues that provide ample justification for the
Court to set aside the rule on standing. The transcendental importance of the issues presented here
is rooted in the Constitution itself. Section 25, Article XVIII thereof, cannot be any clearer: there is a
much stricter mechanism required before foreign military troops, facilities, or bases may be allowed
in the country. The DFA has already confirmed to the U.S. Embassy that "all internal requirements of
the Philippines x x x have already been complied with."  It behooves the Court in this instance to
142

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.  By this division, the law implied that the divided powers cannot be exercised except by
143

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,  a position 145
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.  The oath of the President prescribed by the 1987 Constitution
146

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.)  (Emphases147

supplied)

This Court has interpreted the faithful execution clause as an obligation imposed on the President,
and not a separate grant of power.  Section 1 7, Article VII of the Constitution, expresses this duty in
148

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.  A similar language, not in the form of the President's oath, was present in the
149

1935 Constitution, particularly in the enumeration of executive functions.  By 1987, executive power
150

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;  the right to prosecute crimes;  the implementation of transportation
152 153

projects;  the duty to ensure compliance with treaties, executive agreements and executive
154

orders;  the authority to deport undesirable aliens;  the conferment of national awards under the
155 156

President's jurisdiction;  and the overall administration and control of the executive department.
157 158

These obligations are as broad as they sound, for a President cannot function with crippled hands,
but must be capable of securing the rule of law within all territories of the Philippine Islands and be
empowered to do so within constitutional limits. Congress cannot, for instance, limit or take over the
President's power to adopt implementing rules and regulations for a law it has enacted. 159

More important, this mandate is self-executory by virtue of its being inherently executive in
nature.  As Justice Antonio T. Carpio previously wrote,
160 161

[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."  Justice George Malcolm states this principle in a grand manner:
162 163

The executive should be clothed with sufficient power to administer efficiently the affairs of state. He
should have complete control of the instrumentalities through whom his responsibility is discharged.
It is still true, as said by Hamilton, that "A feeble executive implies a feeble execution of the
government. A feeble execution is but another phrase for a bad execution; and a government ill
executed, whatever it may be in theory, must be in practice a bad government." The mistakes of
State governments need not be repeated here.

xxxx

Every other consideration to one side, this remains certain - The Congress of the United States
clearly intended that the Governor-General's power should be commensurate with his responsibility.
The Congress never intended that the Governor-General should be saddled with the responsibility of
administering the government and of executing the laws but shorn of the power to do so. The
interests of the Philippines will be best served by strict adherence to the basic principles of
constitutional government.

In light of this constitutional duty, it is the President's prerogative to do whatever is legal and
necessary for Philippine defense interests. It is no coincidence that the constitutional provision on
the faithful execution clause was followed by that on the President's commander-in-chief
powers,  which are specifically granted during extraordinary events of lawless violence, invasion, or
164

rebellion. And this duty of defending the country is unceasing, even in times when there is no state
of lawlesss violence, invasion, or rebellion. At such times, the President has full powers to ensure
the faithful execution of the laws.

It would therefore be remiss for the President and repugnant to the faithful-execution clause of the
Constitution to do nothing when the call of the moment requires increasing the military's defensive
capabilities, which could include forging alliances with states that hold a common interest with the
Philippines or bringing an international suit against an offending state.

The context drawn in the analysis above has been termed by Justice Arturo D. Brion's Dissenting
Opinion as the beginning of a "patent misconception."  His dissent argues that this approach taken
165

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  was never
167

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.  The analysis itself
168

demonstrates how the foreign affairs function, while mostly the President's, is shared in several
instances, namely in Section 2 of Article II on the conduct of war; Sections 20 and 21 of Article VII on
foreign loans, treaties, and international agreements; Sections 4(2) and 5(2)(a) of Article VIII on the
judicial review of executive acts; Sections 4 and 25 of Article XVIII on treaties and international
agreements entered into prior to the Constitution and on the presence of foreign military troops,
bases, or facilities.

In fact, the analysis devotes a whole subheading to the relationship between the two major
presidential functions and the role of the Senate in it.

This approach of giving utmost deference to presidential initiatives in respect of foreign affairs is not
novel to the Court. The President's act of treating EDCA as an executive agreement is not the
principal power being analyzed as the Dissenting Opinion seems to suggest. Rather, the preliminary
analysis is in reference to the expansive power of foreign affairs. We have long treated this power as
something the Courts must not unduly restrict. As we stated recently in Vinuya v. Romulo:

To be sure, not all cases implicating foreign relations present political questions, and courts certainly
possess the authority to construe or invalidate treaties and executive agreements. However, the
question whether the Philippine government should espouse claims of its nationals against a foreign
government is a foreign relations matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this case, the Executive Department
has already decided that it is to the best interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
courts to question. Neither could petitioners herein assail the said determination by the Executive
Department via the instant petition for certiorari.

In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court held that "[t]he
President is the sole organ of the nation in its external relations, and its sole representative with
foreign relations."

It is quite apparent that if, in the maintenance of our international relations,

embarrassment - perhaps serious embarrassment - is to be avoided and success for
our aims achieved, congressional legislation which is to be made effective through
negotiation and inquiry within the international field must often accord to the
President a degree of discretion and freedom from statutory restriction which
would not be admissible where domestic affairs alone involved. Moreover, he,
not Congress, has the better opportunity of knowing the conditions which prevail in
foreign countries, and especially is this true in time of war. He has his confidential
sources of information. He has his agents in the form of diplomatic, consular and
other officials ....

This ruling has been incorporated in our jurisprudence through  Bavan v. Executive
Secretary  and Pimentel v. Executive Secretary; its overreaching principle was, perhaps, best
articulated in (now Chief) Justice Puno's dissent in Secretary of Justice v. Lantion:

. . . The conduct of foreign relations is full of complexities and consequences,

sometimes with life and death significance to the nation especially in times of war. It
 can only be entrusted to that department of government which can act on the basis
of the best available information and can decide with decisiveness .... It is also the
President who possesses the most comprehensive and the most confidential
information about foreign countries for our diplomatic and consular officials regularly
brief him on meaningful events all over the world. He has also unlimited access to
ultra-sensitive military intelligence data. In fine, the presidential role in foreign
affairs is dominant and the President is traditionally accorded a wider degree
of discretion in the conduct of foreign affairs. The regularity, nay, validity of his
actions are adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation, rupture of state
relations, forfeiture of confidence, national embarrassment and a plethora of
other problems with equally undesirable consequences.  (Emphases supplied)
169

Understandably, this Court must view the instant case with the same perspective and understanding,
knowing full well the constitutional and legal repercussions of any judicial overreach.

2. The plain meaning of the Constitution prohibits the entry of foreign military bases, troops
or facilities, except by way of a treaty concurred in by the Senate - a clear limitation on the
President's dual role as defender of the State and as sole authority in foreign relations.

Despite the President's roles as defender of the State and sole authority in foreign relations, the
1987 Constitution expressly limits his ability in instances when it involves the entry of foreign military
bases, troops or facilities. The initial limitation is found in Section 21 of the provisions on the
Executive Department: "No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate." The specific limitation is given
by Section 25 of the Transitory Provisions, the full text of which reads as follows:

SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate
and, when the Congress so requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty by the other contracting State.

It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add to the basic
requirements of a treaty under Section 21 of Article VII. This means that both provisions must be
read as additional limitations to the President's overarching executive function in matters of defense
and foreign relations.

3. The President, however, may enter into an executive agreement on foreign military bases,
troops, or facilities, if (a) it is not the instrument that allows the presence of foreign military
bases, troops, or facilities; or (b) it merely aims to implement an existing law or treaty.

Again we refer to Section 25, Article XVIII of the Constitution:

SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly concurred in by
the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a treaty by the other
contracting State. (Emphases supplied)
In view of this provision, petitioners argue  that EDCA must be in the form of a "treaty" duly
170

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  that EDCA must be submitted to the Senate in the form
171

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.  This follows a long line of similar decisions
172

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,  this Court
174

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.  It is presumed that the
175

provisions have been carefully crafted in order to express the objective it seeks to attain.  It is
176

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.  As 177

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.  (Emphases supplied)
178

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.  In Ang Bagong Bayani-OFW v. Commission
179

on Elections,  we reiterated this guiding principle:

180

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."  Black's Law Dictionary defines
181

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)."  That something is the Philippines, which is the noun that follows.
183

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.  (Emphasis supplied)
184

Moreover, the Court indicated that the Constitution continues to govern the conduct of foreign
military troops in the Philippines,  readily implying the legality of their initial entry into the country.
185

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.  It points out that
186

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.  It claims that the provision is
187

"neither plain, nor that simple."  To buttress its disagreement, the dissent states that the provision
188

refers to a historical incident, which is the expiration of the 1947 MBA.  Accordingly, this position
189

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.  (Emphases supplied)
190

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.  They felt constrained to agree to the
191

MBA in fulfilment of one of the major conditions for the country to gain independence from the
U.S.  As a result of that experience, a second layer of consent for agreements that allow military
192

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.  That power has been alluded to in our present and
193

past Constitutions,  in various statutes,  in Supreme Court decisions,  and during the deliberations
194 195 196

of the Constitutional Commission.  They cover a wide array of subjects with varying scopes and
197

purposes,  including those that involve the presence of foreign military forces in the country.
198 199

As the sole organ of our foreign relations  and the constitutionally assigned chief architect of our
200

foreign policy,  the President is vested with the exclusive power to conduct and manage the
201

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  is so well-entrenched that Section 5(2)(a), Article VIII of the
203

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."  In Bayan Muna v. Romulo, this Court further clarified that executive agreements can cover
204

a wide array of subjects that have various scopes and purposes.  They are no longer limited to the
205

traditional subjects that are usually covered by executive agreements as identified in Eastern Sea
Trading. The Court thoroughly discussed this matter in the following manner:

The categorization of subject matters that may be covered by international

agreements mentioned in Eastern Sea Trading is not cast in stone. x x x.

As may be noted, almost half a century has elapsed since the Court rendered its decision
in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex
and the domain of international law wider, as to include such subjects as human rights, the
environment, and the sea. In fact, in the US alone, the executive agreements executed by its
President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation,
aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and
nuclear safety, among others. Surely, the enumeration in Eastern Sea Trading cannot
circumscribe the option of each state on the matter of which the international agreement format
would be convenient to serve its best interest. As Francis Sayre said in his work referred to
earlier:

. . . It would be useless to undertake to discuss here the large variety of executive agreements
as such concluded from time to time. Hundreds of executive agreements, other than those
entered into under the trade-agreement act, have been negotiated with foreign governments. . . .
They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping
profits, the admission of civil air craft, custom matters and commercial relations generally,
international claims, postal matters, the registration of trademarks and copyrights, etc .... (Emphases
Supplied)

One of the distinguishing features of executive agreements is that their validity and effectivity are not
affected by a lack of Senate concurrence.  This distinctive feature was recognized as early as
206

in Eastern Sea Trading (1961), viz:

Treaties are formal documents which require ratification with the approval of two-thirds of the

Senate. Executive agreements become binding through executive action without the need of a
vote by the Senate or by Congress.

xxxx

[T]he right of the Executive to enter into binding agreements without the necessity of

subsequent Congressional approval has been confirmed by long usage. From the earliest days
of our history we have entered into executive agreements covering such subjects as commercial and
consular relations, most-favored-nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of claims. The validity of these has never
been seriously questioned by our courts. (Emphases Supplied)

That notion was carried over to the present Constitution. In fact, the framers specifically deliberated
on whether the general term "international agreement" included executive agreements, and whether
it was necessary to include an express proviso that would exclude executive agreements from the
requirement of Senate concurrence. After noted constitutionalist Fr. Joaquin Bernas quoted the
Court's ruling in Eastern Sea Trading, the Constitutional Commission members ultimately decided
that the term "international agreements" as contemplated in Section 21, Article VII, does not include
executive agreements, and that a proviso is no longer needed. Their discussion is reproduced
below:207

MS. AQUINO: Madam President, first I would like a clarification from the Committee. We have
retained the words "international agreement" which I think is the correct judgment on the matter
because an international agreement is different from a treaty. A treaty is a contract between parties
which is in the nature of international agreement and also a municipal law in the sense that the
people are bound. So there is a conceptual difference. However, I would like to be clarified if the
international agreements include executive agreements.

MR. CONCEPCION: That depends upon the parties. All parties to these international negotiations
stipulate the conditions which are necessary for the agreement or whatever it may be to become
valid or effective as regards the parties.

MS. AQUINO: Would that depend on the parties or would that depend on the nature of the executive
agreement? According to common usage, there are two types of executive agreement: one is
purely proceeding from an executive act which affects external relations independent of the
legislative and the other is an executive act in pursuance of legislative authorization. The first
kind might take the form of just conventions or exchanges of notes or protocol while the other,
which would be pursuant to the legislative authorization, may be in the nature of commercial
agreements.

MR. CONCEPCION: Executive agreements are generally made to implement a treaty already

enforced or to determine the details for the implementation of the treaty. We are speaking of
executive agreements, not international agreements.

MS. AQUINO: I am in full agreement with that, except that it does not cover the first kind of executive
agreement which is just protocol or an exchange of notes and this would be in the nature of
reinforcement of claims of a citizen against a country, for example.

MR. CONCEPCION: The Commissioner is free to require ratification for validity insofar as the
Philippines is concerned.

MS. AQUINO: It is my humble submission that we should provide, unless the Committee explains

to us otherwise, an explicit proviso which would except executive agreements from
the requirement of concurrence of two-thirds of the Members of the Senate. Unless I am
enlightened by the Committee I propose that tentatively, the sentence should read. "No treaty or
international agreement EXCEPT EXECUTIVE AGREEMENTS shall be valid and effective."

FR. BERNAS: I wonder if a quotation from the Supreme Court decision [in Eastern Sea
Trading] might help clarify this:

The right of the executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest days
of our history, we have entered into executive agreements covering such subjects as commercial
and consular relations, most favored nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of claims. The validity of this has never been
seriously questioned by our Courts.
Agreements with respect to the registration of trademarks have been concluded by the executive of
various countries under the Act of Congress of March 3, 1881 (21 Stat. 502) . . . International
agreements involving political issues or changes of national policy and those involving
international agreements of a permanent character usually take the form of treaties. But
international agreements embodying adjustments of detail, carrying out well established
national policies and traditions and those involving arrangements of a more or less temporary
nature usually take the form of executive agreements.

MR. ROMULO: Is the Commissioner, therefore, excluding the executive agreements?

FR. BERNAS: What we are referring to, therefore, when we say international agreements which
need concurrence by at least two-thirds are those which are permanent in nature.

MS. AQUINO: And it may include commercial agreements which are executive agreements
essentially but which are proceeding from the authorization of Congress. If that is our understanding,
then I am willing to withdraw that amendment.

FR. BERNAS: If it is with prior authorization of Congress, then it does not need subsequent
concurrence by Congress.

MS. AQUINO: In that case, I am withdrawing my amendment.

MR. TINGSON: Madam President.

THE PRESIDENT: Is Commissioner Aquino satisfied?

MS. AQUINO: Yes. There is already an agreement among us on the definition of "executive
agreements" and that would make unnecessary any explicit proviso on the matter.

xxx

MR. GUINGONA: I am not clear as to the meaning of "executive agreements" because I heard that
these executive agreements must rely on treaties. In other words, there must first be treaties.

MR. CONCEPCION: No, I was speaking about the common use, as executive agreements being the
implementation of treaties, details of which do not affect the sovereignty of the State.

MR. GUINGONA: But what about the matter of permanence, Madam President? Would 99 years be
considered permanent? What would be the measure of permanency? I do not conceive of a treaty
that is going to be forever, so there must be some kind of a time limit.

MR. CONCEPCION: I suppose the Commissioner's question is whether this type of agreement
should be included in a provision of the Constitution requiring the concurrence of Congress.

MR. GUINGONA: It depends on the concept of the executive agreement of which I am not clear. If
the executive agreement partakes of the nature of a treaty, then it should also be included.

MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within the power of the
Constitutional Commission to require that.
MR. GUINGONA: Yes. That is why I am trying to clarify whether the words "international
agreements" would include executive agreements.

MR. CONCEPCION: No, not necessarily; generally no.

xxx

MR. ROMULO: I wish to be recognized first. I have only one question. Do we take it, therefore,
that as far as the Committee is concerned, the term "international agreements" does not
include the term "executive agreements" as read by the Commissioner in that text?

FR. BERNAS: Yes. (Emphases Supplied)

The inapplicability to executive agreements of the requirements under Section 21 was again
recognized in Bayan v. Zamora and in Bayan Muna v. Romulo. These cases, both decided under
the aegis of the present Constitution, quoted Eastern Sea Trading in reiterating that executive
agreements are valid and binding even without the concurrence of the Senate.

Executive agreements may dispense with the requirement of Senate concurrence because of the
legal mandate with which they are concluded. As culled from the afore-quoted deliberations of the
Constitutional Commission, past Supreme Court Decisions, and works of noted scholars,  executive
208

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;  (2) pursuant to or upon
209

confirmation by an act of the Legislature;  or (3) in the exercise of the President's independent
210

powers under the Constitution.  The raison d'etre of executive agreements hinges

211

on prior constitutional or legislative authorizations.

The special nature of an executive agreement is not just a domestic variation in international
agreements. International practice has accepted the use of various forms and designations of
international agreements, ranging from the traditional notion of a treaty - which connotes a formal,
solemn instrument - to engagements concluded in modem, simplified forms that no longer
necessitate ratification.  An international agreement may take different forms: treaty, act, protocol,
212

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.  Consequently, under international law, the distinction between a treaty and an
213

international agreement or even an executive agreement is irrelevant for purposes of determining

international rights and obligations.

However, this principle does not mean that the domestic law distinguishing treaties, international
agreements, and executive agreements is relegated to a mere variation in form, or that the
constitutional requirement of Senate concurrence is demoted to an optional constitutional directive.
There remain two very important features that distinguish treaties from executive agreements and
translate them into terms of art in the domestic setting.

First, executive agreements must remain traceable to an express or implied authorization under the
Constitution, statutes, or treaties. The absence of these precedents puts the validity and effectivity of
executive agreements under serious question for the main function of the Executive is to enforce the
Constitution and the laws enacted by the Legislature, not to defeat or interfere in the performance of
these rules.  In turn, executive agreements cannot create new international obligations that are not
214

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  unlike executive agreements, which are
215

solely executive actions.  Because of legislative participation through the Senate, a treaty is
216

regarded as being on the same level as a statute.  If there is an irreconcilable conflict, a later law or
217

treaty takes precedence over one that is prior.  An executive agreement is treated differently.
218

Executive agreements that are inconsistent with either a law or a treaty are considered
ineffective.  Both types of international agreement are nevertheless subject to the supremacy of the
219

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

c. Executive agreements are generally intended to implement a treaty already

enforced or to determine the details of the implementation thereof that do not affect
the sovereignty of the State. 228

2. Treaties and international agreements that cannot be mere executive agreements must,
by constitutional decree, be concurred in by at least two-thirds of the Senate.

3. However, an agreement - the subject of which is the entry of foreign military troops, bases,
or facilities - is particularly restricted. The requirements are that it be in the form of a treaty
concurred in by the Senate; that when Congress so requires, it be ratified by a majority of the
votes cast by the people in a national referendum held for that purpose; and that it be
recognized as a treaty by the other contracting State.

4. Thus, executive agreements can continue to exist as a species of international

agreements.

That is why our Court has ruled the way it has in several cases.

In Bayan Muna v. Romulo, we ruled that the President acted within the scope of her constitutional
authority and discretion when she chose to enter into the RP-U.S. Non-Surrender Agreement in the
form of an executive agreement, instead of a treaty, and in ratifying the agreement without Senate
concurrence. The Court en banc discussed this intrinsic presidential prerogative as follows:

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the
nature of a treaty; hence, it must be duly concurred in by the Senate. x x x x. Pressing its point,
petitioner submits that the subject of the Agreement does not fall under any of the subject-categories
that xx x may be covered by an executive agreement, such as commercial/consular relations, most-
favored nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and settlement of claims.

The categorization of subject matters that may be covered by international agreements mentioned
in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of
entering, on a given subject, into a treaty or an executive agreement as an instrument of
international relations. The primary consideration in the choice of the form of agreement is
the parties' intent and desire to craft an international agreement in the form they so wish to
further their respective interests. Verily, the matter of form takes a back seat when it comes to
effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the
parties in either international agreement each labor under the pacta sunt servanda principle.
xxxx

But over and above the foregoing considerations is the fact that - save for the situation and matters
contemplated in Sec. 25, Art. XVIII of the Constitution - when a treaty is required, the Constitution
does not classify any subject, like that involving political issues, to be in the form of, and
ratified as, a treaty. What the Constitution merely prescribes is that treaties need the concurrence
of the Senate by a vote defined therein to complete the ratification process.

xxxx

x x x. As the President wields vast powers and influence, her conduct in the external affairs of the
nation is, as Bayan would put it, "executive altogether." The right of the President to enter into or
ratify binding executive agreements has been confirmed by long practice.

In thus agreeing to conclude the Agreement thru E/N BF0-028-03, then President Gloria
Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the
authority and discretion vested in her by the Constitution. At the end of the day, the President -
by ratifying, thru her deputies, the non-surrender agreement - did nothing more than
discharge a constitutional duty and exercise a prerogative that pertains to her
office. (Emphases supplied)

Indeed, in the field of external affairs, the President must be given a larger measure of authority and
wider discretion, subject only to the least amount of checks and restrictions under the
Constitution.  The rationale behind this power and discretion was recognized by the Court in Vinuya
229

v. Executive Secretary, cited earlier.

230

Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of International
Agreements and its Ratification, thus, correctly reflected the inherent powers of the President when it
stated that the DFA "shall determine whether an agreement is an executive agreement or a treaty."

Accordingly, in the exercise of its power of judicial review, the Court does not look into whether an
international agreement should be in the form of a treaty or an executive agreement, save in cases
in which the Constitution or a statute requires otherwise. Rather, in view of the vast constitutional
powers and prerogatives granted to the President in the field of foreign affairs, the task of the Court
is to determine whether the international agreement is consistent with the applicable limitations.

6. Executive agreements may cover the matter of foreign military forces if it merely involves
detail adjustments.

The practice of resorting to executive agreements in adjusting the details of a law or a treaty that
already deals with the presence of foreign military forces is not at all unusual in this jurisdiction. In
fact, the Court has already implicitly acknowledged this practice in Lim v. Executive Secretary.  In231

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,  the Court again impliedly affirmed the use of an executive agreement in an
232

attempt to adjust the details of a provision of the VFA. The Philippines and the U.S. entered into the
Romulo-Kenney Agreement, which undertook to clarify the detention of a U.S. Armed Forces
member, whose case was pending appeal after his conviction by a trial court for the crime of rape. In
testing the validity of the latter agreement, the Court precisely alluded to one of the inherent
limitations of an executive agreement: it cannot go beyond the terms of the treaty it purports to
implement. It was eventually ruled that the Romulo-Kenney Agreement was "not in accord" with the
VFA, since the former was squarely inconsistent with a provision in the treaty requiring that the
detention be "by Philippine authorities." Consequently, the Court ordered the Secretary of Foreign
Affairs to comply with the VFA and "forthwith negotiate with the United States representatives for the
appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec.
10 of the VFA. "233

Culling from the foregoing discussions, we reiterate the following pronouncements to guide us in
resolving the present controversy:

1. Section 25, Article XVIII of the Constitution, contains stringent requirements that must be
fulfilled by the international agreement allowing the presence of foreign military bases,
troops, or facilities in the Philippines: (a) the agreement must be in the form of a treaty, and
(b) it must be duly concurred in by the Senate.

2. If the agreement is not covered by the above situation, then the President may choose the
form of the agreement (i.e., either an executive agreement or a treaty), provided that the
agreement dealing with foreign military bases, troops, or facilities is not the principal
agreement that first allows their entry or presence in the Philippines.

3. The executive agreement must not go beyond the parameters, limitations, and standards
set by the law and/or treaty that the former purports to implement; and must not unduly
expand the international obligation expressly mentioned or necessarily implied in the law or
treaty.

4. The executive agreement must be consistent with the Constitution, as well as with existing
laws and treaties.

In light of the President's choice to enter into EDCA in the form of an executive agreement,
respondents carry the burden of proving that it is a mere implementation of existing laws and treaties
concurred in by the Senate. EDCA must thus be carefully dissected to ascertain if it remains within
the legal parameters of a valid executive agreement.

7. EDCA is consistent with the content, purpose, and framework of the MDT and the VFA

The starting point of our analysis is the rule that "an executive agreement xx x may not be used to
amend a treaty."  In Lim v. Executive Secretary and in Nicolas v. Romulo, the Court approached
234

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,"  i.e., the MDT and the
235

VFA. The Court proceeded to examine the extent of the term "activities" as contemplated in Articles
1  and II  of the VFA. It later on found that the term "activities" was deliberately left undefined and
236 237

ambiguous in order to permit "a wide scope of undertakings subject only to the approval of the
Philippine government"  and thereby allow the parties "a certain leeway in negotiation."  The Court
238 239
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.  It eventually240

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."  Pursuant to Article V(6) of the VFA, the custody of a U.S. military personnel resides
241

with U.S. military authorities during trial. Once there is a finding of guilt, Article V(l0) requires that the
confinement or detention be "by Philippine authorities."

Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially modifies or
amends the VFA"  and follows with an enumeration of the differences between EDCA and the VFA.
242

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.  Even the VFA allowed construction for the
243

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.  The dissent of Justice Teresita J. Leonardo-
245

De Castro also notes that VFA was intended for non-combat activides only, whereas the entry and
activities of U.S. forces into Agreed Locations were borne of military necessity or had a martial
character, and were therefore not contemplated by the VFA. 246

This Court's jurisprudence however established in no uncertain terms that combat-related activities,
as opposed to actual combat, were allowed under the MDT and VFA, viz:

Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that
combat-related activities as opposed to combat itself such as the one subject of the instant petition,
are indeed authorized. 247
Hence, even if EDCA was borne of military necessity, it cannot be said to have strayed from the
intent of the VFA since EDCA's combat-related components are allowed under the treaty.

Moreover, both the VFA and EDCA are silent on what these activities actually are. Both the VFA and
EDCA deal with the presence of U.S. forces within the Philippines, but make no mention of being
platforms for activity beyond Philippine territory. While it may be that, as applied, military operations
under either the VFA or EDCA would be carried out in the future the scope of judicial review does
not cover potential breaches of discretion but only actual occurrences or blatantly illegal provisions.
Hence, we cannot invalidate EDCA on the basis of the potentially abusive use of its provisions.

The fourth difference is that EDCA supposedly introduces a new concept not contemplated in the
VFA or the MDT: Agreed Locations, Contractors, Pre-positioning, and Operational Control. 248

As previously mentioned, these points shall be addressed fully and individually in the latter analysis
of EDCA's provisions. However, it must already be clarified that the terms and details used by an
implementing agreement need not be found in the mother treaty. They must be sourced from the
authority derived from the treaty, but are not necessarily expressed word-for-word in the mother
treaty. This concern shall be further elucidated in this Decision.

The fifth difference highlighted by the Dissenting Opinion is that the VFA does not have provisions
that may be construed as a restriction on or modification of obligations found in existing statues,
including the jurisdiction of courts, local autonomy, and taxation. Implied in this argument is that
EDCA contains such restrictions or modifications. 249

This last argument cannot be accepted in view of the clear provisions of EDCA. Both the VFA and
EDCA ensure Philippine jurisdiction in all instances contemplated by both agreements, with the
exception of those outlined by the VFA in Articles III-VI. In the VFA, taxes are clearly waived
whereas in EDCA, taxes are assumed by the government as will be discussed later on. This fact
does not, therefore, produce a diminution of jurisdiction on the part of the Philippines, but rather a
recognition of sovereignty and the rights that attend it, some of which may be waived as in the cases
under Articles III-VI of the VFA.

Taking off from these concerns, the provisions of EDCA must be compared with those of the MDT
and the VFA, which are the two treaties from which EDCA allegedly draws its validity.

"Authorized presence" under the VFA versus "authorized activities" under EDCA: (1) U.S.
personnel and (2) U.S. contractors

The OSG argues  that EDCA merely details existing policies under the MDT and the VFA. It
250

explains that EDCA articulates the principle of defensive preparation embodied in Article II of the

MDT; and seeks to enhance the defensive, strategic, and technological capabilities of both parties
pursuant to the objective of the treaty to strengthen those capabilities to prevent or resist a possible
armed attack. Respondent also points out that EDCA simply implements Article I of the VFA, which
already allows the entry of U.S. troops and personnel into the country. Respondent stresses this
Court's recognition in Lim v. Executive Secretary that U.S. troops and personnel are authorized to
conduct activities that promote the goal of maintaining and developing their defense capability.

Petitioners contest  the assertion that the provisions of EDCA merely implement the MDT.
251

According to them, the treaty does not specifically authorize the entry of U.S. troops in the country in
order to maintain and develop the individual and collective capacities of both the Philippines and the
U.S. to resist an armed attack. They emphasize that the treaty was concluded at a time when there
was as yet no specific constitutional prohibition on the presence of foreign military forces in the
country.

Petitioners also challenge the argument that EDCA simply implements the VFA. They assert that the
agreement covers only short-term or temporary visits of U.S. troops "from time to time" for the
specific purpose of combined military exercises with their Filipino counterparts. They stress that, in
contrast, U.S. troops are allowed under EDCA to perform activities beyond combined military
exercises, such as those enumerated in Articles 111(1) and IV(4) thereof. Furthermore, there is
some degree of permanence in the presence of U.S. troops in the country, since the effectivity of
EDCA is continuous until terminated. They proceed to argue that while troops have a "rotational"
presence, this scheme in fact fosters their permanent presence.

a. Admission of U.S. military and civilian personnel into Philippine territory is already allowed under
the VFA

We shall first deal with the recognition under EDCA of the presence in the country of three distinct
classes of individuals who will be conducting different types of activities within the Agreed Locations:
(1) U.S. military personnel; (2) U.S. civilian personnel; and (3) U.S. contractors. The agreement
refers to them as follows:

"United States personnel" means United States military and civilian personnel temporarily in

the territory of the Philippines in connection with activities approved by the Philippines, as those
terms are defined in the VFA. 252

"United States forces" means the entity comprising United States personnel and all property,

equipment, and materiel of the United States Armed Forces present in the territory of the
Philippines.
253

"United States contractors" means companies and firms, and their employees, under contract

or subcontract to or on behalf of the United States Department of Defense. United States
contractors are not included as part of the definition of United States personnel in this Agreement,
including within the context of the VFA.254

United States forces may contract for any materiel, supplies, equipment, and

services (including construction) to be furnished or undertaken in the territory of the Philippines
without restriction as to choice of contractor, supplier, or person who provides such materiel,
supplies, equipment, or services. Such contracts shall be solicited, awarded, and administered in
accordance with the laws and regulations of the United States.  (Emphases Supplied)
255

A thorough evaluation of how EDCA is phrased clarities that the agreement does not deal with
the entry into the country of U.S. personnel and contractors per se. While Articles I(l)(b)  and 256

II(4)  speak of "the right to access and use" the Agreed Locations, their wordings indicate the
257

presumption that these groups have already been allowed entry into Philippine territory, for which,
unlike the VFA, EDCA has no specific provision. Instead, Article II of the latter simply alludes to the
VFA in describing U.S. personnel, a term defined under Article I of the treaty as follows:

As used in this Agreement, "United States personnel" means United States military and civilian
personnel temporarily in the Philippines in connection with activities approved by the Philippine
Government. Within this definition:
 1. The term "military personnel" refers to military members of the United States
Army, Navy, Marine Corps, Air Force, and Coast Guard.

2. The term "civilian personnel" refers to individuals who are neither nationals of

nor ordinarily resident in the Philippines and who are employed by the United
States armed forces or who are accompanying the United States armed forces,
such as employees of the American Red Cross and the United Services
Organization. 258

Article II of EDCA must then be read with Article III of the VFA, which provides for the entry
accommodations to be accorded to U.S. military and civilian personnel:

1. The Government of the Philippines shall facilitate the admission of United States

personnel and their departure from the Philippines in connection with activities covered by
this agreement.

2. United States military personnel shall be exempt from passport and visa regulations
upon entering and departing the Philippines.

3. The following documents only, which shall be required in respect of United States military
personnel who enter the Philippines; xx xx.

4. United States civilian personnel shall be exempt from visa requirements but shall

present, upon demand, valid passports upon entry and departure of the Philippines.
(Emphases Supplied)

By virtue of Articles I and III of the VFA, the Philippines already allows U.S. military and civilian
personnel to be "temporarily in the Philippines," so long as their presence is "in connection with
activities approved by the Philippine Government." The Philippines, through Article III, even
guarantees that it shall facilitate the admission of U.S. personnel into the country and grant
exemptions from passport and visa regulations. The VFA does not even limit their temporary
presence to specific locations.

Based on the above provisions, the admission and presence of U.S. military and civilian
personnel in Philippine territory are already allowed under the VFA, the treaty supposedly
being implemented by EDCA. What EDCA has effectively done, in fact, is merely provide the
mechanism to identify the locations in which U.S. personnel may perform allowed activities pursuant
to the VFA. As the implementing agreement, it regulates and limits the presence of U.S. personnel in
the country.

b. EDCA does not provide the legal basis for admission of U.S. contractors into Philippine territory;
their entry must be sourced from extraneous Philippine statutes and regulations for the admission of
alien employees or business persons.

Of the three aforementioned classes of individuals who will be conducting certain activities within the
Agreed Locations, we note that only U.S. contractors are not explicitly mentioned in the VFA. This
does not mean, though, that the recognition of their presence under EDCA is ipso facto an
amendment of the treaty, and that there must be Senate concurrence before they are allowed to
enter the country.
Nowhere in EDCA are U.S. contractors guaranteed immediate admission into the Philippines.
Articles III and IV, in fact, merely grant them the right of access to, and the authority to conduct
certain activities within the Agreed Locations. Since Article II(3) of EDCA specifically leaves out  U.S.
contractors from the coverage of the VFA, they shall not be granted the same entry
accommodations and privileges as those enjoyed by U.S. military and civilian personnel under the
VFA.

Consequently, it is neither mandatory nor obligatory on the part of the Philippines to admit U.S.
contractors into the country.  We emphasize that the admission of aliens into Philippine territory is
259

"a matter of pure permission and simple tolerance which creates no obligation on the part of the
government to permit them to stay."  Unlike U.S. personnel who are accorded entry
260

accommodations, U.S. contractors are subject to Philippine immigration laws.  The latter must
261

comply with our visa and passport regulations  and prove that they are not subject to exclusion
262

under any provision of Philippine immigration laws.  The President may also deny them entry
263

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  as may be necessitated by national security, public safety, public health, public morals,
265

and national interest.  They may also be deported if they are found to be illegal or undesirable
266

aliens pursuant to the Philippine Immigration Act  and the Data Privacy Act.  In contrast, Article
267 268

111(5) of the VFA requires a request for removal from the Philippine government before a member
of the U.S. personnel may be "dispos[ed] xx x outside of the Philippines."

c. Authorized activities of U.S. military and civilian personnel within Philippine territory are in
furtherance of the MDT and the VFA

We begin our analysis by quoting the relevant sections of the MDT and the VFA that pertain to the
activities in which U.S. military and civilian personnel may engage:

MUTUAL DEFENSE TREATY

Article II

In order more effectively to achieve the objective of this Treaty, the Parties separately and  jointly
by self-help and mutual aid will maintain and develop their individual and collective capacity to
resist armed attack.

Article III

The Parties, through their Foreign Ministers or their deputies, will consult together from time to
time regarding the implementation of this Treaty and whenever in the opinion of either of them the
territorial integrity, political independence or security of either of the Parties is threatened by external
armed attack in the Pacific.

VISITING FORCES AGREEMENT

Preamble

xxx
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;

Noting that from time to time elements of the United States armed forces may visit the Republic of
the Philippines;

Considering that cooperation between the United States and the Republic of the

Philippines promotes their common security interests;

xxx

Article I - Definitions

As used in this Agreement, "United States personnel" means United States military and civilian
personnel temporarily in the Philippines in connection with activities approved by the Philippine
Government. Within this definition: xx x

Article II - Respect for Law

It is the duty of United States personnel to respect the laws of the Republic of the
Philippines and to abstain from any activity inconsistent with the spirit of this agreement,
and, in particular, from any political activity in the Philippines. The Government of the United States
shall take all measures within its authority to ensure that this is done.

Article VII - Importation and Exportation

1. United States Government equipment, materials, supplies, and other property imported into
or acquired in the Philippines by or on behalf of the United States armed forces in connection with
activities to which this agreement applies, shall be free of all Philippine duties, taxes and other
similar charges. Title to such property shall remain with the United States, which may remove such
property from the Philippines at any time, free from export duties, taxes, and other similar charges. x
x x.

Article VIII - Movement of Vessels and Aircraft

1. Aircraft operated by or for the United States armed forces may enter the Philippines upon
approval of the Government of the Philippines in accordance with procedures stipulated
in implementing arrangements.

2. Vessels operated by or for the United States armed forces may enter the Philippines upon
approval of the Government of the Philippines. The movement of vessels shall be in
accordance with international custom and practice governing such vessels, and such agreed
implementing arrangements as necessary. x x x (Emphases Supplied)

Manifest in these provisions is the abundance of references to the creation of further "implementing
arrangements" including the identification of "activities [to be] approved by the Philippine
Government." To determine the parameters of these implementing arrangements and activities, we
referred to the content, purpose, and framework of the MDT and the VFA.

By its very language, the MDT contemplates a situation in which both countries shall engage
in joint activities, so that they can maintain and develop their defense capabilities. The wording itself
evidently invites a reasonable construction that the joint activities shall involve joint military trainings,
maneuvers, and exercises. Both the interpretation  and the subsequent practice  of the parties
269 270

show that the MDT independently allows joint military exercises in the country. Lim v. Executive
Secretary  and Nicolas v. Romulo  recognized that Balikatan exercises, which are activities that
271 272

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."  In Lim, the Court especially
273

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.  These activities presumably
274

related to the Status of Forces Agreement, in which the parties agreed on the status to be accorded
to U.S. military and civilian personnel while conducting activities in the Philippines in relation to the
MDT. 275

Further, it can be logically inferred from Article V of the MDT that these joint activities may be
conducted on Philippine or on U.S. soil. The article expressly provides that the term armed
attack includes "an armed attack on the metropolitan territory of either of the Parties, or on
the island territories under its jurisdiction in the Pacific or on its armed forces, public vessels
or aircraft in the Pacific." Surely, in maintaining and developing our defense capabilities, an
assessment or training will need to be performed, separately and jointly by self-help and mutual aid,
in the territories of the contracting parties. It is reasonable to conclude that the assessment of
defense capabilities would entail understanding the terrain, wind flow patterns, and other
environmental factors unique to the Philippines.

It would also be reasonable to conclude that a simulation of how to respond to attacks in vulnerable
areas would be part of the training of the parties to maintain and develop their capacity to resist an
actual armed attack and to test and validate the defense plan of the Philippines. It is likewise
reasonable to imagine that part of the training would involve an analysis of the effect of the weapons
that may be used and how to be prepared for the eventuality. This Court recognizes that all of this
may require training in the area where an armed attack might be directed at the Philippine territory.

The provisions of the MDT must then be read in conjunction with those of the VFA.

Article I of the VFA indicates that the presence of U.S. military and civilian personnel in the
Philippines is "in connection with activities approved by the Philippine Government." While the treaty
does not expressly enumerate or detail the nature of activities of U.S. troops in the country, its
Preamble makes explicit references to the reaffirmation of the obligations of both countries under the
MDT. These obligations include the strengthening of international and regional security in the Pacific
area and the promotion of common security interests.

The Court has already settled in Lim v. Executive Secretary that the phrase "activities approved by
the Philippine Government" under Article I of the VFA was intended to be ambiguous in order to
afford the parties flexibility to adjust the details of the purpose of the visit of U.S. personnel.  In
276

ruling that the Terms of Reference for the Balikatan Exercises in 2002 fell within the context of the
treaty, this Court explained:

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of

the word "activities" arose from accident. In our view, it was deliberately made that way to give
both parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in
Philippine territory for purposes other than military. As conceived, the joint exercises may
include training on new techniques of patrol and surveillance to protect the nation's marine
resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations,
civic action projects such as the building of school houses, medical and humanitarian missions, and
the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical
to assume that "Balikatan 02-1," a "mutual anti-terrorism advising, assisting and training
exercise," falls under the umbrella of sanctioned or allowable activities in the context of the
agreement. Both the history and intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities - as opposed to combat itself- such as the one subject of
the instant petition, are indeed authorized. (Emphases Supplied)

The joint report of the Senate committees on foreign relations and on national defense and security
further explains the wide range and variety of activities contemplated in the VFA, and how these
activities shall be identified:
277

These joint exercises envisioned in the VFA are not limited to combat-related activities; they

have a wide range and variety. They include exercises that will reinforce the AFP's ability
to acquire new techniques of patrol and surveillance to protect the country's maritime
resources; sea-search and rescue operations to assist ships in distress; and disaster-relief
operations to aid the civilian victims of natural calamities, such as earthquakes, typhoons and tidal
waves.

xxxx

Joint activities under the VFA will include combat maneuvers; training in aircraft maintenance and
equipment repair; civic-action projects; and consultations and meetings of the Philippine-U.S. Mutual
Defense Board. It is at the level of the Mutual Defense Board-which is headed jointly by the Chief
of Staff of the AFP and the Commander in Chief of the U.S. Pacific Command-that the VFA
exercises are planned. Final approval of any activity involving U.S. forces is,
however, invariably given by the Philippine Government.

xxxx

Siazon clarified that it is not the VFA by itself that determines what activities will be
conducted between the armed forces of the U.S. and the Philippines. The VFA regulates and
provides the legal framework for the presence, conduct and legal status of U.S.
personnel while they are in the country for visits, joint exercises and other related activities.
(Emphases Supplied)

What can be gleaned from the provisions of the VFA, the joint report of the Senate
committees on foreign relations and on national defense and security, and the ruling of this
Court in Lim is that the "activities" referred to in the treaty are meant to be specified and
identified infurther agreements. EDCA is one such agreement.

EDCA seeks to be an instrument that enumerates the Philippine-approved activities of U.S.

personnel referred to in the VFA. EDCA allows U.S. military and civilian personnel to perform
"activities approved by the Philippines, as those terms are defined in the VFA"  and clarifies that
278

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 apfropriate measures to protect U.S. forces
and contractors 282

5. Use of water, electricity, and other public utilities 283

6. Operation of their own telecommunication systems, including the utilization of such means and
services as are required to ensure the full ability to operate telecommunication systems, as well as
the use of the necessary radio spectrum allocated for this 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.

We note that these planned activities are very similar to those under the Terms of
Reference  mentioned in Lim. Both EDCA and the Terms of Reference authorize the U.S. to
285

perform the following: (a) participate in training exercises; (b) retain command over their forces; (c)
establish temporary structures in the country; (d) share in the use of their respective resources,
equipment and other assets; and (e) exercise their right to self-defense. We quote the relevant
portion of the Terms and Conditions as follows: 286

I. POLICY LEVEL

xxxx

No permanent US basing and support facilities shall be established. Temporary structures such as

those for troop billeting, classroom instruction and messing may be set up for use by RP and
US Forces during the Exercise.

The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority
of the Chief of Staff, AFP. In no instance will US Forces operate independently during field training
exercises (FTX). AFP and US Unit Commanders will retain command over their respective
forces under the overall authority of the Exercise Co-Directors. RP and US participants shall
comply with operational instructions of the AFP during the FTX.

The exercise shall be conducted and completed within a period of not more than six months, with the
projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall
direct the Exercise Co-Directors to wind up and terminate the Exercise and other activities within the
six month Exercise period.

The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to

Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further advising,
assisting and training exercises shall be conducted in Malagutay and the Zamboanga area. Related
activities in Cebu will be for support of the Exercise.
xx xx.

US exercise participants shall not engage in combat, without prejudice to their right of self-
defense.

These terms of Reference are for purposes of this Exercise only and do not create additional legal
obligations between the US Government and the Republic of the Philippines.

II. EXERCISE LEVEL

1. TRAINING

a. The Exercise shall involve the conduct of mutual military assisting, advising
and training of RP and US Forces with the primary objective of enhancing the
operational capabilities of both forces to combat terrorism.

b. At no time shall US Forces operate independently within RP territory.

c. Flight plans of all aircraft involved in the exercise will comply with the local air
traffic regulations.

2. ADMINISTRATION & LOGISTICS

xxxx

a. RP and US participating forces may share, in accordance with their respective laws and
regulations, in the use of their resources, equipment and other assets. They will use their
respective logistics channels. x x x. (Emphases Supplied)

After a thorough examination of the content, purpose, and framework of the MDT and the VFA, we
find that EDCA has remained within the parameters set in these two treaties. Just like the Terms of
Reference mentioned in Lim, mere adjustments in detail to implement the MDT and the VFA can be
in the form of executive agreements.

Petitioners assert  that the duration of the activities mentioned in EDCA is no longer consistent with
287

the temporary nature of the visits as contemplated in the VFA. They point out that Article XII(4) of
EDCA has an initial term of 10 years, a term automatically renewed unless the Philippines or the
U.S. terminates the agreement. According to petitioners, such length of time already has a badge of
permanency.

In connection with this, Justice Teresita J. Leonardo-De Castro likewise argues in her Concurring
and Dissenting Opinion that the VFA contemplated mere temporary visits from U.S. forces, whereas
EDCA allows an unlimited period for U.S. forces to stay in the Philippines.288

However, the provisions of EDCA directly contradict this argument by limiting itself to 10 years of
effectivity. Although this term is automatically renewed, the process for terminating the agreement is
unilateral and the right to do so automatically accrues at the end of the 10 year period. Clearly, this
method does not create a permanent obligation.

Drawing on the reasoning in Lim, we also believe that it could not have been by chance that the VFA
does not include a maximum time limit with respect to the presence of U.S. personnel in the country.
We construe this lack of specificity as a deliberate effort on the part of the Philippine and the U.S.
governments to leave out this aspect and reserve it for the "adjustment in detail" stage of the
implementation of the treaty. We interpret the subsequent, unconditional concurrence of the Senate
in the entire text of the VFA as an implicit grant to the President of a margin of appreciation in
determining the duration of the "temporary" presence of U.S. personnel in the country.

Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more permanent" in
nature.  However, this argument has not taken root by virtue of a simple glance at its provisions on
289

the effectivity period. EDCA does not grant permanent bases, but rather temporary rotational access
to facilities for efficiency. As Professor Aileen S.P. Baviera notes:

The new EDCA would grant American troops, ships and planes rotational access to facilities of the
Armed Forces of the Philippines – but not permanent bases which are prohibited under the
Philippine Constitution - with the result of reducing response time should an external threat from a
common adversary crystallize. 290

EDCA is far from being permanent in nature compared to the practice of states as shown in other
defense cooperation agreements. For example, Article XIV(l) of the U.S.-Romania defense
agreement provides the following:

This Agreement is concluded for an indefinite period and shall enter into force in accordance with
the internal laws of each Party x x x. (emphasis supplied)

Likewise, Article 36(2) of the US-Poland Status of Forces Agreement reads:

This Agreement has been concluded for an indefinite period of time. It may be terminated by
written notification by either Party and in that event it terminates 2 years after the receipt of the
notification. (emphasis supplied)

Section VIII of US.-Denmark Mutual Support Agreement similarly provides:

8.1 This Agreement, which consists of a Preamble, SECTIONs I-VIII, and Annexes A and B, shall
become effective on the date of the last signature affixed below and shall remain in force until
terminated by the Parties, provided that it may be terminated by either Party upon 180 days written
notice of its intention to do so to the other Party. (emphasis supplied)

On the other hand, Article XXI(3) of the US.-Australia Force Posture Agreement provides a longer
initial term:

3. This Agreement shall have an initial term of 25 years and thereafter shall continue in force,
but may be terminated by either Party at any time upon one year's written notice to the other Party
through diplomatic channels. (emphasis supplied)

The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with a term less than half of
that is provided in the latter agreement. This means that EDCA merely follows the practice of other
states in not specifying a non-extendible maximum term. This practice, however, does not
automatically grant a badge of permanency to its terms. Article XII(4) of EDCA provides very clearly,
in fact, that its effectivity is for an initial term of 10 years, which is far shorter than the terms of
effectivity between the U.S. and other states. It is simply illogical to conclude that the initial,
extendible term of 10 years somehow gives EDCA provisions a permanent character.
The reasoning behind this interpretation is rooted in the constitutional role of the President who, as
Commander-in-Chief of our armed forces, is the principal strategist of the nation and, as such, duty-
bound to defend our national sovereignty and territorial integrity;  who, as chief architect of our
291

foreign relations, is the head policymaker tasked to assess, ensure, and protect our national security
and interests;  who holds the most comprehensive and most confidential information about foreign
292

countries  that may affect how we conduct our external affairs; and who has unrestricted access to
293

highly classified military intelligence data  that may threaten the life of the nation. Thus, if after a
294

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.  That purpose must be
295

analyzed on a case-by-case basis depending on the factual circumstances surrounding the

conclusion of the implementing agreement. While the validity of the President's actions will be
judged under less stringent standards, the power of this Court to determine whether there was grave
abuse of discretion remains unimpaired.

d. Authorized activities performed by US. contractors within Philippine territory - who were

legitimately permitted to enter the country independent of EDCA - are subject to relevant Philippine
statutes and regulations and must be consistent with the MDT and the VFA

Petitioners also raise  concerns about the U.S. government's purported practice of hiring private
296

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  and carrying, owning, and possessing firearms  are illegal for foreign
300 301

civilians.

The laws in place already address issues regarding the regulation of contractors. In the 2015
Foreign Investment Negative list,  the Executive Department has already identified corporations that
302

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;  and303

No. 15, which regulates contracts for the construction of defense-related structures based on
Commonwealth Act No. 541.

Hence, any other entity brought into the Philippines by virtue of EDCA must subscribe to corporate
and civil requirements imposed by the law, depending on the entity's corporate structure and the
nature of its business.

That Philippine laws extraneous to EDCA shall govern the regulation of the activities of U.S.
contractors has been clear even to some of the present members of the Senate.

For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of spilling fuel in the
waters off Manila Bay.  The Senate Committee on Foreign Relations and the Senate Committee on
304

Environment and Natural Resources chairperson claimed environmental and procedural violations
by the contractor.  The U.S. Navy investigated the contractor and promised stricter guidelines to be
305

imposed upon its contractors.  The statement attributed to Commander Ron Steiner of the public
306

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."  What is more, we cannot move one step ahead and speculate that the alleged illegal
308

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,  labor
309

laws,  and immigrations laws  apply to them and therefore limit their activities here. Until and
310 311

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. "  Alluding to the definition of this term in Article
312

II(4) of EDCA, they point out that these locations are actually military bases, as the definition refers
to facilities and areas to which U.S. military forces have access for a variety of purposes. Petitioners
claim that there are several badges of exclusivity in the use of the Agreed Locations by U.S.
forces. First, Article V(2) of EDCA alludes to a "return" of these areas once they are no longer
needed by U.S. forces, indicating that there would be some transfer of use. Second, Article IV(4)
ofEDCA talks about American forces' unimpeded access to the Agreed Locations for all matters
relating to the prepositioning and storage of U.S. military equipment, supplies, and materiel. Third,
Article VII of EDCA authorizes U.S. forces to use public utilities and to operate their own
telecommunications system.

a. Preliminary point on badges of exclusivity

As a preliminary observation, petitioners have cherry-picked provisions of EDCA by presenting so-

called "badges of exclusivity," despite the presence of contrary provisions within the text of the
agreement itself.

First, they clarify the word "return" in Article V(2) of EDCA. However, the use of the word "return" is
within the context of a lengthy provision. The provision as a whole reads as follows:

The United States shall return to the Philippines any Agreed Locations, or any portion thereof,
including non-relocatable structures and assemblies constructed, modified, or improved by the
United States, once no longer required by United States forces for activities under this Agreement.
The Parties or the Designated Authorities shall consult regarding the terms of return of any Agreed
Locations, including possible compensation for improvements or construction.

The context of use is "required by United States forces for activities under this Agreement."
Therefore, the return of an Agreed Location would be within the parameters of an activity that the
Mutual Defense Board (MDB) and the Security Engagement Board (SEB) would authorize. Thus,
possession by the U.S. prior to its return of the Agreed Location would be based on the authority
given to it by a joint body co-chaired by the "AFP Chief of Staff and Commander, U.S. PACOM with
representatives from the Philippines' Department of National Defense and Department of Foreign
Affairs sitting as members."  The terms shall be negotiated by both the Philippines and the U.S., or
313

through their Designated Authorities. This provision, seen as a whole, contradicts petitioners'
interpretation of the return as a "badge of exclusivity." In fact, it shows the cooperation and
partnership aspect of EDCA in full bloom.

Second, the term "unimpeded access" must likewise be viewed from a contextual perspective.
Article IV(4) states that U.S. forces and U.S. contractors shall have "unimpeded access to Agreed
Locations for all matters relating to the prepositioning and storage of defense equipment, supplies,
and materiel, including delivery, management, inspection, use, maintenance, and removal of such
equipment, supplies and materiel."
At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the authority to bring
in these equipment, supplies, and materiel through the MDB and SEB security mechanism. These
items are owned by the U.S.,  are exclusively for the use of the U.S.  and, after going through the
314 315

joint consent mechanisms of the MDB and the SEB, are within the control of the U.S.  More 316

importantly, before these items are considered prepositioned, they must have gone through the
process of prior authorization by the MDB and the SEB and given proper notification to the AFP. 317

Therefore, this "unimpeded access" to the Agreed Locations is a necessary adjunct to the
ownership, use, and control of the U.S. over its own equipment, supplies, and materiel and must
have first been allowed by the joint mechanisms in play between the two states since the time of the
MDT and the VFA. It is not the use of the Agreed Locations that is exclusive per se; it is mere
access to items in order to exercise the rights of ownership granted by virtue of the Philippine Civil
Code. 318

As for the view that EDCA authorizes U.S. forces to use public utilities and to operate their own
telecommunications system, it will be met and answered in part D, infra.

Petitioners also point out  that EDCA is strongly reminiscent of and in fact bears a one-to-one
319

correspondence with the provisions of the 1947 MBA. They assert that both agreements (a) allow
similar activities within the area; (b) provide for the same "species of ownership" over facilities; and
(c) grant operational control over the entire area. Finally, they argue  that EDCA is in fact an
320

implementation of the new defense policy of the U.S. According to them, this policy was not what
was originally intended either by the MDT or by the VFA.

On these points, the Court is not persuaded.

The similar activities cited by petitioners  simply show that under the MBA, the U.S. had the right to
321

construct, operate, maintain, utilize, occupy, garrison, and control the bases. The so-called parallel
provisions of EDCA allow only operational control over the Agreed Locations specifically for
construction activities. They do not allow the overarching power to operate, maintain, utilize, occupy,
garrison, and control a base with full discretion. EDCA in fact limits the rights of the U.S. in respect of
every activity, including construction, by giving the MDB and the SEB the power to determine the
details of all activities such as, but not limited to, operation, maintenance, utility, occupancy,
garrisoning, and control.322

The "species of ownership" on the other hand, is distinguished by the nature of the property. For
immovable property constructed or developed by the U.S., EDCA expresses that ownership will
automatically be vested to the Philippines.  On the other hand, for movable properties brought into
323

the Philippines by the U.S., EDCA provides that ownership is retained by the latter. In contrast, the
MBA dictates that the U.S. retains ownership over immovable and movable properties.

To our mind, both EDCA and the MBA simply incorporate what is already the law of the land in the
Philippines. The Civil Code's provisions on ownership, as applied, grant the owner of a movable
property full rights over that property, even if located in another person's property. 324

The parallelism, however, ends when the situation involves facilities that can be considered
immovable. Under the MBA, the U.S. retains ownership if it paid for the facility.  Under EDCA, an
325

immovable is owned by the Philippines, even if built completely on the back of U.S. funding.  This is
326

consistent with the constitutional prohibition on foreign land ownership. 327

Despite the apparent similarity, the ownership of property is but a part of a larger whole that must be
considered before the constitutional restriction is violated. Thus, petitioners' points on operational
control will be given more attention in the discussion below. The arguments on policy are, however,
outside the scope of judicial review and will not be discussed

Moreover, a direct comparison of the MBA and EDCA will result in several important distinctions that
would allay suspicion that EDCA is but a disguised version of the MBA.

b. There are substantial matters that the US. cannot do under EDCA, but which it was authorized to
do under the 1947 MBA

The Philippine experience with U.S. military bases under the 1947 MBA is simply not possible under
EDCA for a number of important reasons.

First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over Philippine territory
occupied by American bases. In contrast, the U.S. under EDCA does not enjoy any such right over
any part of the Philippines in which its forces or equipment may be found. Below is a comparative
table between the old treaty and EDCA:

1947 MBA/ 1946 Treaty of General EDCA

Relations

1947 MBA, Art. I(1): EDCA, preamble:

The Government of the Republic of Affirming that the Parties share an

the Philippines (hereinafter referred to as the understanding for the United States not to
Philippines) grants to the Government of establish a permanent military presence or
the United States of America (hereinafter base in the territory of the Philippines;
referred to as the United States) the right to
retain the use of the bases in the xxxx
Philippines listed in Annex A attached hereto.
Recognizing that all United States access to
1947 MBA, Art. XVII(2): and use of facilities and areas will be at the
invitation of the Philippines and with full
All buildings and structures which respect for the Philippine Constitution and
are erected by the United States in the Philippine laws;
bases shall be the property of the United
States and may be removed by it before the x x x x
expiration of this Agreement or the earlier
relinquishment of the base on which the EDCA, Art. II(4):
structures are situated. There shall be no
obligation on the part of the Philippines or of
"Agreed Locations" means facilities and
the United States to rebuild or repair any
areas that are provided by the Government
destruction or damage inflicted from any
of the Philippines through the AFP and that
cause whatsoever on any of the said buildings
United States forces, United States
or structures owned or used by the United
contractors, and others as mutually agreed,
States in the bases. x x x x.
shall have the right to access and use
pursuant to this Agreement. Such Agreed
1946 Treaty of Gen. Relations, Art. I: Locations may be listed in an annex to be
appended to this Agreement, and may be
The United States of America agrees to further described in implementing
withdraw and surrender, and does hereby arrangements.
withdraw and surrender, all rights of
 possession, supervision, jurisdiction,
control or sovereignty existing and
exercised by the United States of America in
and over the territory and the people of the
Philippine Islands, except the use of such
bases, necessary appurtenances to such
bases, and the rights incident thereto, as
the United States of America, by agreement
with the Republic of the Philippines may deem
necessary to retain for the mutual protection of
the Republic of the Philippines and of the
United States of America. x x x.
EDCA, Art. V:
1. The Philippines shall retain ownership of
and title to Agreed Locations.
xxxx
4. All buildings, non-relocatable structures,
and assemblies affixed to the land in the
Agreed Locations, including ones altered or
improved by United States forces, remain
the property of the Philippines. Permanent
buildings constructed by United States forces
become the property of the Philippines, once
constructed, but shall be used by United
States forces until no longer required by
United States forces.

Second, in the bases agreement, the U.S. and the Philippines were visibly not on equal footing
when it came to deciding whether to expand or to increase the number of bases, as the Philippines
may be compelled to negotiate with the U.S. the moment the latter requested an expansion of the
existing bases or to acquire additional bases. In EDCA, U.S. access is purely at the invitation of the
Philippines.

1947 MBA/ 1946 Treaty of General EDCA

Relations

1947 MBA, Art.I(3): EDCA, preamble:

The Philippines agree to enter into Recognizing that all United States access to

negotiations with the United States at the
latter's request, to permit the United
States to expand such bases, to exchange
such bases for other bases, to acquire
additional bases, or relinquish rights to
bases, as any of such exigencies may be
required by military necessity.
1946 Treaty of Gen. Relations, Art. I:
The United States of America agrees to
withdraw and surrender, and does hereby
withdraw and surrender, all rights of
possession, supervision, jurisdiction,
control or sovereignty existing and
exercised by the United States of America in
and over the territory and the people of the
and use of facilities and areas will be at the
invitation of the Philippines and with full
respect for the Philippine Constitution and
Philippine laws;
xxxx
EDCA. Art. II(4):
"Agreed Locations" means facilities and
areas that are provided by the Government
of the Philippines through the AFP and that
United States forces, United States
contractors, and others as mutually agreed,
shall have the right to access and use
pursuant to this Agreement. Such Agreed
Locations may be listed in an annex to be
 Philippine Islands, except the use of such appended to this Agreement, and may be
bases, necessary appurtenances to such further described in implementing
bases, and the rights incident thereto, as the arrangements.
United States of America, by agreement
with the Republic of the Philippines may
deem necessary to retain for the mutual
protection of the Republic of the Philippines
and of the United States of America. x x x.

Third, in EDCA, the Philippines is- guaranteed access over the entire area of the Agreed Locations.
On the other hand, given that the U.S. had complete control over its military bases under the 1947
MBA, the treaty did not provide for any express recognition of the right of access of Philippine
authorities. Without that provision and in light of the retention of U.S. sovereignty over the old military
bases, the U.S. could effectively prevent Philippine authorities from entering those bases.

1947 MBA EDCA

No equivalent provision. EDCA, Art. III(5):

The Philippine Designated Authority and its

authorized representative shall have access
to the entire area of the Agreed Locations.
Such access shall be provided promptly
consistent with operational safety and security
requirements in accordance with agreed
procedures developed by the Parties.

Fourth, in the bases agreement, the U.S. retained the right, power, and authority over the
establishment, use, operation, defense, and control of military bases, including the limits of territorial
waters and air space adjacent to or in the vicinity of those bases. The only standard used in
determining the extent of its control was military necessity. On the other hand, there is no such grant
of power or authority under EDCA. It merely allows the U.S. to exercise operational control over the
construction of Philippine-owned structures and facilities:

1947 MBA EDCA

1947 MBA, Art.I(2): EDCA, Art. III(4):

The Philippines agrees to permit the United

The Philippines hereby grants to the United
States, upon notice to the Philippines, to use
States, through bilateral security
such of those bases listed in Annex B as the
mechanisms, such as the MDB and
United States determines to be required bySEB, operational control of Agreed
military necessity. Locations for construction
activities and authority to undertake such
1947 MBA, Art. III(1): activities on, and make alterations and
improvements to, Agreed Locations. United
It is mutually agreed that the United States forces shall consult on issues
States shall have the rights, power and regarding such construction, alterations,
authority within the bases which and improvements based on the Parties'
 are necessary for the establishment, use,
operation and defense thereof or
appropriate for the control thereof and all
the rights, power and authority within the
limits of territorial waters and air space
adjacent to, or in the vicinity of, the bases
which are necessary to provide access to
them, or appropriate for their control.
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.

Fifth, the U.S. under the bases agreement was given the authority to use Philippine territory for
additional staging areas, bombing and gunnery ranges. No such right is given under EDCA, as seen
below:

1947 MBA EDCA

1947 MBA, Art. VI: EDCA, Art. III(1):

The United States shall, subject to previous With consideration of the views of

agreement with the Philippines, have the right the Parties,
to use land and coastal sea areas of the Philippines hereby authorizes and
appropriate size and location for periodic agrees that United States forces, United
maneuvers, for additional staging areas, States contractors, and vehicles, vessels, and
bombing and gunnery ranges, and for such aircraft operated by or for United States forces
intermediate airfields as may be required for may conduct the following activities with
safe and efficient air operations. Operations in
respect to Agreed Locations: training; transit;
such areas shall be carried on with due regard support and related activities; refueling of
and safeguards for the public safety. aircraft; bunkering of vessels; temporary
maintenance of vehicles, vessels, and aircraft;
1947 MBA, Art.I(2): temporary accommodation of personnel;
communications; prepositioning of equipment,
The Philippines agrees to permit the United supplies, and materiel; deploying forces and
States, upon notice to the Philippines, to use materiel; and such other activities as the
such of those bases listed in Annex B as the Parties may agree.
United States determines to be required by
military necessity.

Sixth, under the MBA, the U.S. was given the right, power, and authority to control and prohibit the
movement and operation of all types of vehicles within the vicinity of the bases. The U.S. does not
have any right, power, or authority to do so under EDCA.

1947 MBA EDCA

1947 MBA, Art. 111(2)(c) No equivalent provision.

Such rights, power and authority shall

include, inter alia, the right, power and
authority: x x x x to control (including the
right to prohibit) in so far as may be required
for the efficient operation and safety of the
 bases, and within the limits of military
necessity, anchorages, moorings, landings,
takeoffs, movements and operation of
ships and water-borne craft, aircraft and
other vehicles on water, in the air or on
land comprising

Seventh, under EDCA, the U.S. is merely given temporary access to land and facilities (including
roads, ports, and airfields). On the other hand, the old treaty gave the U.S. the right to improve and
deepen the harbors, channels, entrances, and anchorages; and to construct or maintain necessary
roads and bridges that would afford it access to its military bases.

1947 MBA EDCA

1947 MBA, Art. III(2)(b): EDCA, Art. III(2):

Such rights, power and authority shall
include, inter alia, the right, power and
authority: x x x x to improve and deepen
the harbors, channels, entrances and
anchorages, and to construct or maintain
necessary roads and bridges affording
access to the bases.
When requested, the Designated Authority of
the Philippines shall assist in facilitating
transit or temporary access by United
States forces to public land and facilities
(including roads, ports, and airfields), including
those owned or controlled by local
governments, and to other land and facilities
(including roads, ports, and airfields).

Eighth, in the 1947 MBA, the U.S. was granted the automatic right to use any and all public utilities,
services and facilities, airfields, ports, harbors, roads, highways, railroads, bridges, viaducts, canals,
lakes, rivers, and streams in the Philippines in the same manner that Philippine military forces
enjoyed that right. No such arrangement appears in EDCA. In fact, it merely extends to U.S. forces
temporary access to public land and facilities when requested:

1947 MBA EDCA

1947 MBA, Art. VII: EDCA, Art. III(2):

It is mutually agreed that the United States
may employ and use for United States
military forces any and all public utilities,
other services and facilities, airfields, ports,
harbors, roads, highways, railroads, bridges,
viaducts, canals, lakes, rivers and streams in
the Philippines under conditions no less
favorable than those that may
be applicable from time to time to the military
forces of the Philippines.
When requested, the Designated Authority of
the Philippines shall assist in facilitating
transit or temporary access by United
States forces to public land and facilities
(including roads, ports, and airfields), including
those owned or controlled by local
governments, and to other land and facilities
(including roads, ports, and airfields).

Ninth, under EDCA, the U.S. no longer has the right, power, and authority to construct, install,
maintain, and employ any type of facility, weapon, substance, device, vessel or vehicle, or system
unlike in the old treaty. EDCA merely grants the U.S., through bilateral security mechanisms, the
authority to undertake construction, alteration, or improvements on the Philippine-owned Agreed
Locations.

1947 MBA EDCA

1947 MBA, Art. III(2)(e): EDCA, Art. III(4):

Such rights, power and authority shall
include, inter alia, the right, power and
authority: x x x x to construct, install,
maintain, and employ on any base any
type of facilities, weapons, substance,
device, vessel or vehicle on or under the
ground, in the air or on or under the water that
may be requisite or appropriate, including
meteorological systems, aerial and water
navigation lights, radio and radar apparatus
and electronic devices, of any desired power,
type of emission and frequency.
The Philippines hereby grants to the United
States, through bilateral security
mechanisms, such as the MDB and SEB,
operational control of Agreed Locations for
construction activities and authority to
undertake such activities on, and make
alterations and improvements to, Agreed
Locations. United States forces shall consult
on issues regarding such construction,
alterations, and improvements based on the
Parties' shared intent that the technical
requirements and construction standards of
any such projects undertaken by or on behalf
of United States forces should be consistent
with the requirements and standards of both
Parties.

Tenth, EDCA does not allow the U.S. to acquire, by condemnation or expropriation proceedings,
real property belonging to any private person. The old military bases agreement gave this right to the
U.S. as seen below:

1947 MBA EDCA

1947 MBA, Art. XXII(l): No equivalent provision.

Whenever it is necessary to acquire by

condemnation or expropriation
proceedings real property belonging to any
private persons, associations or corporations
located in bases named in Annex A and
Annex B in order to carry out the purposes of
this Agreement, the Philippines will institute
and prosecute such condemnation or
expropriation proceedings in accordance with
the laws of the Philippines. The United States
agrees to reimburse the Philippines for all the
reasonable expenses, damages and costs
therebv incurred, including the value of the
property as determined by the Court. In
addition, subject to the mutual agreement of
the two Governments, the United States will
reimburse the Philippines for the reasonable
costs of transportation and removal of any
 occupants displaced or ejected by reason of
the condemnation or expropriation.

Eleventh, EDCA does not allow the U.S. to unilaterally bring into the country non-Philippine
nationals who are under its employ, together with their families, in connection with the construction,
maintenance, or operation of the bases. EDCA strictly adheres to the limits under the VFA.

1947 MBA EDCA

1947 MBA, Art. XI(l): EDCA, Art. II:

It is mutually agreed that the United States 1. "United States personnel" means United

shall have the right to bring into the States military and civilian
Philippines members of the United States personnel temporarily in the territory of the
military forces and the United States Philippines in connection with activities
nationals employed by or under a contract approved by the Philippines, as those terms
with the United States together with their are defined in the VFA.
families, and technical personnel of other
nationalities (not being persons excluded by x xx x
the laws of the Philippines) in connection with
the construction, maintenance, or operation of 3. "United States contractors" means
the bases. The United States shall make companies and firms, and their employees,
suitable arrangements so that such persons under contract or subcontract to or on behalf
may be readily identified and their status of the United States Department of Defense.
established when necessary by the Philippine United States contractors are not included as
authorities. Such persons, other than part of the definition of United States
members of the United States armed forces in personnel in this Agreement, including
uniform, shall present their travel documents within the context of the VFA.
to the appropriate Philippine authorities for
visas, it being understood that no objection
 
will be made to their travel to the
Philippines as non-immigrants.

Twelfth, EDCA does not allow the U.S. to exercise jurisdiction over any offense committed by any
person within the Agreed Locations, unlike in the former military bases:

1947 MBA EDCA

1947 MBA, Art. XIII(l)(a): No equivalent provision.

The Philippines consents that the United

States shall have the right to exercise

jurisdiction over the following offenses:
(a) Any offense committed by any
person within any base except where the
offender and offended parties are both
Philippine citizens (not members of the armed
forces of the United States on active duty) or
 the offense is against the security of the
Philippines.

Thirteenth, EDCA does not allow the U.S. to operate military post exchange (PX) facilities, which is
free of customs duties and taxes, unlike what the expired MBA expressly allowed. Parenthetically,
the PX store has become the cultural icon of U.S. military presence in the country.

1947 MBA EDCA

1947 MBA, Art. XVIII(l): No equivalent provision.

It is mutually agreed that the United States

shall have the right to establish on bases,

free of all licenses; fees; sales, excise or
other taxes, or imposts; Government
agencies, including concessions, such
as sales commissaries and post
exchanges; messes and social clubs, for the
exclusive use of the United States military
forces and authorized civilian personnel
and their families. The merchandise or
services sold or dispensed by such agencies
shall be free of all taxes, duties and
inspection by the Philippine
authorities. Administrative measures shall be
taken by the appropriate authorities of the
United States to prevent the resale of goods
which are sold under the provisions of this
Article to persons not entitled to buy goods at
such agencies and, generally, to prevent
abuse of the privileges granted under this
Article. There shall be cooperation between
such authorities and the Philippines to this
end.

In sum, EDCA is a far cry from a basing agreement as was understood by the people at the time that
the 1987 Constitution was adopted.

Nevertheless, a comprehensive review of what the Constitution means by "foreign military bases"
and "facilities" is required before EDCA can be deemed to have passed judicial scrutiny.

c. The meaning of military facilities and bases

An appreciation of what a military base is, as understood by the Filipino people in 1987, would be
vital in determining whether EDCA breached the constitutional restriction.

Prior to the drafting of the 1987 Constitution, the last definition of "military base" was provided under
Presidential Decree No. (PD) 1227.  Unlawful entry into a military base is punishable under the
328
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 194 7 Military
Bases Agreement between the Philippines and the United States of America, as amended. 330

The result of the debates and subsequent voting is Section 25, Article XVIII of the Constitution,
which specifically restricts, among others, foreign military facilities or bases. At the time of its crafting
of the Constitution, the 1986 Constitutional Commission had a clear idea of what exactly it was
restricting. While the term "facilities and bases" was left undefined, its point of reference was clearly
those areas covered by the 1947 MBA as amended.

Notably, nearly 30 years have passed since then, and the ever-evolving world of military technology
and geopolitics has surpassed the understanding of the Philippine people in 1986. The last direct
military action of the U.S. in the region was the use of Subic base as the staging ground for Desert
Shield and Desert Storm during the Gulf War.  In 1991, the Philippine Senate rejected the
331

successor treaty of the 1947 MBA that would have allowed the continuation of U.S. bases in the
Philippines.
Henceforth, any proposed entry of U.S. forces into the Philippines had to evolve likewise, taking into
consideration the subsisting agreements between both parties, the rejection of the 1991 proposal,
and a concrete understanding of what was constitutionally restricted. This trend birthed the VFA
which, as discussed, has already been upheld by this Court.

The latest agreement is EDCA, which proposes a novel concept termed "Agreed Locations."

By definition, Agreed Locations are

facilities and areas that are provided by the Government of the Philippines through the AFP and that
United States forces, United States contractors, and others as mutually agreed, shall have the right
to access and use pursuant to this Agreement. Such Agreed Locations may be listed in an annex to
be appended to this Agreement, and may be further described in implementing arrangements. 332

Preliminarily, respondent already claims that the proviso that the Philippines shall retain ownership
of and title to the Agreed Locations means that EDCA is "consistent with Article II of the VFA which
recognizes Philippine sovereignty and jurisdiction over locations within Philippine territory.
333

By this interpretation, respondent acknowledges that the contention of petitioners springs from an
understanding that the Agreed Locations merely circumvent the constitutional restrictions. Framed
differently, the bone of contention is whether the Agreed Locations are, from a legal perspective,
foreign military facilities or bases. This legal framework triggers Section 25, Article XVIII, and makes
Senate concurrence a sine qua non.

Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized by the Philippines
to "conduct the following activities: "training; transit; support and related activities; refueling of
aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels and aircraft; temporary
accommodation of personnel; communications; prepositioning of equipment, supplies and materiel;
deploying forces and materiel; and such other activities as the Parties may agree."

This creation of EDCA must then be tested against a proper interpretation of the Section 25
restriction.

d. Reasons for the constitutional requirements and legal standards for constitutionally compatible
military bases and facilities

Section 25 does not define what is meant by a "foreign military facility or base." While it specifically
alludes to U.S. military facilities and bases that existed during the framing of the Constitution, the
provision was clearly meant to apply to those bases existing at the time and to any future facility or
base. The basis for the restriction must first be deduced from the spirit of the law, in order to set a
standard for the application of its text, given the particular historical events preceding the agreement.

Once more, we must look to the 1986 Constitutional Commissioners to glean, from their collective
wisdom, the intent of Section 25. Their speeches are rich with history and wisdom and present a
clear picture of what they considered in the crafting the provision.

SPEECH OF COMMISSIONER REGALADO 334

xxxx
We have been regaled here by those who favor the adoption of the anti-bases provisions with what
purports to be an objective presentation of the historical background of the military bases in the
Philippines. Care appears, however, to have been taken to underscore the inequity in their
inception as well as their implementation, as to seriously reflect on the supposed objectivity of
the report. Pronouncements of military and civilian officials shortly after World War II are quoted in
support of the proposition on neutrality; regrettably, the implication is that the same remains valid
today, as if the world and international activity stood still for the last 40 years.

We have been given inspired lectures on the effect of the presence of the military bases on
our sovereignty - whether in its legal or political sense is not clear - and the theory that any
country with foreign bases in its territory cannot claim to be fully sovereign or completely
independent. I was not aware that the concepts of sovereignty and independence have now
assumed the totality principle, such that a willing assumption of some delimitations in the exercise of
some aspects thereof would put that State in a lower bracket of nationhood.

xxxx

We have been receiving a continuous influx of materials on the pros and cons on the advisability of
having military bases within our shores. Most of us who, only about three months ago, were just
mulling the prospects of these varying contentions are now expected, like armchair generals, to
decide not only on the geopolitical aspects and contingent implications of the military bases but also
on their political, social, economic and cultural impact on our national life. We are asked to answer a
plethora of questions, such as: 1) whether the bases are magnets of nuclear attack or are deterrents
to such attack; 2) whether an alliance or mutual defense treaty is a derogation of our national
sovereignty; 3) whether criticism of us by Russia, Vietnam and North Korea is outweighed by the
support for us of the ASEAN countries, the United States, South Korea, Taiwan, Australia and New
Zealand; and 4) whether the social, moral and legal problems spawned by the military bases and
their operations can be compensated by the economic benefits outlined in papers which have been
furnished recently to all of us.
335

xxxx

Of course, one side of persuasion has submitted categorical, unequivocal and forceful assertions of
their positions. They are entitled to the luxury of the absolutes. We are urged now to adopt the
proposed declaration as a "golden," "unique" and "last" opportunity for Filipinos to assert
their sovereign rights. Unfortunately, I have never been enchanted by superlatives, much less for
the applause of the moment or the ovation of the hour. Nor do I look forward to any glorious summer
after a winter of political discontent. Hence, if I may join Commissioner Laurel, I also invoke a caveat
not only against the tyranny of labels but also the tyranny of slogans.
336

xxxx

SPEECH OF COMMISSIONER 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 selfrespect as a nation;

4. That these foreign military bases unnecessarily expose our country to devastating

nuclear attacks;

5. That these foreign military bases create social problems and are designed to perpetuate
the strangle-hold of United States interests in our national economy and development;

6. That the extraterritorial rights enjoyed by these foreign bases operate to deprive our

country of jurisdiction over civil and criminal offenses committed within our own national
territory and against Filipinos;

7. That the bases agreements are colonial impositions and dictations upon our helpless
country; and

8. That on the legal viewpoint and in the ultimate analysis, all the bases agreements are null
and void ab initio, especially because they did not count the sovereign consent and will of
the Filipino people.
338

xxxx

In the real sense, Madam President, if we in the Commission could accommodate the provisions I
have cited, what is our objection to include in our Constitution a matter as priceless as the nationalist
values we cherish? A matter of the gravest concern for the safety and survival of this
nation indeed deserves a place in our Constitution.

xxxx

x x x Why should we bargain away our dignity and our self-respect as a nation and the future of
generations to come with thirty pieces of silver? 339

SPEECH OF COMMISSIONER BENNAGEN 340

xxxx

The underlying principle of military bases and nuclear weapons wherever they are found and
whoever owns them is that those are for killing people or for terrorizing humanity. This objective
by itself at any point in history is morally repugnant. This alone is reason enough for us to
constitutionalize the ban on foreign military bases and on nuclear weapons. 341

SPEECH OF COMMISSIONER BACANI 342

xxxx
x x x Hence, the remedy to prostitution does not seem to be primarily to remove the
bases because even if the bases are removed, the girls mired in poverty will look for their clientele
elsewhere. The remedy to the problem of prostitution lies primarily elsewhere - in an alert and
concerned citizenry, a healthy economy and a sound education in values. 343

SPEECH OF COMMISSIONER JAMIR 344

xxxx

One of the reasons advanced against the maintenance of foreign military bases here is that
they impair portions of our sovereignty. While I agree that our country's sovereignty should not
be impaired, I also hold the view that there are times when it is necessary to do so according to the
imperatives of national interest. There are precedents to this effect. Thus, during World War II,
England leased its bases in the West Indies and in Bermuda for 99 years to the United States for its
use as naval and air bases. It was done in consideration of 50 overaged destroyers which the United
States gave to England for its use in the Battle of the Atlantic.

A few years ago, England gave the Island of Diego Garcia to the United States for the latter's use as
a naval base in the Indian Ocean. About the same time, the United States obtained bases in Spain,
Egypt and Israel. In doing so, these countries, in effect, contributed to the launching of a preventive
defense posture against possible trouble in the Middle East and in the Indian Ocean for their own
protection. 345

SPEECH OF COMMISSIONER TINGSON 346

xxxx

In the case of the Philippines and the other Southeast Asian nations, the presence of American
troops in the country is a projection of America's security interest. Enrile said that nonetheless, they
also serve, although in an incidental and secondary way, the security interest of the Republic of the
Philippines and the region. Yes, of course, Mr. Enrile also echoes the sentiments of most of us in
this Commission, namely: It is ideal for us as an independent and sovereign nation to
ultimately abrogate the RP-US military treaty and, at the right time, build our own air and
naval might. 347

xxxx

Allow me to say in summation that I am for the retention of American military bases in the
Philippines provided that such an extension from one period to another shall be concluded
upon concurrence of the parties, and such extension shall be based on justice, the historical
amity of the people of the Philippines and the United States and their common defense
interest.348

SPEECH OF COMMISSIONER ALONTO 349

xxxx

Madam President, sometime ago after this Commission started with this task of framing a
constitution, I read a statement of President Aquino to the effect that she is for the removal of the
U.S. military bases in this country but that the removal of the U.S. military bases should not be done
just to give way to other foreign bases. Today, there are two world superpowers, both vying to
control any and all countries which have importance to their strategy for world domination. The
Philippines is one such country.

Madam President, I submit that I am one of those ready to completely remove any vestiges of
the days of enslavement, but not prepared to erase them if to do so would merely leave a vacuum
to be occupied by a far worse type. 350

SPEECH OF COMMISSIONER GASCON 351

xxxx

Let us consider the situation of peace in our world today. Consider our brethren in the Middle East,
in Indo-China, Central America, in South Africa - there has been escalation of war in some of these
areas because of foreign intervention which views these conflicts through the narrow prism of the
East-West conflict. The United States bases have been used as springboards for intervention
in some of these conflicts. We should not allow ourselves to be party to the warlike mentality
of these foreign interventionists. We must always be on the side of peace – this means that we
should not always rely on military solution. 352

xxxx

x x x The United States bases, therefore, are springboards for intervention in our own internal
affairs and in the affairs of other nations in this region.

xxxx

Thus, I firmly believe that a self-respecting nation should safeguard its fundamental freedoms which
should logically be declared in black and white in our fundamental law of the land - the
Constitution. Let us express our desire for national sovereignty so we may be able to achieve
national self-determination. Let us express our desire for neutrality so that we may be able to
follow active nonaligned independent foreign policies. Let us express our desire for peace and a
nuclear-free zone so we may be able to pursue a healthy and tranquil existence, to have peace that
is autonomous and not imposed.  353

xxxx

SPEECH OF COMMISSIONER TADEO 354

Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases? Para sa magbubukid, ang

kahulugan nito ay pagkaalipin. Para sa magbubukid, ang pananatili ng U.S. military
bases ay tinik sa dibdib ng sambayanang Pilipinong patuloy na nakabaon. Para sa
sambayanang magbubukid, ang ibig sabihin ng U.S. military bases ay batong pabigat na patuloy
na pinapasan ng sambayanang Pilipino. Para sa sambayanang magbubukid, ang pananatili
ng U.S. military bases ay isang nagdudumilat na katotohanan ng patuloy na paggahasa ng
imperyalistang Estados Unidos sa ating Inang Bayan - economically, politically and
culturally. Para sa sambayanang magbubukid ang U.S. military bases ay kasingkahulugan
ng nuclear weapon - ang kahulugan ay magneto ng isang nuclear war. Para sa sambayanang
magbubukid, ang kahulugan ng U.S. military bases ay isang salot. 355

SPEECH OF COMMISSIONER QUESADA 356

xxxx

The drift in the voting on issues related to freeing ourselves from the instruments of domination
and subservience has clearly been defined these past weeks.

xxxx

So for the record, Mr. Presiding Officer, I would like to declare my support for the committee's
position to enshrine in the Constitution a fundamental principle forbidding foreign military bases,
troops or facilities in any part of the Philippine territory as a clear and concrete manifestation of
our inherent right to national self-determination, independence and sovereignty.

Mr. Presiding Officer, I would like to relate now these attributes of genuine nationhood to the social
cost of allowing foreign countries to maintain military bases in our country. Previous speakers have
dwelt on this subject, either to highlight its importance in relation to the other issues or to gloss over
its significance and !llake this a part of future negotiations.
357

xxxx

Mr. Presiding Officer, I feel that banning foreign military bases is one of the solutions and is the
response of the Filipino people against this condition and other conditions that have already been
clearly and emphatically discussed in past deliberations. The deletion, therefore, of Section 3 in the
Constitution we are drafting will have the following implications:

First, the failure of the Constitutional Commission to decisively respond to the continuing violation
of our territorial integrity via the military bases agreement which permits the retention of U.S.
facilities within the Philippine soil over which our authorities have no exclusive jurisdiction
contrary to the accepted definition of the exercise of sovereignty.

Second, consent by this forum, this Constitutional Commission, to an exception in the application
of a provision in the Bill of Rights that we have just drafted regarding equal application of the laws
of the land to all inhabitants, permanent or otherwise, within its territorial boundaries.

Third, the continued exercise by the United States of extraterritoriality despite the

condemnations of such practice by the world community of nations in the light of overwhelming
international approval of eradicating all vestiges of colonialism. 358

xxxx

Sixth, the deification of a new concept called pragmatic sovereignty, in the hope that such can be
wielded to force the United States government to concede to better terms and conditions concerning
the military bases agreement, including the transfer of complete control to the Philippine
government of the U.S. facilities, while in the meantime we have to suffer all existing indignities
and disrespect towards our rights as a sovereign nation.

xxxx

Eighth, the utter failure of this forum to view the issue of foreign military bases as essentially
a question of sovereignty which does not require in-depth studies or analyses and which this
forum has, as a constituent assembly drafting a constitution, the expertise and capacity to decide on
except that it lacks the political will that brought it to existence and now engages in an elaborate
scheme of buck-passing.

xxxx

Without any doubt we can establish a new social order in our country, if we reclaim, restore, uphold
and defend our national sovereignty. National sovereignty is what the military bases issue is all
about. It is only the sovereign people exercising their national sovereignty who can design an
independent course and take full control of their national destiny. 359

SPEECH OF COMMISSIONER P ADILLA 360

xxxx

Mr. Presiding Officer, in advocating the majority committee report, specifically Sections 3 and 4 on
neutrality, nuclear and bases-free country, some views stress sovereignty of the Republic and
even invoke survival of the Filipino nation and people. 361

REBUTTAL OF COMMISSIONER NOLLEDO 362

xxxx

The anachronistic and ephemeral arguments against the provisions of the committee report to
dismantle the American bases after 1991 only show the urgent need to free our country from the
entangling alliance with any power bloc. 363

xxxx

xx x Mr. Presiding Officer, it is not necessary for us to possess expertise to know that the so-called
RP-US Bases Agreement will expire in 1991, that it infringes on our sovereignty and jurisdiction
as well as national dignity and honor, that it goes against the UN policy of disarmament and that it
constitutes unjust intervention in our internal affairs.  (Emphases Supplied)
364

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.  It is public if "intended for public use, such as roads,
365

canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and
others of similar character[,]" or "[t]hose which belong to the State, without being for public use, and
are intended for some public service or for the development of the national wealth. " 366

Quite clearly, the Agreed Locations are contained within a property for public use, be it within a
government military camp or property that belongs to the Philippines. 1avvphi1

Once ownership is established, then the rights of ownership flow freely. Article 428 of the Civil Code
provides that "[t]he owner has the right to enjoy and dispose of a thing, without other limitations than
those established by law." Moreover, the owner "has also a right of action against the holder and
possessor of the thing in order to recover it."

Philippine civil law therefore accords very strong rights to the owner of property, even against those
who hold the property. Possession, after all, merely raises a disputable presumption of ownership,
which can be contested through normal judicial processes. 367

In this case, EDCA explicitly provides that ownership of the Agreed Locations remains with the
Philippine govemment.  What U.S. personnel have a right to, pending mutual agreement, is access
368

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.  The activities carried
371

out within these locations are subject to agreement as authorized by the Philippine
govemment.  Granting the U.S. operational control over these locations is likewise subject to EDCA'
372

s security mechanisms, which are bilateral procedures involving Philippine consent and
cooperation.  Finally, the Philippine Designated Authority or a duly designated representative is
373

given access to the Agreed Locations. 374

To our mind, these provisions do not raise the spectre of U.S. control, which was so feared by the
Constitutional Commission. In fact, they seem to have been the product of deliberate negotiation
from the point of view of the Philippine government, which balanced constitutional restrictions on
foreign military bases and facilities against the security needs of the country. In the 1947 MBA, the
U.S. forces had "the right, power and authority x x x to construct (including dredging and filling),
operate, maintain, utilize, occupy, garrison and control the bases."  No similarly explicit provision is
375

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.  (Emphases supplied)
376

Commissioner Sarmiento proposed a motherhood statement in the 1987 Constitution that would
assert "independent" and "self-reliant" armed forces. This proposal was rejected by the
committee, however. As Commissioner De Castro asserted, the involvement of the Philippine
military with the U.S. did not, by itself, rob the Philippines of its real independence. He made
reference to the context of the times: that the limited resources of the Philippines and the current
insurgency at that time necessitated a strong military relationship with the U.S. He said that the U.S.
would not in any way control the Philippine military despite this relationship and the fact that the
former would furnish military hardware or extend military assistance and training to our military.
Rather, he claimed that the proposal was in compliance with the treaties between the two states.

MR. DE CASTRO: If the Commissioner will take note of my speech on U.S. military bases on 12
September 1986, I spoke on the selfreliance policy of the armed forces. However, due to very limited
resources, the only thing we could do is manufacture small arms ammunition. We cannot blame the
armed forces. We have to blame the whole Republic of the Philippines for failure to provide the
necessary funds to make the Philippine Armed Forces self-reliant. Indeed that is a beautiful dream.
And I would like it that way. But as of this time, fighting an insurgency case, a rebellion in our country
- insurgency - and with very limited funds and very limited number of men, it will be quite impossible
for the Philippines to appropriate the necessary funds therefor. However, if we say that the U.S.
government is furnishing us the military hardware, it is not control of our armed forces or of
our government. It is in compliance with the Mutual Defense Treaty. It is under the military
assistance program that it becomes the responsibility of the United States to furnish us the
necessary hardware in connection with the military bases agreement. Please be informed that there
are three (3) treaties connected with the military bases agreement; namely: the RP-US Military
Bases Agreement, the Mutual Defense Treaty and the Military Assistance Program.
My dear Commissioner, when we enter into a treaty and we are furnished the military
hardware pursuant to that treaty, it is not in control of our armed forces nor control of our
government. True indeed, we have military officers trained in the U.S. armed forces school. This is
part of our Military Assistance Program, but it does not mean that the minds of our military officers
are for the U.S. government, no. I am one of those who took four courses in the United States
schools, but I assure you, my mind is for the Filipino people. Also, while we are sending military
officers to train or to study in U.S. military schools, we are also sending our officers to study in other
military schools such as in Australia, England and in Paris. So, it does not mean that when we send
military officers to United States schools or to other military schools, we will be under the control of
that country. We also have foreign officers in our schools, we in the Command and General Staff
College in Fort Bonifacio and in our National Defense College, also in Fort Bonifacio.  (Emphases
377

supplied)

This logic was accepted in Tañada v. Angara, in which the Court ruled that independence does not
mean the absence of foreign participation:

Furthermore, the constitutional policy of a "self-reliant and independent national economy" does not
necessarily rule out the entry of foreign investments, goods and services. It contemplates
neither "economic seclusion" nor "mendicancy in the international community." As explained by
Constitutional Commissioner Bernardo Villegas, sponsor of this constitutional policy:

Economic self reliance is a primary objective of a developing country that is keenly aware of
overdependence on external assistance for even its most basic needs. It does not mean autarky or
economic seclusion; rather, it means avoiding mendicancy in the international
community. Independence refers to the freedom from undue foreign control of the national
economy, especially in such strategic industries as in the development of natural resources and
public utilities.  (Emphases supplied)
378

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-
1âwphi1

governance and self-control.  Independence itself is "[t]he state or condition of being free from
379

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.  Petitioners contend that the word "their"
382

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.  Similarly, a municipal mayor exercises operational control over the police within the
385

municipal government,  just as city mayor possesses the same power over the police within the city
386

government. 387

Thus, the legal concept of operational control involves authority over personnel in a commander-
subordinate relationship and does not include control over the Agreed Locations in this particular
case. Though not necessarily stated in EDCA provisions, this interpretation is readily implied by the
reference to the taking of "appropriate measures to protect United States forces and United States
contractors."

It is but logical, even necessary, for the U.S. to have operational control over its own forces, in much
the same way that the Philippines exercises operational control over its own units.

For actual operations, EDCA is clear that any activity must be planned and pre-approved by the
MDB-SEB.  This provision evinces the partnership aspect of EDCA, such that both stakeholders
388

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.  They claim that if the Philippines exercises possession of and control over a given area,
389

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.  In their Memorandum, they distinguish effective command
391

and control from operational control in U.S. parlance.  Citing the Doctrine for the Armed Forces of
392

the United States, Joint Publication 1, "command and control (C2)" is defined as "the exercise of
authority and direction by a properly designated commander over assigned and attached forces in
the accomplishment of the mission x x x."  Operational control, on the other hand, refers to "[t]hose
393

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.  Treaties are in themselves contracts from which rights and obligations may be
395

claimed or waived.  In this particular case, the Philippines has already agreed to abide by the
396

security mechanisms that have long been in place between the U.S. and the Philippines based on
the implementation of their treaty relations. 397

Secondly, the full document cited by petitioners contradicts the equation of "operational control" with
"effective command and control," since it defines the terms quite differently, viz:
398

Command and control encompasses the exercise of authority, responsibility, and direction by a
commander over assigned and attached forces to accomplish the mission. Command at all levels is
the art of motivating and directing people and organizations into action to accomplish missions.
Control is inherent in command. To control is to manage and direct forces and functions consistent
with a commander's command authority. Control of forces and functions helps commanders and
staffs compute requirements, allocate means, and integrate efforts. Mission command is the
preferred method of exercising C2. A complete discussion of tenets, organization, and processes for
effective C2 is provided in Section B, "Command and Control of Joint Forces," of Chapter V "Joint
Command and Control."

Operational control is defined thus: 399

OPCON is able to be delegated from a lesser authority than COCOM. It is the authority to perform
those functions of command over subordinate forces involving organizing and employing commands
and forces, assigning tasks, designating objectives, and giving authoritative direction over all
aspects of military operations and joint training necessary to accomplish the mission. It should be
delegated to and exercised by the commanders of subordinate organizations; normally, this authority
is exercised through subordinate JFCs, Service, and/or functional component commanders. OPCON
provides authority to organize and employ commands and forces as the commander considers
necessary to accomplish assigned missions. It does not include authoritative direction for logistics or
matters of administration, discipline, internal organization, or unit training. These elements of
COCOM must be specifically delegated by the CCDR. OPCON does include the authority to
delineate functional responsibilities and operational areas of subordinate JFCs.

Operational control is therefore the delegable aspect of combatant command, while command and
control is the overall power and responsibility exercised by the commander with reference to a
mission. Operational control is a narrower power and must be given, while command and control is
plenary and vested in a commander. Operational control does not include the planning,
programming, budgeting, and execution process input; the assignment of subordinate commanders;
the building of relationships with Department of Defense agencies; or the directive authority for
logistics, whereas these factors are included in the concept of command and control. 400

This distinction, found in the same document cited by petitioners, destroys the very foundation of the
arguments they have built: that EDCA is the same as the MBA.

c. Limited operational control over the Agreed Locations only for construction activitites

As petitioners assert, EDCA indeed contains a specific provision that gives to the U.S. operational
control within the Agreed Locations during construction activities.  This exercise of operational
401

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.  Following this construction, since EDCA
403

mentions the existence of U.S. operational control over the Agreed Locations for construction
activities, then it is quite logical to conclude that it is not exercised over other activities.

Limited control does not violate the Constitution. The fear of the commissioners was total control, to
the point that the foreign military forces might dictate the terms of their acts within the
Philippines.  More important, limited control does not mean an abdication or derogation of Philippine
404

sovereignty and legal jurisdiction over the Agreed Locations. It is more akin to the extension of
diplomatic courtesies and rights to diplomatic agents,  which is a waiver of control on a limited scale
405

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,  while jurisdiction is the conferment by law of
406

power and authority to apply the law.  Article I of the 1987 Constitution states:
407
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.  By withholding ownership of these areas and retaining unrestricted
408

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.  Hence, Philippine law remains in force therein, and it cannot be said that jurisdiction has
410

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.  The difference between then and now is that EDCA retains
412

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.  While415

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.  More 416

important, they claim that the Agreed Locations invite instances of attack on the Philippines from
enemies of the U.S. 417
We believe that the raised fear of an attack on the Philippines is not in the realm of law, but of
politics and policy. At the very least, we can say that under international law, EDCA does not provide
a legal basis for a justified attack on the Philippines.

In the first place, international law disallows any attack on the Agreed Locations simply because of
the presence of U.S. personnel. Article 2(4) of the United Nations Charter states that "All Members
shall refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations."  Any unlawful attack on the Philippines breaches the treaty, and
418

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.  Under this
419

legal regime, participants to an armed conflict are held to specific standards of conduct that require
them to distinguish between combatants and non-combatants,  as embodied by the Geneva
420

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."  In strategic literature, "base" is defined as an installation
422

"over which the user State has a right to exclusive control in an extraterritorial sense."  Since this
423

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.  Another example given is an advanced communications technology installation for
424

purposes of information gathering and communication.  Unsurprisingly, he deems these non-

425

combat uses as borderline situations that would be excluded from the functional understanding of
military bases and installations.426

By virtue of this ambiguity, the laws of war dictate that the status of a building or person is presumed
to be protected, unless proven otherwise.  Moreover, the principle of distinction requires combatants
427

in an armed conflict to distinguish between lawful targets  and protected targets.  In an actual
428 429

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.  That 437

access is without rental or similar costs to the U.S.  Further, U.S. forces are allowed to undertake
438

construction activities in, and make alterations and improvements to, the agreed locations, facilities,
or areas.  As in EDCA, the host states retain ownership and jurisdiction over the said bases.
439 440

In fact, some of the host states in these agreements give specific military-related rights to the U.S.
For example, under Article IV(l) of the US.-Bulgaria Defense Cooperation Agreement, "the United
States forces x x x are authorized access to and may use agreed facilities and areas x x x for
staging and deploying of forces and materiel, with the purpose of conducting x x x contingency
operations and other missions, including those undertaken in the framework of the North Atlantic
Treaty." In some of these agreements, host countries allow U.S. forces to construct facilities for the
latter’s exclusive use. 441

Troop billeting, including construction of temporary structures, is nothing new. In Lim v. Executive
Secretary, the Court already upheld the Terms of Reference of Balikatan 02-1, which authorized
U.S. forces to set up "[t]emporary structures such as those for troop billeting, classroom instruction
and messing x x x during the Exercise." Similar provisions are also in the Mutual Logistics Support
Agreement of 2002 and 2007, which are essentially executive agreements that implement the VFA,
the MDT, and the 1953 Military Assistance Agreement. These executive agreements similarly tackle
the "reciprocal provision of logistic support, supplies, and services,"  which include "[b ]illeting, x x x
442

operations support (and construction and use of temporary structures incident to operations
support), training services, x x x storage services, x x x during an approved activity."  These logistic
443

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."  The first Mutual Logistics Support Agreement has lapsed, while the second one
444

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.  EDCA is clear that the Philippines
445

retains ownership of altered or improved facilities and newly constructed permanent or non-
relocatable structures.  Under EDCA, U.S. forces will also be allowed to use facilities and areas for
446

"training; x x x; support and related activities; x x x; temporary accommodation of personnel;

communications" and agreed activities. 447

Concerns on national security problems that arise from foreign military equipment being present in
the Philippines must likewise be contextualized. Most significantly, the VFA already authorizes the
presence of U.S. military equipment in the country. Article VII of the VFA already authorizes the
U.S. to import into or acquire in the Philippines "equipment, materials, supplies, and other property"
that will be used "in connection with activities" contemplated therein. The same section also
recognizes that "[t]itle to such property shall remain" with the US and that they have the discretion to
"remove such property from the Philippines at any time."

There is nothing novel, either, in the EDCA provision on the prepositioning and storing of "defense
equipment, supplies, and materiel,"  since these are sanctioned in the VFA. In fact, the two
448

countries have already entered into various implementing agreements in the past that are
comparable to the present one. The Balikatan 02-1 Terms of Reference mentioned in Lim v.
Executive Secretary specifically recognizes that Philippine and U.S. forces "may share x x x in the
use of their resources, equipment and other assets." Both the 2002 and 2007 Mutual Logistics
Support Agreements speak of the provision of support and services, including the "construction and
use of temporary structures incident to operations support" and "storage services" during approved
activities.  These logistic supplies, support, and services include the "temporary use of x x x
449

nonlethal items of military equipment which are not designated as significant military equipment on
the U.S. Munitions List, during an approved activity."  Those activities include "combined exercises
450

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.  Under EDCA, the equipment, supplies, and materiel that will be
451

prepositioned at Agreed Locations include "humanitarian assistance and disaster relief equipment,
supplies, and materiel. "  Nuclear weapons are specifically excluded from the materiel that will be
452

prepositioned.

Therefore, there is no basis to invalidate EDCA on fears that it increases the threat to our national
security. If anything, EDCA increases the likelihood that, in an event requiring a defensive response,
the Philippines will be prepared alongside the U.S. to defend its islands and insure its territorial
integrity pursuant to a relationship built on the MDT and VFA.

8. Others issues and concerns raised

A point was raised during the oral arguments that the language of the MDT only refers to mutual
help and defense in the Pacific area.  We believe that any discussion of the activities to be
453

undertaken under EDCA vis-a-vis the defense of areas beyond the Pacific is premature. We note
that a proper petition on that issue must be filed before we rule thereon. We also note that none of
the petitions or memoranda has attempted to discuss this issue, except only to theorize that the U.S.
will not come to our aid in the event of an attack outside of the Pacific. This is a matter of policy and
is beyond the scope of this judicial review.

In reference to the issue on telecommunications, suffice it to say that the initial impression of the
facility adverted to does appear to be one of those that require a public franchise by way of
congressional action under Section 11, Article XII of the Constitution. As respondents submit,
however, the system referred to in the agreement does not provide telecommunications services to
the public for compensation.  It is clear from Article VIl(2) of EDCA that the telecommunication
454

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.  Petitioners argue that only prepositioned nuclear weapons are
455

prohibited by EDCA; and that, therefore, the U.S. would insidiously bring nuclear weapons to
Philippine territory.  The general prohibition on nuclear weapons, whether prepositioned or not, is
456

already expressed in the 1987 Constitution.  It would be unnecessary or superfluous to include all
457

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.  This provision creates a situation in which a contracting
458

party assumes the tax liability of the other.  In National Power Corporation v. Province of
459

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.  This rule applies to EDCA,
460

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.  Hence, the provision on the assumption of tax liability does not
461

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;  initiated arbitration against that country
462

under the United Nations Convention on the Law of the Sea;  is in the process of negotiations with
463

the Moro Islamic Liberation Front for peace in Southern Philippines,  which is the subject of a
464

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.  The Philippine military is
465

conducting reforms that seek to ensure the security and safety of the nation in the years to
come.  In the future, the Philippines must navigate a world in which armed forces fight with
466

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.  This necessitated a massive rehabilitation project.  In the
467 468

aftermath, the U.S. military was among the first to extend help and support to the Philippines.

That calamity brought out the best in the Filipinos as thousands upon thousands volunteered their
help, their wealth, and their prayers to those affected. It also brought to the fore the value of having
friends in the international community.

In order to keep the peace in its archipelago in this region of the world, and to sustain itself at the
same time against the destructive forces of nature, the Philippines will need friends. Who they are,
and what form the friendships will take, are for the President to decide. The only restriction is what
the Constitution itself expressly prohibits. It appears that this overarching concern for balancing
constitutional requirements against the dictates of necessity was what led to EDCA.

As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains consistent with
existing laws and treaties that it purports to implement.

WHEREFORE, we hereby DISMISS the petitions.

SO ORDERED.

G.R. No. 162230               August 13, 2014

ISABELITA C. VINUY A, VICTORIA C. DELA PENA, HERMINIHILDA MANIMBO, LEONOR H.

SUMA WANG, 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 PENA, 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 PENA, 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
PENA, RUFINA Q. CATACUTAN, FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA M.
DELA CRUZ, PETRONILA 0. 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, GUILERMA 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 capacityand as members of the
"Malaya Lolas Organizations," Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE HONORABLE
SECRETARY OF FOREIGN AFFAIRS DELIA DOMINGOALBERT, THE HONORABLE
SECRETARY OF JUSTICE MERCEDITAS N. GUTIERREZ, and THE HONORABLE SOLICITOR
GENERAL ALFREDO L. BENIPAYO, Respondents.

RESOLUTION
BERSAMIN, J.:

Petitioners filed a Motion for Reconsideration  and a Supplemental Motion for

1

Reconsideration,  praying that the Court reverse its decision of April 28, 2010, and grant their petition
2

for certiorari.

In their Motion for Reconsideration, petitioners argue that our constitutional and jurisprudential
histories have rejected the Court’s ruling that the foreign policy prerogatives ofthe Executive Branch
are unlimited; that under the relevant jurisprudence and constitutional provisions, such prerogatives
are proscribed by international human rights and international conventions of which the Philippines is
a party; that the Court, in holding that the Chief Executive has the prerogative whether to bring
petitioners’ claims against Japan, has read the foreign policy powers of the Office of the President in
isolation from the rest of the constitutional protections that expressly textualize international human
rights; that the foreign policy prerogatives are subject to obligations to promote international
humanitarian law as incorporated intothe laws of the land through the Incorporation Clause; that the
Court must re-visit its decisions in Yamashita v. Styer  and Kuroda v. Jalandoni  which have been
3 4

noted for their prescient articulation of the import of laws of humanity; that in said decision, the Court
ruled that the State was bound to observe the laws of war and humanity; that in Yamashita, the
Court expressly recognized rape as an international crime under international humanitarian law, and
in Jalandoni, the Court declared that even if the Philippines had not acceded or signed the Hague
Convention on Rules and Regulations covering Land Warfare, the Rules and Regulations formed
part of the law of the nation by virtue of the Incorporation Clause; that such commitment to the laws
ofwar and humanity has been enshrined in Section 2, Article II of the 1987 Constitution, which
provides "that the Philippines…adopts the generally accepted principles of international law as part
of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and
amity with all nations."

The petitioners added that the statusand applicability of the generally accepted principles of
international law within the Philippine jurisdiction would be uncertain without the Incorporation
Clause, and that the clause implied that the general international law forms part of Philippine law
only insofar as they are expressly adopted; that in its rulings in The Holy See, v. Rosario, Jr.  and
5

U.S. v. Guinto  the Court has said that international law is deemed part of the Philippine law as a
6

consequence of Statehood; that in Agustin v. Edu,  the Court has declared that a treaty, though not
7

yet ratified by the Philippines, was part of the law of the land through the Incorporation Clause; that
by virtue of the Incorporation Clause, the Philippines is bound to abide by the erga omnesobligations
arising from the jus cogensnorms embodied in the laws of war and humanity that include the
principle of the imprescriptibility of war crimes; that the crimes committed against petitioners are
proscribed under international human rights law as there were undeniable violations of jus
cogensnorms; that the need to punish crimes against the laws of humanity has long become jus
cogensnorms, and that international legal obligations prevail over national legal norms; that the
Court’s invocation of the political doctrine in the instant case is misplaced; and that the Chief
Executive has the constitutional duty to afford redress and to give justice to the victims ofthe comfort
women system in the Philippines. 8

Petitioners further argue that the Court has confused diplomatic protection with the broader
responsibility of states to protect the human rights of their citizens, especially where the rights
asserted are subject of erga omnesobligations and pertain to jus cogensnorms; that the claims
raised by petitioners are not simple private claims that are the usual subject of diplomatic protection;
that the crimes committed against petitioners are shocking to the conscience of humanity; and that
the atrocities committed by the Japanese soldiers against petitionersare not subject to the statute of
limitations under international law. 9
Petitioners pray that the Court reconsider its April 28, 2010 decision, and declare: (1) that the rapes,
sexual slavery, torture and other forms of sexual violence committed against the Filipina comfort
women are crimes against humanity and war crimes under customary international law; (2) that the
Philippines is not bound by the Treaty of Peace with Japan, insofar as the waiver of the claims of the
Filipina comfort women against Japan is concerned; (3) that the Secretary of Foreign Affairs and the
Executive Secretary committed grave abuse of discretion in refusing to espouse the claims of
Filipina comfort women; and (4) that petitioners are entitled to the issuance of a writ of preliminary
injunction against the respondents.

Petitioners also pray that the Court order the Secretary of Foreign Affairs and the Executive
Secretary to espouse the claims of Filipina comfort women for an official apology,legal compensation
and other forms of reparation from Japan. 10

In their Supplemental Motion for Reconsideration, petitioners stress that it was highly improper for
the April 28, 2010 decision to lift commentaries from at least three sources without proper attribution
– an article published in 2009 in the Yale Law Journal of International Law; a book published by the
Cambridge University Press in 2005; and an article published in 2006 in the Western
ReserveJournal of International Law – and make it appear that such commentaries supported its
arguments for dismissing the petition, when in truth the plagiarized sources even made a strong
case in favour of petitioners’ claims.
11

In their Comment,  respondents disagree withpetitioners, maintaining that aside from the statements
12

on plagiarism, the arguments raised by petitioners merely rehashed those made in their June 7,
2005 Memorandum; that they already refuted such arguments in their Memorandumof June 6, 2005
that the Court resolved through itsApril 28, 2010 decision, specifically as follows:

1. The contentions pertaining tothe alleged plagiarism were then already lodged withthe
Committee on Ethics and Ethical Standards of the Court; hence, the matter of alleged
plagiarism should not be discussed or resolved herein. 13

2. A writ of certioraridid not lie in the absence of grave abuse of discretion amounting to lack
or excess of jurisdiction. Hence, in view of the failureof petitioners to show any arbitrary or
despotic act on the part of respondents,the relief of the writ of certiorariwas not warranted.
14

3. Respondents hold that the Waiver Clause in the Treaty of Peace with Japan, being valid,
bound the Republic of the Philippines pursuant to the international law principle of pacta sunt
servanda.The validity of the Treaty of Peace was the result of the ratification by two mutually
consenting parties. Consequently, the obligations embodied in the Treaty of Peace must be
carried out in accordance with the common and real intention of the parties at the time the
treaty was concluded. 15

4. Respondents assert that individuals did not have direct international remedies against any
State that violated their human rights except where such remedies are provided by an
international agreement. Herein, neither of the Treaty of Peace and the Reparations
Agreement,the relevant agreements affecting herein petitioners, provided for the reparation
of petitioners’ claims. Respondents aver that the formal apology by the Government of Japan
and the reparation the Government of Japan has provided through the Asian Women’s Fund
(AWF) are sufficient to recompense petitioners on their claims, specifically:

a. About 700 million yen would be paid from the national treasury over the next 10 years as
welfare and medical services;
 b. Instead of paying the money directly to the former comfort women, the services would be
provided through organizations delegated by governmental bodies in the recipient countries
(i.e., the Philippines, the Republic of Korea,and Taiwan); and

c. Compensation would consist of assistance for nursing services (like home helpers),
housing, environmental development, medical expenses, and medical goods. 16

Ruling

The Court DENIESthe Motion for Reconsiderationand Supplemental Motion for Reconsideration for
being devoid of merit.

1. Petitioners did not show that their resort was timely under the Rules of Court.

Petitioners did not show that their bringing ofthe special civil action for certiorariwas timely, i.e.,
within the 60-day period provided in Section 4, Rule 65 of the Rules of Court, to wit:

Section 4. When and where position filed. – The petition shall be filed not later than sixty (60)
daysfrom notice of judgment, order or resolution. In case a motion for reconsideration or new trial is
timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from
notice of the denial of said motion.

As the rule indicates, the 60-day period starts to run from the date petitioner receives the assailed
judgment, final order or resolution, or the denial of the motion for reconsideration or new trial timely
filed, whether such motion is required or not. To establish the timeliness of the petition for certiorari,
the date of receipt of the assailed judgment, final order or resolution or the denial of the motion for
reconsideration or new trial must be stated in the petition;otherwise, the petition for certiorarimust be
dismissed. The importance of the dates cannot be understated, for such dates determine the
timeliness of the filing of the petition for certiorari. As the Court has emphasized in Tambong v. R.
Jorge Development Corporation: 17

There are three essential dates that must be stated in a petition for certiorari brought under Rule 65.
First, the date when notice of the judgment or final order or resolution was received; second, when a
motion for new trial or reconsideration was filed; and third, when notice of the denial thereof was
received. Failure of petitioner to comply with this requirement shall be sufficient ground for the
dismissal of the petition. Substantial compliance will not suffice in a matter involving strict
observance with the Rules. (Emphasis supplied)

The Court has further said in Santos v. Court of Appeals: 18

The requirement of setting forth the three (3) dates in a petition for certiorari under Rule 65 is for the
purpose of determining its timeliness. Such a petition is required to be filed not later than sixty (60)
days from notice of the judgment, order or Resolution sought to be assailed. Therefore, that the
petition for certiorariwas filed forty-one (41) days from receipt of the denial of the motion for
reconsideration is hardly relevant. The Court of Appeals was notin any position to determine when
this period commenced to run and whether the motion for reconsideration itself was filed on time
since the material dates were not stated. It should not be assumed that in no event would the motion
be filed later than fifteen (15) days. Technical rules of procedure are not designed to frustrate the
ends of justice. These are provided to effect the proper and orderly disposition of cases and thus
effectively prevent the clogging of court dockets. Utter disregard of the Rules cannot justly be
rationalized by harking on the policy ofliberal construction. 19
The petition for certioraricontains the following averments, viz:

82. Since 1998, petitioners and other victims of the "comfort women system," approached
the Executive Department through the Department of Justice in order to request for
assistance to file a claim against the Japanese officials and military officers who ordered the
establishment of the "comfort women" stations in the Philippines;

83. Officials of the Executive Department ignored their request and refused to file a claim
against the said Japanese officials and military officers;

84. Undaunted, the Petitioners in turnapproached the Department of Foreign Affairs,

Department of Justice and Office of the of the Solicitor General to file their claim against the
responsible Japanese officials and military officers, but their efforts were similarly and
carelessly disregarded; 20

The petition thus mentions the year 1998 only as the time when petitioners approached the
Department ofJustice for assistance, but does not specifically state when they received the denial of
their request for assistance by the Executive Department of the Government. This alone warranted
the outright dismissal of the petition.

Even assuming that petitioners received the notice of the denial of their request for assistance in
1998, their filing of the petition only on March 8, 2004 was still way beyond the 60-day period. Only
the most compelling reasons could justify the Court’s acts of disregarding and lifting the strictures of
the rule on the period. As we pointed out inMTM Garment Mfg. Inc. v. Court of Appeals: 21

All these do not mean, however, that procedural rules are to be ignored or disdained at will to suit
the convenience of a party. Procedural law has its own rationale in the orderly administration of
justice, namely: to ensure the effective enforcement of substantive rights by providing for a system
that obviates arbitrariness, caprice, despotism, or whimsicality in the settlement of disputes. Hence,
it is a mistake to suppose that substantive law and procedural law are contradictory to each other, or
as often suggested, that enforcement of procedural rules should never be permitted if it would result
in prejudice to the substantive rights of the litigants.

As we have repeatedly stressed, the right to file a special civil action of certiorariis neither a natural
right noran essential element of due process; a writ of certiorariis a prerogative writ, never
demandable as a matter of right, and never issued except in the exercise of judicial discretion.
Hence, he who seeks a writ of certiorarimust apply for it only in the manner and strictly in
accordance with the provisions of the law and the Rules.

Herein petitioners have not shown any compelling reason for us to relax the rule and the
requirements under current jurisprudence. x x x. (Emphasis supplied)

2. Petitioners did not show that the assailed act was either judicial or quasi-judicial on the part of
respondents.

Petitioners were required to show in their petition for certiorarithat the assailed act was either judicial
or quasi-judicial in character. Section 1, Rule 65 of the Rules of Courtrequires such showing, to wit:

Section 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy,
and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental
reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order, or resolution
subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn
certification of nonforum shopping as provided in the third paragraph of Section 3, Rule 46.
However, petitioners did notmake such a showing.

3. Petitioners were not entitled to the injunction.

The Court cannot grant petitioners’ prayer for the writ of preliminary mandatory injunction.
Preliminary injunction is merely a provisional remedy that is adjunct to the main case, and is subject
to the latter’s outcome. It is not a cause of action itself.  It is provisional because it constitutes a
22

temporary measure availed of during the pendency of the action; and it is ancillary because it is a
mere incident in and is dependent upon the result of the main action.  Following the dismissal of the
23

petition for certiorari, there is no more legal basis to issue the writ of injunction sought. As an
auxiliary remedy, the writ of preliminary mandatory injunction cannot be issued independently of the
principal action. 24

In any event, a mandatory injunction requires the performance of a particular act.  Hence, it is an
1âwphi1

extreme remedy,  to be granted only if the following requisites are attendant, namely:
25

(a) The applicant has a clear and unmistakable right, that is, a right in esse;

(b) There is a material and substantial invasion of such right; and

(c) There is an urgent need for the writ to prevent irreparable injury to the applicant; and no
other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable
injury.
26

In Marquez v. The Presiding Judge (Hon. Ismael B. Sanchez), RTC Br. 58, Lucena City,  we 27

expounded as follows:

It is basic that the issuance of a writ of preliminary injunction is addressed to the sound discretion of
the trial court, conditioned on the existence of a clear and positive right of the applicant which should
be protected. It is an extraordinary, peremptory remedy available only on the grounds expressly
provided by law, specifically Section 3, Rule 58 of the Rules of Court. Moreover, extreme caution
must be observed in the exercise of such discretion. It should be granted only when the court is fully
satisfied that the law permits it and the emergency demands it. The very foundation of the
jurisdiction to issue a writ of injunction rests in the existence of a cause of action and in the
probability of irreparable injury, inadequacy of pecuniary compensation, and the prevention of
multiplicity of suits. Where facts are not shown to bring the case within these conditions, the relief of
injunction should be refused. 28

Here, the Constitution has entrusted to the Executive Department the conduct of foreign relations for
the Philippines. Whether or not to espouse petitioners' claim against the Government of Japan is left
to the exclusive determination and judgment of the Executive Department. The Court cannot
interfere with or question the wisdom of the conduct of foreign relations by the Executive
Department. Accordingly, we cannot direct the Executive Department, either by writ of certiorari or
injunction, to conduct our foreign relations with Japan in a certain manner.

WHEREFORE, the Court DENIES the Motion for Reconsideration and Supplemental Motion for
Reconsideration for their lack of merit.

SO ORDERED.

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.

PANGANIBAN, J.:

The emergence on January 1, 1995 of the World Trade Organization, abetted by the membership
thereto of the vast majority of countries has revolutionized international business and economic
relations amongst states. It has irreversibly propelled the world towards trade liberalization and
economic globalization. Liberalization, globalization, deregulation and privatization, the third-
millennium buzz words, are ushering in a new borderless world of business by sweeping away as
mere historical relics the heretofore traditional modes of promoting and protecting national
economies like tariffs, export subsidies, import quotas, quantitative restrictions, tax exemptions and
currency controls. Finding market niches and becoming the best in specific industries in a market-
driven and export-oriented global scenario are replacing age-old "beggar-thy-neighbor" policies that
unilaterally protect weak and inefficient domestic producers of goods and services. In the words of
Peter Drucker, the well-known management guru, "Increased participation in the world economy has
become the key to domestic economic growth and prosperity."

Brief Historical Background

To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the
establishment of three multilateral institutions — inspired by that grand political body, the United
Nations — were discussed at Dumbarton Oaks and Bretton Woods. The first was the World Bank
(WB) which was to address the rehabilitation and reconstruction of war-ravaged and later developing
countries; the second, the International Monetary Fund (IMF) which was to deal with currency
problems; and the third, the International Trade Organization (ITO), which was to foster order and
predictability in world trade and to minimize unilateral protectionist policies that invite challenge,
even retaliation, from other states. However, for a variety of reasons, including its non-ratification by
the United States, the ITO, unlike the IMF and WB, never took off. What remained was only GATT
— the General Agreement on Tariffs and Trade. GATT was a collection of treaties governing access
to the economies of treaty adherents with no institutionalized body administering the agreements or
dependable system of dispute settlement.

After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the
Tokyo Round and the Uruguay Round, the world finally gave birth to that administering body — the
World Trade Organization — with the signing of the "Final Act" in Marrakesh, Morocco and the
ratification of the WTO Agreement by its members. 1

Like many other developing countries, the Philippines joined WTO as a founding member with the
goal, as articulated by President Fidel V. Ramos in two letters to the Senate (infra), of improving
"Philippine access to foreign markets, especially its major trading partners, through the reduction of
tariffs on its exports, particularly agricultural and industrial products." The President also saw in the
WTO the opening of "new opportunities for the services sector . . . , (the reduction of) costs and
uncertainty associated with exporting . . . , and (the attraction of) more investments into the country."
Although the Chief Executive did not expressly mention it in his letter, the Philippines — and this is
of special interest to the legal profession — will benefit from the WTO system of dispute settlement
by judicial adjudication through the independent WTO settlement bodies called (1) Dispute
Settlement Panels and (2) Appellate Tribunal. Heretofore, trade disputes were settled mainly through
negotiations where solutions were arrived at frequently on the basis of relative bargaining strengths,
and where naturally, weak and underdeveloped countries were at a disadvantage.

The Petition in Brief

Arguing mainly (1) that the WTO requires the Philippines "to place nationals and products of
member-countries on the same footing as Filipinos and local products" and (2) that the WTO
"intrudes, limits and/or impairs" the constitutional powers of both Congress and the Supreme Court,
the instant petition before this Court assails the WTO Agreement for violating the mandate of the
1987 Constitution to "develop a self-reliant and independent national economy effectively controlled
by Filipinos . . . (to) give preference to qualified Filipinos (and to) promote the preferential use of
Filipino labor, domestic materials and locally produced goods."

Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide trade
liberalization and economic globalization? Does it proscribe Philippine integration into a global
economy that is liberalized, deregulated and privatized? These are the main questions raised in this
petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court praying (1) for
the nullification, on constitutional grounds, of the concurrence of the Philippine Senate in the
ratification by the President of the Philippines of the Agreement Establishing the World Trade
Organization (WTO Agreement, for brevity) and (2) for the prohibition of its implementation and
enforcement through the release and utilization of public funds, the assignment of public officials and
employees, as well as the use of government properties and resources by respondent-heads of
various executive offices concerned therewith. This concurrence is embodied in Senate Resolution
No. 97, dated December 14, 1994.
The Facts

On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The Department of Trade and
Industry (Secretary Navarro, for brevity), representing the Government of the Republic of the
Philippines, signed in Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay
Round of Multilateral Negotiations (Final Act, for brevity).

By signing the Final Act,  Secretary Navarro on behalf of the Republic of the Philippines, agreed:
2

(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,  stating among others that "the Uruguay Round Final Act is
3

hereby submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the
Constitution."

On August 13, 1994, the members of the Philippine Senate received another letter from the
President of the Philippines  likewise dated August 11, 1994, which stated among others that "the
4

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."  The text of the WTO
6

Agreement is written on pages 137 et seq. of Volume I of the 36-volume Uruguay Round of

Multilateral Trade Negotiations and includes various agreements and associated legal instruments
(identified in the said Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as
Multilateral Trade Agreements, for brevity) as follows:

ANNEX 1

Annex 1A: Multilateral Agreement on Trade in Goods

General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of he
General Agreement on Tariffs and Trade
 1994
Agreement on Implementation of Article VII of the
General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating
Measures
Agreement on Safeguards

Annex 1B: General Agreement on Trade in Services and Annexes

Annex 1C: Agreement on Trade-Related Aspects of Intellectual

Property Rights

ANNEX 2

Understanding on Rules and Procedures Governing

the Settlement of Disputes

ANNEX 3

Trade Policy Review Mechanism

On December 16, 1994, the President of the Philippines signed  the Instrument of Ratification,
7

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,  the Solicitor General describes these two latter documents as follows:
8

The Ministerial Decisions and Declarations are twenty-five declarations and

decisions on a wide range of matters, such as measures in favor of least developed
countries, notification procedures, relationship of WTO with the International
Monetary Fund (IMF), and agreements on technical barriers to trade and on dispute
settlement.

The Understanding on Commitments in Financial Services dwell on, among other

things, standstill or limitations and qualifications of commitments to existing non-
 conforming measures, market access, national treatment, and definitions of non-
resident supplier of financial services, commercial presence and new financial
service.

On December 29, 1994, the present petition was filed. After careful deliberation on respondents'
comment and petitioners' reply thereto, the Court resolved on December 12, 1995, to give due
course to the petition, and the parties thereafter filed their respective memoranda. The court also
requested the Honorable Lilia R. Bautista, the Philippine Ambassador to the United Nations
stationed in Geneva, Switzerland, to submit a paper, hereafter referred to as "Bautista Paper,"  for9

brevity, (1) providing a historical background of and (2) summarizing the said agreements.

During the Oral Argument held on August 27, 1996, the Court directed:

(a) the petitioners to submit the (1) Senate Committee Report on the matter in
controversy and (2) the transcript of proceedings/hearings in the Senate; and

(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine
treaties signed prior to the Philippine adherence to the WTO Agreement, which
derogate from Philippine sovereignty and (2) copies of the multi-volume WTO
Agreement and other documents mentioned in the Final Act, as soon as possible.

After receipt of the foregoing documents, the Court said it would consider the case submitted for
resolution. In a Compliance dated September 16, 1996, the Solicitor General submitted a printed
copy of the 36-volume Uruguay Round of Multilateral Trade Negotiations, and in another
Compliance dated October 24, 1996, he listed the various "bilateral or multilateral treaties or
international instruments involving derogation of Philippine sovereignty." Petitioners, on the other
hand, submitted their Compliance dated January 28, 1997, on January 30, 1997.

The Issues

In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:

A. Whether the petition presents a political question or is otherwise not justiciable.

B. Whether the petitioner members of the Senate who participated in the

deliberations and voting leading to the concurrence are estopped from impugning the
validity of the Agreement Establishing the World Trade Organization or of the validity
of the concurrence.

C. Whether the provisions of the Agreement Establishing the World Trade

Organization contravene the provisions of Sec. 19, Article II, and Secs. 10 and 12,
Article XII, all of the 1987 Philippine Constitution.

D. Whether provisions of the Agreement Establishing the World Trade Organization

unduly limit, restrict and impair Philippine sovereignty specifically the legislative
power which, under Sec. 2, Article VI, 1987 Philippine Constitution is "vested in the
Congress of the Philippines";

E. Whether provisions of the Agreement Establishing the World Trade Organization

interfere with the exercise of judicial power.
 F. Whether the respondent members of the Senate acted in grave abuse of
discretion amounting to lack or excess of jurisdiction when they voted for
concurrence in the ratification of the constitutionally-infirm Agreement Establishing
the World Trade Organization.

G. Whether the respondent members of the Senate acted in grave abuse of

discretion amounting to lack or excess of jurisdiction when they concurred only in the
ratification of the Agreement Establishing the World Trade Organization, and not with
the Presidential submission which included the Final Act, Ministerial Declaration and
Decisions, and the Understanding on Commitments in Financial Services.

On the other hand, the Solicitor General as counsel for respondents "synthesized the several issues
raised by petitioners into the following": 
10

1. Whether or not the provisions of the "Agreement Establishing the World Trade
Organization and the Agreements and Associated Legal Instruments included in
Annexes one (1), two (2) and three (3) of that agreement" cited by petitioners directly
contravene or undermine the letter, spirit and intent of Section 19, Article II and
Sections 10 and 12, Article XII of the 1987 Constitution.

2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair
the exercise of legislative power by Congress.

3. Whether or not certain provisions of the Agreement impair the exercise of judicial
power by this Honorable Court in promulgating the rules of evidence.

4. Whether or not the concurrence of the Senate "in the ratification by the President
of the Philippines of the Agreement establishing the World Trade Organization"
implied rejection of the treaty embodied in the Final Act.

By raising and arguing only four issues against the seven presented by petitioners, the Solicitor
General has effectively ignored three, namely: (1) whether the petition presents a political question
or is otherwise not justiciable; (2) whether petitioner-members of the Senate (Wigberto E. Tañada
and Anna Dominique Coseteng) are estopped from joining this suit; and (3) whether the respondent-
members of the Senate acted in grave abuse of discretion when they voted for concurrence in the
ratification of the WTO Agreement. The foregoing notwithstanding, this Court resolved to deal with
these three issues thus:

(1) The "political question" issue — being very fundamental and vital, and being a matter that probes
into the very jurisdiction of this Court to hear and decide this case — was deliberated upon by the
Court and will thus be ruled upon as the first issue;

(2) The matter of estoppel will not be taken up because this defense is waivable and the
respondents have effectively waived it by not pursuing it in any of their pleadings; in any event, this
issue, even if ruled in respondents' favor, will not cause the petition's dismissal as there are
petitioners other than the two senators, who are not vulnerable to the defense of estoppel; and

(3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be
taken up as an integral part of the disposition of the four issues raised by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did not question the locus
standi of petitioners. Hence, they are also deemed to have waived the benefit of such issue. They
probably realized that grave constitutional issues, expenditures of public funds and serious
international commitments of the nation are involved here, and that transcendental public interest
requires that the substantive issues be met head on and decided on the merits, rather than skirted or
deflected by procedural matters.  11

To recapitulate, the issues that will be ruled upon shortly are:

(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY?

OTHERWISE STATED, DOES THE PETITION INVOLVE A POLITICAL QUESTION
OVER WHICH THIS COURT HAS NO JURISDICTION?

(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE

ANNEXES CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE
XII, OF THE PHILIPPINE CONSTITUTION?

(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT,

RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY
CONGRESS?

(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE

EXERCISE OF JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES
ON EVIDENCE?

(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND
ITS ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT
INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS,
AND THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?

The First Issue: Does the Court

Have Jurisdiction Over the Controversy?

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative
branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact
the duty of the judiciary to settle the dispute. "The question thus posed is judicial rather than political.
The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld."   Once12

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   raised in the petition is clearly set out in the
14

1987 Constitution,   as follows:

15

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
16 17

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
18

abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse
of discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality
or department of the government.

As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate
remedy in the ordinary course of law, we have no hesitation at all in holding that this petition should
be given due course and the vital questions raised therein ruled upon under Rule 65 of the Rules of
Court. Indeed, certiorari, prohibition and mandamus are appropriate remedies to raise constitutional
issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials.
On this, we have no equivocation.

We should stress that, in deciding to take jurisdiction over this petition, this Court will not review
the wisdom of the decision of the President and the Senate in enlisting the country into the WTO, or
pass upon the merits of trade liberalization as a policy espoused by said international body. Neither
will it rule on the propriety of the government's economic policy of reducing/removing tariffs, taxes,
subsidies, quantitative restrictions, and other import/trade barriers. Rather, it will only exercise its
constitutional duty "to determine whether or not there had been a grave abuse of discretion
amounting to lack or excess of jurisdiction" on the part of the Senate in ratifying the WTO Agreement
and its three annexes.

Second Issue: The WTO Agreement

and Economic Nationalism

This is the lis mota, the main issue, raised by the petition.

Petitioners vigorously argue that the "letter, spirit and intent" of the Constitution mandating
"economic nationalism" are violated by the so-called "parity provisions" and "national treatment"
clauses scattered in various parts not only of the WTO Agreement and its annexes but also in the
Ministerial Decisions and Declarations and in the Understanding on Commitments in Financial
Services.

Specifically, the "flagship" constitutional provisions referred to are Sec 19, Article II, and Secs. 10
and 12, Article XII, of the Constitution, which are worded as follows:

Article II

DECLARATION OF PRINCIPLES
AND STATE POLICIES

x x x           x x x          x x x
 Sec. 19. The State shall develop a self-reliant and independent national economy
effectively controlled by Filipinos.

x x x           x x x          x x x

Article XII

NATIONAL ECONOMY AND PATRIMONY

x x x           x x x          x x x

Sec. 10. . . . The Congress shall enact measures that will encourage the formation
and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

x x x           x x x          x x x

Sec. 12. The State shall promote the preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt measures that help make them
competitive.

Petitioners aver that these sacred constitutional principles are desecrated by the following WTO
provisions quoted in their memorandum:  19

a) In the area of investment measures related to trade in goods (TRIMS, for brevity):

Article 2

National Treatment and Quantitative Restrictions.

1. Without prejudice to other rights and obligations under GATT 1994,

no Member shall apply any TRIM that is inconsistent with the
provisions of Article II or Article XI of GATT 1994.

2. An illustrative list of TRIMS that are inconsistent with the

obligations of general elimination of quantitative restrictions provided
for in paragraph I of Article XI of GATT 1994 is contained in the
Annex to this Agreement." (Agreement on Trade-Related Investment
Measures, Vol. 27, Uruguay Round, Legal Instruments, p. 22121,
emphasis supplied).

The Annex referred to reads as follows:

ANNEX

Illustrative List
1. TRIMS that are inconsistent with the obligation of national treatment provided for
in paragraph 4 of Article III of GATT 1994 include those which are mandatory or
enforceable under domestic law or under administrative rulings, or compliance with
which is necessary to obtain an advantage, and which require:

(a) the purchase or use by an enterprise of products of domestic

origin or from any domestic source, whether specified in terms of
particular products, in terms of volume or value of products, or in
terms of proportion of volume or value of its local production; or

(b) that an enterprise's purchases or use of imported products be

limited to an amount related to the volume or value of local products
that it exports.

2. TRIMS that are inconsistent with the obligations of general elimination of

quantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994
include those which are mandatory or enforceable under domestic laws or under
administrative rulings, or compliance with which is necessary to obtain an advantage,
and which restrict:

(a) the importation by an enterprise of products used in or related to

the local production that it exports;

(b) the importation by an enterprise of products used in or related to

its local production by restricting its access to foreign exchange
inflows attributable to the enterprise; or

(c) the exportation or sale for export specified in terms of particular

products, in terms of volume or value of products, or in terms of a
preparation of volume or value of its local production. (Annex to the
Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay
Round Legal Documents, p. 22125, emphasis supplied).

The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:

The products of the territory of any contracting party imported into the
territory of any other contracting party shall be accorded treatment no
less favorable than that accorded to like products of national origin in
respect of laws, regulations and requirements affecting their internal
sale, offering for sale, purchase, transportation, distribution or use,
the provisions of this paragraph shall not prevent the application of
differential internal transportation charges which are based
exclusively on the economic operation of the means of transport and
not on the nationality of the product." (Article III, GATT 1947, as
amended by the Protocol Modifying Part II, and Article XXVI of GATT,
14 September 1948, 62 UMTS 82-84 in relation to paragraph 1(a) of
the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay
Round, Legal Instruments p. 177, emphasis supplied).

(b) In the area of trade related aspects of intellectual property rights (TRIPS, for
brevity):
 Each Member shall accord to the nationals of other Members
treatment no less favourable than that it accords to its own
nationals with regard to the protection of intellectual property. . . (par.
1 Article 3, Agreement on Trade-Related Aspect of Intellectual
Property rights, Vol. 31, Uruguay Round, Legal Instruments, p. 25432
(emphasis supplied)

(c) In the area of the General Agreement on Trade in Services:

National Treatment

1. In the sectors inscribed in its schedule, and subject to any

conditions and qualifications set out therein, each Member shall
accord to services and service suppliers of any other Member, in
respect of all measures affecting the supply of services, treatment no
less favourable than it accords to its own like services and service
suppliers.

2. A Member may meet the requirement of paragraph I by according

to services and service suppliers of any other Member, either formally
suppliers of any other Member, either formally identical treatment or
formally different treatment to that it accords to its own like services
and service suppliers.

3. Formally identical or formally different treatment shall be

considered to be less favourable if it modifies the conditions of
completion in favour of services or service suppliers of the Member
compared to like services or service suppliers of any other Member.
(Article XVII, General Agreement on Trade in Services, Vol. 28,
Uruguay Round Legal Instruments, p. 22610 emphasis supplied).

It is petitioners' position that the foregoing "national treatment" and "parity provisions" of the WTO
Agreement "place nationals and products of member countries on the same footing as Filipinos and
local products," in contravention of the "Filipino First" policy of the Constitution. They allegedly
render meaningless the phrase "effectively controlled by Filipinos." The constitutional conflict
becomes more manifest when viewed in the context of the clear duty imposed on the Philippines as
a WTO member to ensure the conformity of its laws, regulations and administrative procedures with
its obligations as provided in the annexed agreements.   Petitioners further argue that these
20

provisions contravene constitutional limitations on the role exports play in national development and
negate the preferential treatment accorded to Filipino labor, domestic materials and locally produced
goods.

On the other hand, respondents through the Solicitor General counter (1) that such Charter
provisions are not self-executing and merely set out general policies; (2) that these nationalistic
portions of the Constitution invoked by petitioners should not be read in isolation but should be
related to other relevant provisions of Art. XII, particularly Secs. 1 and 13 thereof; (3) that read
properly, the cited WTO clauses do not conflict with Constitution; and (4) that the WTO Agreement
contains sufficient provisions to protect developing countries like the Philippines from the harshness
of sudden trade liberalization.

We shall now discuss and rule on these arguments.

 Declaration of Principles
Not Self-Executing

By its very title, Article II of the Constitution is a "declaration of principles and state policies." The
counterpart of this article in the 1935 Constitution   is called the "basic political creed of the nation"
21

by Dean Vicente Sinco.   These principles in Article II are not intended to be self-executing principles
22

ready for enforcement through the courts.   They are used by the judiciary as aids or as guides in
23

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
24

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   that broad constitutional principles need legislative
25

enactments to implement the, thus:

On petitioners' allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12

(Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII
and Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it
to state also that these are merely statements of principles and policies. As such,
they are basically not self-executing, meaning a law should be passed by Congress
to clearly define and effectuate such principles.

In general, therefore, the 1935 provisions were not intended to be

self-executing principles ready for enforcement through the courts.
They were rather directives addressed to the executive and to the
legislature. If the executive and the legislature failed to heed the
directives of the article, the available remedy was not judicial but
political. The electorate could express their displeasure with the
failure of the executive and the legislature through the language of
the ballot. (Bernas, Vol. II, p. 2).

The reasons for denying a cause of action to an alleged infringement of board constitutional
principles are sourced from basic considerations of due process and the lack of judicial authority to
wade "into the uncharted ocean of social and economic policy making." Mr. Justice Florentino P.
Feliciano in his concurring opinion in Oposa vs. Factoran, Jr.,   explained these reasons as follows:
26

My suggestion is simply that petitioners must, before the trial court, show a more
specific legal right — a right cast in language of a significantly lower order of
generality than Article II (15) of the Constitution — that is or may be violated by the
actions, or failures to act, imputed to the public respondent by petitioners so that the
trial court can validly render judgment grating all or part of the relief prayed for. To
my mind, the court should be understood as simply saying that such a more specific
legal right or rights may well exist in our corpus of law, considering the general policy
principles found in the Constitution and the existence of the Philippine Environment
Code, and that the trial court should have given petitioners an effective opportunity
so to demonstrate, instead of aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a

cause of action be a specific, operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons. One is that unless the legal right claimed
to have been violated or disregarded is given specification in operational terms,
 defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or

applicable regulation is not alleged or proved, petitioners can be expected to fall back
on the expanded conception of judicial power in the second paragraph of Section 1
of Article VIII of the Constitution which reads:

Sec. 1. . . .

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government. (Emphasis
supplied)

When substantive standards as general as "the right to a balanced and healthy

ecology" and "the right to health" are combined with remedial standards as broad
ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction,"
the result will be, it is respectfully submitted, to propel courts into the uncharted
ocean of social and economic policy making. At least in respect of the vast area of
environmental protection and management, our courts have no claim to special
technical competence and experience and professional qualification. Where no
specific, operable norms and standards are shown to exist, then the policy making
departments — the legislative and executive departments — must be given a real
and effective opportunity to fashion and promulgate those norms and standards, and
to implement them before the courts should intervene.

Economic Nationalism Should Be Read with

Other Constitutional Mandates to Attain
Balanced Development of Economy

On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general principles
relating to the national economy and patrimony, should be read and understood in relation to the
other sections in said article, especially Secs. 1 and 13 thereof which read:

Sec. 1. The goals of the
opportunities, income, and
services produced by the
productivity as the key
underprivileged.
national economy are a more equitable distribution of
wealth; a sustained increase in the amount of goods and
nation for the benefit of the people; and an expanding
to raising the quality of life for all especially the

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"   and in the use of "Filipino labor, domestic materials
27

and locally-produced goods"; (2) by mandating the State to "adopt measures that help make them
competitive;   and (3) by requiring the State to "develop a self-reliant and independent national
28

economy effectively controlled by Filipinos."   In similar language, the Constitution takes into account
29

the realities of the outside world as it requires the pursuit of "a trade policy that serves the general
welfare and utilizes all forms and arrangements of exchange on the basis of equality ad
reciprocity";   and speaks of industries "which are competitive in both domestic and foreign markets"
30

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.,   this Court held that "Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory,
31

positive command which is complete in itself and which needs no further guidelines or implementing
laws or rule for its enforcement. From its very words the provision does not require any legislation to
put it in operation. It is per se judicially enforceable." However, as the constitutional provision itself
states, it is enforceable only in regard to "the grants of rights, privileges and concessions covering
national economy and patrimony" and not to every aspect of trade and commerce. It refers to
exceptions rather than the rule. The issue here is not whether this paragraph of Sec. 10 of Art. XII is
self-executing or not. Rather, the issue is whether, as a rule, there are enough balancing provisions
in the Constitution to allow the Senate to ratify the Philippine concurrence in the WTO Agreement.
And we hold that there are.

All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with the rest of the
world on the bases of equality and reciprocity and limits protection of Filipino enterprises only
against foreign competition and trade practices that are unfair.   In other words, the Constitution did
32

not intend to pursue an isolationist policy. It did not shut out foreign investments, goods and services
in the development of the Philippine economy. While the Constitution does not encourage the
unlimited entry of foreign goods, services and investments into the country, it does not prohibit them
either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign
competition that is unfair.
 WTO Recognizes Need to
Protect Weak Economies

Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to
protect weak and developing economies, which comprise the vast majority of its members. Unlike in
the UN where major states have permanent seats and veto powers in the Security Council, in the
WTO, decisions are made on the basis of sovereign equality, with each member's vote equal in
weight to that of any other. There is no WTO equivalent of the UN Security Council.

WTO decides by consensus whenever possible, otherwise, decisions of the

Ministerial Conference and the General Council shall be taken by the majority of the
votes cast, except in cases of interpretation of the Agreement or waiver of the
obligation of a member which would require three fourths vote. Amendments would
require two thirds vote in general. Amendments to MFN provisions and the
Amendments provision will require assent of all members. Any member may
withdraw from the Agreement upon the expiration of six months from the date of
notice of withdrawals. 33

Hence, poor countries can protect their common interests more effectively through the WTO than
through one-on-one negotiations with developed countries. Within the WTO, developing countries
can form powerful blocs to push their economic agenda more decisively than outside the
Organization. This is not merely a matter of practical alliances but a negotiating strategy rooted in
law. Thus, the basic principles underlying the WTO Agreement recognize the need of developing
countries like the Philippines to "share in the growth in international trade commensurate with the
needs of their economic development." These basic principles are found in the preamble   of the 34

WTO Agreement as follows:

The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavour should
be conducted with a view to raising standards of living, ensuring full employment and
a large and steadily growing volume of real income and effective demand, and
expanding the production of and trade in goods and services, while allowing for the
optimal use of the world's resources in accordance with the objective of sustainable
development, seeking both to protect and preserve the environment and to enhance
the means for doing so in a manner consistent with their respective needs and
concerns at different levels of economic development,

Recognizing further that there is need for positive efforts designed to ensure that
developing countries, and especially the least developed among them, secure
a share in the growth in international trade commensurate with the needs of their
economic development,

Being desirous of contributing to these objectives by entering into reciprocal and

mutually advantageous arrangements directed to the substantial reduction of tariffs
and other barriers to trade and to the elimination of discriminatory treatment in
international trade relations,

Resolved, therefore, to develop an integrated, more viable and durable multilateral

trading system encompassing the General Agreement on Tariffs and Trade, the
results of past trade liberalization efforts, and all of the results of the Uruguay Round
of Multilateral Trade Negotiations,
 Determined to preserve the basic principles and to further the objectives underlying
this multilateral trading system, . . . (emphasis supplied.)

Specific WTO Provisos

Protect Developing Countries

So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic
principles, the WTO Agreement grants developing countries a more lenient treatment, giving their
domestic industries some protection from the rush of foreign competition. Thus, with respect to tariffs
in general, preferential treatment is given to developing countries in terms of the amount of tariff
reduction and the period within which the reduction is to be spread out. Specifically, GATT requires
an average tariff reduction rate of 36% for developed countries to be effected within a period of six
(6) years while developing countries — including the Philippines — are required to effect an average
tariff reduction of only 24% within ten (10) years.

In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to

agricultural products by 20% over six (6) years, as compared to only 13% for developing countries to
be effected within ten (10) years.

In regard to export subsidy for agricultural products, GATT requires developed countries to reduce
their budgetary outlays for export subsidy by 36% and export volumes receiving export subsidy
by 21% within a period of six (6) years. For developing countries, however, the reduction rate is
only two-thirds of that prescribed for developed countries and a longer period of ten (10) years within
which to effect such reduction.

Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade
practices including anti-dumping measures, countervailing measures and safeguards against import
surges. Where local businesses are jeopardized by unfair foreign competition, the Philippines can
avail of these measures. There is hardly therefore any basis for the statement that under the WTO,
local industries and enterprises will all be wiped out and that Filipinos will be deprived of control of
the economy. Quite the contrary, the weaker situations of developing nations like the Philippines
have been taken into account; thus, there would be no basis to say that in joining the WTO, the
respondents have gravely abused their discretion. True, they have made a bold decision to steer the
ship of state into the yet uncharted sea of economic liberalization. But such decision cannot be set
aside on the ground of grave abuse of discretion, simply because we disagree with it or simply
because we believe only in other economic policies. As earlier stated, the Court in taking jurisdiction
of this case will not pass upon the advantages and disadvantages of trade liberalization as an
economic policy. It will only perform its constitutional duty of determining whether the Senate
committed grave abuse of discretion.

Constitution Does Not

Rule Out Foreign Competition

Furthermore, the constitutional policy of a "self-reliant and independent national economy"   does
35

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,"   the fundamental law encourages industries that are "competitive in both domestic and
37

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   explains:
38

The Constitution must be quintessential rather than superficial, the root and not the
blossom, the base and frame-work only of the edifice that is yet to rise. It is but the
core of the dream that must take shape, not in a twinkling by mandate of our
delegates, but slowly "in the crucible of Filipino minds and hearts," where it will in
time develop its sinews and gradually gather its strength and finally achieve its
substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown
from the brow of the Constitutional Convention, nor can it conjure by mere fiat an
instant Utopia. It must grow with the society it seeks to re-structure and march apace
with the progress of the race, drawing from the vicissitudes of history the dynamism
and vitality that will keep it, far from becoming a petrified rule, a pulsing, living law
attuned to the heartbeat of the nation.

Third Issue: The WTO Agreement and Legislative Power

The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its laws,
regulations and administrative procedures with its obligations as provided in the annexed
Agreements."   Petitioners maintain that this undertaking "unduly limits, restricts and impairs
39

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.   And while the Constitution allows Congress to authorize the President to
41

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,   as in fact it did under Sec. 401 of the Tariff and Customs Code.
42

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."   By the doctrine of
43

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
44

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.   The sovereignty of a state therefore cannot in fact and in reality be considered
46

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." -A Under Article
47

2 of the UN Charter, "(a)ll members shall give the United Nations every assistance in any action it
takes in accordance with the present Charter, and shall refrain from giving assistance to any state
against which the United Nations is taking preventive or enforcement action." Such assistance
includes payment of its corresponding share not merely in administrative expenses but also in
expenditures for the peace-keeping operations of the organization. In its advisory opinion of July 20,
1961, the International Court of Justice held that money used by the United Nations Emergency
Force in the Middle East and in the Congo were "expenses of the United Nations" under Article 17,
paragraph 2, of the UN Charter. Hence, all its members must bear their corresponding share in such
expenses. In this sense, the Philippine Congress is restricted in its power to appropriate. It is
compelled to appropriate funds whether it agrees with such peace-keeping expenses or not. So too,
under Article 105 of the said Charter, the UN and its representatives enjoy diplomatic privileges and
immunities, thereby limiting again the exercise of sovereignty of members within their own territory.
Another example: although "sovereign equality" and "domestic jurisdiction" of all members are set
forth as underlying principles in the UN Charter, such provisos are however subject to enforcement
measures decided by the Security Council for the maintenance of international peace and security
under Chapter VII of the Charter. A final example: under Article 103, "(i)n the event of a conflict
between the obligations of the Members of the United Nations under the present Charter and their
obligations under any other international agreement, their obligation under the present charter shall
prevail," thus unquestionably denying the Philippines — as a member — the sovereign power to
make a choice as to which of conflicting obligations, if any, to honor.

Apart from the UN Treaty, the Philippines has entered into many other international pacts — both
bilateral and multilateral — that involve limitations on Philippine sovereignty. These are enumerated
by the Solicitor General in his Compliance dated October 24, 1996, as follows:

(a) Bilateral convention with the United States regarding taxes on income, where the
Philippines agreed, among others, to exempt from tax, income received in the
Philippines by, among others, the Federal Reserve Bank of the United States, the
Export/Import Bank of the United States, the Overseas Private Investment
Corporation of the United States. Likewise, in said convention, wages, salaries and
similar remunerations paid by the United States to its citizens for labor and personal
 services performed by them as employees or officials of the United States are
exempt from income tax by the Philippines.

(b) Bilateral agreement with Belgium, providing, among others, for the avoidance of
double taxation with respect to taxes on income.

(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double
taxation.

(d) Bilateral convention with the French Republic for the avoidance of double
taxation.

(e) Bilateral air transport agreement with Korea where the Philippines agreed to
exempt from all customs duties, inspection fees and other duties or taxes aircrafts of
South Korea and the regular equipment, spare parts and supplies arriving with said
aircrafts.

(f) Bilateral air service agreement with Japan, where the Philippines agreed to
exempt from customs duties, excise taxes, inspection fees and other similar duties,
taxes or charges fuel, lubricating oils, spare parts, regular equipment, stores on
board Japanese aircrafts while on Philippine soil.

(g) Bilateral air service agreement with Belgium where the Philippines granted
Belgian air carriers the same privileges as those granted to Japanese and Korean air
carriers under separate air service agreements.

(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the
Philippines exempted Israeli nationals from the requirement of obtaining transit or
visitor visas for a sojourn in the Philippines not exceeding 59 days.

(i) Bilateral agreement with France exempting French nationals from the requirement
of obtaining transit and visitor visa for a sojourn not exceeding 59 days.

(j) Multilateral Convention on Special Missions, where the Philippines agreed that
premises of Special Missions in the Philippines are inviolable and its agents can not
enter said premises without consent of the Head of Mission concerned. Special
Missions are also exempted from customs duties, taxes and related charges.

(k) Multilateral convention on the Law of Treaties. In this convention, the Philippines
agreed to be governed by the Vienna Convention on the Law of Treaties.

(l) Declaration of the President of the Philippines accepting compulsory jurisdiction of

the International Court of Justice. The International Court of Justice has jurisdiction in
all legal disputes concerning the interpretation of a treaty, any question of
international law, the existence of any fact which, if established, would constitute a
breach "of international obligation."

In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign
powers of taxation, eminent domain and police power. The underlying consideration in this partial
surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the
same privilege and immunities to the Philippines, its officials and its citizens. The same reciprocity
characterizes the Philippine commitments under WTO-GATT.

International treaties, whether relating to nuclear disarmament, human rights, the

environment, the law of the sea, or trade, constrain domestic political sovereignty
through the assumption of external obligations. But unless anarchy in international
relations is preferred as an alternative, in most cases we accept that the benefits of
the reciprocal obligations involved outweigh the costs associated with any loss of
political sovereignty. (T)rade treaties that structure relations by reference to durable,
well-defined substantive norms and objective dispute resolution procedures reduce
the risks of larger countries exploiting raw economic power to bully smaller countries,
by subjecting power relations to some form of legal ordering. In addition, smaller
countries typically stand to gain disproportionately from trade liberalization. This is
due to the simple fact that liberalization will provide access to a larger set of potential
new trading relationship than in case of the larger country gaining enhanced success
to the smaller country's market.  48

The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without
violating the Constitution, based on the rationale that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of . . .
cooperation and amity with all nations."

Fourth Issue: The WTO Agreement and Judicial Power

Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)   intrudes on the
49

power of the Supreme Court to promulgate rules concerning pleading, practice and procedures.  50

To understand the scope and meaning of Article 34, TRIPS,   it will be fruitful to restate its full text as
51

follows:

Article 34

Process Patents: Burden of Proof

1. For the purposes of civil proceedings in respect of the infringement of the rights of
the owner referred to in paragraph 1 (b) of Article 28, if the subject matter of a patent
is a process for obtaining a product, the judicial authorities shall have the authority to
order the defendant to prove that the process to obtain an identical product is
different from the patented process. Therefore, Members shall provide, in at least
one of the following circumstances, that any identical product when produced without
the consent of the patent owner shall, in the absence of proof to the contrary, be
deemed to have been obtained by the patented process:

(a) if the product obtained by the patented process is new;

(b) if there is a substantial likelihood that the identical product was

made by the process and the owner of the patent has been unable
through reasonable efforts to determine the process actually used.
 2. Any Member shall be free to provide that the burden of proof indicated in
paragraph 1 shall be on the alleged infringer only if the condition referred to in
subparagraph (a) is fulfilled or only if the condition referred to in subparagraph (b) is
fulfilled.

3. In the adduction of proof to the contrary, the legitimate interests of defendants in

protecting their manufacturing and business secrets shall be taken into account.

From the above, a WTO Member is required to provide a rule of disputable (not the words "in the
absence of proof to the contrary") presumption that a product shown to be identical to one produced
with the use of a patented process shall be deemed to have been obtained by the (illegal) use of the
said patented process, (1) where such product obtained by the patented product is new, or (2) where
there is "substantial likelihood" that the identical product was made with the use of the said patented
process but the owner of the patent could not determine the exact process used in obtaining such
identical product. Hence, the "burden of proof" contemplated by Article 34 should actually be
understood as the duty of the alleged patent infringer to overthrow such presumption. Such burden,
properly understood, actually refers to the "burden of evidence" (burden of going forward) placed on
the producer of the identical (or fake) product to show that his product was produced without the use
of the patented process.

The foregoing notwithstanding, the patent owner still has the "burden of proof" since, regardless of
the presumption provided under paragraph 1 of Article 34, such owner still has to introduce evidence
of the existence of the alleged identical product, the fact that it is "identical" to the genuine one
produced by the patented process and the fact of "newness" of the genuine product or the fact of
"substantial likelihood" that the identical product was made by the patented process.

The foregoing should really present no problem in changing the rules of evidence as the present law
on the subject, Republic Act No. 165, as amended, otherwise known as the Patent Law, provides a
similar presumption in cases of infringement of patented design or utility model, thus:

Sec. 60. Infringement. — Infringement of a design patent or of a patent for utility

model shall consist in unauthorized copying of the patented design or utility model for
the purpose of trade or industry in the article or product and in the making, using or
selling of the article or product copying the patented design or utility model. Identity
or substantial identity with the patented design or utility model shall constitute
evidence of copying. (emphasis supplied)

Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption
applies only if (1) the product obtained by the patented process in NEW or (2) there is a substantial
likelihood that the identical product was made by the process and the process owner has not been
able through reasonable effort to determine the process used. Where either of these two provisos
does not obtain, members shall be free to determine the appropriate method of implementing the
provisions of TRIPS within their own internal systems and processes.

By and large, the arguments adduced in connection with our disposition of the third issue —
derogation of legislative power — will apply to this fourth issue also. Suffice it to say that the
reciprocity clause more than justifies such intrusion, if any actually exists. Besides, Article 34 does
not contain an unreasonable burden, consistent as it is with due process and the concept of
adversarial dispute settlement inherent in our judicial system.

So too, since the Philippine is a signatory to most international conventions on patents, trademarks
and copyrights, the adjustment in legislation and rules of procedure will not be substantial. 
52
Fifth Issue: Concurrence Only in the WTO Agreement and
Not in Other Documents Contained in the Final Act

Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes — but not in
the other documents referred to in the Final Act, namely the Ministerial Declaration and Decisions
and the Understanding on Commitments in Financial Services — is defective and insufficient and
thus constitutes abuse of discretion. They submit that such concurrence in the WTO
Agreement alone is flawed because it is in effect a rejection of the Final Act, which in turn was the
document signed by Secretary Navarro, in representation of the Republic upon authority of the
President. They contend that the second letter of the President to the Senate   which enumerated
53

what constitutes the Final Act should have been the subject of concurrence of the Senate.

"A final act, sometimes called protocol de cloture, is an instrument which records the winding up of
the proceedings of a diplomatic conference and usually includes a reproduction of the texts of
treaties, conventions, recommendations and other acts agreed upon and signed by the
plenipotentiaries attending the conference."   It is not the treaty itself. It is rather a summary of the
54

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   in Vol. I of the 36-volume Uruguay Round of Multilateral Trade
55

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,   as follows:
58

Article II

Scope of the WTO

 1. The WTO shall provide the common institutional frame-work for the conduct of
trade relations among its Members in matters to the agreements and associated
legal instruments included in the Annexes to this Agreement.

2. The Agreements and associated legal instruments included in Annexes 1, 2, and

3, (hereinafter referred to as "Multilateral Agreements") are integral parts of this
Agreement, binding on all Members.

3. The Agreements and associated legal instruments included in Annex 4

(hereinafter referred to as "Plurilateral Trade Agreements") are also part of this
Agreement for those Members that have accepted them, and are binding on those
Members. The Plurilateral Trade Agreements do not create either obligation or rights
for Members that have not accepted them.

4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A

(hereinafter referred to as "GATT 1994") is legally distinct from the General
Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act
adopted at the conclusion of the Second Session of the Preparatory Committee of
the United Nations Conference on Trade and Employment, as subsequently rectified,
amended or modified (hereinafter referred to as "GATT 1947").

It should be added that the Senate was well-aware of what it was concurring in as shown by the
members' deliberation on August 25, 1994. After reading the letter of President Ramos dated August
11, 1994,   the
59
senators
of the Republic minutely dissected what the Senate was concurring in, as follows: 60

THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up
in the first day hearing of this Committee yesterday. Was the observation made by
Senator Tañada that what was submitted to the Senate was not the agreement on
establishing the World Trade Organization by the final act of the Uruguay Round
which is not the same as the agreement establishing the World Trade Organization?
And on that basis, Senator Tolentino raised a point of order which, however, he
agreed to withdraw upon understanding that his suggestion for an alternative solution
at that time was acceptable. That suggestion was to treat the proceedings of the
Committee as being in the nature of briefings for Senators until the question of the
submission could be clarified.

And so, Secretary Romulo, in effect, is the President submitting a new . . . is he

making a new submission which improves on the clarity of the first submission?

MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be
no misunderstanding, it was his intention to clarify all matters by giving this letter.

THE CHAIRMAN: Thank you.

Can this Committee hear from Senator Tañada and later on Senator Tolentino since
they were the ones that raised this question yesterday?

Senator Tañada, please.

SEN. TAÑADA: Thank you, Mr. Chairman.

 Based on what Secretary Romulo has read, it would now clearly appear that what is
being submitted to the Senate for ratification is not the Final Act of the Uruguay
Round, but rather the Agreement on the World Trade Organization as well as the
Ministerial Declarations and Decisions, and the Understanding and Commitments in
Financial Services.

I am now satisfied with the wording of the new submission of President Ramos.

SEN. TAÑADA. . . . of President Ramos, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Tañada. Can we hear from Senator
Tolentino? And after him Senator Neptali Gonzales and Senator Lina.

SEN. TOLENTINO, Mr. Chairman, I have not seen the new submission actually

transmitted to us but I saw the draft of his earlier, and I think it now complies with the
provisions of the Constitution, and with the Final Act itself . The Constitution does
not require us to ratify the Final Act. It requires us to ratify the Agreement which is
now being submitted. The Final Act itself specifies what is going to be submitted to
with the governments of the participants.

In paragraph 2 of the Final Act, we read and I quote:

By signing the present Final Act, the representatives agree: (a) to submit as

appropriate the WTO Agreement for the consideration of the respective competent
authorities with a view to seeking approval of the Agreement in accordance with their
procedures.

In other words, it is not the Final Act that was agreed to be submitted to the
governments for ratification or acceptance as whatever their constitutional
procedures may provide but it is the World Trade Organization Agreement. And if
that is the one that is being submitted now, I think it satisfies both the Constitution
and the Final Act itself .

Thank you, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.

SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of

record. And they had been adequately reflected in the journal of yesterday's session
and I don't see any need for repeating the same.

Now, I would consider the new submission as an act ex abudante cautela.

THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make
any comment on this?

SEN. LINA. Mr. President, I agree with the observation just made by Senator

Gonzales out of the abundance of question. Then the new submission is, I believe,
stating the obvious and therefore I have no further comment to make.

Epilogue
In praying for the nullification of the Philippine ratification of the WTO Agreement, petitioners are
invoking this Court's constitutionally imposed duty "to determine whether or not there has been
grave abuse of discretion amounting to lack or excess of jurisdiction" on the part of the Senate in
giving its concurrence therein via Senate Resolution No. 97. Procedurally, a writ
of certiorari grounded on grave abuse of discretion may be issued by the Court under Rule 65 of the
Rules of Court when it is amply shown that petitioners have no other plain, speedy and adequate
remedy in the ordinary course of law.

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction.   Mere abuse of discretion is not enough. It must be grave abuse of
61

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
62

the part of the petitioner to show grave abuse of discretion will result in the dismissal of the petition. 
63

In rendering this Decision, this Court never forgets that the Senate, whose act is under review, is
one of two sovereign houses of Congress and is thus entitled to great respect in its actions. It is itself
a constitutional body independent and coordinate, and thus its actions are presumed regular and
done in good faith. Unless convincing proof and persuasive arguments are presented to overthrow
such presumptions, this Court will resolve every doubt in its favor. Using the foregoing well-accepted
definition of grave abuse of discretion and the presumption of regularity in the Senate's processes,
this Court cannot find any cogent reason to impute grave abuse of discretion to the Senate's
exercise of its power of concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the
Constitution. 64

It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an
independent national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino
labor, products, domestic materials and locally produced goods. But it is equally true that such
principles — while serving as judicial and legislative guides — are not in themselves sources of
causes of action. Moreover, there are other equally fundamental constitutional principles relied upon
by the Senate which mandate the pursuit of a "trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and reciprocity" and the
promotion of industries "which are competitive in both domestic and foreign markets," thereby
justifying its acceptance of said treaty. So too, the alleged impairment of sovereignty in the exercise
of legislative and judicial powers is balanced by the adoption of the generally accepted principles of
international law as part of the law of the land and the adherence of the Constitution to the policy of
cooperation and amity with all nations.

That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the
WTO Agreement thereby making it "a part of the law of the land" is a legitimate exercise of its
sovereign duty and power. We find no "patent and gross" arbitrariness or despotism "by reason of
passion or personal hostility" in such exercise. It is not impossible to surmise that this Court, or at
least some of its members, may even agree with petitioners that it is more advantageous to the
national interest to strike down Senate Resolution No. 97. But that is not a legal reason to attribute
grave abuse of discretion to the Senate and to nullify its decision. To do so would constitute grave
abuse in the exercise of our own judicial power and duty. Ineludably, what the Senate did was a
valid exercise of its authority. As to whether such exercise was wise, beneficial or viable is outside
the realm of judicial inquiry and review. That is a matter between the elected policy makers and the
people. As to whether the nation should join the worldwide march toward trade liberalization and
economic globalization is a matter that our people should determine in electing their policy makers.
After all, the WTO Agreement allows withdrawal of membership, should this be the political desire of
a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian
Renaissance   where "the East will become the dominant region of the world economically, politically
65

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.

SO ORDERED.

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,
vs.
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 violations who, deprived of the
1 

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 who each alleged having suffered human rights abuses such as arbitrary detention, torture
2 

and rape in the hands of police or military forces during the Marcos regime. The Alien Tort Act was
3 

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. These plaintiffs brought the action on their own
4 

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. Trial ensued, and subsequently a jury rendered a
5 

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. They argued that since the
7 

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 Ranada of the Makati RTC issued the
10 

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. They prayed for the annulment of the questioned
11 

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 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 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 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. It urged that the
12 

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. The CHR likewise invokes the principle of comity, and of vested rights.
13 

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:

1. Less than P 100,00.00 – P 500.00

2. P 100,000.00 or more but less than P 150,000.00 – P 800.00

3. P 150,000.00 or more but less than P 200,000.00 – P 1,000.00

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 than P 400,000.00 – P 2,000.00

7. P 350,000.00 or more but not more than P400,000.00 – P 2,250.00

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. In special proceedings involving properties such as for the allowance of wills, the
14 

filing fee is again based on the value of the property. The aforecited rules evidently have no
15 

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. Neither the complaint nor the award of damages adjudicated by the US District Court
16 

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?

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. This principle
17 

was prominently affirmed in the leading American case of Hilton v. Guyot and expressly recognized
18 

in our jurisprudence beginning with Ingenholl v. Walter E. Olsen & Co. The conditions required by
19 

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. Remarkably, the
20 

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. However, in both cases,
21 

the foreign judgment is susceptible to impeachment in our local courts on the grounds of want of
jurisdiction or notice to the party, collusion, fraud, or clear mistake of law or fact. Thus, the party
22  23  24 

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
judgment , even if such judgment has conclusive effect as in the case of in rem actions, if only for
26 

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. Consequently, the party attacking a foreign
27 

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, and clearly an action to enforce a foreign judgment is in
29 

essence a vindication of a right prescinding either from a "conclusive judgment upon title" or the
"presumptive evidence of a right." Absent perhaps a statutory grant of jurisdiction to a quasi-judicial
30 

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. Otherwise known as the policy of
32 

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." If every judgment of
33 
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 that the subject
matter of the complaintthe enforcement of a foreign judgmentis incapable of pecuniary
estimation. Admittedly the proposition, as 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, from 36 

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, validity of a 38 

mortgage, the right to support, validity of documents, rescission of contracts, specific

39  40  41  42 
performance, and validity or annulment of judgments. It is urged that an action for enforcement of a
43  44 

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, as well as the
46 

principles of comity, utility and convenience of nations as the basis for the evolution of the rule
47 

calling for the recognition and enforcement of foreign judgments. The US Supreme Court in Hilton v.
Guyot relied heavily on the concept of comity, as especially derived from the landmark treatise of
48 

Justice Story in his Commentaries on the Conflict of Laws of 1834. Yet the notion of "comity" has
49 

since been criticized as one "of dim contours" or suffering from a number of fallacies. Other
50  51 

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. The most ambitious of these attempts is the Convention on the Recognition
53 

and Enforcement of Foreign Judgments in Civil and Commercial Matters, prepared in 1966 by the
Hague Conference of International Law. While it has not received the ratifications needed to have it
54 

take effect, it is recognized as representing current scholarly thought on the topic. Neither the
55  56 

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. Similarly, the notion that fraud or collusion may preclude the enforcement of a foreign
59 

judgment finds affirmation with foreign jurisprudence and commentators, as well as the doctrine that
60 

the foreign judgment must not constitute "a clear mistake of law or fact." And finally, it has been
61 

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. This defense allows for the application of local standards in reviewing
63 

the foreign judgment, especially when such judgment creates only a presumptive right, as it does in
cases wherein the judgment is against a person. The defense is also recognized within the
64 

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. The public policy defense can safeguard
65 

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. The classical
66 

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. As earlier 68 

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, but they all prescind from the premise that there is a rule of law
69 

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, and could very well be abrogated or revised by the high court itself. Yet the Supreme Court is
70 

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. The vagaries of inflation, as well as the relative low-income capacity of
72 

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 or unless the resolution thereof is indispensable for the determination of the case.
73  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.

G.R. No. 104768               July 21, 2003

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
SANDIGANBAYAN, MAJOR GENERAL JOSEPHUS Q. RAMAS and ELIZABETH
DIMAANO, Respondents.

DECISION

CARPIO, J.:

The Case

Before this Court is a petition for review on certiorari seeking to set aside the Resolutions of the
Sandiganbayan (First Division) dated 18 November 1991 and 25 March 1992 in Civil Case No.
1 

0037. The first Resolution dismissed petitioner’s Amended Complaint and ordered the return of the
confiscated items to respondent Elizabeth Dimaano, while the second Resolution denied petitioner’s
Motion for Reconsideration. Petitioner prays for the grant of the reliefs sought in its Amended
Complaint, or in the alternative, for the remand of this case to the Sandiganbayan (First Division) for
further proceedings allowing petitioner to complete the presentation of its evidence.

Antecedent Facts
Immediately upon her assumption to office following the successful EDSA Revolution, then
President Corazon C. Aquino issued Executive Order No. 1 ("EO No. 1") creating the Presidential
Commission on Good Government ("PCGG"). EO No. 1 primarily tasked the PCGG to recover all ill-
gotten wealth of former President Ferdinand E. Marcos, his immediate family, relatives, subordinates
and close associates. EO No. 1 vested the PCGG with the power "(a) to conduct investigation as
may be necessary in order to accomplish and carry out the purposes of this order" and the power
"(h) to promulgate such rules and regulations as may be necessary to carry out the purpose of this
order." Accordingly, the PCGG, through its then Chairman Jovito R. Salonga, created an AFP Anti-
Graft Board ("AFP Board") tasked to investigate reports of unexplained wealth and corrupt practices
by AFP personnel, whether in the active service or retired.
2

Based on its mandate, the AFP Board investigated various reports of alleged unexplained wealth of
respondent Major General Josephus Q. Ramas ("Ramas"). On 27 July 1987, the AFP Board issued
a Resolution on its findings and recommendation on the reported unexplained wealth of Ramas. The
relevant part of the Resolution reads:

III. FINDINGS and EVALUATION:

Evidence in the record showed that respondent is the owner of a house and lot located at 15-Yakan
St., La Vista, Quezon City. He is also the owner of a house and lot located in Cebu City. The lot has
an area of 3,327 square meters.

The value of the property located in Quezon City may be estimated modestly at ₱700,000.00.

The equipment/items and communication facilities which were found in the premises of Elizabeth
Dimaano and were confiscated by elements of the PC Command of Batangas were all covered by
invoice receipt in the name of CAPT. EFREN SALIDO, RSO Command Coy, MSC, PA. These items
could not have been in the possession of Elizabeth Dimaano if not given for her use by respondent
Commanding General of the Philippine Army.

Aside from the military equipment/items and communications equipment, the raiding team was also
able to confiscate money in the amount of ₱2,870,000.00 and $50,000 US Dollars in the house of
Elizabeth Dimaano on 3 March 1986.

Affidavits of members of the Military Security Unit, Military Security Command, Philippine Army,
stationed at Camp Eldridge, Los Baños, Laguna, disclosed that Elizabeth Dimaano is the mistress of
respondent. That respondent usually goes and stays and sleeps in the alleged house of Elizabeth
Dimaano in Barangay Tengga, Itaas, Batangas City and when he arrives, Elizabeth Dimaano
embraces and kisses respondent. That on February 25, 1986, a person who rode in a car went to
the residence of Elizabeth Dimaano with four (4) attache cases filled with money and owned by
MGen Ramas.

Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible means of
income and is supported by respondent for she was formerly a mere secretary.

Taking in toto the evidence, Elizabeth Dimaano could not have used the military equipment/items
seized in her house on March 3, 1986 without the consent of respondent, he being the Commanding
General of the Philippine Army. It is also impossible for Elizabeth Dimaano to claim that she owns
the ₱2,870,000.00 and $50,000 US Dollars for she had no visible source of income.
This money was never declared in the Statement of Assets and Liabilities of respondent. There was
an intention to cover the existence of these money because these are all ill-gotten and unexplained
wealth. Were it not for the affidavits of the members of the Military Security Unit assigned at Camp
Eldridge, Los Baños, Laguna, the existence and ownership of these money would have never been
known.

The Statement of Assets and Liabilities of respondent were also submitted for scrutiny and analysis
by the Board’s consultant. Although the amount of ₱2,870,000.00 and $50,000 US Dollars were not
included, still it was disclosed that respondent has an unexplained wealth of ₱104,134. 60.

IV. CONCLUSION:

In view of the foregoing, the Board finds that a prima facie case exists against respondent for ill-
gotten and unexplained wealth in the amount of ₱2,974,134.00 and $50,000 US Dollars.

V. RECOMMENDATION:

Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried for
violation of RA 3019, as amended, otherwise known as "Anti-Graft and Corrupt Practices Act" and
RA 1379, as amended, otherwise known as "The Act for the Forfeiture of Unlawfully Acquired
Property."
3

Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under Republic Act No. 1379 ("RA
No. 1379")  against Ramas.
4 

Before Ramas could answer the petition, then Solicitor General Francisco I. Chavez filed an
Amended Complaint naming the Republic of the Philippines ("petitioner"), represented by the PCGG,
as plaintiff and Ramas as defendant. The Amended Complaint also impleaded Elizabeth Dimaano
("Dimaano") as co-defendant.

The Amended Complaint alleged that Ramas was the Commanding General of the Philippine Army
until 1986. On the other hand, Dimaano was a confidential agent of the Military Security Unit,
Philippine Army, assigned as a clerk-typist at the office of Ramas from 1 January 1978 to February
1979. The Amended Complaint further alleged that Ramas "acquired funds, assets and properties
manifestly out of proportion to his salary as an army officer and his other income from legitimately
acquired property by taking undue advantage of his public office and/or using his power, authority
and influence as such officer of the Armed Forces of the Philippines and as a subordinate and close
associate of the deposed President Ferdinand Marcos." 5

The Amended Complaint also alleged that the AFP Board, after a previous inquiry, found reasonable
ground to believe that respondents have violated RA No. 1379. The Amended Complaint prayed for,
6 

among others, the forfeiture of respondents’ properties, funds and equipment in favor of the State.

Ramas filed an Answer with Special and/or Affirmative Defenses and Compulsory Counterclaim to
the Amended Complaint. In his Answer, Ramas contended that his property consisted only of a
residential house at La Vista Subdivision, Quezon City, valued at ₱700,000, which was not out of
proportion to his salary and other legitimate income. He denied ownership of any mansion in Cebu
City and the cash, communications equipment and other items confiscated from the house of
Dimaano.
Dimaano filed her own Answer to the Amended Complaint. Admitting her employment as a clerk-
typist in the office of Ramas from January-November 1978 only, Dimaano claimed ownership of the
monies, communications equipment, jewelry and land titles taken from her house by the Philippine
Constabulary raiding team.

After termination of the pre-trial, the court set the case for trial on the merits on 9-11 November
7 

1988.

On 9 November 1988, petitioner asked for a deferment of the hearing due to its lack of preparation
for trial and the absence of witnesses and vital documents to support its case. The court reset the
hearing to 17 and 18 April 1989.

On 13 April 1989, petitioner filed a motion for leave to amend the complaint in order "to charge the
delinquent properties with being subject to forfeiture as having been unlawfully acquired by
defendant Dimaano alone x x x." 8

Nevertheless, in an order dated 17 April 1989, the Sandiganbayan proceeded with petitioner’s
presentation of evidence on the ground that the motion for leave to amend complaint did not state
when petitioner would file the amended complaint. The Sandiganbayan further stated that the
subject matter of the amended complaint was on its face vague and not related to the existing
complaint. The Sandiganbayan also held that due to the time that the case had been pending in
court, petitioner should proceed to present its evidence.

After presenting only three witnesses, petitioner asked for a postponement of the trial.

On 28 September 1989, during the continuation of the trial, petitioner manifested its inability to
proceed to trial because of the absence of other witnesses or lack of further evidence to present.
Instead, petitioner reiterated its motion to amend the complaint to conform to the evidence already
presented or to change the averments to show that Dimaano alone unlawfully acquired the monies
or properties subject of the forfeiture.

The Sandiganbayan noted that petitioner had already delayed the case for over a year mainly
because of its many postponements. Moreover, petitioner would want the case to revert to its
preliminary stage when in fact the case had long been ready for trial. The Sandiganbayan ordered
petitioner to prepare for presentation of its additional evidence, if any.

During the trial on 23 March 1990, petitioner again admitted its inability to present further evidence.
Giving petitioner one more chance to present further evidence or to amend the complaint to conform
to its evidence, the Sandiganbayan reset the trial to 18 May 1990. The Sandiganbayan, however,
hinted that the re-setting was without prejudice to any action that private respondents might take
under the circumstances.

However, on 18 May 1990, petitioner again expressed its inability to proceed to trial because it had
no further evidence to present. Again, in the interest of justice, the Sandiganbayan granted petitioner
60 days within which to file an appropriate pleading. The Sandiganbayan, however, warned
petitioner that failure to act would constrain the court to take drastic action.

Private respondents then filed their motions to dismiss based on Republic v. Migrino. The Court held
9 

in Migrino that the PCGG does not have jurisdiction to investigate and prosecute military officers by
reason of mere position held without a showing that they are "subordinates" of former President
Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution, the dispositive portion of which
states:

WHEREFORE, judgment is hereby rendered dismissing the Amended Complaint, without

pronouncement as to costs. The counterclaims are likewise dismissed for lack of merit, but the
confiscated sum of money, communications equipment, jewelry and land titles are ordered returned
to Elizabeth Dimaano.

The records of this case are hereby remanded and referred to the Hon. Ombudsman, who has
primary jurisdiction over the forfeiture cases under R.A. No. 1379, for such appropriate action as the
evidence warrants. This case is also referred to the Commissioner of the Bureau of Internal
Revenue for a determination of any tax liability of respondent Elizabeth Dimaano in connection
herewith.

SO ORDERED.

On 4 December 1991, petitioner filed its Motion for Reconsideration.

In answer to the Motion for Reconsideration, private respondents filed a Joint Comment/Opposition
to which petitioner filed its Reply on 10 January 1992.

On 25 March 1992, the Sandiganbayan rendered a Resolution denying the Motion for
Reconsideration.

Ruling of the Sandiganbayan

The Sandiganbayan dismissed the Amended Complaint on the following grounds:

(1.) The actions taken by the PCGG are not in accordance with the rulings of the Supreme
Court in Cruz, Jr. v. Sandiganbayan and Republic v. Migrino which involve the same issues.
10  11 

(2.) No previous inquiry similar to preliminary investigations in criminal cases was conducted
against Ramas and Dimaano.

(3.) The evidence adduced against Ramas does not constitute a prima facie case against
him.

(4.) There was an illegal search and seizure of the items confiscated.

The Issues

Petitioner raises the following issues:

A. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT PETITIONER’S

EVIDENCE CANNOT MAKE A CASE FOR FORFEITURE AND THAT THERE WAS NO
SHOWING OF CONSPIRACY, COLLUSION OR RELATIONSHIP BY CONSANGUINITY
OR AFFINITY BY AND BETWEEN RESPONDENT RAMAS AND RESPONDENT DIMAANO
NOTWITHSTANDING THE FACT THAT SUCH CONCLUSIONS WERE CLEARLY
UNFOUNDED AND PREMATURE, HAVING BEEN RENDERED PRIOR TO THE
COMPLETION OF THE PRESENTATION OF THE EVIDENCE OF THE PETITIONER.
 B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE ACTIONS
TAKEN BY THE PETITIONER, INCLUDING THE FILING OF THE ORIGINAL COMPLAINT
AND THE AMENDED COMPLAINT, SHOULD BE STRUCK OUT IN LINE WITH THE
RULINGS OF THE SUPREME COURT IN CRUZ, JR. v. SANDIGANBAYAN, 194 SCRA 474
AND REPUBLIC v. MIGRINO, 189 SCRA 289, NOTWITHSTANDING THE FACT THAT:

1. The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v. Migrino, supra,
are clearly not applicable to this case;

2. Any procedural defect in the institution of the complaint in Civil Case No. 0037 was
cured and/or waived by respondents with the filing of their respective answers with
counterclaim; and

3. The separate motions to dismiss were evidently improper considering that they
were filed after commencement of the presentation of the evidence of the petitioner
and even before the latter was allowed to formally offer its evidence and rest its case;

C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE ARTICLES AND

THINGS SUCH AS SUMS OF MONEY, COMMUNICATIONS EQUIPMENT, JEWELRY AND
LAND TITLES CONFISCATED FROM THE HOUSE OF RESPONDENT DIMAANO WERE
ILLEGALLY SEIZED AND THEREFORE EXCLUDED AS EVIDENCE. 12

The Court’s Ruling

First Issue: PCGG’s Jurisdiction to Investigate Private Respondents

This case involves a revisiting of an old issue already decided by this Court in Cruz, Jr. v.
Sandiganbayan and Republic v. Migrino.
13  14

The primary issue for resolution is whether the PCGG has the jurisdiction to investigate and cause
the filing of a forfeiture petition against Ramas and Dimaano for unexplained wealth under RA No.
1379.

We hold that PCGG has no such jurisdiction.

The PCGG created the AFP Board to investigate the unexplained wealth and corrupt practices of
AFP personnel, whether in the active service or retired. The PCGG tasked the AFP Board to make
15 

the necessary recommendations to appropriate government agencies on the action to be taken

based on its findings. The PCGG gave this task to the AFP Board pursuant to the PCGG’s power
16 

under Section 3 of EO No. 1 "to conduct investigation as may be necessary in order to accomplish
and to carry out the purposes of this order." EO No. 1 gave the PCGG specific responsibilities, to wit:

SEC. 2. The Commission shall be charged with the task of assisting the President in regard to the
following matters:

(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his
immediate family, relatives, subordinates and close associates, whether located in the Philippines or
abroad, including the takeover and sequestration of all business enterprises and entities owned or
controlled by them, during his administration, directly or through nominees, by taking undue
advantage of their public office and/ or using their powers, authority, influence, connections or
relationship.
(b) The investigation of such cases of graft and corruption as the President may assign to the
Commission from time to time.

x x x.

The PCGG, through the AFP Board, can only investigate the unexplained wealth and corrupt
practices of AFP personnel who fall under either of the two categories mentioned in Section 2 of EO
No. 1. These are: (1) AFP personnel who have accumulated ill-gotten wealth during the
administration of former President Marcos by being the latter’s immediate family, relative,
subordinate or close associate, taking undue advantage of their public office or using their powers,
influence x x x; or (2) AFP personnel involved in other cases of graft and corruption provided the
17 

President assigns their cases to the PCGG. 18

Petitioner, however, does not claim that the President assigned Ramas’ case to the PCGG.
Therefore, Ramas’ case should fall under the first category of AFP personnel before the PCGG
could exercise its jurisdiction over him. Petitioner argues that Ramas was undoubtedly a subordinate
of former President Marcos because of his position as the Commanding General of the Philippine
Army. Petitioner claims that Ramas’ position enabled him to receive orders directly from his
commander-in-chief, undeniably making him a subordinate of former President Marcos.

We hold that Ramas was not a "subordinate" of former President Marcos in the sense contemplated
under EO No. 1 and its amendments.

Mere position held by a military officer does not automatically make him a "subordinate" as this term
is used in EO Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed close association with former
President Marcos. Migrino discussed this issue in this wise:

A close reading of EO No. 1 and related executive orders will readily show what is contemplated
within the term ‘subordinate.’ The Whereas Clauses of EO No. 1 express the urgent need to recover
the ill-gotten wealth amassed by former President Ferdinand E. Marcos, his immediate family,
relatives, and close associates both here and abroad.

EO No. 2 freezes ‘all assets and properties in the Philippines in which former President Marcos
and/or his wife, Mrs. Imelda Marcos, their close relatives, subordinates, business associates,
dummies, agents, or nominees have any interest or participation.’

Applying the rule in statutory construction known as ejusdem generis that is-

‘[W]here general words follow an enumeration of persons or things by words of a particular and
specific meaning, such general words are not to be construed in their widest extent, but are to be
held as applying only to persons or things of the same kind or class as those specifically mentioned
[Smith, Bell & Co, Ltd. vs. Register of Deeds of Davao, 96 Phil. 53, 58, citing Black on Interpretation
of Laws, 2nd Ed., 203].’

[T]he term "subordinate" as used in EO Nos. 1 & 2 refers to one who enjoys a close association with
former President Marcos and/or his wife, similar to the immediate family member, relative, and close
associate in EO No. 1 and the close relative, business associate, dummy, agent, or nominee in EO
No. 2.

xxx
It does not suffice, as in this case, that the respondent is or was a government official or employee
during the administration of former President Marcos. There must be a prima facie showing that the
respondent unlawfully accumulated wealth by virtue of his close association or relation with former
Pres. Marcos and/or his wife. (Emphasis supplied)

Ramas’ position alone as Commanding General of the Philippine Army with the rank of Major
General does not suffice to make him a "subordinate" of former President Marcos for purposes of
19 

EO No. 1 and its amendments. The PCGG has to provide a prima facie showing that Ramas was a
close associate of former President Marcos, in the same manner that business associates,
dummies, agents or nominees of former President Marcos were close to him. Such close association
is manifested either by Ramas’ complicity with former President Marcos in the accumulation of ill-
gotten wealth by the deposed President or by former President Marcos’ acquiescence in Ramas’
own accumulation of ill-gotten wealth if any.

This, the PCGG failed to do.

Petitioner’s attempt to differentiate the instant case from Migrino does not convince us. Petitioner
argues that unlike in Migrino, the AFP Board Resolution in the instant case states that the AFP
Board conducted the investigation pursuant to EO Nos. 1, 2, 14 and 14-A in relation to RA No. 1379.
Petitioner asserts that there is a presumption that the PCGG was acting within its jurisdiction of
investigating crony-related cases of graft and corruption and that Ramas was truly a subordinate of
the former President. However, the same AFP Board Resolution belies this contention. Although the
Resolution begins with such statement, it ends with the following recommendation:

V. RECOMMENDATION:

Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried for
violation of RA 3019, as amended, otherwise known as "Anti-Graft and Corrupt Practices Act" and
RA 1379, as amended, otherwise known as "The Act for the Forfeiture of Unlawfully Acquired
Property." 20

Thus, although the PCGG sought to investigate and prosecute private respondents under EO Nos.
1, 2, 14 and 14-A, the result yielded a finding of violation of Republic Acts Nos. 3019 and 1379
without any relation to EO Nos. 1, 2, 14 and 14-A. This absence of relation to EO No. 1 and its
amendments proves fatal to petitioner’s case. EO No. 1 created the PCGG for a specific and limited
purpose, and necessarily its powers must be construed to address such specific and limited
purpose.

Moreover, the resolution of the AFP Board and even the Amended Complaint do not show that the
properties Ramas allegedly owned were accumulated by him in his capacity as a "subordinate" of
his commander-in-chief. Petitioner merely enumerated the properties Ramas allegedly owned and
suggested that these properties were disproportionate to his salary and other legitimate income
without showing that Ramas amassed them because of his close association with former President
Marcos. Petitioner, in fact, admits that the AFP Board resolution does not contain a finding that
Ramas accumulated his wealth because of his close association with former President Marcos, thus:

10. While it is true that the resolution of the Anti-Graft Board of the New Armed Forces of the
Philippines did not categorically find a prima facie evidence showing that respondent Ramas
unlawfully accumulated wealth by virtue of his close association or relation with former
President Marcos and/or his wife, it is submitted that such omission was not fatal. The
resolution of the Anti-Graft Board should be read in the context of the law creating the same and the
objective of the investigation which was, as stated in the above, pursuant to Republic Act Nos. 3019
and 1379 in relation to Executive Order Nos. 1, 2, 14 and 14-a; (Emphasis supplied)
21 

Such omission is fatal. Petitioner forgets that it is precisely a prima facie showing that the ill-gotten
wealth was accumulated by a "subordinate" of former President Marcos that vests jurisdiction on
PCGG. EO No. 1 clearly premises the creation of the PCGG on the urgent need to recover all ill-
22 

gotten wealth amassed by former President Marcos, his immediate family, relatives, subordinates
and close associates. Therefore, to say that such omission was not fatal is clearly contrary to the
intent behind the creation of the PCGG.

In Cruz, Jr. v. Sandiganbayan, the Court outlined the cases that fall under the jurisdiction of the
23 

PCGG pursuant to EO Nos. 1, 2, 14, 14-A:

24  25  26

A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation with Sections 1, 2 and 3
of Executive Order No. 14, shows what the authority of the respondent PCGG to investigate and
prosecute covers:

(a) the investigation and prosecution of the civil action for the recovery of ill-gotten wealth
under Republic Act No. 1379, accumulated by former President Marcos, his immediate
family, relatives, subordinates and close associates, whether located in the Philippines or
abroad, including the take-over or sequestration of all business enterprises and entities
owned or controlled by them, during his administration, directly or through his nominees, by
taking undue advantage of their public office and/or using their powers, authority and
influence, connections or relationships; and

(b) the investigation and prosecution of such offenses committed in the acquisition of said ill-
gotten wealth as contemplated under Section 2(a) of Executive Order No. 1.

However, other violations of the Anti-Graft and Corrupt Practices Act not otherwise falling
under the foregoing categories, require a previous authority of the President for the
respondent PCGG to investigate and prosecute in accordance with Section 2 (b) of Executive
Order No. 1. Otherwise, jurisdiction over such cases is vested in the Ombudsman and other
duly authorized investigating agencies such as the provincial and city prosecutors, their
assistants, the Chief State Prosecutor and his assistants and the state
prosecutors. (Emphasis supplied)

The proper government agencies, and not the PCGG, should investigate and prosecute forfeiture
petitions not falling under EO No. 1 and its amendments. The preliminary investigation of
unexplained wealth amassed on or before 25 February 1986 falls under the jurisdiction of the
Ombudsman, while the authority to file the corresponding forfeiture petition rests with the Solicitor
General. The Ombudsman Act or Republic Act No. 6770 ("RA No. 6770") vests in the Ombudsman
27 

the power to conduct preliminary investigation and to file forfeiture proceedings involving
unexplained wealth amassed after 25 February 1986. 28

After the pronouncements of the Court in Cruz, the PCGG still pursued this case despite the
absence of a prima facie finding that Ramas was a "subordinate" of former President Marcos. The
petition for forfeiture filed with the Sandiganbayan should be dismissed for lack of authority by the
PCGG to investigate respondents since there is no prima facie showing that EO No. 1 and its
amendments apply to respondents. The AFP Board Resolution and even the Amended Complaint
state that there are violations of RA Nos. 3019 and 1379. Thus, the PCGG should have
recommended Ramas’ case to the Ombudsman who has jurisdiction to conduct the preliminary
investigation of ordinary unexplained wealth and graft cases. As stated in Migrino:
[But] in view of the patent lack of authority of the PCGG to investigate and cause the prosecution of
private respondent for violation of Rep. Acts Nos. 3019 and 1379, the PCGG must also be enjoined
from proceeding with the case, without prejudice to any action that may be taken by the proper
prosecutory agency. The rule of law mandates that an agency of government be allowed to exercise
only the powers granted to it.

Petitioner’s argument that private respondents have waived any defect in the filing of the forfeiture
petition by submitting their respective Answers with counterclaim deserves no merit as well.

Petitioner has no jurisdiction over private respondents. Thus, there is no jurisdiction to waive in the
first place. The PCGG cannot exercise investigative or prosecutorial powers never granted to it.
PCGG’s powers are specific and limited. Unless given additional assignment by the President,
PCGG’s sole task is only to recover the ill-gotten wealth of the Marcoses, their relatives and
cronies. Without these elements, the PCGG cannot claim jurisdiction over a case.
29 

Private respondents questioned the authority and jurisdiction of the PCGG to investigate and
prosecute their cases by filing their Motion to Dismiss as soon as they learned of the pronouncement
of the Court in Migrino. This case was decided on 30 August 1990, which explains why private
respondents only filed their Motion to Dismiss on 8 October 1990. Nevertheless, we have held that
the parties may raise lack of jurisdiction at any stage of the proceeding. Thus, we hold that there
30 

was no waiver of jurisdiction in this case. Jurisdiction is vested by law and not by the parties to an
action.
31

Consequently, the petition should be dismissed for lack of jurisdiction by the PCGG to conduct the
preliminary investigation. The Ombudsman may still conduct the proper preliminary investigation for
violation of RA No. 1379, and if warranted, the Solicitor General may file the forfeiture petition with
the Sandiganbayan. The right of the State to forfeit unexplained wealth under RA No. 1379 is not
32 

subject to prescription, laches or estoppel.

33

Second Issue: Propriety of Dismissal of Case

Before Completion of Presentation of Evidence

Petitioner also contends that the Sandiganbayan erred in dismissing the case before completion of
the presentation of petitioner’s evidence.

We disagree.

Based on the findings of the Sandiganbayan and the records of this case, we find that petitioner has
only itself to blame for non-completion of the presentation of its evidence. First, this case has been
pending for four years before the Sandiganbayan dismissed it. Petitioner filed its Amended
Complaint on 11 August 1987, and only began to present its evidence on 17 April 1989. Petitioner
had almost two years to prepare its evidence. However, despite this sufficient time, petitioner still
delayed the presentation of the rest of its evidence by filing numerous motions for postponements
and extensions. Even before the date set for the presentation of its evidence, petitioner filed, on 13
April 1989, a Motion for Leave to Amend the Complaint. The motion sought "to charge the
34 

delinquent properties (which comprise most of petitioner’s evidence) with being subject to forfeiture
as having been unlawfully acquired by defendant Dimaano alone x x x."

The Sandiganbayan, however, refused to defer the presentation of petitioner’s evidence since
petitioner did not state when it would file the amended complaint. On 18 April 1989, the
Sandiganbayan set the continuation of the presentation of evidence on 28-29 September and 9-11
October 1989, giving petitioner ample time to prepare its evidence. Still, on 28 September 1989,
petitioner manifested its inability to proceed with the presentation of its evidence. The
Sandiganbayan issued an Order expressing its view on the matter, to wit:

The Court has gone through extended inquiry and a narration of the above events because this case
has been ready for trial for over a year and much of the delay hereon has been due to the inability of
the government to produce on scheduled dates for pre-trial and for trial documents and witnesses,
allegedly upon the failure of the military to supply them for the preparation of the presentation of
evidence thereon. Of equal interest is the fact that this Court has been held to task in public about its
alleged failure to move cases such as this one beyond the preliminary stage, when, in view of the
developments such as those of today, this Court is now faced with a situation where a case already
in progress will revert back to the preliminary stage, despite a five-month pause where appropriate
action could have been undertaken by the plaintiff Republic. 35

On 9 October 1989, the PCGG manifested in court that it was conducting a preliminary investigation
on the unexplained wealth of private respondents as mandated by RA No. 1379. The PCGG prayed
36 

for an additional four months to conduct the preliminary investigation. The Sandiganbayan granted
this request and scheduled the presentation of evidence on 26-29 March 1990. However, on the
scheduled date, petitioner failed to inform the court of the result of the preliminary investigation the
PCGG supposedly conducted. Again, the Sandiganbayan gave petitioner until 18 May 1990 to
continue with the presentation of its evidence and to inform the court of "what lies ahead insofar as
the status of the case is concerned x x x." Still on the date set, petitioner failed to present its
37 

evidence. Finally, on 11 July 1990, petitioner filed its Re-Amended Complaint. The Sandiganbayan
38 

correctly observed that a case already pending for years would revert to its preliminary stage if the
court were to accept the Re-Amended Complaint.

Based on these circumstances, obviously petitioner has only itself to blame for failure to complete
the presentation of its evidence. The Sandiganbayan gave petitioner more than sufficient time to
finish the presentation of its evidence. The Sandiganbayan overlooked petitioner’s delays and yet
petitioner ended the long-string of delays with the filing of a Re-Amended Complaint, which would
only prolong even more the disposition of the case.

Moreover, the pronouncements of the Court in Migrino and Cruz prompted the Sandiganbayan to
dismiss the case since the PCGG has no jurisdiction to investigate and prosecute the case against
private respondents. This alone would have been sufficient legal basis for the Sandiganbayan to
dismiss the forfeiture case against private respondents.

Thus, we hold that the Sandiganbayan did not err in dismissing the case before completion of the
presentation of petitioner’s evidence.

Third Issue: Legality of the Search and Seizure

Petitioner claims that the Sandiganbayan erred in declaring the properties confiscated from
Dimaano’s house as illegally seized and therefore inadmissible in evidence. This issue bears a
significant effect on petitioner’s case since these properties comprise most of petitioner’s evidence
against private respondents. Petitioner will not have much evidence to support its case against
private respondents if these properties are inadmissible in evidence.

On 3 March 1986, the Constabulary raiding team served at Dimaano’s residence a search warrant
captioned "Illegal Possession of Firearms and Ammunition." Dimaano was not present during the
raid but Dimaano’s cousins witnessed the raid. The raiding team seized the items detailed in the
seizure receipt together with other items not included in the search warrant. The raiding team seized
these items: one baby armalite rifle with two magazines; 40 rounds of 5.56 ammunition; one pistol,
caliber .45; communications equipment, cash consisting of ₱2,870,000 and US$50,000, jewelry, and
land titles.

Petitioner wants the Court to take judicial notice that the raiding team conducted the search and
seizure "on March 3, 1986 or five days after the successful EDSA revolution." Petitioner argues that
39 

a revolutionary government was operative at that time by virtue of Proclamation No. 1 announcing
that President Aquino and Vice President Laurel were "taking power in the name and by the will of
the Filipino people." Petitioner asserts that the revolutionary government effectively withheld the
40 

operation of the 1973 Constitution which guaranteed private respondents’ exclusionary right.

Moreover, petitioner argues that the exclusionary right arising from an illegal search applies only
beginning 2 February 1987, the date of ratification of the 1987 Constitution. Petitioner contends that
all rights under the Bill of Rights had already reverted to its embryonic stage at the time of the
search. Therefore, the government may confiscate the monies and items taken from Dimaano and
use the same in evidence against her since at the time of their seizure, private respondents did not
enjoy any constitutional right.

Petitioner is partly right in its arguments.

The EDSA Revolution took place on 23-25 February 1986. As succinctly stated in President
Aquino’s Proclamation No. 3 dated 25 March 1986, the EDSA Revolution was "done in defiance of
the provisions of the 1973 Constitution." The resulting government was indisputably a revolutionary
41 

government bound by no constitution or legal limitations except treaty obligations that the
revolutionary government, as the de jure government in the Philippines, assumed under international
law.

The correct issues are: (1) whether the revolutionary government was bound by the Bill of Rights of
the 1973 Constitution during the interregnum, that is, after the actual and effective take-over of
power by the revolutionary government following the cessation of resistance by loyalist forces up to
24 March 1986 (immediately before the adoption of the Provisional Constitution); and (2) whether
the protection accorded to individuals under the International Covenant on Civil and Political Rights
("Covenant") and the Universal Declaration of Human Rights ("Declaration") remained in effect
during the interregnum.

We hold that the Bill of Rights under the 1973 Constitution was not operative during the interregnum.
However, we rule that the protection accorded to individuals under the Covenant and the Declaration
remained in effect during the interregnum.

During the interregnum, the directives and orders of the revolutionary government were the supreme
law because no constitution limited the extent and scope of such directives and orders. With the
abrogation of the 1973 Constitution by the successful revolution, there was no municipal law higher
than the directives and orders of the revolutionary government. Thus, during the interregnum, a
person could not invoke any exclusionary right under a Bill of Rights because there was neither a
constitution nor a Bill of Rights during the interregnum. As the Court explained in Letter of Associate
Justice Reynato S. Puno: 42

A revolution has been defined as "the complete overthrow of the established government in any
country or state by those who were previously subject to it" or as "a sudden, radical and fundamental
change in the government or political system, usually effected with violence or at least some acts of
violence." In Kelsen's book, General Theory of Law and State, it is defined as that which "occurs
whenever the legal order of a community is nullified and replaced by a new order . . . a way not
prescribed by the first order itself."
It was through the February 1986 revolution, a relatively peaceful one, and more popularly known as
the "people power revolution" that the Filipino people tore themselves away from an existing regime.
This revolution also saw the unprecedented rise to power of the Aquino government.

From the natural law point of view, the right of revolution has been defined as "an inherent right of a
people to cast out their rulers, change their policy or effect radical reforms in their system of
government or institutions by force or a general uprising when the legal and constitutional methods
of making such change have proved inadequate or are so obstructed as to be unavailable." It has
been said that "the locus of positive law-making power lies with the people of the state" and from
there is derived "the right of the people to abolish, to reform and to alter any existing form of
government without regard to the existing constitution."

xxx

It is widely known that Mrs. Aquino’s rise to the presidency was not due to constitutional
processes; in fact, it was achieved in violation of the provisions of the 1973 Constitution as a
Batasang Pambansa resolution had earlier declared Mr. Marcos as the winner in the 1986
presidential election. Thus it can be said that the organization of Mrs. Aquino’s Government which
was met by little resistance and her control of the state evidenced by the appointment of the Cabinet
and other key officers of the administration, the departure of the Marcos Cabinet officials, revamp of
the Judiciary and the Military signaled the point where the legal system then in effect, had
ceased to be obeyed by the Filipino. (Emphasis supplied)

To hold that the Bill of Rights under the 1973 Constitution remained operative during the interregnum
would render void all sequestration orders issued by the Philippine Commission on Good
Government ("PCGG") before the adoption of the Freedom Constitution. The sequestration orders,
which direct the freezing and even the take-over of private property by mere executive issuance
without judicial action, would violate the due process and search and seizure clauses of the Bill of
Rights.

During the interregnum, the government in power was concededly a revolutionary government
bound by no constitution. No one could validly question the sequestration orders as violative of the
Bill of Rights because there was no Bill of Rights during the interregnum. However, upon the
adoption of the Freedom Constitution, the sequestered companies assailed the sequestration orders
as contrary to the Bill of Rights of the Freedom Constitution.

In Bataan Shipyard & Engineering Co. Inc. vs. Presidential Commission on Good
Government, petitioner Baseco, while conceding there was no Bill of Rights during the interregnum,
43 

questioned the continued validity of the sequestration orders upon adoption of the Freedom
Constitution in view of the due process clause in its Bill of Rights. The Court ruled that the Freedom
Constitution, and later the 1987 Constitution, expressly recognized the validity of sequestration
orders, thus:

If any doubt should still persist in the face of the foregoing considerations as to the validity and
propriety of sequestration, freeze and takeover orders, it should be dispelled by the fact that these
particular remedies and the authority of the PCGG to issue them have received constitutional
approbation and sanction. As already mentioned, the Provisional or "Freedom" Constitution
recognizes the power and duty of the President to enact "measures to achieve the mandate of the
people to . . . (r)ecover ill-gotten properties amassed by the leaders and supporters of the previous
regime and protect the interest of the people through orders of sequestration or freezing of assets or
accounts." And as also already adverted to, Section 26, Article XVIII of the 1987 Constitution treats
of, and ratifies the "authority to issue sequestration or freeze orders under Proclamation No. 3 dated
March 25, 1986."

The framers of both the Freedom Constitution and the 1987 Constitution were fully aware that the
sequestration orders would clash with the Bill of Rights. Thus, the framers of both constitutions had
to include specific language recognizing the validity of the sequestration orders. The following
discourse by Commissioner Joaquin G. Bernas during the deliberations of the Constitutional
Commission is instructive:

FR. BERNAS: Madam President, there is something schizophrenic about the arguments in defense
of the present amendment.

For instance, I have carefully studied Minister Salonga’s lecture in the Gregorio Araneta University
Foundation, of which all of us have been given a copy. On the one hand, he argues that everything
the Commission is doing is traditionally legal. This is repeated by Commissioner Romulo also.
Minister Salonga spends a major portion of his lecture developing that argument. On the other hand,
almost as an afterthought, he says that in the end what matters are the results and not the legal
niceties, thus suggesting that the PCGG should be allowed to make some legal shortcuts, another
word for niceties or exceptions.

Now, if everything the PCGG is doing is legal, why is it asking the CONCOM for special protection?
The answer is clear. What they are doing will not stand the test of ordinary due process, hence they
are asking for protection, for exceptions. Grandes malos, grandes remedios, fine, as the saying
stands, but let us not say grandes malos, grande y malos remedios. That is not an allowable
extrapolation. Hence, we should not give the exceptions asked for, and let me elaborate and give
three reasons:

First, the whole point of the February Revolution and of the work of the CONCOM is to hasten
constitutional normalization. Very much at the heart of the constitutional normalization is the full
effectivity of the Bill of Rights. We cannot, in one breath, ask for constitutional normalization and at
the same time ask for a temporary halt to the full functioning of what is at the heart of
constitutionalism. That would be hypocritical; that would be a repetition of Marcosian protestation of
due process and rule of law. The New Society word for that is "backsliding." It is tragic when we
begin to backslide even before we get there.

Second, this is really a corollary of the first. Habits tend to become ingrained. The committee report
asks for extraordinary exceptions from the Bill of Rights for six months after the convening of
Congress, and Congress may even extend this longer.

Good deeds repeated ripen into virtue; bad deeds repeated become vice. What the committee report
is asking for is that we should allow the new government to acquire the vice of disregarding the Bill
of Rights.

Vices, once they become ingrained, become difficult to shed. The practitioners of the vice begin to
think that they have a vested right to its practice, and they will fight tooth and nail to keep the
franchise. That would be an unhealthy way of consolidating the gains of a democratic revolution.

Third, the argument that what matters are the results and not the legal niceties is an argument that is
very disturbing. When it comes from a staunch Christian like Commissioner Salonga, a Minister, and
repeated verbatim by another staunch Christian like Commissioner Tingson, it becomes doubly
disturbing and even discombobulating. The argument makes the PCGG an auctioneer, placing the
Bill of Rights on the auction block. If the price is right, the search and seizure clause will be sold.
"Open your Swiss bank account to us and we will award you the search and seizure clause. You can
keep it in your private safe."

Alternatively, the argument looks on the present government as hostage to the hoarders of hidden
wealth. The hoarders will release the hidden health if the ransom price is paid and the ransom price
is the Bill of Rights, specifically the due process in the search and seizure clauses. So, there is
something positively revolving about either argument. The Bill of Rights is not for sale to the highest
bidder nor can it be used to ransom captive dollars. This nation will survive and grow strong, only if it
would become convinced of the values enshrined in the Constitution of a price that is beyond
monetary estimation.

For these reasons, the honorable course for the Constitutional Commission is to delete all of Section
8 of the committee report and allow the new Constitution to take effect in full vigor. If Section 8 is
deleted, the PCGG has two options. First, it can pursue the Salonga and the Romulo argument —
that what the PCGG has been doing has been completely within the pale of the law. If sustained, the
PCGG can go on and should be able to go on, even without the support of Section 8. If not
sustained, however, the PCGG has only one honorable option, it must bow to the majesty of the Bill
of Rights.

The PCGG extrapolation of the law is defended by staunch Christians. Let me conclude with what
another Christian replied when asked to toy around with the law. From his prison cell, Thomas More
said, "I'll give the devil benefit of law for my nation’s safety sake." I ask the Commission to give the
devil benefit of law for our nation’s sake. And we should delete Section 8.

Thank you, Madam President. (Emphasis supplied)

Despite the impassioned plea by Commissioner Bernas against the amendment excepting
sequestration orders from the Bill of Rights, the Constitutional Commission still adopted the
amendment as Section 26, Article XVIII of the 1987 Constitution. The framers of the Constitution
44 

were fully aware that absent Section 26, sequestration orders would not stand the test of due
process under the Bill of Rights.

Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force during the interregnum,
absent a constitutional provision excepting sequestration orders from such Bill of Rights, would
clearly render all sequestration orders void during the interregnum. Nevertheless, even during the
interregnum the Filipino people continued to enjoy, under the Covenant and the Declaration, almost
the same rights found in the Bill of Rights of the 1973 Constitution.

The revolutionary government, after installing itself as the de jure government, assumed
responsibility for the State’s good faith compliance with the Covenant to which the Philippines is a
signatory. Article 2(1) of the Covenant requires each signatory State "to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the present
45 

Covenant." Under Article 17(1) of the Covenant, the revolutionary government had the duty to insure
that "[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence."

The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2) that "[n]o
one shall be arbitrarily deprived of his property." Although the signatories to the Declaration did not
intend it as a legally binding document, being only a declaration, the Court has interpreted the
Declaration as part of the generally accepted principles of international law and binding on the
State. Thus, the revolutionary government was also obligated under international law to observe the
46 

rights of individuals under the Declaration.

47 
The revolutionary government did not repudiate the Covenant or the Declaration during the
interregnum. Whether the revolutionary government could have repudiated all its obligations under
the Covenant or the Declaration is another matter and is not the issue here. Suffice it to say that the
Court considers the Declaration as part of customary international law, and that Filipinos as human
beings are proper subjects of the rules of international law laid down in the Covenant. The fact is the
revolutionary government did not repudiate the Covenant or the Declaration in the same way it
repudiated the 1973 Constitution. As the de jure government, the revolutionary government could
not escape responsibility for the State’s good faith compliance with its treaty obligations under
international law.

It was only upon the adoption of the Provisional Constitution on 25 March 1986 that the directives
and orders of the revolutionary government became subject to a higher municipal law that, if
contravened, rendered such directives and orders void. The Provisional Constitution adopted
verbatim the Bill of Rights of the 1973 Constitution. The Provisional Constitution served as a self-
48 

limitation by the revolutionary government to avoid abuses of the absolute powers entrusted to it by
the people.

During the interregnum when no constitution or Bill of Rights existed, directives and orders issued by
government officers were valid so long as these officers did not exceed the authority granted them
by the revolutionary government. The directives and orders should not have also violated the
Covenant or the Declaration. In this case, the revolutionary government presumptively sanctioned
the warrant since the revolutionary government did not repudiate it. The warrant, issued by a judge
upon proper application, specified the items to be searched and seized. The warrant is thus valid
with respect to the items specifically described in the warrant.

However, the Constabulary raiding team seized items not included in the warrant. As admitted by
petitioner’s witnesses, the raiding team confiscated items not included in the warrant, thus:

Direct Examination of Capt. Rodolfo Sebastian

AJ AMORES

Q. According to the search warrant, you are supposed to seize only for weapons. What else, aside
from the weapons, were seized from the house of Miss Elizabeth Dimaano?

A. The communications equipment, money in Philippine currency and US dollars, some jewelries,
land titles, sir.

Q. Now, the search warrant speaks only of weapons to be seized from the house of Elizabeth
Dimaano. Do you know the reason why your team also seized other properties not mentioned in said
search warrant?

A. During the conversation right after the conduct of said raid, I was informed that the reason why
they also brought the other items not included in the search warrant was because the money and
other jewelries were contained in attaché cases and cartons with markings "Sony Trinitron", and I
think three (3) vaults or steel safes. Believing that the attaché cases and the steel safes were
containing firearms, they forced open these containers only to find out that they contained money.

xxx
Q. You said you found money instead of weapons, do you know the reason why your team seized
this money instead of weapons?

A. I think the overall team leader and the other two officers assisting him decided to bring along also
the money because at that time it was already dark and they felt most secured if they will bring that
because they might be suspected also of taking money out of those items, your Honor. 49

Cross-examination

Atty. Banaag

Q. Were you present when the search warrant in connection with this case was applied before the
Municipal Trial Court of Batangas, Branch 1?

A. Yes, sir.

Q. And the search warrant applied for by you was for the search and seizure of five (5) baby armalite
rifles M-16 and five (5) boxes of ammunition?

A. Yes, sir.

xxx

AJ AMORES

Q. Before you applied for a search warrant, did you conduct surveillance in the house of Miss
Elizabeth Dimaano?

A. The Intelligence Operatives conducted surveillance together with the MSU elements, your Honor.

Q. And this party believed there were weapons deposited in the house of Miss Elizabeth Dimaano?

A. Yes, your Honor.

Q. And they so swore before the Municipal Trial Judge?

A. Yes, your Honor.

Q. But they did not mention to you, the applicant for the search warrant, any other properties or
contraband which could be found in the residence of Miss Elizabeth Dimaano?

A. They just gave us still unconfirmed report about some hidden items, for instance, the
communications equipment and money. However, I did not include that in the application for search
warrant considering that we have not established concrete evidence about that. So when…

Q. So that when you applied for search warrant, you had reason to believe that only weapons were
in the house of Miss Elizabeth Dimaano?

A. Yes, your Honor. 50

xxx

Q. You stated that a .45 caliber pistol was seized along with one armalite rifle M-16 and how many
ammunition?

A. Forty, sir.

Q. And this became the subject of your complaint with the issuing Court, with the fiscal’s office who
charged Elizabeth Dimaano for Illegal Possession of Firearms and Ammunition?

A. Yes, sir.

Q. Do you know what happened to that case?

A. I think it was dismissed, sir.

Q. In the fiscal’s office?

A. Yes, sir.

Q. Because the armalite rifle you seized, as well as the .45 caliber pistol had a Memorandum
Receipt in the name of Felino Melegrito, is that not correct?

A. I think that was the reason, sir.

Q. There were other articles seized which were not included in the search warrant, like for instance,
jewelries. Why did you seize the jewelries?

A. I think it was the decision of the overall team leader and his assistant to bring along also the
jewelries and other items, sir. I do not really know where it was taken but they brought along also
these articles. I do not really know their reason for bringing the same, but I just learned that these
were taken because they might get lost if they will just leave this behind.

xxx

Q. How about the money seized by your raiding team, they were not also included in the search
warrant?

A. Yes sir, but I believe they were also taken considering that the money was discovered to be
contained in attaché cases.  These attaché cases were suspected to be containing pistols or other
1âwphi1

high powered firearms, but in the course of the search the contents turned out to be money. So the
team leader also decided to take this considering that they believed that if they will just leave the
money behind, it might get lost also.

Q. That holds true also with respect to the other articles that were seized by your raiding team, like
Transfer Certificates of Title of lands?

A. Yes, sir. I think they were contained in one of the vaults that were opened. 51
It is obvious from the testimony of Captain Sebastian that the warrant did not include the monies,
communications equipment, jewelry and land titles that the raiding team confiscated. The search
warrant did not particularly describe these items and the raiding team confiscated them on its own
authority. The raiding team had no legal basis to seize these items without showing that these items
could be the subject of warrantless search and seizure. Clearly, the raiding team exceeded its
52 

authority when it seized these items.

The seizure of these items was therefore void, and unless these items are contraband per se, and
53 

they are not, they must be returned to the person from whom the raiding seized them. However, we
do not declare that such person is the lawful owner of these items, merely that the search and
seizure warrant could not be used as basis to seize and withhold these items from the possessor.
We thus hold that these items should be returned immediately to Dimaano.

WHEREFORE, the petition for certiorari is DISMISSED. The questioned Resolutions of the
Sandiganbayan dated 18 November 1991 and 25 March 1992 in Civil Case No. 0037, remanding the
records of this case to the Ombudsman for such appropriate action as the evidence may warrant,
and referring this case to the Commissioner of the Bureau of Internal Revenue for a determination of
any tax liability of respondent Elizabeth Dimaano, are AFFIRMED.

SO ORDERED.